Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I move amendment No. 21:

In page 55, between lines 7 and 8, to insert the following:

"CHAPTER 3
Provisions as to debentures

Liability of trustees for debenture holders
99. (1) Subject to the provisions of this section, the following provision shall be void, namely, any provision contained—(a) in a trust deed for securing an issue of debentures, or
(b) in any contract with the holders of debentures secured by a trust deed,in so far as it would have the effect of exempting a trustee of it from, or indemnifying him or her against, liability for breach of trust where he or she fails to show the degree of care and diligence required of him or her as trustee, having regard to the provisions of the trust deed conferring on him or her any powers, authorities or discretions.
(2) Subsection (1) shall not invalidate—(a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release, or
(b) any provision enabling such a release to be given—

(i) on the agreement to the provision of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and
(ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.".

Amendments Nos. 21 to 24, inclusive, provide for a new Chapter 3 dealing with debentures. Again, these provisions substantially mirror those in the Companies Bill 2012. Amendment No. 21 introduces a new section 99 which concerns the liability of trustees for debenture holders. This section is drawn from section 423 of the Companies Bill. Many deeds under which trustees for debenture holders are appointed contain clauses which absolve the trustees from liability in circumstances other than wilful neglect or default. It is considered desirable that some checks should be placed upon the power of trustees to escape liability for failure to carry out functions for which they receive payment.
Amendment No. 22 provides for a new section 100 setting out provisions relating to perpetual debentures. This amendment derives from section 424 of the Companies Bill. That provision was first introduced to overcome certain doubts about the legality of perpetual debentures. A provision making a debenture irredeemable or postponing it to some distant date would amount to a clog on the equity of redemption, thereby rendering the instrument void.
Amendment No. 23, providing for a new section 101, mirrors section 425 of the 2012 Bill and gives the ICAV the power to reissue redeemed debentures. Under subsection (2), the person entitled to the debentures shall have the same priorities as if the debentures had never been redeemed. Subsection (3) deals with situations where debentures are deposited to secure advances on current accounts or otherwise.
Amendment No. 24 sets out a new section 102 which reflects the policy established in section 427 of the Companies Bill 2012 and, before that, section 97 of the Companies Act 1963. It provides explicitly that a specific performance may be a remedy for breach of a contract to take up and pay for any debentures.
Amendment No. 25 provides for a new Chapter 4 dealing with prohibition on registration of certain matters affecting shareholders or debenture holders. The new section 103 provides that the bank has no jurisdiction to accept or register an order of any authority affecting a shareholder or debenture holder of the ICAV or any notice of the making thereof. Again, this group of amendments mirrors the Companies Bill 2012, which is desirable in regard to the ICAV.