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LIB01/C4EHR/2368666.7
IN THE HIGH COURT OF JUSTICE NO: OF 2011
CHANCERY DIVISION
COMPANIES COURT
LLOYDS TSBBANK PLC
(company number 2065)
- and -
BANK OF SCOTLAND PLC
(company number SC 327000)
________________________________________________________
SCHEME
for the transfer of part of the corporate banking business of
Bank of Scotland plc to Lloyds TSB Bank plc
pursuant to Part VII of the Financial Services and Markets Act 2000
_________________________________________________________
Ref: C4/EHR/2368666
Hogan Lovells International LLP, Atlantic House, Holborn Viaduct, London EC1A 2FG
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CONTENTS
PART A-THE TRANSFER 11. BACKGROUND 12. INTERPRETATION 1PART B-THE TRANSFER 23. TRANSFER OF THE BUSINESS 2PART C-FURTHER PROVISIONS RELATING TO THE TRANSFER 64. CONTINUITY IN AGREEMENTS AND ELSEWHERE 65. CONTINUITY OF PROCEEDINGS 106. ADDITIONAL PROVISIONS RELATING TO THE TRANSFER 107. PRIVACY, CONFIDENTIALITY AND DATA PROTECTION 118. SUBJECT ACCESS REQUESTS 129. EVIDENCE: BOOKS AND DOCUMENTS 1210. ACCESS TO RECORDS 1311. DECLARATION OF TRUST BY BANK OF SCOTLAND 1312. INDEMNITIES 14PART D-PROVISIONS RELATING TO CUSTOMERS 1613. CHANGES TO CUSTOMER AGREEMENTS 1614. SET-OFF RIGHTS OF LLOYDS TSB 1615. ALL MONIES RIGHTS 1616. CONSOLIDATION RIGHTS 1717. OTHER RIGHTS OF LLOYDS TSB 1718. ENTIRE AGREEMENT CLAUSES 1719. CROSS DEFAULT 1820. SAVINGS TO RIGHTS 18PART E-MISCELLANEOUS PROVISIONS 2021. RELEVANT DATE 2022. MODIFICATIONS AND ADDITIONS 2023. EVIDENCE OF TRANSFER 2024. LEGAL OPINIONS 2125. THIRD PARTY RIGHTS 2126. GOVERNING LAW 21SCHEDULE 1-DEFINITIONS AND INTERPRETATION 22
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PART A-THE TRANSFER
1. BACKGROUND
1.1 It is proposed that subject to and in accordance with Part VII of the FSMA each Customer
Relationship shall by the Order transfer from Bank of Scotland to Lloyds TSB on and with
effect from the relevant Customer Effective Date or on and with effect from the Final
Transfer Date in accordance with the terms of this Scheme.
1.2 The Customer Relationships comprise the entire business of Bank of Scotland in respect
of Customers.
1.3 As at 22 March 2011, the entire issued ordinary share capital of Bank of Scotland is
legally and beneficially owned by HBOS plc and the entire issued ordinary share capital of
HBOS plc is legally and beneficially owned by Lloyds TSB.
2. INTERPRETATION
The definitions and principles of interpretation set out in Schedule 1 shall apply in this
Scheme.
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PART B-THE TRANSFER
3. TRANSFER OF THE BUSINESS
Transfer of business
3.1 On and with effect from the relevant Customer Effective Date or on and with effect from
the Final Transfer Date each Customer Relationship shall be transferred by Bank of
Scotland to and vest in Lloyds TSB in accordance with the terms of this Scheme.
3.2 In respect of each of the Customers and whether before or after the date of the Order
Lloyds TSB shall endeavour to agree with such Customer a Customer Effective Date
which shall be no earlier than the date of the Order and no later than that business day
which is 2 days before the Final Transfer Date. Where a Customer and Lloyds TSB shall
agree a Customer Effective Date, Lloyds TSB shall by notice in writing despatched no
less than 10 business days before such date, notify the Customer of such date and this
Scheme shall take effect in respect of such Customer on that Customer Effective Date.
3.3 On and with effect from each Customer Effective Date, each Customer Relationship shall
be transferred from Bank of Scotland to and vest in Lloyds TSB in accordance with, but
subject to, the Scheme.
3.4 Where and for whatever reason any Customer Relationship shall not have been
transferred to Lloyds TSB pursuant to a Customer Effective Date by close of business on
that day which is 2 days before the Final Transfer Date, such Customer Relationship shall
be transferred from Bank of Scotland to Lloyds TSB and the Scheme shall take effect in
respect of such Customer Relationship at close of business on the Final Transfer Date.
Transferred Assets
3.5 On and with effect from each Relevant Date, the relevant Transferred Assets to which
such Relevant Date applies shall, by this Scheme and without any further act or
instrument, be transferred to and vest in Lloyds TSB subject to all Encumbrances (if any)
affecting such assets in accordance with the terms of this Scheme.
Residual Assets
3.6 On and with effect from each Subsequent Transfer Date, each Residual Asset to which
such Subsequent Transfer Date applies shall, by this Scheme and without any further act
or instrument, be transferred to and vest in Lloyds TSB subject to all Encumbrances (if
any) affecting such Residual Asset in accordance with the terms of this Scheme.
Title to assets
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3.7 Lloyds TSB shall accept without investigation or requisition such title as Bank of Scotland
shall have at each Relevant Date to the Transferred Assets to which such Relevant Date
applies and at each Subsequent Transfer Date to the Residual Asset then transferred to
it.
Transferred Liabilities
3.8 On and with effect from each Relevant Date, the Transferred Liabilities to which such
Relevant Date applies shall, by this Scheme and without any further act or instrument, be
transferred to and become liabilities of Lloyds TSB subject to all Encumbrances (if any)
affecting such liabilities and shall cease to be liabilities of Bank of Scotland in accordance
with the terms of this Scheme.
Residual Liabilities
3.9 On and with effect from each Subsequent Transfer Date, each Residual Liability to which
such Subsequent Transfer Date applies shall, by this Scheme and without any further act
or instrument, be transferred to and become a liability of Lloyds TSB subject to all
Encumbrances (if any) affecting such Residual Liability and shall cease to be a liability of
Bank of Scotland in accordance with the terms of this Scheme.
Transfer of assets and liabilities with associated Encumbrance and transfer of
Related Agreements
3.10 Unless otherwise agreed by Bank of Scotland and Lloyds TSB, any Customer Asset
(including any asset arising under a Customer Agreement and any associated credit or
other facility, loan, letter of credit, bond, note, derivative, guarantee, indemnity or other
right or benefit) in respect of which an Encumbrance has been granted by or in favour of
Bank of Scotland shall only transfer to Lloyds TSB if the relevant Encumbrance transfers
at the same time, and any Encumbrance granted by or in favour of Bank of Scotland in
respect of any Customer Asset shall only transfer to Lloyds TSB if the relevant Customer
Asset transfers at the same time.
3.11 Unless otherwise agreed by Bank of Scotland and Lloyds TSB, any Customer Liability
(including any liability arising under a Customer Agreement and any associated credit or
other facility, loan, letter of credit, bond, note, derivative, guarantee, indemnity or other
liability) in respect of which an Encumbrance has been granted by or in favour of Bank of
Scotland shall only transfer to Lloyds TSB if the relevant Encumbrance transfers at the
same time, and any Encumbrance granted by or in favour of Bank of Scotland in respect
of any Customer Liability shall only transfer to Lloyds TSB if the relevant Customer
Liability transfers at the same time.
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3.12 Unless otherwise agreed by Bank of Scotland and Lloyds TSB any Related Agreement
shall only transfer to Lloyds TSB if the Customer Agreement to which it is related transfers
at the same time and any Customer Agreement shall only transfer to Lloyds TSB if each
of its Related Agreements transfer at the same time.
Residual Assets and Residual Liabilities
3.13 Any Customer Assets or Customer Liabilities, including any related Encumbrance granted
by or in favour of Bank of Scotland, which do not transfer on a Customer Effective Date or
the Final Transfer Date as a result of paragraphs 3.10 to 3.12 shall be held by Bank of
Scotland until the Relevant Date as Residual Assets or Residual Liabilities.
3.14 Residual Assets and Residual Liabilities may be transferred to Lloyds TSB pursuant to
this Scheme or by any other process or procedure.
Consequences of the transfer
3.15 Neither the transfer of a Customer Relationship nor this Scheme nor anything done or
omitted to be done in connection with the transfer of a Customer Relationship or this
Scheme shall, in respect of a Customer Relationship, or any Transferred Asset,
Transferred Liability, Residual Asset, Residual Liability or any asset, property or liability of
or the business of any member of the Lloyds Banking Group including the business of
Lloyds TSB, whether before or after the Effective Date:
(a) invalidate, discharge or result in the termination of any agreement, instrument,
trust deed, indenture, Encumbrance, right, interest, benefit, power, obligation or
title;
(b) constitute a breach of or default, event of default, potential event of default,
termination event, mandatory prepayment event, enforcement event, perfection
event or other similar event or condition (however described) under, or allow any
person to terminate, any agreement, instrument, trust deed, indenture,
Encumbrance, right, interest, benefit, power, obligation or title;
(c) require any registration, re-registration or filing or any amendment to any existing
registration or filing in respect of any agreement, instrument, trust deed, indenture,
Encumbrance, right, interest, benefit, power, obligation or title;
(d) require any person to perform any new or additional obligation or to take any new
or additional step or action, including the giving of any notice, the obtaining of any
consent, approval or determination, the accession to any agreement, the payment
of any fee, cost, expense, interest or other amount, the granting of any new or
additional Encumbrance or the transfer of any asset or property;
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(e) entitle or require any person to exercise any right or remedy, to reduce, suspend,
delay, alter or discharge its rights or obligations, to accelerate, terminate,
suspend, delay, alter or discharge the performance of any rights or obligations or
otherwise to vary, amend, disclaim, repudiate or terminate any agreement,
instrument or Encumbrance; or
(f) affect the enforceability, priority or ranking of any Encumbrance.
On and with effect from the Relevant Date, Lloyds TSB shall succeed to each Customer
Relationship as if in all respects, but subject to the terms of this Scheme, Lloyds TSB
were the same person in law as Bank of Scotland with such assets, property and liabilities
as Bank of Scotland had immediately prior to the Relevant Date with respect to each
Customer Relationship.
3.16 Amendment of contracts and title
Subject to paragraph 3.15 and Part D, nothing in this Scheme shall prejudice any right
which Lloyds TSB or any other person may have on the Relevant Date or subsequently to
vary, terminate or perfect any agreement, instrument, trust deed, indenture,
Encumbrance, right, interest, benefit, power, obligation or title whether under its terms as
amended by this Scheme, by law or otherwise.
3.17 Capacity of Bank of Scotland and Lloyds TSB
The transfers made pursuant to this Scheme shall have effect notwithstanding any
provision to the contrary in any agreement, instrument, trust deed, indenture or
arrangement and whether or not either Bank of Scotland or Lloyds TSB has capacity to
effect the same.
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PART C-FURTHER PROVISIONS RELATING TO THE TRANSFER
4. CONTINUITY IN AGREEMENTS AND ELSEWHERE
4.1 On and with effect from the Relevant Date and subject to the terms of this Scheme, eachagreement relating to a Customer Relationship, whether in writing or not, shall have effect
as if Lloyds TSB had always been a party to it instead of Bank of Scotland and, subject to
the terms of this Scheme, each agreement shall be subject to the same terms and
conditions and Encumbrances as applicable immediately prior to the Relevant Date, and
accordingly the rights and obligations of Bank of Scotland in respect of any such
agreement shall be extinguished.
4.2 On and with effect from the Relevant Date and subject to the terms of this Scheme:
(a) any credit or other facility, loan, mortgage, bond, note, derivative, guarantee,
indemnity, letter of credit or other assurance available to any person from Bank of
Scotland in respect of a Customer Relationship immediately prior to the Relevant
Date shall become a credit or other facility, loan, mortgage, bond, note, derivative,
guarantee, indemnity, letter of credit or other assurance available to such person
from Lloyds TSB, and, subject to the terms of this Scheme, Lloyds TSB shall have
all rights, powers, remedies and Encumbrances in its favour, and shall be subject
to the same obligations and Encumbrances against it and without affecting the
enforceability, priority or ranking of any such Encumbrance, in respect of such
credit or other facility, loan, mortgage, bond, note, derivative, guarantee,
indemnity, letter of credit or other assurance as Bank of Scotland immediately
prior to the Relevant Date;
(b) any deposit, senior, subordinated or other loan or loan facility, bond, note,
derivative, guarantee, indemnity, letter of credit or other assurance available to
Bank of Scotland from any person in respect of a Customer Relationship
immediately prior to the Relevant Date shall become a deposit, senior,subordinated or other loan or loan facility, bond, note, derivative, guarantee,
indemnity, letter of credit or other assurance available to Lloyds TSB from such
person, and, subject to the terms of this Scheme, Lloyds TSB shall have the same
rights, powers, remedies and Encumbrances in its favour and shall be subject to
the same obligations and Encumbrances against it and without affecting the
enforceability, priority or ranking of any such Encumbrance, in respect of such
deposit, senior, subordinated or other loan or loan facility, bond, note, derivative,
guarantee, indemnity, letter of credit or other assurance as Bank of Scotland
immediately prior to the Relevant Date;
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Bank of Scotland alone or for Bank of Scotland and other persons), immediately
prior to the Relevant Date shall be held by or vested in Lloyds TSB or, as
applicable, that nominee, agent or trustee for Lloyds TSB as if Lloyds TSB or that
nominee, agent or trustee had always held such Encumbrance or had the benefit
of such Encumbrance and be available to and enforceable by Lloyds TSB, or the
relevant nominee, agent or trustee, both with respect to (i) any liabilities and
indebtedness (including any principal, interest, fees, charges or other sums) to
which the Encumbrance relates which has been incurred or which has arisen prior
to the Relevant Date and (ii) any liabilities and indebtedness (including any
principal, interest, fees, charges or other sums) to which the Encumbrance relates
which is incurred or which arises on or after the Relevant Date; and
(b) in respect of any Encumbrance referred to in paragraph 4.3(a) and any liabilities
thereby secured, Lloyds TSB, or the relevant nominee, agent or trustee, shall on
and from the Relevant Date be entitled to the same rights, ranking and priorities
and be subject to the same obligations and incidents as those to which Bank of
Scotland, or the relevant nominee, agent or trustee, was entitled and subject
immediately prior to the Relevant Date and, without prejudice to the generality of
the foregoing, all waivers, amendments, conditions, consents, deeds of
substitution, deeds of release, ranking agreements and priority agreements
relating to any such Encumbrance shall be enforceable by and binding upon
Lloyds TSB, or the relevant nominee, agent or trustee, on and after the RelevantDate to the same extent to which the same would have been enforceable by and
binding upon Bank of Scotland, or the relevant nominee, agent or trustee, prior to
the Relevant Date.
4.4 On and with effect from the Relevant Date and subject to the terms of this Scheme, any
asset relating to a Customer Relationship transferred to and vesting in Lloyds TSB and
which was held by Bank of Scotland, whether alone or jointly with others, as a trustee,
custodian or in a similar fiduciary capacity shall be held by Lloyds TSB alone or jointly, as
the case may be, and in the capacity of a trustee, custodian or in a similar fiduciary
capacity, as the case may be, with and subject to the rights, powers, discretions, duties
and obligations previously applicable to Bank of Scotland.
4.5 On and with effect from the Relevant Date and subject to the terms of this Scheme, any
asset relating to a Customer Relationship transferred to and vesting in Lloyds TSB and in
which Bank of Scotland was interested, whether alone or jointly with others, as a
beneficiary or in a similar capacity shall vest in Lloyds TSB alone or jointly, as the case
may be, and in the capacity of a beneficiary or in a similar capacity, as the case may be,
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with and subject to the rights, powers, duties and obligations previously applicable to
Bank of Scotland.
4.6 On and with effect from the Relevant Date and subject to the terms of this Scheme, all
references in respect of a Customer Relationship, whether in an agreement to which Bank
of Scotland is party, an agreement to which Bank of Scotland is not a party or elsewhere
(including references in insurance policies for any purpose and interests noted on such
policies) and whether in writing or not, to Bank of Scotland, the Bank of Scotland Group,
the Bank of Scotland Board or any director, officer, employee or agent of Bank of
Scotland shall be read as references to Lloyds TSB, the Lloyds Banking Group, the
Lloyds TSB Board or any director, officer, employee or agent of Lloyds TSB respectively.
In addition, all rights and/or duties exercisable or expressed to be exercisable or
responsibilities to be performed by Bank of Scotland, the Bank of Scotland Board or any
director, officer, employee or agent of Bank of Scotland, whether in an agreement
between Bank of Scotland and any other person or elsewhere and whether in writing or
not, shall, on and with effect from the Relevant Date and subject to the terms of this
Scheme, be exercisable or required to be performed by Lloyds TSB, the Lloyds TSB
Board or any director, officer, employee or agent of Lloyds TSB as appropriate.
4.7 On and with effect from the Relevant Date and subject to the terms of this Scheme, all
references in respect of a Customer Relationship, whether in an agreement to which Bank
of Scotland is party, an agreement to which Bank of Scotland is not a party or elsewhere
(including references in insurance policies for any purpose and interests noted on such
policies) and whether in writing or not, to the sort code and account numbers allocated by
Bank of Scotland for a particular Customer account which is a continuing account
following the Relevant Date shall be read as references to the sort code and account
numbers allocated by Lloyds TSB for that particular Customer account following the
Relevant Date.
4.8 Without prejudice to the generality of paragraph 4.6, on and with effect from the Relevant
Date:
(a) any offer or invitation to treat relating to a Customer Relationship made to or by
Bank of Scotland prior to the Relevant Date in respect of the Pipeline Business
shall be construed and have effect as an offer or invitation to treat made to or by
Lloyds TSB;
(b) if a person executes an agreement, undertaking, mortgage instrument,
Encumbrance or other document as a result of any offer or invitation to treat
referred to in paragraph 4.8(a) which would, when completed, on its face be an
agreement with or undertaking, mortgage instrument, Encumbrance or document
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in favour of Bank of Scotland, such agreement, undertaking, mortgage instrument,
Encumbrance or other document shall operate as if with or in favour of Lloyds
TSB; and
(c) paragraph 4.6 shall apply in respect of any references to Bank of Scotland, the
Bank of Scotland Group, the Bank of Scotland Board or any director, officer,
employee or agent of Bank of Scotland in or relating to such offer, invitation to
treat, agreement, undertaking, mortgage instrument, Encumbrance or other
document and any further document relating thereto including any insurance
policy.
5. CONTINUITY OF PROCEEDINGS
5.1 On and with effect from the Relevant Date, any Proceedings issued, served, pending,
threatened or otherwise in connection with a Customer Relationship in respect of which
Bank of Scotland is plaintiff, claimant, applicant, defendant, respondent or other party
shall be continued by, against or with Lloyds TSB and Lloyds TSB shall be entitled to all
defences, claims, counterclaims, defences to counterclaims and (subject to paragraph 14)
rights of set-off that were or would have been available to Bank of Scotland in respect of
those Proceedings.
5.2 On and with effect from the Relevant Date, any judgment, settlement, order or award
obtained by or against Bank of Scotland in respect of a Customer Relationship and not
fully satisfied before the Relevant Date shall, to the extent to which it was enforceable by
or against Bank of Scotland immediately prior thereto, become enforceable by or against
Lloyds TSB.
6. ADDITIONAL PROVISIONS RELATING TO THE TRANSFER
6.1 On and with effect from the Relevant Date and subject to the terms of this Scheme:
(a) any negotiable instrument, cheque, warrant, draft, letter of credit or order for
payment of money relating to a Customer Relationship drawn on or by, or given to
or by, or accepted or endorsed by, Bank of Scotland, or payable at any place of
business of Bank of Scotland, whether so drawn, given, accepted, endorsed or
payable before, on or after the Relevant Date, shall have the same effect as if it
had been drawn on or by, or given to or by or accepted or endorsed by, Lloyds
TSB or, as the case may be, as if the place of business at which it is payable were
a place of business of Lloyds TSB;
(b) the custody of any document, record, goods or other thing held by Bank of
Scotland as bailee or chargee in respect of a Customer Relationship shall pass to
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Lloyds TSB and the rights and obligations of Bank of Scotland under any
agreement or bailment relating to any such document, record, goods or thing shall
on that day become rights and obligations of Lloyds TSB; and
(c) any instruction, standing order, direct debit, direction, mandate, indemnity, power
of attorney, authority, undertaking, declaration or consent given to or by Bank of
Scotland in respect of a Customer Relationship (whether in writing or not and
whether or not in respect of an account) shall have effect as if given to or, as the
case may be, by Lloyds TSB.
6.2 Lloyds TSB shall have the same rights, powers and remedies (and in particular the same
rights and powers as to taking or resisting legal proceedings or making or resisting
applications to any authority) for ascertaining, perfecting or enforcing any asset or liability
of a Customer Relationship as if it had at all times been an asset or liability of Lloyds TSB.
6.3 Lloyds TSB shall be entitled to rely on and enforce any consent, waiver, representation,
warranty, statement or estoppel given or made to Bank of Scotland by a person in respect
of a Customer Relationship prior to the Relevant Date as though such consent, waiver,
representation, warranty, statement or estoppel had been given or made to Lloyds TSB
and to the same extent that Bank of Scotland would have been able to rely on and
enforce the same.
6.4 Lloyds TSB shall have the same rights under any agreement relating to a Customer
Relationship as Bank of Scotland had immediately prior to the Relevant Date to publish,
determine, ascertain, vary or amend any rates, charges, tariffs, scale of fees or other
terms. Any such rates, charges, tariffs, scale of fees or other terms published,
determined, ascertained, varied or amended by Lloyds TSB on or from the Relevant Date
shall apply in place of those published, determined, ascertained, varied or amended by
Bank of Scotland.
7. PRIVACY, CONFIDENTIALITY AND DATA PROTECTION
7.1 On and with effect from each Relevant Date, Lloyds TSB shall, in respect of a Customer
Relationship to which that Relevant Date applies, owe to any person the same duties of
confidentiality and privacy as those which Bank of Scotland owed in respect of a
Customer Relationship immediately prior to the Relevant Date.
7.2 Without prejudice to the other provisions of this Scheme, in respect of the Personal Data
Consents, Lloyds TSB shall, with effect from each Relevant Date:
(a) succeed to all rights, liabilities and obligations of Bank of Scotland in respect of
those Consents;
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(b) become the Data Controller in respect of those Consents in place of Bank of
Scotland and shall be deemed to have been the Data Controller at all material
times when the Personal Data was processed pursuant to those Consents; and
(c) be under the same duty by virtue of any law to which Bank of Scotland was
subject to respect the confidentiality and privacy of any person in respect of the
Personal Data processed pursuant to those Consents and shall be bound by any
specific notice or Consent given, or request made, by the Data Subject which was
binding on Bank of Scotland,
and in any such Consent, any reference to Bank of Scotland shall be deemed to be a
reference to Lloyds TSB.
8. SUBJECT ACCESS REQUESTS
8.1 Where Personal Data has been provided about individuals in connection with any
application for or operation of a Customer Agreement and any such individual has made a
Subject Access Request to Bank of Scotland before the Relevant Date and Bank of
Scotland has not responded with a copy of the Personal Data held by it in accordance
with the DPA before the Relevant Date, Lloyds TSB may respond to the request, in
accordance with the DPA, by providing copies of Personal Data held by Bank of Scotland
immediately before the Relevant Date.
8.2 Where a Data Subject has made a Subject Access Request to Lloyds TSB before the
Relevant Date and Lloyds TSB has not responded with a copy of the Personal Data held
by it in accordance with the DPA before the Relevant Date, Lloyds TSB may exclude
Personal Data forming part of a Customer Relationship from its response thereafter.
9. EVIDENCE: BOOKS AND DOCUMENTS
9.1 All books and other documents which would, before the applicable Relevant Date, have
been evidence in respect of any matter for or against Bank of Scotland at the Relevant
Date shall be admissible in evidence in respect of the same matter for or against Lloyds
TSB on or after the Relevant Date. In this paragraph "documents" has the same meaning
as in section 13 of the Civil Evidence Act 1995.
9.2 On and from the applicable Relevant Date, the Bankers' Books Evidence Act 1879 shall
apply to any books of Bank of Scotland transferred to, and vested in, Lloyds TSB by virtue
of this Scheme, and to entries made in those books before the Relevant Date, as if such
books were the books of Lloyds TSB.
9.3 For the purpose of section 4 of the Bankers' Books Evidence Act 1879, books so
transferred to, and vested in, Lloyds TSB shall be deemed to have been the ordinary
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books of Lloyds TSB at the time of the making of any entry therein which purports to have
been made before the Relevant Date, and any such entry shall be deemed to have been
made in the usual and ordinary course of business.
9.4 In this paragraph "books" shall be construed in accordance with section 9(2) of the
Bankers' Books Evidence Act 1879.
10. ACCESS TO RECORDS
10.1 Subject to the same being treated as confidential information and being kept confidential
by the persons provided access under this paragraph 10, from the Relevant Date:
(a) Bank of Scotland shall allow Lloyds TSB and any persons authorised by Lloyds
TSB access on reasonable notice to the Statutory Records and the VAT Records;
and
(b) Lloyds TSB shall allow Bank of Scotland and any persons authorised by Bank of
Scotland access on reasonable notice to the Business Records,
in each case, save to the extent that Bank of Scotland or Lloyds TSB (as appropriate) is
prevented from doing so by any obligation in law (including any obligation as to
confidentiality), regulation, judgment or order of any court or any competent judicial,
governmental, regulatory or supervisory body.
11. DECLARATION OF TRUST BY BANK OF SCOTLAND
11.1 If:
(a) any asset of Bank of Scotland is not transferred to and vested in Lloyds TSB by
this Scheme on the Customer Effective Date by reason of such asset being a
Residual Asset or for any other reason; or
(b) any Residual Asset is not transferred to and vested in Lloyds TSB by this Scheme
on the Subsequent Transfer Date applicable thereto,
then Bank of Scotland shall, on and from the Relevant Date (but save to the extent that
giving effect to such a trust would require a consent or waiver which has not been
obtained or that such a trust would not be recognised by any applicable law or unless
otherwise agreed by Bank of Scotland and Lloyds TSB) hold any asset referred to in
paragraphs 11.1(a) and (b), together with any proceeds of sale or income or other right
accrued or return arising in respect thereof (including, any payment, property or right
within paragraph 11.3 below), as trustee for Lloyds TSB.
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have conduct of all litigation or other proceedings in respect of any such claim (including
taking such action in the name of and on behalf of Bank of Scotland as Lloyds TSB shall
determine). In that connection, Bank of Scotland shall give all such assistance as Lloyds
TSB may reasonably require in conducting all proceedings.
12.4 Subject to paragraph 12.5, Bank of Scotland shall indemnify Lloyds TSB against all
liabilities, losses, claims and expenses in respect of a Customer Relationship:
(a) to the extent they are otherwise recoverable by Bank of Scotland from any person;
or
(b) in connection with any defect (whether in title or otherwise) in respect of, or any
other diminution in the value of, any property transferred to Lloyds TSB under this
Scheme to the extent that the loss resulting therefrom is otherwise recoverable
from any person.
12.5 The indemnity in paragraph 12.4 shall be limited to such amounts as Bank of Scotland
shall recover pursuant to the rights it may have against any person (including, without
limitation, under any applicable contract of insurance).
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PART D-PROVISIONS RELATING TO CUSTOMERS
13. CHANGES TO CUSTOMER AGREEMENTS
13.1 Where a Customer Agreement for a Corporate, Currency or Deposit account contains:
(a) a provision permitting notices to be given to Bank of Scotland by fax, that
provision will be deleted on and with effect from the Relevant Date, and the
relevant Customer Agreement shall be read and construed as if it excluded any
provision permitting notices to be given by fax;
(b) a reference to cut-off times and clearing cycles, on and with effect from the
Relevant Date, such references shall be read and construed as it they were
references to the cut-off times and clearing cycles of Lloyds TSB available to
Customers on www.lloydsbankcorporatemarkets.com;
(c) a clause permitting interest earned on deposit accounts to be paid into any
account of the Customer, such clause shall on and with effect from the Relevant
Date be read and construed as if it required interest on deposit accounts only to
be paid into an account of the Customer with Lloyds TSB;
(d) a provision governing the payment or calculation of interest, such provision shall
be read and construed as if it stated that interest on credit and debit balances will
be calculated up to the 9th
of each month and will be debited or credited to the
account on the 10th
of each month.
14. SET-OFF RIGHTS OF LLOYDS TSB
14.1 Lloyds TSB shall not be entitled on and with effect from the Relevant Date to apply any
Set-Off Rights which might otherwise be exercisable by Lloyds TSB by virtue of this
Scheme to reduce or discharge any liability arising from time to time:
(a) under any Existing Lloyds TSB Agreement, using credit balances held pursuant to
any BoS Agreement; or
(b) under any BoS Agreement, using credit balances held pursuant to any Existing
Lloyds TSB Agreement.
15. ALL MONIES RIGHTS
Lloyds TSB shall not be entitled on and from the Relevant Date to apply any All Monies
Rights which might otherwise be exercisable by Lloyds TSB by virtue of this Scheme:
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(a) under any Existing Lloyds TSB Agreement, to secure any liability arising from time
to time under any BoS Agreement; or
(b) under any BoS Agreement, to secure any liability arising from time to time under
any Existing Lloyds TSB Agreement.
16. CONSOLIDATION RIGHTS
Lloyds TSB shall not be entitled on and from the Relevant Date to apply any
Consolidation Rights which might otherwise be exercisable by Lloyds TSB by virtue of this
Scheme to prevent the release of any Encumbrance given in respect of:
(a) any Existing Lloyds TSB Agreement, until any obligations have been satisfied
under any BoS Agreement; or
(b) any BoS Agreement, until any obligations have been satisfied under any Existing
Lloyds TSB Agreement.
17. OTHER RIGHTS OF LLOYDS TSB
Lloyds TSB shall not be entitled on and from the Relevant Date to apply any other right,
benefit, interest, discretion, authority or power which might otherwise beexercisable byLloyds TSBby virtue of this Schemeunder or in respect of any:
(a) Existing Lloyds TSB Agreement, to terminate, reduce, suspend, delay, alter,discharge or otherwise secure any liability arising from time to time under any BoS
Agreement; or
(b) BoS Agreement, to terminate, reduce, suspend, alter, discharge or otherwise
secure any liability arising from time to time under any Existing Lloyds TSB
Agreement.
18. ENTIRE AGREEMENT PROVISIONS
18.1 Where a BoS Agreement contains an Entire Agreement Provision, on and with effect from
the Relevant Date, the relevant clause shall be read and construed as if it referred only to
products or services comprised in the Customer Relationship, and shall not apply to, and
the BoS Agreement shall not supersede, any Existing Lloyds TSB Agreements.
18.2 Where an Existing Lloyds TSB Agreement contains an Entire Agreement Provision, on
and with effect from the Relevant Date, the relevant clause shall be read and construed
as if it referred only to products or services of Lloyds TSB not comprised in the Customer
Relationship, and shall not apply to, and the Existing Lloyds TSB Agreement shall notsupersede, any BoS Agreements.
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18.3 Where a New Lloyds TSB Agreement contains an Entire Agreement Provision, the
relevant clause shall, unless expressly stated to the contrary, be read and construed as if
it referred only to products or services of Lloyds TSB not comprised in the Customer
Relationship, and shall not apply to, and the New Lloyds TSB Agreement shall not
supersede, any BoS Agreement.
19. CROSS DEFAULT
Lloyds TSB shall not be entitled on and from the Relevant Date to apply any Cross
Default Rights which might otherwise be exercisable by Lloyds TSB by virtue of this
Scheme to accelerate or alter any rights or obligations:
(a) under any Existing Lloyds TSB Agreement, as a result of the breach of any BoS
Agreement; or
(b) under any BoS Agreement, as a result of the breach of any Existing Lloyds TSB
Agreement.
20. SAVINGS TO RIGHTS
20.1 The provisions of paragraphs 14 to 19 shall not apply to diminish any right, benefit,
interest, discretion, authority or power which:
(a) immediately prior to the Relevant Date, Lloyds TSB or its counterparty has in
respect of agreements entered into by Bank of Scotland, including any rights of
Lloyds TSB to use credit balances on accounts held with Lloyds TSB to pay debts
owed to Bank of Scotland;
(b) immediately prior to the Relevant Date, Bank of Scotland or its counterparty has in
respect of Existing Lloyds TSB Agreements; or
(c) Lloyds TSB, Bank of Scotland or a Customer may acquire other than as a result of
the Scheme, including as a result of the variation on or after the Relevant Date of
a BoS Agreement, Existing Lloyds TSB Agreement or New Lloyds TSB
Agreement.
20.2 If, on or after the Relevant Date, Lloyds TSB acquires any rights to exercise any of the
rights, benefits, interests, discretions, authorities or powers referred to in paragraphs 14 to
19 in respect of agreements entered into with other Lloyds Banking Group companies
("Acquired Rights") either:
(a) as a result of any contractual variation; or
(b) through other means, other than as a result of the Scheme,
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paragraphs 14 to 19 shall not apply to restrict Lloyds TSB's rights to exercise the
Acquired Rights.
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PART E-MISCELLANEOUS PROVISIONS
21. RELEVANT DATE
21.1 Subject to paragraph 21.2, this Scheme shall become effective in respect of eachCustomer Relationship at 00.01 hrs on the relevant Customer Effective Date or, if no
Customer Effective Date is agreed for a particular Customer, at close of business on the
Final Transfer Date or such other time and date as the Court may allow on the application
of Bank of Scotland and Lloyds TSB provided that the first Customer Effective Date shall
not be before the date of the Order or after the Final Transfer Date.
21.2 Unless this Scheme shall become effective in respect of any Customer Relationship on or
before the Final Transfer Date or such other date and/or time as the Court may allow on
the application of Bank of Scotland and Lloyds TSB, it shall lapse.
22. MODIFICATIONS AND ADDITIONS
22.1 Bank of Scotland and Lloyds TSB may consent for and on behalf of themselves and all
other persons concerned to any modification of or addition to this Scheme or to any
further condition or provision affecting the same which, in each case prior to its sanction
of this Scheme, the Court may approve or impose.
22.2 At any time after the sanction of this Scheme, Lloyds TSB may apply to the Court for
consent to amend its terms to the extent that they apply to a Customer Relationship,
provided that in any such case the FSA shall be notified of, and have the right to be heard
at, any hearing of the Court at which such application is considered. If such consent is
granted, Lloyds TSB may amend the terms of this Scheme in accordance with such
consent.
22.3 At any time after the sanction of this Scheme, in the case of any minor or technical
amendment to the terms of this Scheme, or any amendment to correct any manifest error
in its terms, the amendment may be made without the consent of the Court provided that
in any such case the FSA shall have been notified of the proposed amendment and shall
have approved the same.
23. EVIDENCE OF TRANSFER
23.1 The production of a copy of the Order and of this Scheme, with any modifications made
under paragraph 22, for all purposes shall be conclusive evidence of the transfer to, and
vesting in, Lloyds TSB of a Customer Relationship, the Transferred Assets, the
Transferred Liabilities, the Residual Assets and the Residual Liabilities.
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23.2 In order to enable Lloyds TSB to complete any title to any property or interest in land
transferred to, and vested in, it by virtue of this Scheme and, without prejudice to
paragraphs 3 to 19 inclusive and 23.1, by notice of title or otherwise, or to deduce title,
this Scheme and/or the Order, with any modifications made under paragraph 22, together
with any document ancillary thereto (including a certificate of any officer or employee of
Lloyds TSB identifying the relevant property or interest in land) shall be deemed to be,
and may be used as, a general disposition, conveyance or as the case may be,
assignation, of such property or interest in favour of Lloyds TSB.
24. LEGAL OPINIONS
Where an opinion letter has been provided to Bank of Scotland which covers forms of
agreement which have been used in creating both Customer Agreements and
agreements with customers to be retained by Bank of Scotland, Lloyds TSB may with
effect from the Relevant Date rely on such opinion letters in relation to the Customer
Agreements to the same extent as if such opinion letters had been addressed to Lloyds
TSB in addition to Bank of Scotland.
25. THIRD PARTY RIGHTS
A person who is not a party to this Scheme may not enforce any term of this Scheme
pursuant to the Contracts (Rights of Third Parties) Act 1999.
26. GOVERNING LAW
This Scheme is governed by, and shall be construed in accordance with, English law.
Dated: [ ] 2011.
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SCHEDULE 1
DEFINITIONS AND INTERPRETATION
1. In this Scheme, the following defined terms have the meanings set out opposite them:
"All Monies Rights" rights providing for a charge, debenture, mortgage or
standard security or any other security given in respect of
an agreement to secure, in addition,obligations arising
under other agreements;
"assets" or "property" assets, property, title, claims, benefits, rights, interests,
authorities, discretions and powers of any description,
whether present or future or actual or contingent, including
any interest (legal or equitable) in real or personal property,
any thing in action, any right in contract, tort or otherwise,
any asset held on trust or in a fiduciary capacity, any
interest under or by virtue of a trust (howsoever arising),
any interest arising under any Encumbrance and any right
in respect of a judgment, order or award made in any
Proceedings and any power under or by virtue of a power of
attorney (howsoever arising);
"Bank of Scotland" Bank of Scotland plc, a company registered in Scotland,
registered number SC327000 and whose registered office
is at The Mound, Edinburgh, EH1 1YZ ;
"Bank of Scotland Board" the board of directors of Bank of Scotland;
"Bank of Scotland Group" Bank of Scotland and its subsidiaries;
"BoS Agreement" a Customer Agreement or an agreement between Bank of
Scotland and a person who has provided an Encumbrance
in respect of a Customer;
"Consent" consent for the purposes of paragraph 1 of Schedule 2 to
the DPA;
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"Consolidation Rights" rights providing for any Encumbrance given in respect of an
agreement not to be released or discharged until
obligations have been satisfied in respect of any other
agreement;
"Court" the High Court of Justice in England;
"Cross Default Rights" rights providing for, or which (if exercised) might result in,
the acceleration or alteration of payment obligations or
other obligations under an agreement as a result of a
default under another agreement;
"Customer" a customer of the major corporate or financial institution
business units of Bank of Scotland which has been notified
that its banking relationship is to be transferred from Bank
of Scotland to Lloyds TSB pursuant to the Scheme, which
either alone or jointly with others has entered into a
Customer Agreement;
"Customer Agreement" an agreement, other than an Excluded Agreement, with any
Customer under which Bank of Scotland has agreed to
provide products or services;
Customer Assets the assets and property of Bank of Scotland in respect of a
Customer as at the Customer Effective Date, other than
assets and property arising under an Excluded Agreement,
whether or not governed by the laws of England and Wales
or Scotland and whether or not situated in England and
Wales or Scotland including:
(a) the Customer Agreements,
(b) the Pipeline Business;
(c) the Customer Records;
(d) the Personal Data Consents;
(e) all other assets and property of Bank of Scotland
attributable to the Customer including:
(i) all rights, interests, benefits and powers of
Bank of Scotland against valuers in respect
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of valuation of properties and related
activities; and
(ii) all rights, interests, benefits and powers of
Bank of Scotland against solicitors, licensed
conveyancers and qualified conveyancers in
respect of entry into any mortgage or loan
(and the taking and perfecting of any
Encumbrance);
(iii) all rights and claims of Bank of Scotland
(whether present or future, actual or
contingent) against any person, and
proceedings to which Bank of Scotland is a
party, which relate to the Customer;
(iv) all shares, share warrants, loan notes or
similar rights provided to Bank of Scotland
in connection with a Customer Agreement;
and
(v) all legal opinions in respect of a BoS
Agreement and all rights, interests, benefits
and powers of Bank of Scotland against the
person providing a such legal opinion in
respect thereof;
Customer Effective Date the date on or after the date of the Order and before the
Final Transfer Date which is agreed with the Customer as
the date on which the Scheme is to become effective in
respect of a particular Customer;
Customer Liabilities all liabilities whatsoever of Bank of Scotland in respect of a
Customer as at the Customer Effective Date other than
liabilities arising under an Excluded Agreement, whether or
not governed by the law of England and Wales or Scotland
and whether or not situated in England and Wales or
Scotland, including liabilities of Bank of Scotland relating to
any including liabilities arising under the Customer
Agreements;
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"Customer Records" the books and records which are in the possession or under
the control of Bank of Scotland to the extent containing
information and records (whether current or historic and
whether in physical, electronic or machine readable form)
relating to the Customer, information and documents or
copies thereof collected by Bank of Scotland pursuant to its
obligations under the Money Laundering Regulations 2007,
and accounting, financial, marketing, sales, management
and technical information and correspondence, but
excluding the Statutory Records and the VAT Records;
"Customer Relationship" the relationship of Bank of Scotland relating to a Customer
and arising under one or more Customer Agreements which
comprises the Customer Assets and the Customer
Liabilities;
"Data Controller" has the meaning given under section 1 of the DPA;
"Data Subject" has the meaning given under section 1 of the DPA;
"DPA" the Data Protection Act 1998;
"Encumbrance" (a) any mortgage (including for the avoidance of doubt
those registered at the Land Registry or those
registered in Scotland), charge, pledge, assignment in
security, lien or any other security interest or
encumbrance of any kind, whether legal or equitable,
securing any obligation of any person or any other
agreement or agreement having a similar effect
including (i) any indemnity, guarantee, letter of credit,
letter of comfort, letter of support, insurance, warranty,
representation or other assurance and (ii) any fixed orfloating charge, standard security or right of set-off;
(b) any title transfer financial collateral arrangement or
security financial collateral arrangement within the
meaning of regulation 3 of the Financial Collateral
Arrangements (No 2) Regulations 2003;
(c) any intercreditor agreement, subordination agreement,
postponement agreement or other ranking agreementin respect of the rights and/or obligations of any
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person or any security interest;
(d) any equalisation agreement, standstill agreement or
similar agreement or arrangement;
(e) any third party right or interest, whether legal orequitable, including in any real or personal property;
and
(f) any option, restriction, right of first refusal, right of pre-
emption or any other type of preferential arrangement
(including title transfer and retention agreements)
having a similar effect;
"Entire Agreement
Provision"
(a) a clause contained in a Customer Agreement, Existing
Lloyds TSB Agreement or New Lloyds TSB
Agreement; or
(b) another Customer Agreement;
which provides it represents the entire agreement between
the parties in respect of all or some of the accounts or
services of the type that are the subject matter of the
agreement or that are referred to in the agreement, or
otherwise states that the relevant Customer Agreement,
Existing Lloyds TSB Agreement or New Lloyds TSB
Agreement (as applicable) will apply to all accounts or
services provided by Bank of Scotland or Lloyds TSB as
appropriate;
Excluded Agreement unless a Related Agreement:
(a) any agreement between Bank of Scotland and a
Customer for a fixed term deposit which is not
subject to an Encumbrance;
(b) all foreign exchange option agreements and other
foreign exchange agreements, forward rate
agreements and other interest rate agreements,
bond futures agreements and any other derivatives
entered into by Bank of Scotland for its own account
in respect of its business including, but not limited
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to, the Customer Relationships;
(c) all loans made and other funding available to Bank
of Scotland, including any senior, subordinated or
other debt and capital instruments issued or
assumed by, or any securitisations entered into, by
Bank of Scotland for its own account in respect of its
business including, but not limited to, the Customer
Relationships;
(d) all stock borrowing agreements, stock lending
agreements, repurchase agreements or reverse
repurchase agreements entered by Bank of
Scotland for its own account in respect of its
business including, but not limited to, the Customer
Relationships;
(e) any ISDA Master Agreement or Treasury Master
Agreement between Bank of Scotland and a
Customer where the relevant Customer also has an
ISDA Master Agreement or Treasury Master
Agreement with Lloyds TSB at the Customer
Effective Date;
(f) any long form confirmation between Bank of
Scotland and a Customer in relation to a derivative
which incorporates amendments to an ISDA Master
Agreement in the form published by the
International Swaps and Derivatives Association
Inc., which are overlapping or inconsistent with an
ISDA Master Agreement between Lloyds TSB and
such Customer as at the Customer Effective Date;
and
(g) any agreement for a product or service which Lloyds
TSBs IT systems are unable to support following
the Relevant Date including account pooling and
share settlement services;
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"Existing Lloyds TSB
Agreement"
any agreement between Lloyds TSB and (i) a Customer or
(ii) a person who has provided an Encumbrance in respect
of a Customer to the extent in force immediately prior to the
Relevant Date;
Final Transfer Date 30 December 2011;
"FSA" the Financial Services Authority or such successor
governmental department, regulatory authority or other
official body from time to time exercising supervisory
powers in respect of banks under the FSMA;
"FSMA" the Financial Services and Markets Act 2000;
"ISDA Master Agreement" a master agreement in the form or substantially in the form
published from time to time by the International Swaps and
Derivatives Association Inc.;
"liabilities" debts, liabilities, duties and obligations of any description,
whether present or future or actual or contingent, including
any obligations in respect of any judgment, order or award
made in any Proceedings;
"Lloyds Banking Group" Lloyds TSB, any subsidiary of Lloyds TSB, any holding
company of Lloyds TSB and any subsidiary of any such
holding company;
"Lloyds TSB" Lloyds TSB Bank plc, a company incorporated in England
and Wales with registered number 2065 whose registered
office is at 25 Gresham Street, London EC2V 7HN;
"Lloyds TSB Board" the board of directors of Lloyds TSB;
New Lloyds TSB
Agreement
any agreement entered into between Lloyds TSB and (i) a
Customer or (ii) a person who has provided an
Encumbrance in respect of a Customer after the Customer
Effective Date;
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"Order" the order of the Court sanctioning this Scheme pursuant to
Part VII of FSMA and any order (including any subsequent
order) in respect of this Scheme made by the Court under
section 112 of FSMA;
"Personal Data" has the meaning given under section 1 of the DPA;
"Personal Data Consent" any Consent provided by a Data Subject to Bank of
Scotland in connection with a Customer Agreement;
"Pipeline Business" any application made by a Customer to Bank of Scotland,
whether or not accepted by Bank of Scotland, and any offer
or invitation made by Bank of Scotland to a Customer, in
each case made prior to the relevant Customer Effective
Date, which may result in the execution of a Customer
Agreement after the relevant Customer Effective Date;
"Proceedings" any claim, counterclaim, complaint, petition, suit, appeal or
other legal process, whether intended to have interim or
final legal effect in respect of its subject matter, before any
court, governmental authority, regulatory authority, tribunal,
arbitration panel, ombudsman or other body subsisting or
empowered by law or regulation or by the provisions of an
agreement;
"Related Agreement" means in relation to any Customer Agreement any other
agreement entered into by Bank of Scotland which is
intended to give effect to the commercial objectives of Bank
of Scotland and the relevant Customer and/or other parties
to that Customer Agreement in relation to the transactions
contemplated by such Customer Agreement;
"Relevant Asset" a Transferred Asset or a Residual Asset as appropriate;
"Relevant Date" in respect of;
(a) a Customer Asset or a Customer Liability, the
Customer Effective Date or, if no Customer Effective
Date has been agreed, the Final Transfer Date; and
(b) a Residual Asset or a Residual Liability, the
applicable Subsequent Transfer Date;
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"Relevant Liability" a Transferred Liability or a Residual Liability as appropriate;
"Residual Asset" (a) any property or assets of Bank of Scotland,
including any Encumbrance in favour of Bank of
Scotland, whether or not governed by the laws of
England and Wales or Scotland and whether or not
situated in England and Wales or Scotland, which
would be a Transferred Asset but:
(i) which the Court does not have jurisdiction to
transfer;
(ii) which, despite having such jurisdiction, the
Court determines not so to transfer;
(iii) the transfer of which requires but does not
have recognition by the laws of any relevant
jurisdiction; or
(iv) which Bank of Scotland and Lloyds TSB
agree in writing prior to the Customer
Effective Date or the Final Transfer Date
would more conveniently be, or which
pursuant to the terms of this Scheme is to be,
transferred after the Customer Effective Date
or the Final Transfer Date; and
(b) any proceeds of sale or income or other accrual or
return whatsoever, whether or not in any case in the
form of cash, or other asset earned or received from
time to time after the Customer Effective Date or the
Final Transfer Date in respect of any property
referred to in paragraph (a);
"Residual Liability" any liability or obligation of Bank of Scotland, whether or not
governed by the laws of England and Wales or Scotland
and whether or not situated in England and Wales or
Scotland, which would be a Transferred Liability but:
(a) which the Court does not have jurisdiction to
transfer;
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(b) which, despite having such jurisdiction, the Court
determines not so to transfer;
(c) the transfer of which requires but does not have
recognition by the laws of any relevant jurisdiction;
(d) which Bank of Scotland and Lloyds TSB agree in
writing prior to the Customer Effective Date or the
Final Transfer Date would more conveniently be, or
which pursuant to the terms of this Scheme is to be,
transferred after the Customer Effective Date or the
Final Transfer Date; or
(e) which relates to a Residual Asset and arises at any
time before the Subsequent Transfer Date
applicable to that Residual Asset;
"Scheme" this scheme in its original form or with or subject to any
modification, addition or condition that may be approved or
imposed by the Court;
"Set-Off Rights" rights arising under, or in respect of, any Customer
Agreement or Existing Lloyds TSB Agreement providing for
credit balances on one account to be used as payment
towards a liability arising on, or in respect of, another
account or facility;
"Statutory Records" all books, files, registers, documents, correspondence,
papers and other records that are required, by any
applicable legal or regulatory requirement or corporate
governance requirement (whether or not having the force of
law), to be kept by Bank of Scotland and retained in its
possession;
"Subject Access Request" a request for information made pursuant to section 7 of the
DPA;
"Subsequent Transfer
Date"
in respect of any Residual Asset or Residual Liability, the
time and date after the date of the Order on which such
Residual Asset or Residual Liability is to be transferred to
Lloyds TSB, namely:
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(a) in respect of any Residual Asset falling within
paragraph (a)(i) to (iii) of the definition of Residual
Asset, and of any Residual Liability falling within
paragraph (a) to (c) of the definition of Residual
Liability, the time and date on which the requisite
order or recognition to enable the same to be
transferred to Lloyds TSB upon the terms of this
Scheme is:
(i) obtained; or
(ii) no longer required;
(b) in respect of any Residual Asset falling within
paragraph (a)(iv) of the definition of Residual Asset
and of any Residual Liability which falls within
paragraph (d) of the definition of Residual Liability,
the time and date on which Bank of Scotland and
Lloyds TSB agree that the transfer shall take effect
or on which the Residual Asset or Residual Liability
becomes capable of being transferred under the
terms of this Scheme; and
(c) in the case of any Residual Asset falling within
paragraph (b) of the definition of Residual Asset and
of any Residual Liability falling within paragraph (e)
of the definition of Residual Liability, the time and
date on which such Residual Asset or Residual
Liability is received, earned or incurred by Bank of
Scotland, to the extent that such transfer is possible
under this Scheme and Bank of Scotland and
Lloyds TSB agree that such transfer should take
place;
"Tax" all forms of tax, levy, impost, contribution, duty, liability and
charge in the nature of taxation and all related withholdings
or deductions of any nature (including, for the avoidance of
doubt, National Insurance contribution liabilities in the
United Kingdom and corresponding obligations elsewhere)
whether of the United Kingdom or elsewhere and all
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related fines, penalties, charges, costs and interest;
"Transferred Assets" the Customer Assets except to the extent that they are
Residual Assets;
"Transferred Liabilities" the Customer Liabilities except to the extent that they areResidual Liabilities;
"Treasury Master
Agreement"
a master agreement entered into between Lloyds TSB and
Bank of Scotland and a Customer governing swaps and
derivative products entered into from time to time;
"VAT Records" all records that are referred to in section 49(1)(b) VATA and
that have been kept by Bank of Scotland in respect of
Customers; and
"VATA" the Value Added Tax Act 1994.
2. In this Scheme:
(a) References to the Scheme and to paragraphs, Parts or Schedules
Any reference to the Scheme shall include any Schedules to it and references in
the Scheme to paragraphs, Parts or Schedules are, except where the contextotherwise requires, to paragraphs of, Parts of and Schedules to this Scheme.
(b) Headings
Headings are inserted for convenience only and shall not affect the construction of
this Scheme.
(c) Singular and plural, and gender
Any reference to the singular shall include a reference to the plural and vice versa
and any reference to the masculine shall include a reference to the feminine and
neuter and vice versa.
(d) Reference to an agreement
Reference to an agreement includes an agreement or undertaking effected by
contract, deed or any other instrument.
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(e) Reference to a person
Any reference to a person shall include a reference to any individual, company,
firm, partnership, association, organisation, trust or agency, whether or not having
a separate legal personality.
(f) References to securities
Any reference to securities includes debentures, debenture, stocks, loan stock,
bonds, certificates of deposit or any other instrument creating or acknowledging a
debt, warrants or other instruments that entitle the holder to acquire any of the
foregoing.
(g) References to services
Any reference to services provided or agreed to be provided by Bank of Scotlandincludes the accepting of deposits, the provision of credit or other facilities, the
making of loans or any other form of finance, whether secured or unsecured, or
the provision of any guarantee, indemnity, letter of credit, performance bond or
other assurance, or acting as a settlement bank for a customer in the CREST
system operated by Euroclear UK & Ireland Limited or in any other clearing or
settlement system.
(h) References to writing
Any reference to writing shall include any modes of reproducing words in a legible
and non-transitory form.
(i) References to transfer
The expression "transfer" includes (as the context may require) "vest", "assign",
"assignation" or "assignment", "dispose" or "disposal" or "convey" or
"conveyance".
(j) References to variation
The expression "variation" includes any amendment, modification, variation,
supplement, deletion, replacement or termination (as the context requires),
however effected.
(k) References to holding company, subsidiary and wholly-owned subsidiary
The expressions "holding company", "subsidiary" and "wholly-owned
subsidiary" shall have the same meanings as in the Companies Act 2006.
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(l) References to enactments or statutory provisions
Any reference to an enactment or a statutory provision shall include a reference to
(i) that enactment or statutory provision as amended, consolidated, modified,
replaced or re-enacted from time to time and (ii) any subordinate legislation,
instrument or order made under the relevant enactment or statutory provision as
itself amended, consolidated, modified, replaced or re-enacted from time to time
and, for the avoidance of doubt, subordinate legislation shall include provisions of
the FSA Handbook of rules and guidance made pursuant to the FSMA.
(m) References to "including and "in particular"
References to "including" and "in particular" shall not be construed restrictively
but shall mean "including without prejudice to the generality of the foregoing and
without limitation" and "in particular but without prejudice to the generality of the
foregoing and without limitation".
(n) Exercise of powers of control
Where any obligation pursuant to this Scheme is expressed to be undertaken or
assumed by any person, such obligation shall be construed as including a
requirement on that person to exercise all rights and powers of control over the
affairs of any other person which that person is properly able to exercise (whether
directly or indirectly) in order to secure performance of such obligation.
(o) English law concepts
Reference to any process or concepts of English law shall include all equivalent
processes or concepts under the laws of any other applicable jurisdiction.