The Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008

JurisdictionUK Non-devolved
CitationSI 2008/2644

2008 No. 2644

BANKS AND BANKING

The Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008

Made 7th October 2008

Laid before Parliament 7th October 2008

Coming into force 7th 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, 12, 13(2) of and Schedule 2 to the Banking (Special Provisions) Act 20081, make the following Order:

1 GENERAL

PART 1

GENERAL

S-1 Citation and commencement

Citation and commencement

1.—(1) This Order may be cited as the Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008.

(2) This Order comes into force at 9.30 a.m. on 7 October 2008.

S-2 Interpretation

Interpretation

2. In this Order—

“the Act” means the Banking (Special Provisions) Act 2008;

“the 1986 Act” means the Insolvency Act 19862;

“the 2000 Act” means the Financial Services and Markets Act 20003;

“administrator” means—

(a) an administrator appointed under paragraph 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); or

(b) any person on whom a discretion is conferred under an interim order made under paragraph 13(1)(d) of Schedule B1 to the 1986 Act;

“the Authority” means the Financial Services Authority;

“the Bank” means 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 (Heritable)” means Deposits Management (Heritable) Limited, company registered number 6690442, a company which is for the purposes of the Act wholly owned by the Treasury;

“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);

“FSCS” means the body corporate established by the Authority under section 212 of the 2000 Act (the Scheme Manager);

“Heritable” means Heritable Bank plc, company registered in Scotland number SC000717;

“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 account;

“the transfer” means the transfer effected by article 3;

“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.

2 THE TRANSFER

PART 2

THE TRANSFER

S-3 Transfer

Transfer

3.—(1) Subject to paragraph (3), by virtue of this Order the liabilities of Heritable to depositors in respect of the principal of, and accrued interest on, relevant deposit accounts are transferred to Deposits Management (Heritable).

(2) From the effective time, Deposits Management (Heritable) shall have the same rights in relation to depositors in relation to the transferred accounts as it would have if Heritable’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 paragraph (1), “relevant deposit accounts” means any of the following accounts operated by Heritable—

(a)

(a) 1 Year Fixed Rate Bond;

(b)

(b) 2 Year Fixed Rate Bond;

(c)

(c) 3 Year Fixed Rate Bond;

(d)

(d) 4 Year Fixed Rate Bond;

(e)

(e) 5 Year Fixed Rate Bond;

(f)

(f) 50 Plus Saver;

(g)

(g) 60 Day Notice;

(h)

(h) 90 Day Notice;

(i)

(i) 120 Day Notice;

(j)

(j) Easy Access;

(k)

(k) Online Saver;

(l)

(l) Direct Saver.

(5) The transfer under paragraph (1) takes place at the time this Order comes into force.

S-4 No consent or concurrence required

No consent or concurrence required

4. The transfer is effective despite the absence of any required consent or concurrence to, or in connection with, the transfer.

S-5 Associated liability and interference

Associated liability and interference

5.—(1) The 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.

S-6 Interests, rights and liabilities of third parties relating to transferred rights and liabilities

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 transfer or any other thing done, or matter arising, by virtue of or in connection with article 3 of this Order;

(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 transfer or any other thing done, or matter arising, by virtue of or in connection with article 3 of 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” has same meaning as in paragraph 4(3) of Schedule 1 to the Act and the specified connection referred to in paragraph 4(3)(c) of that Schedule is between Heritable and those undertakings whose assets and liabilities, profits and losses are consolidated in the consolidated accounts of Heritable;

“third party” shall be construed in accordance with paragraph 2(3) of Schedule 2 to the Act.

S-7 Payment of transferred liabilities

Payment of transferred liabilities

7.—(1) Deposits Management (Heritable) may without penalty or other charge pay any transferred liability prior to the due date for payment.

(2) Where Deposits Management (Heritable), in pursuance of paragraph (1), pays a transferred liability prior to the due date for payment, Deposits Management (Heritable) may not rely on any transferred right or any other term of business of Heritable to reduce or modify the transferred liability by reason of the fact that payment is being made prior to the due date for payment.

(3) Deposits Management (Heritable) shall not be obliged to pay any transferred liability sooner than is reasonably practicable.

S-8 Construction of documents etc.

Construction of documents etc.

8. As from the effective time and save as otherwise provided in this Order—

(a) agreements made or other things done by or in relation to Heritable shall be treated, so far as may be necessary for the purposes of or in connection with the transfer (but not otherwise) as made or done by or in relation to Deposits Management (Heritable), as the case may be;

(b) references to Heritable or to any officer or employee of Heritable in instruments or documents relating to the transferred rights and liabilities, shall have effect as if they were references to Deposits Management (Heritable), or to any officer or employee of Deposits Management (Heritable), as the case may be.

S-9 Validity of acts done by Deposits Management (Heritable)

Validity of acts done by Deposits Management (Heritable)

9. Anything done by or in relation to Deposits Management (Heritable) after the effective time for the purposes of or in connection with this Order which would have been effective had it been done by or in relation to Heritable...

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