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  4. S.I. No. 239/2003 - Central Bank Act 1971 (Approval of Scheme of Rheinhyp Bank Europe Plc and Europaische Hypothekenbank S.A.) Order 2003

S.I. No. 239/2003 - Central Bank Act 1971 (Approval of Scheme of Rheinhyp Bank Europe Plc and Europaische Hypothekenbank S.A.) Order 2003

Whereas Rheinhyp Bank Europe plc (the Transferor), having its registered office at Commerzbank House, Guild Street, Irish Financial Services Centre, Dublin 1 and being the holder of a licence under the Central Bank Act 1971 (No. 24 of 1971), has agreed with Europaische Hypothekenbank S.A. (the Transferee), having its place of business at 5 Harbourmaster Place, Irish Financial Services Centre, Dublin 1 and being the holder of a licence issued by the Treasury Minister of the Grand Duchy of Luxembourg and carrying on business in the State pursuant to the European Communities (Licensing of Credit Institutions Regulations 1992 ( No. 395 of 1992 ), to transfer to the Transferee the business to which the licence of the Transferor relates.

And Whereas on 7 April 2003, the Transferor and the Transferee submitted to the Minister for Finance for his approval a scheme for the transfer made by the Transferor and the Transferee on 7 April 2003.

NOW I, Charlie McCreevy, Minister for Finance, after consultation with the Central Bank and Financial Services Authority of Ireland and, in respect of Articles 4 to 11 of this Order, at the request of the Transferor and the Transferee, in exercise of the powers conferred on me by section 3 of the Central Bank Act 1971 , hereby order as follows:

1.        This Order may be cited as the Central Bank Act 1971 (Approval of Scheme of Rheinhyp Bank Europe plc and Europaische Hypothekenbank S.A.) Order 2003.

2.        In this Order -

“Agreement” means the Transfer Agreement between the Transferor and the Transferee dated 7 April 2003;

“Business” means all the undertaking and business carried on by the Transferor in the State;

“contract” has the same meaning as it has in the Agreement;

“Scheme” means the scheme submitted to the Minister for his approval by the Transferor and the Transferee pursuant to section 33 of the Central Bank Act 1971 (No. 24 of 1971) and the Agreement;

“Transfer Date” means 7 August 2003 or such later date as the Transferor and the Transferee may agree in writing in accordance with the Scheme;

“Transferee” means Europaische Hypothekenbank S.A.

“Transferor” means Rheinhyp Bank Europe plc.

3.        The Minister for Finance approves of the Scheme.

4.        All books and other documents which would, before the Transfer Date, have been evidence in respect of any matter for or against the Transferor, shall be admitted in evidence in respect of the same matter for or against the Transferee as and from the Transfer Date.

5.        (1)         On and from the Transfer Date -

(a)      the Banker's Books Evidence Acts 1879 to 1989, as amended, shall continue to apply with respect to any books of the Transferor transferred to the Transferee in connection with the Business and to entries made in those books before the Transfer Date as if such books were the books of the Transferee, and

(b)      for the purpose of section 4 of the Banker's Books Evidence Act 1879 any book to which that Act applies by virtue of subparagraph (a) shall on being proved to be in the custody of the Transferee, be deemed to be one of the ordinary books of the Transferee and any entry therein purporting to have been made before the Transfer Date shall be deemed to have been made in the ordinary course of business.

 (2)         In this Article “books” has the same meaning as “banker's books” in the Bankers' Books Evidence Acts 1879 to 1989.

6.        (1)         In respect of the Business, the Transferor shall, at the request of the Transferee, excute all instruments and do all such acts as may be necessary to transfer the property vested immediately before the Transfer Date in the Transferor as trustee, exucutor guardian or in any other fiduciary capacity (as the case may be) to, and vest the same in, the Transferee in the same capacity upon the trusts and with and subject to the powers provisions, liabilities and obligations applicable thereto respectively.

 (2)         The Transferee shall be entitled to remuneration and to act as trustee, executor guardian or in any other fiduciary capacity (as the case may be) at the same scale of fees and upon and subject to the same terms and conditions as were applicable to the Transferor immediately before the Transfer Date.

7.        Any contract of guarantee, indemnity or other contract of suretyship undertaken by the Transferor with any person in the course of or incidental to the Business shall be transferred or deemed to have been transferred to the Transferee on the Transfer Date and shall become as and from that date a contract 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 contract between the Transferor and such person had continued and any order, instruction, direction, mandate or authority given, whether before or after that date, by that person in relation to any such contract and subsisting at the Transfer Date shall apply and have effect after the transfer of such contract to the Transferee as aforesaid. Any monies due or owing by such person to the Transferor at that date under or by virtue of any such contract shall become due and payable by that person to the Transferee instead of the Transferor.

8.        Any contract entered into in the course of or incidental to or relating to the Business and any security in respect thereof between the Transferor and any other party shall be transferred to and assumed by or deemed to have been transferred to and assumed by the Transferee on the Transfer Date and shall become as and from that date a contract arrangement or obligation (as the case may be) between the Transferee and that person with the same rights and subject to the same obligations and incidents as would have been applicable thereto if such contract, arragement or obligation (as the case may be) between the Transferor and such person had continued without the substitution herein provided and the Transferee together with each and every other party thereto shall be bound by its terms in every way as if the Transferee were party to it in substitution of the Transferor.

9.        On and from the Transfer Date, a reference (express or implied) to the Transferor in any contract entered into in the course of or incidental to or relating to the Business made or executed before the Transfer Date shall be read and construed as a reference to the Transferee.

10.      An instruction, order, direction, mandate or authority given to the Transferor and subsisting immediately before the transfer shall be deemed to have been given to the Transferee.

11.      Nothing effected or authorised by this Order 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 or any obligation.

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GIVEN under my Official Seal,

6 June 2003.

 

Charlie McCreevy

Minister for Finance

EXPLANATORY NOTE

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

This Order approves the transfer of the business carried on by Rheinhyp Bank Europe plc in the Republic of Ireland to Europaische Hypothekenbank SA in accordance with the transfer scheme submitted to the Minister for Finance. The effect of the Order is that the relevant provisions of Part III of the Central Bank Act 1971 will apply to the transfer. The Order also makes provision for matters arising from, and incidental to, the transfer.