Trade finance terms and conditions

1. Introduction
2. Imports
3. Export Collections and Export Credits
4. Confirmation and Independent Undertakings of Export Credits
5. Transfer of Export Credits
6. Payment of assigned Export Credit proceeds
7. Shipping guarantee/indemnity and shippers release
8. Standby Instruments
9. Trade finance loans
10. Trade Products or Services - general terms

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1. Introduction

1.1 Relevant Terms

We may from time to time agree to make Trade Products or Services available to you on the terms and conditions set out in any Trade Finance Document.

You agree that these Terms shall apply to any Trade Products or Services provided by us to you from time to time, in addition to any further terms and conditions set out in any Trade Finance Document.

1.2 Applications for Trade Products or Services

(a) If you want us to provide a Trade Product or Service to you, you must deliver to us an application, in the form we specify from time to time, together with any other documents we require. All documents must be properly completed, and signed or otherwise authorised to our satisfaction by one or more of your authorised officers.

(b) We are not obliged to make, or continue to make, any Trade Product or Service available to you, and may accept or reject any application in our discretion. We do not have to provide you with any reason for refusing to make or continue to make any Trade Product or Service available to you, or for refusing to accept and act upon any application.

1.3 International Chamber of Commerce Rules

(a) Each Credit will be subject to the UCP and the ICC Uniform Rules for Bank to-Bank Reimbursements under Documentary Credits.

(b) Each Collection will be subject to the ICC Uniform Rules for Collections.

(c) Each standby letter of credit will be subject to the ISP or UCP, in each case as specified in the relevant application or instrument.

(d) Each demand guarantee, bond or payment undertaking we issue will be subject
to the ISP, the ICC Uniform Rules for Demand Guarantees, or the governing Law, in each case as specified in the relevant application or instrument.

1.4 Conflict of provisions

(a) In the event of any conflict between:

(i) these Terms and the terms in any ICC rules or any other rules, these Terms will prevail; or

(ii) these Terms and a Trade Finance Document or any other agreement or arrangement between us and you, the following order of precedence will apply (from highest to lowest):

(1) the relevant Trade Finance Document (plus any variations);

(2) these Terms; and

(3) the other agreements or arrangements.

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2. Imports

2.1 Application of provisions

The terms in this clause 2 and the terms in clause 10 apply to Import Credits and Import Collections.

2.2 Issue of Import Credits

(a) We may issue Import Credits in such a form that we consider appropriate. It is solely your responsibility to ensure that the terms and conditions (and any applicable requirements) of an Import Credit are satisfactory to you. We have no responsibility to advise you on any such issues.

(b) Each Import Credit we issue will be an irrevocable transaction, separate from any contract or other arrangement between you and any other person in relation to which the Import Credit is issued. We will satisfy our obligations under the Import Credit issued by us, irrespective of any instructions from you to the contrary.

(c) We may, at our discretion, restrict Negotiations under any Import Credit to our own offices or to any Correspondent Bank we choose.

(d) If there are any issues relating to the terms of the Import Credit (including whether it conforms to any application), you must notify us within two Business Days after receiving your copy of the Import Credit or you will be deemed to have accepted the terms of the Import Credit and waived any rights to raise any issues in connection with that Import Credit.

2.3 Claims under Import Credits

(a) If we believe the Documents comply with the terms of the Import Credit and there is otherwise a Complying Presentation, we may make any payment or accept any Bill of Exchange, claim or drawing under the Import Credit without reference to you or further enquiry, and notwithstanding any notice from you not to do so.

(b) If, as contemplated by clause 2.2(c), we have restricted the Negotiation of the Import Credit to our own offices or to any Correspondent Bank we choose, we may accept and pay all Documents drawn or purported to be drawn on any such office or Correspondent Bank.

(c) Unless we agree otherwise in writing you must pay to us all amounts we pay under the Import Credit on or before the day on which we make or are required to make that payment.

2.4 Discrepancies in Documents

(a) We may, without reference to you or further enquiry, refuse to Honour any Documents if we reasonably believe that they are not compliant with the requirements of the Import Credit or there is otherwise a non-Complying Presentation, and we are not obliged to notify you of any such determination by us.

(b) If we ask if you are willing to give any waiver of any discrepancies in the Documents or non-Complying Presentation and you confirm you are willing to give such a waiver, you will indemnify us in respect of any payments we make and Costs we incur in connection with the Import Credit notwithstanding the discrepancies in the Documents or non-Complying Presentation.

(i) waive all discrepancies in relation to the Documents and accept all such Documents Presented under the relevant Import Credit;

(ii) will indemnify us in respect of any Costs we suffer or incur in connection with the relevant Import Credit, irrespective of discrepancies in relation to the Documents or any other non-Complying Presentation; and

(iii) authorise us to Honour any relevant drawings without examining the Presented Documents.

2.5 Insurance

(a) Where an Import Credit is issued on the basis of ‘insurance buyer’s care’ you must insure the Goods to our satisfaction from loss or capture at sea and provide such evidence of insurance, its terms, and its currency as we request.

(b) If we determine that the insurance is not acceptable, we may, at your cost, arrange further or other insurance (including war risk) in connection with the Goods.

2.6 Our remedies

(a) If you fail to comply with your obligations to us in connection with an Import Credit or Import Collection, then where we reasonably believe that we have an obligation to a third party, or we may not recover the costs of the Goods from you, and without prejudice to any of our other rights and remedies, you:

(i) irrevocably authorise us at our discretion and without notice to you to:

(1) land, dock, store, transport, insure and/or sell or otherwise dispose of the relevant Goods, or any part of the relevant Goods, on such terms as we think fit; and/or

(2) deal with the relevant Documents in any way we think appropriate; and/or

(3) collect any money payable under any applicable insurance policies;

(ii) must pay to us on demand the amount of any deficiency on such sale, dealing or insurance and all Costs incurred by us in connection with any actual or attempted or contemplated matters referred to in clause 2.6(a)

(i) above; and

(iii) agree that we are not liable for any Costs suffered or incurred by you as a
consequence of any of the foregoing.

2.7 Limit on our responsibilities

(a) In addition to the disclaimer on the effectiveness of documents in the UCP, to the maximum extent permitted by Law, neither we nor our correspondents or agents are liable or responsible for, nor will your obligations under these Terms or in relation to any Import Credit be reduced, terminated or affected in any way adverse to us by:

(i) any carriers’ fees in relation to the Goods, including for storage and landing;

(ii) our granting of any time, credit, indulgence or other concession to any person;

(iii) any failure of any person to obtain any approval or licence necessary or desirable in connection with these Terms or the Import Credit;

(iv) performance of the Import Credit or any other agreement being or becoming impossible or illegal as result of any act of any Regulatory Authority, or any Regulation affecting the terms of the Import Credit;

(v) us or any other bank agreeing to any variations in the instructions relating to the Import Credit made necessary or desirable by the Regulations and/or commercial practice of the country in which any Bill of Exchange is Negotiated or Presented for acceptance or payment; or

(vi) any other matter or thing which would otherwise affect the liability or responsibility or obligations of us, our correspondents, our agents or you other than our fraud, negligence or wilful misconduct (and the fraud, negligence or wilful misconduct of our correspondents or agents).

2.8 Import Collections

(a) If we act as a Collecting bank in connection with Import Collections and Bills of Exchange for acceptance or payment, or Documents on a cash against Documents basis, we may hold the Documents until acceptance or reimbursement of the relevant Bills of Exchange, or payment, by you.

(b) We will outline any additional terms imposed by a third party that are applicable to any Import Collection in the correspondence we attach to the Import Collection. If you do not agree with those additional terms then you may choose not to proceed with the Import Collection.

2.9 Security Interest over Documents and Goods

(a) As a continuing security for the payment to us of Secured Moneys, you grant us a Security Interest over the Secured Property.

(b) You agree that until the Secured Moneys are paid in full, you will not create, allow to be created or permit to exist any other security interest in favour of anyone other than us over the Secured Property.

(d) Notwithstanding any other provision of these Terms or of any Trade Finance Document, but subject to any applicable Law, you irrevocably authorise us to at any time and without notice, enter any premises owned, occupied or used by you to search for and inspect or take possession or custody of the Secured Property or take such other steps as we reasonably consider necessary or desirable to protect our Security Interest.

2.10 Dealing with Documents and Goods

(a) The Goods will be entirely at your risk and we will not be responsible for any loss or damage or decrease in value of any Goods or Documents that we hold security in, or while we hold title to them.

(b) If we release any or all of the Documents to you to enable you to obtain delivery of the Goods prior to the payment in full of the Secured Moneys:

(i) you will only deal with the Goods in accordance with our instructions from time to time to protect our interests and, if required by us, you will provide us with a trust receipt on terms satisfactory to us;

(ii) you will hold the Documents, and the Goods when received, in safe custody and (in the case of Goods, but for the avoidance of doubt, not Documents) exclusively for the purpose of their sale or other disposition approved by us at full market value and in the ordinary course of business;

(iii) if you choose not to accept any Documents, you will return all Documents to us within 48 hours of receipt of the Documents from us;

(iv) until sale or delivery (if applicable), you will at your cost:

(1) warehouse the Goods in our name so that they are clearly distinguishable from goods of a similar nature;

(2) not obliterate, alter, deface, remove or obscure any identifying numbers, plates, marks or other matter affixed to the Goods;

(3) maintain the Goods in sellable condition;

(4) not permit the Goods to be processed or altered or incorporated into any other goods without our consent; and

(5) immediately deliver to us any warrants or receipts for the Goods (if issued);

(v) you will:

(1) keep all Goods insured with a reputable insurer at all times:

A. for their full insurable value (which we may specify); and

B. against fire and any other usual risks that a prudent owner of property of a similar type would insure, and any other risk, loss or damage of any kind that we from time to time require;

(2) deliver to us the policies or certificates of insurance for all such insurance or (if we consent) copies of those policies or certificates, certified as true and correct by the relevant insurer, and if required by us confirmation that our interests have been duly noted by the insurer; and

(3) in case of loss pay the insurance moneys to us in the same manner as proceeds of sale and make good any deficiency; and

(vi) you will:

(1) immediately pay all proceeds of any sale or other disposal of the Goods to us, without deduction, and until you do so, hold the proceeds and the rights against the purchaser arising from the sale or disposal clearly distinguishable from proceeds of a similar nature;

(2) do all things we require to enable us to directly receive any outstanding proceeds of any sale or other disposal of the Goods from any purchaser or other person; and

(3) keep separate records of all sales of the Documents and Goods.

(d) We may demand delivery and endorsement to us of all Documents and exercise all your rights (if any) as unpaid seller of the Goods.

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3. Export Collections and Export Credits

3.1 Application of provisions

The terms in this clause 3 and the terms in clause 10 apply to Export Collections and Export Credits.

3.2 Export Collections

(a) We may at your request Negotiate a Bill of Exchange or provide advances against Document(s) to be sent on Collection.

(b) You must provide us with a duly completed Collections lodgement authority, together with all Documents that are required to be sent for Collection pursuant to the Collections lodgement authority.

(d) We will only pay you proceeds of a Collection which have actually been received by us in cleared funds from the Collecting bank.

3.3 Export Credits

(a) You may request us to:

(i) Honour or Negotiate Documents and pay proceeds to you:

(1) immediately; or

(2) upon acceptance of the Documents by the Issuing Bank; or

(ii) without Honour or Negotiation, Present Documents to the Issuing Bank (or, where applicable, Nominated Bank) for payment, and pay proceeds to you only when we receive payment from the Issuing Bank or Reimbursing Bank.

(b) You must provide us with a duly completed Export Credit lodgement authority together with all Documents required under the Export Credit including, if we are not the Advising Bank, the originals of the Export Credit and all amendments to it.

3.4 Negotiation and/or advances against Documents

(a) You must only deliver Documents to us for Negotiation and/or Presentation or Collection after you have shipped or delivered the Goods described in those Documents to, or fully performed the Services described in those Documents for, the buyer.

(b) You must pay all charges, commissions, fees (e.g. courier costs or fees of the Issuing Bank) or expenses we incur in relation to the Negotiation and/or Presentation or Collection of Documents, even if the Collection is not paid. We will deduct any such amounts from the proceeds before payment to you.

(c) Unless otherwise agreed in writing, we will have full recourse to you, and if a Bill of Exchange or claim or advance we make in connection with an Export Credit which we have Honoured, Negotiated, discounted, financed or made advances in connection with is not duly Honoured on Presentation or on maturity date for any reason, you will repay us on demand:

(i) the amount of the Bill of Exchange or claim or advance;

(ii) interest on that amount at the rate agreed by us or, in the absence of agreement, calculated at a rate that would be applied by us to an account in overdraft for the same amount as is due to us by you from (and including) the date the Bill of Exchange or claim was Honoured or Negotiated by us to (but excluding) the date on which we collect full payment or are reimbursed by you. Interest under this clause shall accrue on a daily basis;

(iii) all unpaid charges, commissions, fees or expenses; and

(iv) all other Costs incurred by us.

(d) Nothing we do or omit to do in connection with any Documents we Negotiate for you after being Dishonoured for payment or acceptance or not duly taken up on Presentation will in any way prejudice our right of recourse to you.

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4. Confirmation and Independent Undertakings of Export Credits

4.1 Application of provisions

The terms in this clause 4 and the terms in clause 10 apply to a Confirmation or Independent Undertaking by us of an Export Credit.

4.2 Confirmation

(a) You may request us to Confirm an Export Credit. You must provide us with any documents and other information we require for us to assess the request, including a complete original Export Credit (and all amendments). We are not obliged to accept your request and will only do so if all elements relating to the Export Credit are satisfactory to us in our absolute discretion and you agree to, and satisfy, any conditions we advise to you.

(b) We will only Confirm an Export Credit which is subject to the UCP and to which the Issuing Bank has specifically authorised us to add our Confirmation.

(c) You will indemnify us on demand against any Costs incurred or suffered by us in connection with Confirming an Export Credit without being in possession of a complete original Export Credit (and any amendments).

(d) Any Confirmation we provide will be subject to clause 10.15.

(e) We will not be bound by our Confirmation of an Export Credit if the Export Credit is amended or an amendment is rejected without our written consent. Where, in our sole opinion, the amendment increases the value of our Confirmation (including, but not limited to, an increase to the amount of the Export Credit or an extension to the validity of the Export Credit), you agree to pay us such further fees and charges that we may advise you where we extend our Confirmation to the relevant amendment.

(f) You must present to us:

(i) if we do not already hold them, the original Export Credit and all amendments (if any) to the Export Credit (which must be identical to the copy of the Export Credit on which we agreed to Confirm); and

(ii) as soon as they are available, and within any timeframes we may specify, all of the Documents required under the Export Credit, each of which must be fully compliant with the requirements of the Export Credit and otherwise enable a Complying Presentation.

(g) If the Documents have not been presented so as to enable a Complying Presentation before the date the Export Credit expires, our Confirmation ends on the date the Export Credit expires.

(h) If the original Export Credit is different from the copy of the Export Credit upon which we have added our Confirmation, our Confirmation ends and we shall not be required to make any payment to you under our Confirmation.

(i) If we are satisfied with the full compliance of the original Export Credit and Documents presented in accordance with clause 4.2(f) such that there will be a Complying Presentation, then subject to clause 4.2(k) below:

(i) we will dispatch the Documents to the Issuing Bank (or Nominated Bank, if applicable) for acceptance and payment in accordance with the terms of the Export Credit; and

(ii) if the Issuing Bank or Reimbursing Bank does not pay all or any part of the amount claimed:

(1) within 21 calendar days of a Complying Presentation as required under the Export Credit for sight drawings; or

(2) five calendar days after the due date for accepted term drawings, we will pay you the amount of the Export Credit not paid up to the Confirmed amount.

(j) At the time you present fully compliant Documents that will enable a Complying Presentation, you may request us to Honour and Negotiate the Export Credit and/or Documents and to pay proceeds to your account (either immediately or on acceptance of the Documents by the Issuing Bank). We may accept or reject your request in our absolute discretion. If we accept your request, our Confirmation of the Export Credit, and all obligations in connection with it, will end when we have paid those proceeds to you.

(k) If there is any defect in your title to the Export Credit, or in cases of fraud or illegality in relation to the Export Credit or the transaction underlying the Export Credit, or if the bank on which the Export Credit is drawn exercises a right of set-off in respect of any obligation owed by you to it, then you agree to refund all of the sums we have paid under the Confirmation or such part as we determine may be affected.

(l) If we are not satisfied with the full compliance of the original Export Credit and Documents presented in accordance with clause 4.2(f) such that there will not be a Complying Presentation, our Confirmation ends and we have no obligation to make any payment to you under the Confirmation.

(m) You may request us to:

(i) dispatch discrepant Documents under a non-Complying Presentation to the Issuing Bank; and

(ii) Negotiate the Export Credit, and on acceptance of the non-Complying Presentation for payment by the Issuing Bank to pay the proceeds to you. We may accept or reject such requests in our absolute discretion.

(n) If Documents contain discrepancies, our Confirmation agreement will be withdrawn. Where Documents are held or sent on an approval basis and subsequently accepted by the Issuing Bank (and another Confirming Bank if applicable), we may, in our discretion but only to the extent expressly set out in writing, retain our Confirmation agreement; providing always that there is no material change to the expiry date or the amount involved in the original Confirmation agreement. If there has been a material change to the expiry date or the amount involved in the original Confirmation agreement, a specific request from you for a continuation of the Confirmation agreement for the increased amount or extended expiry date will be required and additional charges may apply.

4.3 Independent Undertaking

(a) You may request us to add our Independent Undertaking to your Export Credit. We will not become a formal party to the Export Credit. You must provide us with any documents and other information we require for us to assess the request, including a complete original Export Credit (and all amendments). We are not obliged to accept your request and will only do so if all elements relating to the Export Credit are satisfactory to us in our absolute discretion and you agree to, and satisfy, any conditions we advise to you.

(b) We will only consider a request for an Independent Undertaking to an Export Credit which is subject to the UCP, and has us as the Nominated Bank or otherwise is freely negotiable with any bank.

(c) You will indemnify us on demand against any Costs incurred or suffered by us in connection with us giving our Independent Undertaking in respect of an Export Credit without being in possession of a complete original Export Credit (and any amendments).

(d) Any Independent Undertaking we provide will be subject to clause 10.15.

(e) We will not be bound by our Independent Undertaking in respect of an Export Credit if the Export Credit is amended or an amendment is rejected without our written consent. Where, in our sole opinion, the amendment increases the value of our Independent Undertaking (including, but not limited to, an increase to the amount of the Export Credit or an extension to the validity of the Export Credit), you agree to pay us such further fees and charges that we may advise you where we extend our Independent Undertaking to the relevant amendment.

(f) You must present to us:

(i) if we do not already hold them, the original Export Credit and all amendments (if any) to the Export Credit (which must be identical to the copy of the Export Credit in respect of which we agreed to supply our Independent Undertaking); and

(g) If the Documents have not been presented so as to enable a Complying Presentation before the date the Export Credit expires, our Independent Undertaking ends on the date the Export Credit expires.

(h) If the original Export Credit is different from the copy of the Export Credit upon which we have supplied our Independent Undertaking, our Independent Undertaking ends and we shall not be required to make any payment to you under our Independent Undertaking.

(i) If we are satisfied with the full compliance of the original Export Credit and Documents presented in accordance with clause 4.3(f) such that there will be a Complying Presentation, then subject to clause 4.3(k) below:

(i) we will dispatch the Documents to the Issuing Bank (or Nominated Bank, if applicable) for acceptance and payment in accordance with the terms of the Export Credit; and

(ii) if the Issuing Bank or Reimbursing Bank does not pay all or any part of the amount claimed:

(1) within 21 calendar days of a Complying Presentation as required under the Export Credit for sight drawings; or

(2) five calendar days after the due date for accepted term drawings, we will pay you the amount of the Export Credit not paid up to the amount of our Independent Undertaking.

(j) At the time you present fully compliant Documents that will enable a Complying Presentation, you may request us to Honour and Negotiate the Export Credit and/or Documents and to pay the proceeds to you (either immediately or on acceptance of the Documents by the Issuing Bank). We may accept or reject your request in our absolute discretion. If we accept your request our Independent Undertaking in respect of the Export Credit, and all obligations in connection with it, will end when we have paid those proceeds to you.

(k) If there is any defect in your title to the Export Credit, or in cases of fraud or illegality in relation to the Export Credit or the transaction underlying the Export Credit, or if the bank on which the Export Credit is drawn exercises a right of set-off in respect of any obligation owed by you to it, then you agree to refund all of the sums we have paid under the Independent Undertaking or such part as we determine may be affected.

(l) Should discrepancies exist between the Documents and the Export Credit, or it otherwise not be certain that there will be a Complying Presentation, we will be under no obligation to pay under the Independent Undertaking. We may, in our absolute discretion, agree to pay under the Independent Undertaking upon acceptance of any discrepancies by the Issuing Bank and us having received authenticated confirmation of this from the Issuing Bank.

(m) In the event we make payment to you under our Independent Undertaking, and it subsequently transpires that the Issuing Bank was entitled to reject the payment under the Export Credit, due to the Documents Presented not complying with the terms of the Export Credit or otherwise being part of a non Complying Presentation, you undertake to refund to us on demand all moneys so paid, together with interest thereon from the date of payment to you by us to the date of receipt by us of such refund. The rate will be that certified by us for funding of such period.

(n) Upon our supply to you with an Independent Undertaking, you assign to us:

(i) all your rights against the relevant Issuing Bank and any Confirming Bank;

(ii) all your rights, title and interest in the Documents Negotiated under the relevant Export Credit;

(iii) all your rights, title and interest in the Goods to which the Documents relate; and

(iv) all the proceeds of the sale of the Goods.

(o) We are entitled to be subrogated in respect of all your rights under the Export Credit in respect of the Documents Negotiated under the relevant Export Credit.

(p) You undertake that you have not, and will not, except in favour of us, assign, grant a security interest over, encumber or otherwise deal with any of the rights or other property referred to in clause 4.3(n).

(q) You agree that you will, at your cost, at our request made at any time:

(i) give us all reasonable assistance in the recovery of payment outstanding under the Export Credit;

(ii) issue proceedings against the Issuing Bank (and any other persons we may require) to enforce recovery; and

(iii) do (as specified by us) every other act, matter and thing, that we require to more effectively secure our rights and interest in and to the rights referred to in clause 4.3(n), or to exercise any rights, or that we consider necessary or desirable for improving, perfecting or registering the assignment of the rights referred to in clause 4.3(n).

Should you recover any amounts under the Export Credit, or in connection with the Documents or Goods, you will pay over such funds to us.

(r) You represent and warrant that all rights assigned in clause 4.3(n) of these Terms are and will at all times be legally binding and enforceable. You will provide us with any other proof or claim you may be entitled to and hold all such rights on trust for us and do all things as may be necessary to give effect to any subrogation to us.

(s) Notwithstanding the above, if you or we become aware of a default in payment by the Issuing Bank, we may give you notice in writing to terminate our obligations under any outstanding balance of the Export Credit that remains undrawn. Such a notice will not in any way affect our previous Negotiations under the Export Credit before the giving of the notice. We will also refund to you a pro-rata portion of the Independent Undertaking fee paid for the undrawn balance of the Export Credit.

4.4 Confidentiality

You agree that you will not, unless required to do so by Law, disclose the existence of any Confirmation or Independent Undertaking arrangement we have entered into or any of its provisions to any other person without our prior written consent.

4.5 Dealing by customer

You cannot assign, grant a security interest over, encumber or otherwise deal with
your rights under a Confirmation or Independent Undertaking without our prior written consent.

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5. Transfer of Export Credits

5.1 Application of provisions

The terms in this clause 5 and the terms in clause 10 apply if we agree to transfer an Export Credit from you as beneficiary to another beneficiary (the ‘Second Beneficiary’).

5.2 Transfer

(a) If we agree to transfer an Export Credit from you to another beneficiary, you must deliver to us all Documents which we specify are required to substitute for any of the Second Beneficiary’s Documents which do not comply with the requirements of the original Export Credit.

(b) Unless you instruct us to the contrary in your application, we will substitute your Bills of Exchange and invoices for those presented by the Second Beneficiary, and deliver to you the invoices of the Second Beneficiary together with our payment advice for the amount by which your Bills of Exchange exceed the amount of the Bills of Exchange of the Second Beneficiary, less any Costs due to us.

(c) If you fail to deliver your Bills of Exchange and invoices to us in compliance with the terms of the Export Credit so as to enable a Complying Presentation, we may forward the documents accompanying the Bills of Exchange of the Second Beneficiary without any responsibility to pay you the difference between the amount of the Second Beneficiary’s Bills of Exchange and the amount authorised to be paid under the Export Credit.

(d) We will only pay out proceeds under the Export Credit which have actually been received by us from the Issuing Bank, Confirming Bank or Reimbursing Bank (as applicable).

(e) Subject to clause 5.2(b) you will cease to have any rights as the beneficiary of the Export Credit to the extent those rights have been transferred to the Second Beneficiary

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6. Payment of assigned Export Credit proceeds

6.1 Application of provisions

The terms in this clause 6 and the terms in clause 10 apply if you advise us that you have assigned the proceeds of an Export Credit to a third party (the ‘Payee’).

6.2 Payment

(a) An assignment by you to a Payee must be an irrevocable and unconditional assignment of all or part of the proceeds of an Export Credit.

(b) You shall be solely responsible for ensuring the enforceability and effectiveness generally of the assignment by you to the Payee.

(c) You represent to us that you have the power and right to make the assignment and that the relevant proceeds being assigned are not subject to any security interest, encumbrance or claims from any third party.

(d) All payment instructions you give to us to pay the Export Credit proceeds to the Payee are irrevocable unless the Payee gives written authority to cancel or modify them.

(e) You will not, either by Negotiation or otherwise, further assign any right to such proceeds nor issue additional instructions for payment thereof.

(f) We will only pay Export Credit proceeds to the Payee:

(i) if documentation is Presented under and in conformity with the Export Credit as part of a Complying Presentation; and

(ii) after actual receipt of the Export Credit proceeds by us from the Issuing Bank, Confirming Bank or Reimbursing Bank (as applicable).

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7. Shipping guarantee/indemnity and shippers release

7.1 Application of provisions

The terms in this clause 7 and the terms in clause 10 apply to any guarantee or other undertaking (‘Guarantee(s)’) provided by us to shipping companies, carriers or consignors of Goods or other persons (‘Beneficiaries’) to enable you to obtain replacement bills of lading, transport or title documents and/or delivery of Goods.

7.2 Dealing with documents

(a) If we agree to provide a Guarantee to a Beneficiary, you will use all reasonable endeavours to obtain the relevant bills of lading, transport or title documents and deliver them to the Beneficiaries as soon as practicable so we can be released from our liability under the Guarantee(s) and the Guarantee(s) can be returned to us for cancellation.

(b) You will deposit with us such amounts and/or provide such security as we may require in connection with the Guarantee(s) until such Guarantee(s) are returned to us for cancellation.

(c) As a continuing security for the payment to us of Secured Moneys you grant us a Security Interest over the Secured Property until we have been fully released and discharged from the Guarantee(s) and the Secured Moneys have been paid in full, and agree that you will not create, allow to be created or permit to exist any other security interest in favour of anyone other than us over the Secured Property.

(d) You will provide us with all the information relating to the Secured Property as we from time to time require.

(e) Notwithstanding any other provision of these Terms or of any Trade Finance Document, but subject to any applicable Law, you irrevocably authorise us to at any time and without notice, enter any premises owned, occupied or used by you to search for and inspect or take possession or custody of the Secured Property or take such other steps as we reasonably consider necessary or desirable to protect our Security Interest.

7.3 Your liability

You will indemnify us on demand against any payment we make under the Guarantee(s) and all Costs we may suffer or incur in connection with the Guarantee(s).

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8. Standby Instruments

8.1 Application of provisions

The terms in this clause 8 and the terms in clause 10 apply to the issue of Standby Instruments.

8.2 Issue of Standby Instruments

(a) We may decline to issue any Standby Instrument if we are not satisfied with its proposed terms. We may also issue Standby Instruments in such a form that we consider appropriate. It is solely your responsibility to ensure that the terms and conditions (and any applicable requirements) of any Standby Instrument are satisfactory to you. We have no responsibility to advise you on any such issues.

(b) We may arrange for the Standby Instrument to be issued by our Correspondent Bank on such terms as we or our Correspondent Bank may decide and may issue a counter-indemnity in favour of such Correspondent Bank.

(c) If there are any issues relating to the terms of the Standby Instrument (including whether it conforms to any application), you must notify us within 2 Business Days after receiving your copy of the Standby Instrument or you will be deemed to have accepted the terms of the Standby Instrument and waived any rights to raise any issues in connection with that Standby Instrument.

8.3 Payments under the Standby Instrument

(a) Each Standby Instrument will be irrevocable and is a separate transaction from any contract or other dealing between you and any other party. It will be binding on us regardless of what may occur or be alleged in any other contract or dealing. Accordingly, you accept that where any demand for the payment of any sum of money under the Standby Instrument is made, such demand shall be sufficient authority to us for making any such payment up to the maximum amount specified in the Standby Instrument and it shall not be incumbent upon us to enquire whether any such sum of money is in fact properly payable. We may make any payment or accept any Bill of Exchange, claim or drawing under the Standby Instrument without reference to you or further enquiry, and notwithstanding any notice from you not to do so.

(b) If we consider that a demand, Bill of Exchange or other document presented under a Standby Instrument does not comply with the terms of the Standby Instrument:

(i) we may (without reference to you or making any further enquiry) refuse the demand by notice to the party from which we received the demand, Bill of Exchange or the other document; and

(ii) we are not obliged to notify you of any determination or refusal by us, or to seek your waiver in respect of the same, prior to our determination or refusal.

(c) We may, at any time and whether or not we have received a demand, discharge all our obligations under an unexpired Standby Instrument by paying the undrawn amount of the unexpired Standby Instrument (or such lesser amount that the beneficiary requires) to the beneficiary. You will indemnify us on demand for all amounts which we have paid to the beneficiary.

8.4 Indemnity for Costs

You will indemnify us on demand against any payment we make under the Standby Instrument and Costs we may suffer or incur in connection with the Standby Instrument.

8.5 Cancellation of Standby Instrument

You agree to take prompt steps to obtain cancellation of the Standby Instrument on completion or termination of the contract to which it relates.

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9. Trade finance loans

9.1 Application of provisions

The terms in this clause 9 and the terms in clause 10 apply to any trade finance loans we agree to make to you.

9.2 Conditions to trade finance loans

(a) You may request us to make a trade finance loan to you. You must provide us with any documents and other information we require for us to assess the request. We are not obliged to accept your request and will only do so if you have executed all documents we require and complied with the terms of all relevant documentation.

(b) Each trade finance loan that we provide will be subject to such further terms and conditions set out in any Trade Finance Document relating to that trade finance loan.

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10. Trade Products or Services - general terms

10.1 Application of provisions

The following terms apply, in addition to any other specific terms set out in the preceding clauses or in any other Trade Finance Document, in respect of all of the Trade Products or Services referred to in all preceding clauses.

10.2 Assessment and understanding

(a) You confirm that you have fully considered the risks associated with the Trade Products or Services and that you are satisfied that such Trade Products or Services are suitable for you in the light of your circumstances.

(b) You will be solely responsible for managing ongoing risks associated with the Trade Products or Services and decisions made to limit, manage or minimise risks. You acknowledge that any information or financial service provided by us that is intended to assist you in managing the inherent additional risks does not and will not represent an attempt by us to act in any form of advisory or managerial capacity to you.

(c) If, at any time, we determine that the amount of a Trade Product or Service (including contingent liabilities) has increased relative to the amount of any security or payment you have provided, we may require you to:

(i) deposit with us on demand such amounts as we may require; or

(ii) provide additional security for your obligations under the Trade Products or Services, such security to be of a type and value and in all other respects acceptable to us; or

(iii) reduce the amount of the Trade Product or Service.

10.3 Foreign currency

(a) Acknowledgement of foreign currency risks

You acknowledge that using a Trade Product or Service in one currency where your receivables or payables are in another currency carries risks. You also acknowledge that the decision to make such transactions and the consequent associated risks, including currency fluctuations, has been made solely by you without any influence, encouragement or advice from us (other than advice as to the availability of any facility for use by you for your purposes) and in reliance on your judgement and your professional advisors (other than us and our personnel).

(b) Foreign currency conversion

If any amount payable by us or by you in connection with a Trade Product or Service is payable in a currency (‘Payment Currency’) different to the currency in which you must pay us (‘Reimbursement Currency’) then we will make the payment in the Payment Currency in accordance with our standard procedures at that time for currency conversion and you will pay to us an equivalent amount in the Reimbursement Currency, as determined by us. Unless agreed otherwise, we will determine that equivalent amount on the basis of our then current public exchange rate.

You acknowledge that we cannot control the availability of any currency, and that we will not be responsible for any Costs which you may suffer or incur in connection with non-availability to us (after exercising reasonable endeavours) of any currency in connection with any Trade Product or Service.

10.4 Compliance with Laws

(a) You will comply with all Regulations relating to the Goods and/or Services and/or Trade Products or Services.

(b) You represent and warrant to us that the provision of the Trade Products and Services to you in accordance with your instructions will not breach any Regulations applicable to the Trade Products or Services.

10.5 Interest

If we make any advance or other payment in connection with any Trade Product or Service including by way of purchase, discounting, Negotiation or other financing of any Bill of Exchange under an Export Credit or against any Document(s), you will pay interest, as agreed with us or, in the absence of agreement, from the date on which such advance or other payment is made by us until such amounts are received by us in full, calculated at a rate and in a manner that would be applied by us to an account you hold with us in overdraft for the same amount as is due to us by you.

10.6 Charges and other amounts payable

(a) You will pay us on demand (or on the date specified by us), in the currency specified by us, all applicable fees, commissions and other charges, and any other amounts payable, in connection with each Trade Product or Service provided by us to you as specified in any relevant Trade Finance Document or otherwise notified by us and any Taxes payable in connection with or incidental to the Trade Product or Service.

(b) We may increase or decrease any fees, commissions or other charges payable in connection with a Trade Product or Service (or apply any new fees, commissions or charges) by giving you at least 14 days’ notice of any such increase or decrease by public notice, direct notice to you or by any other method.

(d) You will pay all:

(i) Taxes payable in connection with the Goods and/or Services and the export, import or other dealing with Goods; and

(ii) Costs we incur to third parties in connection with the Trade Product or Service we provide to you.

(e) You agree that we may debit all fees, commissions, other charges and other amounts payable by you on the date they are due for payment from any account you may have with us. We may also deduct them from the proceeds of any Export Credit or Export Collection. We will notify you of the relevant deductions on the date of payment, and only make such deductions from an account other than the account to which the payment is credited if there are insufficient funds in the first account.

(f) If we need to incur any third party Costs in relation to any Trade Product or Service or Security Interest (e.g. storage costs, or other bank fees), you agree to reimburse us for those Costs on demand. We may deduct those Costs from any account you may have with us. If we make any such deduction, we will give you notice on the date of deduction (but any failure to do so will not relieve you of your obligation to pay our Costs). We will only make such deductions from an account other than the account to which the payment is credited if there are insufficient funds in the first account.

10.7 Accounts and set-off

(a) In addition to any other right we have to debit, charge or combine your accounts or set-off amounts in them, we may, from time to time without further authority than these Terms and without giving you any notice or making any demand:

(i) debit and charge any of your accounts with us with any amounts due to us, even though any one or more of your accounts stand in credit;

(ii) combine and amalgamate any two or more of your accounts with us;

(iii) set-off or apply in or towards satisfaction of any amounts due to us:

(1) sums standing to the credit of any of your accounts with us; and

(2) any other amounts at any time owing by us to you; and

(iv) if at any time any amounts owing to us are subject to any contingency or are not quantified we may withhold payment of any of the amounts referred to in clause 10.7(a)(iii)(1) and 10.7(a)(iii)(2) and any interest or other amount owing by us, until those amounts are no longer subject to that contingency or are quantified.

(b) To enable any of the above, we may break (where other funds are not available) any term deposit you have with us and convert any amount denominated in a foreign currency into New Zealand dollars at the spot rate of exchange quoted by us at or about that time.

(i) whether or not we have agreed to permit any set-off for the purpose of calculation of interest between any two or more accounts; and

(ii) even though any of your accounts are held by you together with any other person or are with different branches of us.

10.8 Drawing or release against funds

(a) If we allow you to draw against funds to be collected or transferred from any account(s), and such funds are not received when due and free of any restriction, you must indemnify us for all Costs we incur in connection with us allowing such drawing.

(b) If a payment to us by you or any other person in connection with a Trade Product or Service is avoided by Law, or is recovered from us, the relevant person’s obligation to make that payment and their obligations under the Documents or applicable Trade Finance Documents will not be discharged. We, you and each other person will be deemed to be put back to the position in which each would have been if that payment had not been made. Notwithstanding any release, settlement or other discharge we may have given, we may exercise all our rights we were entitled to exercise prior to that payment being made, as if that payment had not been made, and you will indemnify us for all Costs incurred by us in connection with the payment not being final.

10.9 Payments to be free and clear

All sums payable by you to us in connection with a Trade Product or Service shall be paid:

(a) free and clear of any restriction or condition;

(b) free and clear of and without any deduction or withholding on account of any Tax or Regulations (except to the extent required by Law); and

(c) without any deduction or withholding (except to the extent required by Law) on account of any other amount, whether by way of set-off or otherwise.

10.10 Amendments

We may amend these Terms or the terms of any Trade Finance Document by giving you at least 30 days’ prior notice via public notice, direct notice to you, or by any other method.

10.11 Anti-money laundering and sanctions

(a) You represent to us that:

(i) neither you nor any Affiliate are subject to Sanctions; and

(ii) you are acting on your own behalf in entering into these Terms (unless you have disclosed that you are acting in a trustee capacity or on behalf of another party, and such disclosure has been accepted by us).

(b) You repeat each representation in clause 10.11(a) on each day that we provide, or continue to provide, a Trade Product or Service.

(i) you will not use, and will ensure that no Affiliate uses, any Trade Product, Service, or their proceeds, in a manner that is or becomes Unlawful, or causes any person to breach any Regulations;

(ii) you will take reasonable steps to stay aware of any Sanctions affecting your use of any Trade Product or Service;

(iii) you will immediately notify us of any actual or anticipated breach of this clause 10.11.

(d) We may delay, block, or refuse to process, any transaction, or immediately stop providing any Trade Product or Service, without our incurring any liability, if we suspect any actual or anticipated breach of this clause 10.11.

10.12 Business purposes

You acknowledge and agree that the Trade Products and Services provided under these Terms will be used for the purposes of your business and that, accordingly, the provisions of the Consumer Guarantees Act 1993 shall not apply.

10.13 Responsibility

(a) All instructions and correspondence relating to any Trade Product or Service utilised by you will be sent at your risk.

(b) We and our agents are not responsible for, and will not be liable for any Costs arising from:

(i) any Goods, Documents or items in our possession;

(ii) any errors, omissions, failures or delays in the transmission or delivery of any message or for any delay in receipt of payment from any third party;

(iii) any misrepresentation or error as to quantity, quality, nature or value of goods or for the validity or accuracy of any Bill of Exchange or other Documents or for any variation in the instructions agreed to by a Negotiating bank;

(iv) us acting in accordance with applicable Regulations;

(v) us acting in accordance with agreements we have with other financial institutions regarding the business dealings with those institutions, notwithstanding that you may have given instructions to the contrary; or

(vi) things beyond the control of us or our agents, including any act, omission or default on the part of any Correspondent Bank, Collecting Bank or settlement bank.

(c) We will have no responsibility to investigate the correctness of any instruction received by us or to investigate the authenticity of any signature or authorisation (electronic or otherwise) appearing upon any such instruction or that any signatory or authoriser possesses any title, office or position which in such instruction s/he claims or purports to possess.

(d) You acknowledge that any Trade Product or Service we provide to you may be affected directly or indirectly by Regulations. The Trade Products or Services may be interrupted, prevented, delayed or otherwise adversely affected, either in whole or in part, by reason of a Regulation including, but not limited to, where we or any Correspondent Bank considers, or a Regulatory Authority asserts, that a Regulation may apply (each an ‘Adverse Effect’). It is entirely your risk if any Adverse Effect occurs and we have no obligation to contest any act of any Regulatory Authority.

10.14 Liability and indemnity

(a) Our total aggregate liability in respect of all Costs, whether arising from breach of contract, tort (including negligence) or otherwise, under or in connection with these Terms or any Trade Finance Document in respect of a Trade Product or Service, shall in no event exceed the total fees, commissions and other charges paid to us under these Terms or any Trade Finance Document in respect of the relevant Trade Product or Service.

(b) Neither we nor any of our officers or employees shall be liable to you or any other person for any loss, damage or delay, however caused, under or in relation to any Trade Product or Service or any Goods, unless the loss, damage or delay is directly caused by our (or our officers’ or employees’).

(i) loss of profit, loss of revenue, loss of business opportunity, or damage to goodwill; or

(ii) indirect, consequential or special loss or damage.

(d) Except as expressly provided in these Terms or any Trade Finance Document, all representations and warranties (statutory, express, implied or otherwise) by us except any which may not Lawfully be excluded, are excluded.

(e) You indemnify us against, and will pay on demand, any Costs imposed by a third party which we may reasonably suffer or incur in the course of:

(i) us providing or not providing the Trade Product or Service to you;

(ii) us complying with any of your instructions or purported instructions in relation to any Trade Product or Service;

(iii) your use of the Trade Product or Service;

(iv) the failure of you or your agents to comply with these Terms or any Trade Finance Documents; or

(v) the failure of you or your agents to comply with any Regulation relating to the import or export of, or other dealing with, the Goods or the performance of Services,

except to the extent that any Costs result from our breach of these Terms or any Trade Finance Documents, or our (or our officers’ or employees’) fraud, negligence, or wilful misconduct.

(f) Each indemnity under these Terms is a continuing obligation, separate and independent from your other obligations and will survive the termination or completion of any Trade Product or Service.

10.15 Limited recourse

(a) Notwithstanding anything contained or implied in these Terms or any Trade Finance Document (including an agreement by us to provide the Trade Product or Service to you on a ‘without recourse’ basis), we have no liability to pay you or if already paid, you will refund on demand and on a full recourse basis, the amount paid by us plus interest, fees and charges and any Costs we suffer or incur, if:

(i) there is a fraud, illegality or unauthorised act committed by any person (other than us) in connection with the Trade Product or Service; or

(ii) there is any non payment to us by any person or we are required to reimburse any person for monies received by us, in connection with the Trade Product or Service because of:

(1) a commercial dispute between you and any other person; or

(2) any injunction, stop payment order or other court order (whether or not subsequently discharged).

(b) You will notify us in writing if you are aware that any circumstance described in clause 10.15(a) has occurred or is likely to occur and the details of that circumstance.

10.16 Provision, use and disclosure of customer information

(a) You will provide all information to us which we or any of our related parties reasonably require to manage any risk contemplated by, or to comply with, any Laws, rules or Regulations in New Zealand or overseas, including the requirements of clause 10.11(a).

(b) You authorise us and any of our related parties to use and disclose any personal or other information about you or the Trade Products and Services, or any person connected in any way with the Trade Products and Services at any time held by us or any of our related companies:

(i) for the purpose of establishing and maintaining the relationships between you and us and any of our related companies;

(ii) for any other purpose reasonably required by us in connection with these Terms and each Trade Finance Document;

(iii) to any Correspondent Bank, Regulatory Authority or any other person for any purpose which we or any Correspondent Bank considers necessary or desirable in connection with any Regulation or the Trade Products and Services;

(iv) to National Australia Bank Limited and any of our other related companies for the purpose of credit, risk and prudential assessment, or providing, managing or administering Trade Products or Services;

(v) to any proposed assignee, transferee, successor or risk share participant of us;

(vi) to any holder of a security interest of any of your property that is also secured to us;

(viii) to any person performing services or having rights in connection with any of your property that is also secured to us;

(ix) to any person making a claim under an Import Credit or a Standby Instrument;

(x) to any surety of you;

(xi) as required or permitted by Regulations;

(xii) to any government body or agency in New Zealand or overseas (including any tax authorities) to help us comply with any laws, rules or regulations in New Zealand or overseas;

(xiii) to our auditors and professional advisors; and

(xiv) to any credit or rating agency.

10.17 Security

(a) If we require you to give us any security or there is a deemed security interest in our favour, you must execute such documentation and/or take such action as we may require to grant, perfect, preserve or enforce that security.

(b) You agree that you will, at your cost, at our request made at any time:

(i) execute (in the form specified by us) such additional or replacement security documents, variations to such agreements, priority agreements, transfers, assignments, irrevocable orders and other payment directions, surrenders, releases, assurances and other notices or documents; and

(ii) do (as specified by us) every act, matter and thing, that we require to more effectively secure our rights and interest in and to the Documents, the Goods or the proceeds under any Export Credit (as applicable), or to exercise any rights, or that we consider necessary or desirable for improving, perfecting, registering or enforcing any security interest.

(c) We may register these Terms and any Trade Finance Document and any notice in relation to these Terms and any Trade Finance Document, or any of the security interests created by or given in connection with these Terms and any Trade Finance Document, on any appropriate register, and you will obtain all requisite consents to allow us to do so and provide us with all such information as we require, and procure the signing of all documents required by us, to effect such registration.

(d) You irrevocably waive any rights you may have at any time, including under section 148 of the PPSA, to receive a copy of any verification statement (as that term is defined for the purposes of the PPSA).

(e) You must pay on demand all Costs of whatever nature and any Taxes thereon we incur in or in connection with the compliance with any demand given under section 162 of the PPSA or any application for, or the obtaining of, a court order to maintain any registration relating to any of the security interests created by, or given in connection with, these Terms and the serving of any such court order on you, the Registrar of Personal Property Securities or any other person.

(f) On the enforcement of those security interests created by, or given in connection with, these Terms or any Trade Finance Document to which the PPSA applies sections 114(1)(a), 133 and 134 of the PPSA shall not apply. You also waive any rights you may have under sections 116, 120(2), 121, 125, 129 and 131 of the PPSA on such enforcement.

(g) You must give us not less than 10 days prior written notice of any change to your name or address or if there are any changes to any of the data required to register a financing statement under the PPSA.

10.18 Severability

(a) Present or future Regulations affecting the exercise or enforcement of any rights, establishing moratoriums on the payment of debts or otherwise operating in your favour are, to the full extent permitted by Law, excluded from applying to these Terms and each Trade Finance Document.

(b) If, despite clause 10.18(a), a provision of these Terms or a Trade Finance Document is void or voidable or unenforceable by us but would not be void or voidable or unenforceable if it were read down, and is capable of being read down, it shall be read down accordingly.

(c) If despite clause 10.18(b), a provision of these Terms or any Trade Finance Document is still void or voidable or unenforceable by us:

(i) if the provision would not be void or voidable or unenforceable if a word or words were omitted, that word or those words (as the case may be) are severed; and

(ii) in any other case, the whole provision is severed, and the remainder of these Terms or the Trade Finance Document has full force and effect.

10.19 Waiver

(a) You may not claim or seek to establish any waiver by us of any breach or default by you under these Terms or any Trade Finance Document or that we have given up or waived any of our rights unless we have given you a certificate in writing signed by an authorised officer of us expressly waiving that breach or default, or expressly waiving the exercise or enforcement of the rights concerned.

(b) You acknowledge and agree that in the absence of a certificate of the kind referred to in clause 10.19(a), no conduct (including any omission) of ours or any of our officers, employees, contractors or agents:

(i) constitutes or may be treated as a waiver of any breach or default of yours or that of any other person under these Terms or any Trade Finance Document or of any of our rights; or

(ii) stops us relying on the breach or default, or from exercising or enforcing the rights concerned, even if we act to our detriment in reliance on the conduct concerned despite this provision.

(d) No single or partial exercise of a right shall restrict the further exercise of that or any other right.

(e) Any decision by us to seek your waiver of any non-compliance of any Documents or a non-Complying Presentation does not oblige us to seek a waiver at any other time in connection with any other non-compliance of any Documents or a non-Complying Presentation.

10.20 Further assurance

(a) At our request, you will promptly and at your cost complete, execute and otherwise perfect all agreements and do all acts and things that we consider necessary or desirable to protect our interests under these Terms and each Trade Finance Document.

(b) You irrevocably appoint us and any of our authorised officers severally to be your attorney (with full power to appoint substitutes and to sub-delegate) to, on your behalf and in your name or otherwise, and at such time and in such manner as the attorney may think fit to do any thing which you may be obliged to do or ought to do under these Terms or any Trade Finance Document and which you have failed to do (including filling in any blanks in any document) and generally carry into effect, complete, facilitate the exercise or purported exercise of all or any of our rights, powers and discretions pursuant to these Terms or any Trade Finance Document.

(c) You ratify and confirm and agree to ratify and confirm whatever any such attorney (or substitute or sub-delegate) shall do or purport to do in the exercise or purported exercise of the powers of attorney in clause 10.20(b).

10.21 General

(a) You represent and warrant that all information given to us, including financial information provided by you, or someone on your behalf, in connection with any application for, or the supply of, any Trade Product or Service is true and complete and accurate in all material respects and that you do not know of any material facts or circumstances which have not been disclosed to us which could affect our decision to provide any Trade Product or Service to you.

(b) You must deliver to us within a reasonable time frame (as specified by us) following our request, any information which we require in relation to the provision of a Trade Product or Service to you, or which may assist or improve in the provision of Trade Products or Services to you from time to time (including information relating to your business, financial condition and operations).

(c) If you live outside New Zealand or if you are not entitled to be permanently resident in New Zealand, you must let us know, and you must appoint an agent in New Zealand acceptable to us, to accept notices on your behalf.

10.22 Governing Law and process agent

(a) Unless specified otherwise, these Terms and each Trade Finance Document are governed by the Laws of New Zealand and you submit to the non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining all disputes under or in connection with these Terms and each Trade Finance Document.

(b) If you do not have a place of business in New Zealand, you shall appoint (and shall provide us with details of the appointment of) a person to be your authorised agent to accept service of any document required to be served on you in relation to proceedings under or in connection with these Terms or any Trade Finance Document which are commenced in the courts of New Zealand. You further undertake to notify us promptly of any change of address of a current agent or representative and of the name and address of any substitute agent or representative.

10.23 Definitions

The following definitions apply to these Terms and the other Trade Finance Documents unless the context requires otherwise:

Advising Bank shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Advising Bank as:
The bank that advises the Credit at the request of the Issuing Bank.

Affiliate means you and each other person (other than us) who is a party to a Trade Finance Document, together with each of your and their respective directors, officers, employees, agents, subsidiaries, owners and controllers.

Business Day means any day other than a Saturday or Sunday on which we are open for normal banking business in Auckland or Wellington.

Bill of Exchange means the definition of bill of exchange in section 3(1) of the Bills of Exchange Act 1908 being: an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer.

Collection shall have the meaning ascribed to the term in the ICC Uniform Rules for Collections and Collect and Collecting shall have a corresponding meaning.

Guidance Note:
As at September 2014, ICC Uniform Rules for Collections 522 (dated 1 July 1995) define Collection as:
The handling by banks of documents as defined in sub-Article 2(b), in accordance with instructions received, in order to:

i obtain payment and/or acceptance; or
ii deliver documents against payment and/or against acceptance; or
iii deliver documents on other terms and conditions.

Complying Presentation shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Complying Presentation as:
A Presentation that is in accordance with the terms and conditions of the Credit, the applicable provisions of these rules and international standard banking practice.

Confirmation shall have the meaning ascribed to the term in UCP, and Confirm shall be construed accordingly.

Guidance Note:
As at September 2014, UCP 600 defines Confirmation as:
A definite undertaking of the Confirming Bank, in addition to that of the Issuing Bank, to Honour or Negotiate a Complying Presentation.

Confirming Bank shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Confirming Bank as:
The bank that adds its Confirmation to a Credit upon the Issuing Bank’s authorisation or request.

Correspondent Bank means any bank which provides any banking or other services at our request in connection with a Trade Product or Service.

Costs includes any costs, charges, fees, commissions, indemnities, Taxes, damages, losses, expenses (including legal fees and expenses on a full indemnity basis and goods and services and similar Taxes thereon), claims, liabilities (absolute or contingent), fines and penalties and includes loss of profit and costs incurred in liquidating or redeploying deposits or other funds.

Credit shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Credit as:
Any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the Issuing Bank to Honour a Complying Presentation.

Documents means Bills of Exchange, bills of lading and all other documents of title, transport documents, insurance policies, invoices and all other documents which evidence and are necessary to manage, collect, recover and enforce payment for Goods or Services (whether pursuant to a Credit) and, in relation to a Collection, shall also have the meaning ascribed to the term in the ICC Uniform Rules for Collections.

Export Collection means a Collection where we act on your behalf for collecting and receiving payment for a shipment.

Export Credit means a Credit issued by another bank in your favour which we Honour, Negotiate, purchase, Present, transfer, finance and/or Confirm or give an Independent Undertaking for or at your request.

Goods mean the goods or produce described in the relevant Credit, invoice or sales contract.

Honour shall have the meaning ascribed to the term in UCP and Honoured, Dishonour and Dishonoured shall have a corresponding meaning.

Guidance Note:
As at September 2014, UCP 600 defines Honour as:

(a) To pay at sight if the Credit is available by sight payment.
(b) To incur a deferred payment undertaking and pay at maturity if the Credit is available by deferred payment.
(c) To accept a bill of exchange (‘draft’) drawn by the beneficiary and pay at maturity if the Credit is available by acceptance.

ICC means the International Chamber of Commerce.

Import Collection means a Collection we carry out as Collecting and/or Presenting bank for collecting and remitting payment for a shipment from an overseas exporter.

Import Credit means a Credit we issue for or at your request.

Independent Undertaking means an undertaking between you and us, in addition to and separate from the underlying Credit issued by the Issuing Bank, to Honour or Negotiate a Complying Presentation on a ‘without recourse’ basis.

ISP means the ICC International Standby Practices.

Issuing Bank shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Issuing Bank as:
The bank that issues a Credit at the request of an applicant or on its own behalf.

Law includes common law, and any constitution, decree, judgement, legislation, order, ordinance, regulation, statute, treaty or other legislative measure, in each case of any jurisdiction whatever (and ‘Lawful’ and ‘Unlawful’ shall be construed accordingly).

Negotiation shall have the meaning ascribed to the term in UCP and Negotiate, Negotiations, Negotiating, and Negotiated shall have a corresponding meaning.

Guidance Note:
As at September 2014, UCP 600 defines Negotiation as:
The purchase by the Nominated Bank of drafts (drawn on a bank other than the Nominated Bank) and/or documents under a Complying Presentation, by advancing or agreeing to advance funds to the beneficiary on or before the banking day on which reimbursement is due to the Nominated Bank.

Nominated Bank shall have the meaning ascribed to the term in UCP.

Guidance Note:
As at September 2014, UCP 600 defines Nominated Bank as:
The bank with which the Credit is available or any bank in the case of a Credit available with any bank.

PPSA means the Personal Property Securities Act 1999.

Presentation shall have the meaning ascribed to the term in UCP and Present, Presenting and Presented shall have a corresponding meaning.

Guidance Note:
As at September 2014, UCP 600 defines Presentation as:
Either the delivery of documents under a Credit to the Issuing Bank or Nominated Bank or the Documents so delivered.

Regulatory Authority means local or foreign governments, inter-governmental bodies, and their offices and instrumentalities.

Regulations means Laws including, without limitation, any subordinate instrument, and the acts, practices and policies of Regulatory Authorities, whether or not having the force of law. Regulations may be those in any place where we or any other financial service provider involved in a Trade Product or Service (including a Correspondent Bank) operates, or with which the Trade Product or Service has some direct or indirect connection, or to which or from which a payment or instruction is made or received or in which some other thing is done, or may be the Regulations of or applicable to the currency of payment. Regulations include, but are not limited to, those which affect, restrict, prohibit or otherwise render Unlawful transactions, payments or dealings with assets, countries, any person, group or entity, including Sanctions.

Reimbursing Bank means the bank with which the Issuing Bank maintains an account and which is authorised by the Issuing Bank to charge that account to pay claims received from the Negotiating bank for documents that have been Presented.

Sanctions means any sanctions program administered by a responsible government or inter-governmental body or their offices. This includes (for example) the governments of New Zealand, Australia, the United Kingdom and the United States of America; the United Nations Security Council; and the European Union.

Security Interest has the meaning given to it by section 17 of the PPSA except in respect of any real property and any other property to which the PPSA does not apply, in which case Security Interest includes a charge over such property.

Secured Moneys means all amounts that at any time are due and owing by you to us, or you owe to us but are not then due, or you owe to us upon a contingency (directly or indirectly and for any reason) in connection with any Trade Product or Service provided to you.

Secured Property means the Documents and Goods and their proceeds now or at any time delivered to, or deposited with you or us or are otherwise in your or our possession, custody or control.

Services means the services described in the Credit or Standby Instrument which are performed, supplied or provided by you to the beneficiary of the Credit or Standby Instrument.

Standby Instrument means a standby letter of credit, performance bond, advance payment bond, bid bond/tender bond, demand guarantee and such other instruments as we agree to issue pursuant to clause 8 from time to time, and further includes any counter-indemnity issued by us in favour of our Correspondent Bank to facilitate the issuance of any of the above-mentioned instruments by our Correspondent Bank.

Taxes means any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called (including interest, penalties, fines and charges in respect of the Taxes) imposed, levied, collected, withheld or assessed by any Regulatory Authority, on whomsoever imposed, levied, collected, withheld or assessed.

Terms means these Bank of New Zealand Trade Terms.

Trade Finance Document means any agreement, letter, application or other document setting out the terms and conditions of a Trade Product or Service.

Trade Product or Service means any trade related product, service or facility provided by us to you in connection with the purchase, sale, storage, release, preparation or shipment of, or other dealings in, Goods or the performance of Services.

UCP means the Uniform Customs and Practices for Documentary Credits of the ICC.

We or us means Bank of New Zealand and our successors and assigns. Our has a corresponding meaning.

You means the person or persons named in the Trade Finance Document as you.
If there are more than one, ‘you’ means each of them separately and every two or more of them jointly. ‘You’ includes your successors and permitted assignees. Your has a corresponding meaning.

10.24 Interpretation

(a) Terms not defined in these Terms will have the meaning given to them in the relevant Trade Finance Document or applicable ICC rules.

(b) In these Terms, unless the context otherwise requires, terms will be interpreted in accordance with the interpretation provisions of the relevant Trade Finance Document.

(c) Unless we notify you otherwise, the ICC rules which are applicable to each Credit, Standby Instrument or Collection will be those which are in effect at the relevant time, and any future revision of such rules above will automatically apply when it is stated by the ICC to come into effect.

(d) A security interest includes a ‘security interest’ (as defined in section 17 of the PPSA), a mortgage, encumbrance, lien, pledge, charge (whether fixed or floating), finance lease, deferred purchase, sale and repurchase, flawed asset, sale and leaseback, title retention, assignment by way of security, trust, hypothecation, and any other security agreement or arrangement of whatsoever nature (however described) that in substance secures payment or performance of an obligation without regard to the form of the transaction and the identity of the parties.

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