STATUTORY INSTRUMENTS

S.I. No. 175 of 2001

Trustee Savings Banks Act, 1989 (Section 57) (TSB Bank) Order, 2001

S.I. No. 175 of 2001

Trustee Savings Banks Act, 1989 (Section 57) (TSB Bank) Order, 2001

I, Charlie McCreevy, Minister for Finance, in exercise of the powers conferred on me by section 57 (inserted by the the Trustee Savings Banks Act, 1989 (No. 21 of 1989) , after consultation with the Central Bank with respect to Articles 3(8) and 3(9) of the following Order, hereby make the following Order, with respect to which, pursuant to section 57(15) of that Act, a draft has been laid before each House of the Oireachtas and a resolution approving of the draft has been passed by each such House:

CITATION

1.        This Order may be cited as the Trustee Savings Banks Act, 1989 (Section 57) (TSB Bank) Order, 2001.

INTERPRETATION

2.     (1)       In this Order -

“completion” means the time of completion of an agreement providing for the reorganisation of the transferee into the holding company dated 1 February, 2001, and made between the transferee and the holding company, as notified in writing by the holding company to the Minister, and which shall in any event be on the transfer date but after the reorganisation of TSB Bank into the transferee;

“contract” means the agreement (entitled Business Sale Agreement) providing for the reorganisation of TSB Bank into the transferee dated 5 December, 2000, and made between the trustees, TSB Bank, the transferee and the holding company, submitted by the trustees to the Minister for authorisation of the said reorganisation pursuant to section 57 of the Principal Act;

“holding company” means Irish Life & Permanent public limited company, a company incorporated under the Companies Acts with registered number 222332, being a banking company referred to in section 57 (1) of the Principal Act;

“the Principal Act” means the Trustee Savings Banks Act, 1989 (No. 21 of 1989) , as amended by the Trustee Savings Banks (Amendment) Act, 2001 ;

“transfer date” means the date on which the reorganisation of TSB Bank into the transferee is carried into effect in accordance with the terms of the contract;

“transferee” means Kencarol Limited, a company incorporated under the Companies Acts with registered number 308042, being a company referred to in section 57(3)(c)(ii) of the Principal Act and, on and from completion, means the holding company;

“trustees” means the trustees, for the time being, of TSB Bank;

“TSB Bank” means the bank known as TSB Bank and references in this Order to TSB Bank shall, where the context so admits or requires, include the trustees or any one or more of them.

(2)      In this Order -

(a)      a reference to an Article is a reference to an Article of this Order, unless it is indicated that reference to some other Order is intended;

(b)      a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

AUTHORISATION OF REORGANISATION OF TSB BANK INTO THE TRANSFEREE

3.     (1)       The reorganisation of TSB Bank into the transferee as provided in the contract is authorised.

(2)     Save as provided in the contract, on and from the transfer date -

(a)      all the business, property, rights, liabilities and obligations of TSB Bank shall transfer to, and vest in, the transferee; and

(b)      every deposit in TSB Bank and all liabilities referable thereto shall transfer to the transferee and become a deposit of the same amount in the transferee and liabilities of the transferee, respectively.

(3)     The trustees may sell to the trustees of a trust established by the transferee the shares receivable by the trustees as consideration under the contract in accordance with the terms of the ESOT Agreement (as defined in the contract).

(4)     The trustees shall pay to the Minister (as an interim distribution) such amount of the moneys received by them pursuant to the contract and as a result of the sale of the shares as and when directed by the Minister to do so, and they shall pay to the Minister the balance of the said moneys so received by them (less any expenses properly incurred by the trustees in connection with the reorganisation) as and when directed by the Minister to do so.

(5)     The trustees shall prepare and submit to the Minister audited financial statements for the final financial period of TSB Bank as a trustee savings bank up to the transfer date.

(6)     The trustees shall prepare and submit to the Minister audited financial statements for the period from the transfer date to the date of the final payment made by the trustees to the Minister in accordance with section 57(6)(b) of the Principal Act within 45 days after the date of such payment.

(7)     After payment to the Minister by the trustees of the balance of the moneys referred to in paragraph (4) and the submission to the Minister of the audited financial statements referred to in paragraph (6), TSB Bank shall be dissolved and the trustees shall vacate office on such date as shall be determined by the Minister and published by him or her in Iris Oifigiúil within 2 months of such date.

(8)     Subject to the Central Bank Acts, each of the transferee, the holding company and any subsidiary thereof is authorised to include within its name, or use in connection with its business, “TSB” or “TSB Bank” subject to the conditions set out in the Schedule to this Order.

(9)     With effect from the reorganisation of TSB Bank into the transferee under paragraph (1) and until the reorganisation of the transferee into the holding company under Article 4(1)-

(a)      section 7(1) of the Central Bank Act, 1971 , shall not apply in relation to the transferee; and

(b)      all of the supervisory provisions of -

(i)    Part II of the Central Bank Act, 1971 (No. 24 of 1971) , and

(ii) Chapters I to VI of Part II of the Central Bank Act, 1989 (No. 17 of 1989) ,

shall apply to the transferee as if it were the holder of a licence granted under section 9 of the Central Bank Act, 1971 , and, accordingly, any reference in the said provisions to a “holder” in relation to a licence so granted shall be construed as including a reference to the transferee.

AUTHORISATION OF REORGANISATION OF THE TRANSFEREE INTO THE HOLDING COMPANY

4.       (1)      The reorganisation of the transferee into the holding company is authorised with effect from completion.

(2)      On and from completion -

(a)      all the business, property, rights, liabilities and obligations of the transferee shall transfer to, and vest in, the holding company; and

(b)      every deposit formerly in TSB Bank and all liabilities referable thereto (and transferred to the transferee by virtue of Article 3 (2)) shall transfer to the holding company and become a deposit of the same amount in the holding company and liabilities of the holding company, respectively.

CONSEQUENTIAL PROVISIONS

5.       The following shall have effect with effect from the transfer date-

(a)      a reference (express or implied) to TSB Bank in any instrument made, given, passed or executed before the transfer date shall be read and construed as a reference to the transferee;

(b)      all contracts, agreements, conveyances, mortgages, deeds, leases, licences, other instruments, undertakings and other notices (whether or not in writing) entered into by, made with, given to or by or addressed to TSB Bank (whether alone or with any other person) before the transfer date and subsisting immediately before the transfer date shall to the extent that they were previously binding on and enforceable by, against or in favour of TSB Bank, be binding on and enforceable by, against or in favour of the transferee as fully and effectually in every respect as if instead of TSB Bank, 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;

(c)      an instruction, order, direction, mandate or authority given to TSB Bank and subsisting immediately before the transfer date shall be deemed to have been given to the transferee;

(d)      any account between TSB Bank and any person at any office or branch of TSB Bank in the State shall be transferred or deemed to be transferred to the transferee on the transfer date and become as and from that day an account between the transferee and that person with the same rights and subject to the same obligations and incidents (including rights of set-off) as would have been applicable thereto if such account between TSB Bank and the person had continued and any order, instruction, direction, mandate or authority given, whether before or after that day, by that person in relation to such account or any obligation entered into by TSB Bank in relation to any person and subsisting on that day shall apply and have effect after the transfer of the account to the transferee, and any moneys owing on such account by that person to TSB Bank on that day shall become due and payable by that person to the transferee instead of to TSB Bank and any moneys owing on such account by TSB Bank to that person at that date shall become due and payable to that person by the transferee instead of by TSB Bank;

(e)      a security held by TSB Bank as security for a debt or other liability to TSB Bank incurred before the transfer date shall be available to the transferee as security for the discharge of that debt or liability and where the security extends to future or prospective debts or liabilities, shall be available as security for the discharge of debts or liabilities to the transferee incurred on or after the transfer date and in relation to a security, the transferee shall be entitled to all the rights and priorities (howsoever arising) and shall be subject to all liabilities to which TSB Bank would have been entitled or subject to if TSB Bank had not been reorganised into the transferee, and in relation thereto the following provisions shall have effect;

(i)      the transfer of any such security effected or deemed to have been effected by this Order shall not require registration under or in pursuance of the Registration of Deeds Act, 1707, the Registration of Title Act, 1964 , or section 99 of the Act of 1963, but shall operate for the purposes of those Acts as if it were made by deed duly registered on the transfer date under or in pursuance of whichever of those Acts may be applicable thereto;

(ii)      to the extent that this Order effects an extension of or in relation to any such security so as to include future advances or future liabilities to the transferee, such extension shall not require registration under or in pursuance of the Registration of Deeds Act, 1707, the Bills of Sale (Ireland) Acts, 1879 and 1883, the Registration of Title Act, 1964 , or section 99 of the Act of 1963, but shall operate for the purposes of those Acts as if it were made by deed duly registered on the transfer date under or in pursuance of whichever of those Acts may be applicable thereto;

(f)      all the rights and liabilities of TSB Bank as bailor or bailee of documents or chattels shall be vested in and assumed by the transferee;

(g)      a negotiable instrument or order for payment of money which before the transfer date is drawn on or given to or accepted or endorsed by TSB Bank or payable at a place of business of TSB Bank shall, unless the context otherwise requires, have the same effect on and after the transfer date as if it had been drawn on or given to or accepted or endorsed by the transferee instead of TSB Bank or was payable at the place of business of the transferee;

(h)      nothing effected or authorised by this Order:-

(i)          shall be regarded as placing TSB Bank or the transferee or any person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong;

(ii)          shall be regarded as giving rise to a right to any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation;

(iii)         shall be regarded as placing TSB Bank or the transferee or any person in breach of any enactment or rule of law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information;

(iv)         shall release any surety wholly or in part from any obligation; or

(v)          shall invalidate or discharge any contract or security;

(i)      any action, arbitration or proceedings or cause of action which immediately before the transfer date is pending or existing by, against or in favour of TSB Bank or to which TSB Bank is a party may be prosecuted and without amendment of any summons, pleading or other document continued and enforced by, against or in favour of the transferee;

(j)      where-

(i)       the business of TSB Bank, includes the business of acting as trustee, executor or guardian or in any other fiduciary capacity; and

(ii)      TSB Bank was or is appointed to act as a personal representative, trustee or guardian or in any other fiduciary capacity by an instrument consisting of-

(I)      an order of a court

(II)     a trust deed, settlement, covenant or agreement; or

(III)    a will, codicil or other testamentary instrument or a grant of administration

or by any other testamentary act other than those aforesaid whether the instrument, grant or act was made, executed or done before or after the transfer date,

the instrument, grant or act shall as from the transfer date be read and construed and have effect as if for any reference therein to TSB Bank, there were substituted a reference to the transferee;

(k)      the Bankers' Books Evidence Acts, 1879 to 1989, shall continue to apply with respect to any books of TSB Bank transferred to the transferee in connection with the business of TSB Bank and to entries made in those books before the transfer date;

(l)      in paragraph (k) “books” includes ledgers, day books, cash books, account books and other books and records (including electronic records) used in the ordinary business of TSB Bank before the transfer date.

Schedule

Conditions referred to in Article 3(8)

The conditions referred to in Article 3(8) of this Order are as follows:

1.       Subject to the Central Bank Acts (as modified by section 57 (11) of the Principal Act), the name of the transferee, the holding company and any subsidiary thereof may include “TSB” or “TSB Bank” only in conjunction with one or more than one other word or acronym (other than “bank”, “banker”, “banking”, “company”, “corporation”, “limited”, “public limited company” or any word which is a variant, derivative, transaction or abbreviation of or is analogous to any of those words).

2.       Subject to the Central Bank Acts (as modified by section 57 (11) of the Principal Act), each of the transferee, the holding company and any subsidiary thereof may trade as “TSB” or “TSB Bank” provided that, save in respect of the holding company, if any of its business letters, statements of account, notices and other official publications, contracts and forms of agreement mentions “TSB” or “TSB Bank” on its own, such acronym or phrase must be accompanied in legible characters reasonably prominent by the words “a subsidiary of .......”, identifying the holding company.

3.       Any trade mark, registered design or other intellectual property in respect of “TSB” or “TSB Bank” shall not be registered except in the name of the transferee, the holding company or a subsidiary thereof and the transferee, the holding company and any such subsidiary shall not dispose of or license the use of the same or any goodwill associated with “TSB” or “TSB Bank”, without (in any case) the prior consent in writing of the Minister.

4.       Save in respect of the holding company, for so long as the name of the transferee or any subsidiary of the holding company includes “TSB” or “TSB Bank” there shall be no disposal of a majority of the equity share capital or the shares carrying voting rights in such company without the prior consent in writing of the Minister.

5.       The foregoing conditions shall be binding on the transferee, the holding company and each of the subsidiaries thereof.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation)

This order is required under Section 57 of the Trustee Savings Banks Act, 1989 (as amended by the Trustee Savings Bank (Amendment) Act, 2001) to authorise the reorganisation of a trustee savings bank. In this case, it is required to facilitate the sale of TSB Bank to Irish Life and Permanent plc. The proposal from the Trustees of TSB Bank formally requested the reorganisation of the Bank which involves selling the assets and transferring the liabilities of the Bank to the Irish Life and Permanent Group.

In authorising the reorganisation of TSB Bank into Irish Life and Permanent plc, the Order provides for the sale of assets and transfer of liabilities of TSB Bank to Irish Life and Permanent plc, it provides for the transfer and sale of shares received by the Trustees to the ESOT, it provides for the payment of the proceeds received by the Trustees of the sale to the Minister for Finance, it provides that the Trustees shall prepare and submit audited financial statements for the final period of TSB Bank as a trustee savings bank, it provides that the Trustees shall vacate office on a date to be determined by the Minister and it permits the use of “TSB” or “TSB Bank” by Irish Life and Permanent plc subject to the conditions set out in the schedule.