The Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008
| Jurisdiction | UK Non-devolved |
2008 No. 2674
BANKS AND BANKING
The Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008
Made 8th October 2008
Laid before Parliament 8th October 2008
Coming into force 8th October 2008
It appears to the Treasury to be desirable to make this Order for the following purpose:
maintaining the stability of the UK financial system in circumstances where the Treasury consider that there would be a serious threat to its stability if the Order were not made.
The Treasury, in exercise of the powers conferred by sections 6, 8, 12, 13(2) of and Schedule 2 to the Banking (Special Provisions) Act 20081, make the following Order:
PART 1
GENERAL
Citation and commencement
1.—(1) This Order may be cited as the Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008.
(2) This Order comes into force at 12.15 p.m. on 8th October 2008.
Interpretation
2. In this Order—
“the 1986 Act” means the Insolvency Act 19862;
“the 2000 Act” means the Financial Services and Markets Act 20003;
“the Act” means the Banking (Special Provisions) Act 2008;
“administrator” means an administrator appointed under paragraph 13, 14 or 22 of Schedule B1 (Administration) to the 1986 Act4or on an administration application made to the court (and if more than one administrator is appointed, the reference to “the administrator” is to any administrator so appointed);
“the Authority” means the Financial Services Authority;
“the Bank” means the Governor and Company of the Bank of England;
“Community law” means—
(a) all the rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties; and
(b) all the remedies and procedures from time to time provided for by or under the Community Treaties;
“the COMP Sourcebook” means the Compensation Sourcebook made by the Authority under the 2000 Act;
“Deposits Management (Edge)” means Frontpedal Limited (in the process of changing its name to Deposits Management (Edge) Limited), company registered number 6690432, a company which is for the purposes of the Act wholly owned by the Bank;
“Edge account” has the meaning given in article 3(4);
“the effective time” means the time this Order comes into force;
“eligible claimant” has the meaning given in rule 4.2.1 of the COMP Sourcebook;
“the FEES 6 Chapter” means Chapter 6 (Financial Services Compensation Scheme Funding) of the Fees Manual made by the Authority under the 2000 Act;
“the Financial Services Compensation Scheme” means the scheme established by the Authority under Part 15 of the 2000 Act (The Financial Services Compensation Scheme);
“the first transfer” means the transfer effected by article 3;
“FSCS” means the body corporate established by the Authority under section 212 of the 2000 Act (the Scheme Manager);
“ING” means ING Direct N.V., a limited liability company incorporated in the Netherlands acting through its branch in the United Kingdom with branch reference number BR7357;
“the Insolvency Rules” means the Insolvency Rules 19865;
“Kaupthing” means Kaupthing Singer & Friedlander Limited, company registered number 875947;
“protected deposit” has the meaning given in rule 5.3.1 of the COMP Sourcebook;
“relevant protected deposit” means a protected deposit which relates to a transferred right or liability;
“the second transfer” means the transfer effected by article 8;
“the second transfer time” has the meaning given in article 8(2);
“transferred accounts” means the accounts to which the transferred rights and liabilities relate;
“transferred liabilities” means the liabilities transferred by article 3(1);
“transferred rights” means the rights transferred by article 3(2);
“the transitional period” means the period of 6 months following the effective time.
PART 2
THE FIRST TRANSFER
The first transfer
3.—(1) Subject to paragraph (2), by virtue of this Order the liabilities of Kaupthing to holders of Edge accounts in respect of principal and accrued interest are transferred to Deposits Management (Edge).
(2) From the effective time, Deposits Management (Edge) shall have the same rights in relation to each holder of an Edge account as it would have if Kaupthing’s relevant terms of business applied.
(3) Paragraph (1) does not apply to any liability in respect of any breach of contract or other duty which arose before the effective time.
(4) In this article, “Edge account” means any of the following accounts held with Kaupthing –
(a)
(a) the accounts known as Kaupthing Edge Savings Accounts; and
(b)
(b) the accounts known as Kaupthing Edge fixed term deposit accounts.
(5) The transfer under paragraph (1) takes place at the time this Order comes into force.
No consent or concurrence required
4. The first transfer is effective despite the absence of any required consent or concurrence to, or in connection with, the transfer.
Associated liability and interference
5.—(1) The first transfer takes effect as if—
(a)
(a) no associated liability existed in respect of any failure to comply with any requirement in respect of the transfer; and
(b)
(b) there were no associated interference with the transferred rights and liabilities.
(2) In this article “associated liability” and “associated interference” have the meanings given in paragraph 2(2) of Schedule 2 to the Act.
Interests, rights and liabilities of third parties relating to transferred rights and liabilities
6.—(1) No interest or right of any third party relating to any of the transferred rights and liabilities shall arise or become exercisable by virtue of or in connection with this Order.
(2) Save as otherwise provided in this Order, no third party shall incur any liability, or be subject to any obligation, relating to any of the transferred rights and liabilities, by virtue of or in connection with this Order.
(3) Without prejudice to the generality of paragraphs (1) and (2)—
(a)
(a) the consequences specified in paragraph (4) shall not arise in respect of any relevant instrument as a result of the first transfer or any other thing done, or matter arising, by virtue of or in connection with the transfer;
(b)
(b) any circumstances which, but for sub-paragraph (a), would give rise to the consequences specified in paragraph (4) shall not be taken to have arisen for the purposes of any relevant instrument.
(4) The consequences are—
(a)
(a) the termination of a relevant instrument or any rights or obligations under it;
(b)
(b) any right to terminate a relevant instrument or any right or obligation under it becoming exercisable;
(c)
(c) any amount becoming due and payable or capable of being declared due and payable;
(d)
(d) any other change in the amount or timing of any payment falling to be made or due to be received by any person;
(e)
(e) any right to withhold, net or set off any payment becoming exercisable;
(f)
(f) any event of default or breach of any right arising;
(g)
(g) any right not to advance any amount becoming exercisable;
(h)
(h) any obligation to provide or transfer any deposit or collateral;
(i)
(i) any right to give or withhold any consent or approval; or
(j)
(j) any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (i)) arising or becoming exercisable.
(5) Without prejudice to paragraph (4), any provision in a relevant instrument that, as a result of the first transfer or any other thing done, or matter arising, by virtue of or in connection with the transfer or this Order, provides for an obligation not to be created, suspends or extinguishes (in whole or in part) such an obligation or renders such an obligation subject to conditions, shall be of no effect.
(6) In this article—
“relevant instrument” means an instrument which provides for interests or rights of third parties and in relation to which Kaupthing is a party or is bound;
“third party” shall be construed in accordance with paragraph 2(3) of Schedule 2 to the Act.
Exemption of Deposits Management (Edge)
7. Deposits Management (Edge) is an exempt person for the purposes of the 2000 Act in respect of any regulated activity of the kind specified by article 5 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 20016(accepting deposits).
PART 3
THE SECOND TRANSFER
The second transfer
8.—(1) By virtue of this Order the transferred rights and liabilities are transferred to ING.
(2) The second transfer takes place immediately after the first transfer (“the second transfer time”).
(3) From the second transfer time, ING shall—
(a)
(a) be liable to pay depositors any accrued interest on the transferred accounts and any interest accruing at or after that time on those accounts;
(b)
(b) have the same rights in relation to each holder of an Edge account as it would have if Kaupthing’s relevant terms of business applied.
(4) Paragraph (1) does not apply to any liability in respect of any breach of contract or other duty which arose before the second transfer time.
Provision of information and assistance
9.—(1) Kaupthing shall provide Deposits Management (Edge) and ING with such information and assistance as is reasonably requested by each of them, respectively—
(a)
(a) in relation to the transferred rights and liabilities;
(b)
(b) for any purpose relating to this Order; or
(c)
(c) for any purpose relating to any other function of Deposits Management (Edge) or ING, as the case may be, which relates to its functions under this Order.
(2) Kaupthing shall provide the Treasury with such information and assistance as is requested by the...
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