Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I move amendment No. 13:

In page 59, to delete lines 34 to 40, and in page 60, to delete lines 1 to 33 and substitute the following:

“91. (1) For the purposes of this section—

(a) “relevant rule of law” means any applicable rule of law that governs the priority of charges created by a body corporate, and for the avoidance of doubt, any enactment governing the priority of such charges is not encompassed by that expression;

(b) the reference in subsection (2) to any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges shall be deemed to include a reference to any priority that an advance made on foot of a charge, by virtue of a person’s not having notice of a matter, enjoys over a subsequent charge or charges.

(2) Any relevant rule of law shall stand modified in the manner specified in subsection (3), but not so as to displace any priority that one charge, by virtue of a person’s not having notice of a matter, enjoys over another charge or charges.

(3) That modification is that, for the part of the rule that operates by reference to the time of creation of the 2 or more charges concerned, there shall be substituted a part that operates by reference to—

(a) the dates of receipt by the Bank of the specified particulars of the 2 or more charges concerned, or

(b) if the date of receipt by the Bank of the specified particulars of the 2 or more charges is the same, the respective times, on the date concerned, of receipt by the Bank of those particulars.

(4) References insubsection (3)to the date, or time, of receipt of particulars are references to—

(a) if the procedure under subsection (3) of section 88is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the specified particulars, in the specified form, of the charge, or

(b) if the procedure under subsection (4)of section 88is complied with in relation to a particular charge, the date, or time, of receipt by the Bank of the notice, in the specified form and containing the specified particulars, in relation to the charge under paragraph (a)of that subsection (4).

(5) Subsections (2)and (3)shall not affect any agreement between persons in whose favour charges have been created in relation to the priority that those charges shall, as between them, have.

(6) In relation to particulars of a charge received by the Bank pursuant to section 88(3)or (4), the following provisions apply so far as those particulars consist of particulars of a negative pledge, any events that crystallise a floating charge or any restrictions on the use of any charged asset (and particulars of any such matter are referred to subsequently in this subsection as “extraneous material”):

(a) the Bank shall not enter in the register under section 88particulars of the extraneous material pursuant to that section;

(b) the fact that the Bank has received the particulars of the extraneous material shall

have no legal effect;

but nothing in the foregoing affects the validity of the receipt by the Bank of the other particulars of the charge.

(7) In this section “negative pledge” means any agreement entered into by the ICAV concerned and any other person or persons that—

(a) provides that the ICAV shall not, or shall not otherwise than in specified circumstances—

(i) borrow moneys or otherwise obtain credit from any person other than that person or those persons,

(ii) create or permit to subsist any charge, lien or other encumbrance or any pledge over the whole or any part of the property of the ICAV, or

(iii) alienate or otherwise dispose of in any manner any of the property of the ICAV,

or

(b) contains a prohibition, either generally or in specified circumstances, on the doing by the ICAV of one or more things referred to in one, or more than one, provision of paragraph (a).

(8) The registration of an investment company as an ICAV by continuation under Part 8does not affect the priority of charges created by the investment company.”.

The new section 91 added by amendment No. 13 provides for the priority of charges of an ICAV and again mirrors the text of section 412 of the Companies Bill 2012, as amended in the Seanad. Pursuant to this section, the operative date for priority of charges is specifically provided for as the date of registration as opposed to the date of creation for instances that have not been provided for elsewhere by statute. Again, this mirrors the text of section 412 of the Companies Bill and it is a technical amendment in that sense.

See this speech in context