ANZ TR ADE TERMSSAMOASEPTEMBER 2019

1.

INTRODUCTION

1.1

Terms applying(a)	These ANZ Trade Terms and each relevant Trade
Country Addendum (together, the Terms) apply to all
Trade Products used by, or provided by ANZ to, a
Customer unless agreed otherwise in writing by ANZ.
(b)

To the extent that you require clarification in respect ofthese Terms or copies of the ICC Rules to which certain
provisions of the Terms refer, please refer your inquiry
to your relevant ANZ contact point.

1.2

Applications and forms(a)

The Customer will apply or request to use a Trade
Product by delivering to ANZ an application or request(as applicable):(1)in a format specified or approved by ANZ fromtime to time;(2)completed to the satisfaction of ANZ; and(3)signed or made by one or more Authorised
Representatives.

(c)

ANZ will send a copy of each Import Credit to theCustomer as soon as is practical after it is issued.

(d)

The Customer is solely responsible for ensuring that theterms of an Import Credit are correct and meet its
requirements.

(e)

The Customer must notify ANZ of any objection to the
Import Credit terms within 2 Business Days after
receiving its copy of the Import Credit. If it does notraise any objection within that period, it will bedeemed that the Customer is completely satisfied withthe terms of the Import Credit and it waives any right toraise objections to the form of the Import Credit.

2.2

Third Party Import Credits

ANZ may issue, at the Customer’s request, an Import Credit tofacilitate the business transactions of another party with thebeneficiary and with that other party named as the applicant
or contracting party in that Import Credit. If ANZ does so, theCustomer’s reimbursement obligations to ANZ will still apply.
2.3

Correspondent Bank(a)

The Customer may request that ANZ use a specified
Advising bank or Nominated bank in respect of an
Import Credit transaction.

(b)

However, the Customer agrees that ANZ may elect touse a different or second Advising bank or Nominatedbank where it determines (acting reasonably) that such
an election is necessary to proceed with the Customer’s
requested transaction.

Unless agreed otherwise in writing by ANZ, all Trade Products
are provided to the Customer on an uncommitted basis andnothing in any Trade Agreement, the satisfaction of all or any
requirements in it or any negotiations between the parties
before the Trade Product is utilised obliges:

2.4

Separate transaction(a)the Customer to use any Trade Product;(b)

ANZ to accept and act upon the Customer’s request to
use a Trade Product or give the Customer any reasons
for refusing to do so; or(a)notify the Customer that a presentation has been
received or prior to honouring an Import Credit;(b)make reference to, enquiry into or to take account ofstatements or instructions from the Customer or any
other party or any defence or claims the Customer may
have against the Presenter; or(c)notify the Customer that a presentation is notcompliant prior to dishonour.

2.5

Compliant presentation(a)

ANZ will honour all presentations complying with theterms of the Import Credit.

(b)

If ANZ has restricted the negotiation of the Import
Credit to its Correspondent Bank, ANZ may accept andpay all drafts drawn or purported to be drawn on that
Correspondent Bank.

2.6

Non-compliant presentation(a)

ANZ may refuse to honour any non-complying
presentation under the Import Credit.

(b)

If ANZ notifies the Customer of discrepancies, theCustomer must promptly notify ANZ in writing within 2
Business Days of whether or not it waives them. If the
Customer does not do so, ANZ may at any time afterthat date return the Trade Documents to the Presenter.

(c)

Any decision by ANZ to seek instructions from theCustomer regarding discrepancies at any time does not
oblige ANZ to seek instructions at any other time inrespect of any other discrepancies.

(d)

The Customer acknowledges and agrees that where it
requests ANZ to authorise the release or delivery of theGoods to it and notwithstanding any discrepancies that
may appear in the presentation, the Customer must
reimburse ANZ in respect of the relevant Import Creditin accordance with these Terms.

(b)

The Customer will also execute and deliver to ANZ any
other documents ANZ may require in relation to a Trade
Product.

(c)

ANZ will promptly notify the Customer if it will not
accept and act upon an application or request of the
Customer to use a Trade Product.

1.3

Uncommitted(c)

ANZ to continue to make any Trade Product available to
the Customer; and ANZ or the Customer may, at any
time, terminate, cancel or withdraw the provision of theTrade Product.

1.4

Exchange rate movements(a)

If the Customer uses a Trade Product in one currency
and the Customer’s receivables are in another currency
and the exchange rate of the currencies fluctuates, theCustomer may be exposed to exchange rate risk.

(b)

The Customer is solely responsible for monitoring andmanaging exchange rate risk and protecting itself
against adverse exchange rate movements.

(c)

The Customer will, if required by ANZ, provide extra
security or payment (including by way of cash cover) or
reduce the drawn amount of the Trade Product if
exchange rate fluctuations have caused the value of
security provided or a payment made to ANZ to fall or
actual or contingent payment obligations owed to ANZ
to increase relative to the drawn amount of or limit
provided for the Trade Product.

2.

IMPORT CREDITS

2.1

Issuance(a)

Each Import Credit will be irrevocable and issued
subject to UCP and may be issued subject to URR andotherwise in a form and substance acceptable to ANZ.

(b)

ANZ is not obliged to check or ensure the accuracy of
any information supplied to it for inclusion in any
Import Credit.

The Customer acknowledges that an Import Credit is by its
nature a separate transaction from any contract between the
Customer and any other party on which the Import Credit
may be based. As such, ANZ is not required to:1

ANZ TR ADE TERMS
2.7

Responsibility

ANZ, its Correspondent Banks and agents are not liable or
responsible for:(a)the shippers’ charges on the Goods;(b)obtaining any governmental authorisation, licence or
permit necessary or appropriate in connection withthese Terms and or the Import Credit;(c)any impossibility or illegality in respect of the Import
Credit or any other agreement as result of any act of
any Authority or court, or any Law, affecting theseTerms or the Import Credit; or(d)any variations in the instructions agreed to by ANZ or
any other bank relating to the Import Credit
necessitated by the Law and/or commercial practice ofthe country in which any draft is negotiated orpresented for acceptance or for payment.

(d)

The Customer indemnifies, and must pay to ANZ on
demand, an amount equal to all reasonable costs orlosses which ANZ may incur in guaranteeing payment of,or adding its guarantee (aval) to, the Draft (other thanwhere the costs or losses are due to the negligence,
fraud or wilful default of ANZ, its employees, officers,
contractors, agents or any receiver appointed by ANZ).

(e)The Customer absolutely, irrevocably andunconditionally authorises ANZ to pay immediately on
any demand made pursuant to that (avalised) Draft on its
maturity date (without any prior notice to the Customer).

(f)

ANZ will not be under any obligation to enquire
whether any claim, demand or drawing by the exporteris properly made or whether the Customer disputes thevalidity of any such claim by the exporter.
Any action taken by ANZ in good faith pursuant to thisclause will bind the Customer in respect of such action.

2.8

Insurance(a)

If it is the Customer’s responsibility to insure the Goodsor cause the Goods to be insured, the Customer will
insure them or cause them to be insured for loss anddamage and for an amount that a prudent andreasonable owner of the Goods would effect andmaintain with a reputable insurance company.

(g)

(b)

The Customer will give a copy of the insurance policy
and all receipts for current premiums to ANZ within 3
Business Days of being requested by ANZ to do so.

The Customer pledges in favour of ANZ, as continuing security
for payment and discharge on demand to ANZ of the Import
Obligations, the Pledged Assets.

(c)

If the Customer fails to comply with this clause, ANZ
may take out and maintain, at the Customer’s expense,
insurance considered appropriate by it.

2.9

Reimbursement(a)

The Customer will pay to ANZ an amount equal to andin the same currency as all amounts paid by ANZ inconnection with an Import Credit, on the day on which
ANZ makes or is required to or deemed to make thatpayment.

(b)

If ANZ specifies, the Customer will, on or shortly before
the date on which ANZ makes (or is likely to make) apayment under an Import Credit, pay to ANZ a sum
equal to such payment. ANZ may hold all or part ofsuch sum in an account in ANZ’s name, under ANZ’ssole control and/or apply all or part of such sum against
the Customer’s reimbursement obligations to ANZ.

3.

IMPORT COLLECTIONS

3.1

ICC rules

Each Collection (either documentary or clean) will be subject
to URC.
3.2

Collecting bank

If ANZ acts as a collecting bank in respect of import
Collections and Drafts for acceptance or payment:

2

from the time of dishonour until payment by the
Customer of the face value amount of the Draft to ANZ
and all charges incurred by ANZ.

(a)

ANZ may hold the Trade Documents until acceptanceor reimbursement of the relevant Drafts, or payment,by the Customer; and(b)

ANZ will outline in the correspondence to theCustomer attached to the import Collection any
additional terms applicable to any import Collection.

3.3

Guarantee (Aval)(a)

ANZ may, at the Customer’s request, add its guarantee(aval) to a Draft which the Customer has first accepted.

(b)

The Customer must pay ANZ the face value amount of
the guaranteed (avalised) Draft on its maturity date.

(c)

If the Customer dishonours the Draft, the Customer
must pay ANZ interest calculated at the interest rateagreed in or in accordance with the Trade Agreement

4.
IMPORT CREDITS AND COLLECTION –PLEDGE AND TRUST RECEIPT
4.1

4.2

PledgeRisk

The Customer will hold all risk in any Pledged Asset. ANZ is not
responsible for any Pledged Asset and will not be liable for
any Loss in relation to, or depreciation in the value of, any
Pledged Asset.
4.3

Pledge obligations

The Customer must:(a)

have good title to each Pledged Asset and ensure thatno person (other than ANZ) at any time has any
Encumbrance or other interest in (or claim over) any
Pledged Assets while the Pledge over that Pledged
Assets exists;(b)

deal with the Pledged Assets in accordance with any
instructions ANZ may give the Customer from time to
time;

(c)

take any step that ANZ reasonably requests which ANZ
considers necessary or desirable to constitute, preserveor perfect the Pledge;(d)not sell or dispose of any Pledged Asset or its right, title
or interest in any Pledged Asset unless permitted underthese Terms or as otherwise agreed by ANZ in writing;(e)

pay all costs and expenses in relation to any Pledged
Assets, including the cost of insuring, storing ortransporting them;(f)ensure that all Pledged Assets are kept separate fromany other goods and are clearly marked as belonging to
ANZ; and(g)ensure that any person who is in actual possession of
any Pledged Assets acknowledges to ANZ in writingthat they are held to ANZ’s order.

4.4

Authority to perfect and dispose

The Customer irrevocably authorises (but does not oblige)
ANZ (acting reasonably) and its agents and nominees to
execute all documents and do all other acts and things ANZ
considers necessary or desirable, to perfect the Pledge or toeffect any disposal of any Pledged Assets, or to enforce any
rights to which the Customer or ANZ is entitled in connection
with any Pledged Assets.

4.5

Action on default(a)

If the Customer fails to pay or discharge any of theImport Obligations when due or is otherwise in breachof its obligations under these Terms, ANZ may deal withand take any action in relation to any Pledged Assets,
including selling, disposing, transporting, warehousing,landing or insuring any Pledged Assets or making aclaim on any insurance policy.

(b)

The Customer must reimburse ANZ on demand in
relation to any reasonable cost or expense ANZ incurs
in relation to ANZ dealing with or taking action in
relation to any Pledged Asset.

(c)

ANZ is not liable for any Loss suffered by the Customer
as a consequence of that action.

(d)

The Customer will remain liable for and must pay any
deficiency that may remain owing to ANZ after the saleor disposal of the Pledged Assets.

4.6

intermingling those proceeds with other moneys;
and
(2)

(k)

not to permit the Goods to be processed or altered orincorporated in any other goods without ANZ’s writtenconsent which if given may be conditional; and(l)to notify ANZ immediately of any change, occurrenceor circumstance affecting the value, state, condition,
quality or quantity of any of those Pledged Assets.

4.7

Pledge and Trust Receipt Customer obligations(a)

The Customer will give ANZ periodical reports andother particulars concerning the Goods or the Trade
Documents as ANZ may require from time to time in amanner satisfactory to ANZ.

(b)

ANZ may, at any time and without notice to theCustomer, enter any premises for the purpose of
inspecting or taking possession or custody of theGoods and also to take such steps as ANZ considers
necessary or desirable to protect its interest in theGoods. ANZ will act reasonably in exercising its rights
under this Clause.

Trust Receipt

If, prior to the payment in full of the Import Obligations, ANZ
releases any Pledged Assets to, or to the order of, theCustomer, whether or not a Trust Receipt is signed anddelivered to ANZ for that release the Customer will hold those
Pledged Assets and any proceeds of their sale on trust for ANZ
and failing that will hold them as ANZ’s fiduciary and/or agent
and in each case for ANZ’s sole benefit (unless otherwise
agreed by ANZ in writing) and the Customer agrees that:to hold all rights, title and interest in, and claims forpayment under, the contract of sale and theproceeds from receipt until payment to ANZ intrust for ANZ and failing that will hold them as
ANZ’s fiduciary and/or agent and in each case for
ANZ’s sole benefit;(a)those Pledged Assets are pledged to ANZ upon theterms of these Terms and that the Pledge will continue
notwithstanding the release of those Pledged Assets by
ANZ to the Customer;

5.
SHIPPING GUARANTEE/INDEMNITY
AND AIR WAYBILLS
5.1

Issuance(b)

those Pledged Assets are held at all times to the orderof ANZ but at the expense and at the risk of the
Customer; and

(a)

(c)

it has no claim, lien or set-off of any kind in respect ofanything which the Customer holds on trust for ANZ
and the Goods will remain the property of ANZ until
sold or otherwise disposed of, and undertakes:

The Customer may request ANZ to provide a Carrier
with a Shipping Guarantee or authority to facilitate therelease by the Carrier of any Goods or the issuance of a
duplicate set of the original Bills of Lading.

(b)

(d)

if ANZ requests, to execute a Trust Receipt in respect of
those Pledged Assets before they are released;

If ANZ agrees to provide a Shipping Guarantee to a
Carrier, ANZ will only do so if the form of Shipping
Guarantee required by the Carrier is in a form
acceptable to it.

5.2

Release(e)

to deal with those Pledged Assets with the sole
purpose of the sale of the Goods comprising those
Pledged Assets to buyers approved by ANZ, unlessotherwise agreed with ANZ in writing;

The Customer must ensure that the relevant Carrier releases
ANZ from the Shipping Guarantee in a manner satisfactory to
ANZ and that ANZ’s liability under the Shipping Guarantee isextinguished as soon as possible.

(f)

not to sell or otherwise dispose of any of those Pledged
Assets on deferred terms (other than normal tradecredit) or for any non-monetary consideration or forless than current market value;

(g)

(h)

(i)

(j)

pending the sale of any Goods that form part of those
Pledged Assets, to maintain the Goods in sellable
condition, keep those Goods stored in the name of
ANZ in warehouses approved by ANZ, separate fromother goods and generally under conditions
satisfactory to ANZ;
insure the Goods against fire and any other risks that
ANZ may reasonably require to their full insurable valueand hold the policies on behalf of ANZ and in case ofloss pay the insurance moneys to ANZ in the samemanner as proceeds of sale and make good any
deficiency;
to hand to ANZ any warrants, receipts and documents(other than documents that are already pledged)
relating to those Pledged Assets promptly on receipt;

5.3

(a)

must accept all import and other documents relating to
the relevant goods regardless of any discrepancy orirregularity;(b)must waive all discrepancies or irregularities under the
related Import Credit even if the discrepancy has notbeen notified, the required Trade Documents have notbeen presented or the Import Credit has expired;(c)authorises ANZ to honour any relevant drawings under
the relevant Import Credit without examining thepresented Trade Documents and will reimburse any
payment made by ANZ irrespective of discrepancies
that may appear on the Trade Documents; and(d)must comply with the terms of any Trade Documents
and any undertaking to pay given to ANZ regardless ofany dispute with its supplier or any third party.

5.4

Reimbursement(a)

The Customer will pay to ANZ an amount equal to andin the same currency as all amounts paid by ANZ in

upon sale of any of those Pledged Assets:(1)

to promptly get in, recover and receive the saleproceeds in accordance with the contract of saleand remit to ANZ all sale proceeds immediately onreceipt without set-off or deduction and without

Trade Documents

If ANZ agrees to provide a Shipping Guarantee to a Carrier, theCustomer, in relation to any related Import Credit or Import
Collection:

3

ANZ TR ADE TERMS
connection with a Shipping Guarantee or authorising
the release of Goods on the day on which ANZ makes
or is required to or deemed to make that payment.
(b)

If ANZ specifies, the Customer will, on or shortly before
the date on which ANZ makes (or is likely to make) apayment under a Shipping Guarantee, pay to ANZ a
sum equal to such payment. ANZ may hold all or partof such sum in an account in ANZ’s name, under ANZ’ssole control and/or apply all or part of such sum against
the Customer’s reimbursement obligations to ANZ.

6.
BACK-TO-BACK/FRONT-TO-BACK
IMPORT CREDITS
6.1

Matching terms(a)

The Customer must ensure that a BtB Import Credit and
FtB Import Credit contains terms matching orcompatible with the related Master Credit.

(b)

ANZ will notify the Customer of any mismatch or
incompatibility between the BtB Import Credit or FtB
Import Credit and the Master Credit.

6.2

Amendment

If the Master Credit is not advised by ANZ, the Customer willpromptly notify ANZ upon becoming aware of any
amendment proposed to the Master Credit and will not
accept or reject any amendment to any Master Credit without
the prior written consent of ANZ.
6.3

Full recourse

The Customer’s liability to ANZ under any BtB Import Credit or
FtB Import Credit is not dependent upon whether payment
can or cannot be obtained under the Master Credit and ANZ
retains full recourse to the Customer in respect of that liability.
6.4

Sufficiency of documents

If ANZ pays a drawing under any BtB Import Credit or FtB
Import Credit that payment will not constitute any warranty or
representation by ANZ that the Trade Documents received by
ANZ under the BtB Import Credit or FtB Import Credit, with orwithout the substitution of invoices and possibly otherdocuments supplied by the Customer, are sufficient to form aset of fully compliant Trade Documents for the purpose ofobtaining payment under the Master Credit.
6.5

6.6

ANZ is Presenting bank(a)

The Customer irrevocably appoints ANZ as its
presenting bank regarding the Master Credits.

(b)

After Trade Documents are presented under the BtB
Import Credit or FtB Import Credit, the Customer muston ANZ’s demand deliver to ANZ its invoice and anyother document required to facilitate a complying
presentation under the Master Credit.

(c)

ANZ may take any action in respect of the Master Credit
including presenting the Trade Documents to obtain
payment under the Master Credit and Financing theMaster Credit.

(d)

ANZ may apply the proceeds under any drawing orcollection under or Financing of the Master Credit to:(1)

pay the corresponding drawing under the BtB
Import Credit or FtB Import Credit irrespective ofany discrepancies in any document presented
under the BtB Import Credit or FtB Import Credit;
ordischarge the Customer’s obligations and liabilities(actual or contingent) in respect of any advance orloan provided by ANZ in connection with the BtB
Import Credit or FtB Import Credit as ANZ thinks
fit, in each case without first crediting those
proceeds to the Customer’s account with ANZ.

(e)

To the extent that there are any surplus proceeds heldby ANZ following the application of proceeds receivedin accordance with this clause, the surplus proceeds willbe credited to the Customer’s account with ANZ.

6.7

Authority

ANZ is authorised in respect of the Master Credit to (but need
not):
(a)

execute, sign and/or complete any document,
instrument or instruction; and(b)

do any acts and things whatsoever which may, in ANZ’sopinion, be necessary for the presentation and
Financing of the Trade Documents under the Master
Credit including the preparation, completing, dating
and signing of any relevant Trade Documents in orderto give effect to the appointment and authorities given
to ANZ under this Clause 6.

7.

EXPORT CREDITS

7.1

ICC rules

Any Financing of any Trade Document relating to an Export
Credit will be subject to the version of UCP stated in the
Export Credit. The presentation of any Trade Document forCollection will be subject to URC.
7.2

Advising

Upon receipt of an Export Credit from the Issuing bank, ANZ
will advise its terms to the Customer in accordance with theIssuing bank’s instruction and on the terms in UCP.
7.3

Payment Undertakings

Offer and acceptance and fees(a)

The Customer may from time to time request ANZ toprovide Payment Undertakings for Export Credits.

(b)

When ANZ receives the Customer’s acceptance of
ANZ’s offer to provide a Payment Undertaking and/or
ANZ and the Customer agree in writing the fees to be
paid by the Customer in respect of the relevant
Payment Undertaking, the Export Credit has the benefitof the Payment Undertaking.

No assignment

The Customer will not assign the proceeds of any Master
Credit to any other person without the prior written consent
of ANZ.

4(2)

Payment Undertaking(c)

If ANZ does not Finance an Export Credit in respect ofwhich it has provided a Payment Undertaking:(1)

ANZ will pay the Customer the drawing amountwhen funds are received from the Issuing bankand the Confirming bank (if any) in accordancewith the Export Credit reimbursement terms; or(2)

if the Issuing bank and the Confirming bank (if any)
does not honour a complying presentation, ANZ
will credit the account nominated in writing by the
Customer with the drawing amount on thematurity date of the Export Credit drawing, lessany unpaid fees or charges due and payable to
ANZ on the maturity date of the Export Credit
drawing.

7.4

Financing Export Credit with Payment Undertaking(a)When the Customer presents Trade Documents called
for under the Export Credit, it may request ANZ toFinance them.

(b)If ANZ Finances Compliant Trade Documents of an
Export Credit in respect of which it has provided a
Payment Undertaking, ANZ will pay the Export Credit
drawing(s) amount into the Customer’s nominatedaccount less:
(1)

(2)
(c)

interest agreed in writing by ANZ and theCustomer before ANZ Finances (unless ANZ has
agreed with the Customer in writing, or the Export
Credit states, that interest will be paid separately);
and

of:

(c)

any unpaid fees due and payable to ANZ.

Any Payment Undertaking provided for an Export
Credit will end upon the Customer’s account being
credited with the Financing proceeds for that Export
Credit and ANZ will not be obliged to make any otherpayment to the Customer.

7.5 Financing Export Credit without Payment
Undertaking(1)

Political Risk(s) in the country(ies) of the Issuingbank and the Confirming bank (if any);(2)

Transfer and Economic Risk(s) in the country(ies) of
the Issuing bank and the Confirming bank (if any);(3)

Credit Risk(s) of the Issuing bank and theConfirming bank (if any); or(4)

Documentary Risk.

However, the Customer agrees that where a Recourse
Event occurs:(1)

if ANZ has not paid the Customer under the
Payment Undertaking or, having agreed to
Finance ANZ has not yet advanced funds, ANZ
does not have to pay the Customer and therelevant Payment Undertaking and commitment
to Finance is immediately cancelled; or(2)

if ANZ has paid an amount under the Payment
Undertaking or advanced funds under the
Financing, ANZ has full recourse to the Customer
on demand for the amount calculated inaccordance with subclause (f) and specified in the
demand; and in either case, ANZ is under noobligation to provide the Customer with any
further Payment Undertakings or provide
Financing in respect of any Exports Credits.

Request(a)

The Customer may request ANZ to Finance the Trade
Documents it presents and credit its account specified
in the document presentation form with the proceeds
after ANZ:
(1)determines that the Trade Documents comply
with the Export Credit terms (pre-acceptance
Finance); or(2)

receives a Document Acceptance (postacceptance Finance).

Financing without Payment Undertaking(d)Unless otherwise agreed in writing with ANZ, if ANZ has
Financed an Export Credit without a Payment
Undertaking, the Financing is provided to the Customer
on a full recourse basis in all circumstances and without
exceptions. The Customer agrees to repay ANZ on
demand, and in any event by a date not later than thematurity date of the relevant Export Credit or Draft, thefull amount of the Financing provided to the Customer,
together with any unpaid interest and fees andreasonable costs and expenses which ANZ may incur or
be liable for in connection with the Financing.

(e)

If ANZ agrees in writing to provide Financing to theCustomer without a Payment Undertaking on a limited
recourse basis, the Customer agrees that:

Interest(b)

The Customer must agree with ANZ interest for the preor post acceptance Finance in writing at least 2
Business Days prior to Financing, unless ANZ agrees to ashorter period.

Pre-Acceptance Finance(c)

If ANZ agrees to the Customer’s request for preacceptance Financing and interest is agreed, ANZ will
effect the Financing and credit the Customer’s
nominated account with the proceeds less interest,
fees, costs and expenses owed to ANZ by the Customer
under any relevant Trade Agreement.

Post Acceptance Finance
(d)

7.6

(2)

the Customer must pay ANZ on demand theamount calculated in accordance with subclause
7.6(f) and specified in the demand; and(3)

ANZ is under no obligation to provide theCustomer with any further Financing in respect of
any Export Credits.

Recourse amount

Recourse(f)

If ANZ:(1)

provides a Payment Undertaking for, and thenFinances the Compliant Trade Documents of that
Export Credit, or(2)provides a Payment Undertaking for an Export
Credit but which it does not Finance,in the case of (1) above, both the Payment Undertaking andsubsequent Financing, and in the case of (2) above, thePayment Undertaking, are in each case, provided on a limited
recourse basis as set out in this subclauses (b) and (c) below.
(b)

ANZ retains recourse to the Customer where a
Recourse Event occurs;

If ANZ agrees to the Customer’s request for post
acceptance Finance and interest is agreed, ANZ will
effect the Financing and credit the Customer’s
nominated account with the proceeds (less interest,
fees, costs and expenses owed to ANZ under any
relevant Trade Agreement) not later than the Business
Day following receipt of the Document Acceptance.

Payment Undertaking with subsequent Financing or Payment
Undertaking without subsequent Financing
(a)

(1)

ANZ will not have any recourse to the Customer where
the Issuing bank and the Confirming bank (if any) areprevented from, or unable to, make payment because(g)

If ANZ has recourse to the Customer under clauses
7.6(c) or 7.6(e), ANZ will have full recourse to theCustomer for, and the Customer must pay ANZ, anamount equal to:(1)

all amounts paid by ANZ to the Customer or to theCustomer’s order in connection with the Export
Credit;(2)

any unpaid interest on those amounts; and(3)

any losses, or reasonable costs ANZ suffers or
incurs as a result of the Recourse Event occurringother than where the costs are incurred or the loss
is due to the negligence, fraud or wilful default of
ANZ, its employees, officers, contractors or agentsor any receiver appointed by ANZ over the assetsof the Customer.

The Customer will notify ANZ promptly in writing if the
Customer is aware that a Recourse Event has occurred or
is likely to occur and the details of that Recourse Event.

5

ANZ TR ADE TERMS
7.7

Payment Undertaking and/or Finance Conditions(13) Where ANZ agrees to provide a Payment
Undertaking on the basis of a draft Export Credit,
the terms of the final Export Credit must match
those of the draft provided by the Customer. In
the event there is a mismatch in terms, ANZ may
renegotiate the fees agreed with the Customer
based on the terms of the final Export Credit orcancel the Payment Undertaking for that Export
Credit.

Conditions(a)

The Customer agrees that any Payment Undertaking
for, and/or Financing of, an Export Credit is subject tothe following terms and conditions:
(1)

(2)

The Issuing bank, the Confirming bank (if any) andall the terms and conditions (including theavailability) of the Export Credit are (both in formand substance) at the sole discretion of ANZ
acceptable to ANZ.
All Trade Documents presented for the drawing ofeach Export Credit must be Compliant Trade
Documents and must be sent to and received at
the ANZ address provided for processing within
the validity of the Export Credit.

(3)

The Customer is the beneficiary of the Export
Credit and the Export Credit is subject to UCP.

(4)

If the Export Credit is available by:(A) sight payment – ANZ is the nominatedpaying bank or the Export Credit is available
with any bank by sight payment;(B) negotiation – ANZ is the nominatednegotiating bank or the Export Credit isavailable with any bank by negotiation;(C) deferred payment – ANZ is the nominateddeferred payment undertaking bank or the
Export Credit is available with any bank bydeferred payment; and(D) acceptance – ANZ is the nominatedaccepting bank or the Export Credit isavailable with any bank by acceptance, ineach case with draft(s) drawn on ANZ.

(5)

ANZ may, at its absolute discretion, refuse toaccept the above nomination without giving any
reason.

(6)

Neither ANZ, the Issuing bank nor the Confirming
bank, if any, is prohibited or prevented for any
reason whatsoever from providing Financing and/or making payment under the Export Credit
whether arising from statute, judgment, order,
allegation of fraud, misrepresentation, falsificationof document, misconduct or any other reasons.

(7) If ANZ consents to an amendment which, in ANZ’sopinion, increases the value or extends the validityof ANZ’s existing commitment, the Customer muston written demand pay ANZ any further fees
calculated on such increase and/or extension.
(8)

ANZ has received the original Export Credit and allamendments, if any.

(9)

The Customer has not previously received a
Payment Undertaking for, or drawn and/or
received any amount under, any Export Credit
from any person including ANZ which is the
subject of a Payment Undertaking and/orFinancing made under these Terms.

(10) The Customer has complied with all otheradditional terms and conditions imposed by ANZ
from time to time.
(11) The Customer will pay ANZ’s standard or incidental
fees, charges and out-of-pocket expenses relating
to Payment Undertakings for, and Financing of,Export Credits.
(12) The Customer will pay to ANZ all applicable fees
even if the Customer does not present Compliant
Trade Documents to ANZ.

6(14) The Customer must provide ANZ with any
additional documents or information relating to
the underlying trade transaction which ANZ may
require.
(15) Notwithstanding anything to the contrary, ANZ is
not obliged to provide a Payment Undertaking for
an Export Credit or Finance the Compliant Trade
Documents of that Export Credit unless all theterms and conditions relating to Exports Credits inthese Terms are duly observed by the Customer.
Representations, warranties and undertakings(b)

The Customer represents, warrants and undertakes
whenever a Payment Undertaking or Financing isrequested or given and on each day that money isactually or contingently owing to ANZ that:(1)

the Customer is duly incorporated and validly
existing under the laws of jurisdiction of its placeof incorporation;(2)

there is no order, petition, application or the like isoutstanding for the winding-up of the Customer;(3)

the presented Trade Documents are genuine,
valid, bona fide, properly authorised and executedby the relevant parties;(4)

the goods, specifications, quantity, quality,
packing, shipping, insurance and all other terms
conform with all requirements of the underlying
contract relating to the Export Credit;(5)

the Customer or the applicant has obtained allimport and export licenses and other government
authorisations or approvals whatsoever of any
jurisdiction that are required for the underlying
transaction (including sale, shipment and deliveryof the goods to the applicant and payment for thesame), and the transaction does not violate any
applicable Law;

(6)

immediately prior to ANZ issuing a Payment
Undertaking or Financing for the Export Credit,
the Customer has good and marketable title toany and all the presented Trade Documents andall rights to the proceeds of the Export Credit freeand clear of any Encumbrance;(7) the Customer will sign, complete and/or deliver to
ANZ any documents and do such acts and things
and/or execute any instruments as ANZ willreasonably require whether to enable ANZ toobtain the proceeds of any Export Credit orotherwise in connection with these Terms;(8)

the Customer will not, except with the writtenconsent of ANZ, create or agree to create any
Encumbrance over any Export Credit and/or any
interest in the proceeds of any Export Credit oraccept or reject any amendment to any Export
Credit once the Customer has accepted an offer;(9)

the Customer must arrange for each Export Credit
and every amendment to it to be delivered to ANZ
for ANZ’s retention promptly upon its receipt of
the same;(10) if the Customer receives any payment from theIssuing bank, the Confirming bank (if any) or anyother person in respect of any amounts payable
under the Export Credit, the Customer will
immediately inform ANZ of the same and to theextent that they relate to amounts ANZ has alreadypaid the Customer, remit them to ANZ promptly
and in the meantime hold them on trust for ANZ
absolutely and failing that as ANZ’s fiduciary and/or agent;(11) all payments by the Customer to ANZ will bemade without set-off, counterclaim, deduction orcondition of any kind and will be made in
immediately available funds and the currency
designated by ANZ except those expressly
provided in an Export Credit;(12) the Customer will do all things necessary on ANZ’sbehalf to claim and obtain payment of all sums
and/ or damages due under the Export Credit
and/or its Trade Documents, including:any) in respect of the assignment.
(5)

Branches(d)

An ANZ branch in one country may provide a Payment
Undertaking, confirm under UCP, honour or Finance as
Nominated bank under a Documentary Credit issued
by an ANZ branch in another country without adversely
affecting in any way, or extinguishing, the rights,
liabilities and obligations under the Documentary
Credit or the Customer’s liability to ANZ in respect ofthat honouring or Financing of the Documentary Creditin accordance with these Terms.

7.8

Export Credit - Collection without honour or Finance(a)

The Customer may present Trade Documents under an
Export Credit and request ANZ to dispatch those Trade
Documents to the Issuing bank for payment without
honour or Finance by ANZ.

(b)

If ANZ accepts and acts upon the Customer’s request, it
will credit proceeds to the Customer’s account with
ANZ specified in the request when it is satisfied it has
actually received payment from the Issuing bank.

7.9

Transfer of Export Credits(A) directing any bank to make payment under
the Export Credit and/or its Trade Documents
to ANZ; and(B) in accordance with ANZ’s instructions,commencing and continuing legal
proceedings in the Customer’s name orallowing ANZ to bring those legal
proceedings in ANZ’s name or ANZ’s and theCustomer’s joint names (as ANZ may choose)and the Customer will fully co-operate with
ANZ in the pursuit of any such claims andproceedings;(13) the Customer will co-operate with ANZ fully at
ANZ’s expense in anything that ANZ may lawfully
do in order to:(A) obtain payments under the Export Credits
including to file any claims or take any legal
actions or proceedings (either in ANZ’s own
name or ANZ’s and the Customer’s namejointly) against the Issuing bank, theConfirming bank (if any) or any other parties;
and(B) resolving any discrepancies alleged by theIssuing bank in any of the presented Trade
Documents or any other disputes regarding
such payment.
Assignment to ANZ(c)Without prejudice to ANZ’s rights to act as a Nominatedbank under any Export Credit including to provide
Financing under any Export Credit:(1)

The Customer agrees to assign absolutely to ANZ
all the present and future rights, title, interests andbenefits of the Customer in and to the receivables
and proceeds payable to the Customer under or inconnection with each Export Credit (Rights).

(2)

The assignment is an outright assignment and willautomatically take effect with respect to an Export
Credit without further act at the time when ANZ
provides a Payment Undertaking and/or Financein respect of the relevant Export Credit.

(3)

If the ownership of all or any of the Rights fails tovest in ANZ, the Customer declares that until thedate upon which they do vest in ANZ, theCustomer will hold them on trust for ANZ andfailing that will hold them as ANZ’s fiduciary and/or agent and in each case for ANZ’s sole benefit.

(4)

The Customer will pay to ANZ, on demand, any
stamp duties or other duties or charges payable (ifANZ is entitled to, at any time without notice to
the Customer, notify the persons liable in respectof the Export Credits of ANZ’s interest in the
Export Credits and give payment directions tosuch persons in respect of the Export Credits,
including issuing notices to the Issuing banks(and/or the Confirming banks and/or thetransferring banks, if applicable). The Customer will
provide assistance to ANZ for the notifications andcomply with all formalities, including executing
any documents, which such persons may request.

UCP
(a)

The relevant provisions of UCP which governtransferable Documentary Credits will apply in relation
to the transfer of the Export Credit the Customer has
requested ANZ to transfer.

Authorities(b)

If not already allowed, the Customer, as the first
beneficiary, authorises ANZ to seek approval from theIssuing bank to allow ANZ to act as Transferring bank.

(c)

The Customer authorises ANZ to advise the second
beneficiary of the terms of the Export Credit and the
instructions in the application to transfer the Export
Credit.

Format and delivery(d)

The Customer will ensure that the Export Credit to betransferred is in a form acceptable to ANZ.

(e)The Customer represents and warrants that the detailsof each Export Credit and the terms of the transfer
specified in its application are true and correct.

(f)

If not already held by ANZ, the Customer will deliver to
ANZ the original transferable Export Credit and any
amendments the Customer receives.

Amendment(g)

The Customer will not inform the Issuing bank or thesecond beneficiary of its acceptance of any
amendment to the original transferable Export Credit
without the prior written consent of ANZ.

(h)

If all the rights under the Export Credit are transferred,
the Customer authorises ANZ to advise the second
beneficiary of any amendments.

7

ANZ TR ADE TERMS
Transfer of rights(q)

ANZ, its Correspondents Banks and agents will not be
responsible for the description, quantity, quality or
value of the Goods shipped and/or the Services
performed under the transferred Export Credit or forthe correctness, genuineness or validity of the Trade
Documents.

Substitution of documents

8.

EXPORT COLLECTION(j)

The Customer will present at the counters of therelevant ANZ Office its own invoice and Draft which
may be needed to substitute for any of those of thesecond beneficiary as soon as they are available and at
latest on a date which ANZ determines will allow it toprocess all required Trade Documents within thevalidity of the Export Credit.

8.1

ICC rules(a)Trade Documents not under an Export Credit (either
documentary or clean) under URC (even if URC is notreferred to in the Customer’s collection instructions);
andUnless the Customer instructs ANZ to the contrary in its
application, ANZ will:(b)

discrepant Trade Documents under an Export Credit
under UCP.

(1)

8.2

Remitting bank

(i)

(k)

The Customer waives in favour of the second
beneficiary its rights and interests as the beneficiary of
the Export Credit to the extent those rights andinterests have been transferred to the second
beneficiary pursuant to the transfer.

(2)

(l)

(m)

substitute the Customer’s Drafts and invoices for
those presented by the second beneficiary; anddeliver to the Customer the invoices of the second
beneficiary together with ANZ’s payment advice
for the amount by which the Customer’s Drafts
exceed the amount of the Drafts of the second
beneficiary, less any fees, expenses or charges due
to ANZ.

If the Customer fails to deliver its invoice and Draft to
ANZ in conformity with the terms of the Export Credit,
ANZ is authorised to forward the Trade Documents
accompanying the Drafts of the second beneficiarywithout any responsibility on ANZ’s part to pay the
Customer the difference between the amount of thesecond beneficiary’s Drafts and the amount authorised
to be paid under the Export Credit.
If the Customer has transferred all of its rights in thetransferable Export Credit to a second beneficiary, theCustomer will not require substitution of Trade
Documents and will permit the second beneficiary topresent Trade Documents directly to the Issuing bankof the transferable Export Credit.

ANZ may (but need not) agree to the Customer’s request toact as the remitting bank in respect of any Trade Documents
to be sent on Collection.
8.3

Collecting or presenting bank(a)

The Customer may request that ANZ use a specified
Correspondent Bank to Undertake a Collection.

(b)

However, the Customer agrees that ANZ may elect touse a different Correspondent Bank where it
determines (acting reasonably) that such an election isnecessary to proceed with the Customer’s requested
transaction.

(c)

ANZ is not responsible for any act, omission or default
on the part of any collecting or presenting bankinvolved in handling or processing a Collection.

8.4

No checking

Payment

ANZ is not obliged to check the documents before sending
them to the collecting bank, Issuing bank or Confirming bank.
If ANZ does agree to check documents, it will do so without
any liability including if ANZ fails to identify any discrepancy orirregularities of any kind.

(n)

8.5

Proceeds payment(a)

ANZ will only pay the Customer proceeds of acollection which have actually been received by ANZ incleared funds from the collecting bank (or Issuing bankor Confirming bank (if any)).

(b)

ANZ is not responsible for any failure of the collecting
bank (or Issuing bank or Confirming bank (if any)) tomake the relevant payment to ANZ either on time or at
all.

(c)

If payment or acceptance is not received from therelevant drawee within 60 days after ANZ receives
advice of non-payment or non-acceptance, ANZ isdischarged from all further obligations under theCollection.

8.6

Advances, negotiation or finance(o)

For a transferable Export Credit that has beentransferred and for which ANZ has not provided a
Payment Undertaking, ANZ will:(1)

only pay the Customer and the second beneficiary
if ANZ receives the corresponding payment fromthe Issuing bank; and(2)upon receiving that payment will pay the second
beneficiary the amount of the presentation and
the Customer the remaining amount under thetransferred Export Credit.

For a transferable Export Credit that has beentransferred and for which ANZ has provided a Payment
Undertaking, ANZ will:
(1)

(2)

pay the second beneficiary the amount of its
presentation under the transferred Export Creditin accordance with the tenor of the Export Credit
upon presentation of Compliant Trade Documents
if the Issuing bank fails to pay; andupon the Customer’s substitution andpresentation of Compliant Trade Documents
under the transferred Export Credit, ANZ will pay
the Customer the remaining amount under thetransferred Export Credit in accordance with thetenor of the Export Credit if the Issuing bank fails
to pay.

Responsibility(p)8

ANZ will handle the collection of:

The Customer accepts full responsibility for the transferof the Export Credit.

ANZ may, at the request of the Customer, provide advances
against a Draft or other Trade Documents sent on Collection
or negotiate the Customer’s Draft or otherwise finance adrawing under an Export Credit.
8.7

Full Recourse

If ANZ has advanced funds, negotiated or provided financeand on presentation the Draft is dishonoured or ANZ’s claim
under the Export Credit is not honoured or in respect ofwhich payment has not been duly made to ANZ on thematurity date for any reason, the Customer must provide ANZ
with the necessary funds on demand to:(a)reimburse ANZ in full for the amount of the advance,negotiation or financing provided to the Customer;(b)

pay ANZ any unpaid interest and fees; and(c)pay ANZ any reasonable costs, charges and expenses
which ANZ may incur or be liable for in connection
with the advance, negotiation or financing provided to
the Customer.

8.8Interest and fees

Without affecting the Customer’s obligation to pay ANZ, ANZ
may deduct from advances to be made to the Customer all
interest agreed with the Customer and any charges,
commissions, fees or expenses incurred or suffered by ANZ or
any Correspondent Bank relating to the Collection.
8.9

Supporting documents

The Customer must provide ANZ with any additional
documents, including bills of lading, sales contracts, purchaseorders and commercial invoices, relating to the underlying
Trade Transaction which ANZ may require.

9.2

Customer copy(a)

ANZ will send a copy of each Instrument to theCustomer as soon as is practical after it is issued.

(b)

The Customer must notify ANZ of any objection to any
terms of the Instrument within 2 Business Days after
receiving its copy of the Instrument. If no objections areraised within that period, the Customer is deemed tohave waived any right to raise objections to the form of
the Instrument, make any claim or exercise any defence
related to the contents, validity or accuracy, of theInstrument, and ANZ will be free from all claims by the
Customer in respect of that Instrument.

9.3

Separate transaction

The Customer acknowledges that an Instrument is by its
nature a separate transaction from any contract between the
Customer and any other party on which the Instrument may
be based. As such, ANZ is not required:(a)unless the terms of an Instrument states otherwise, tonotify the Customer when it receives a demand or prior
to paying a demand or accepting drafts, claims ordrawings under the Instrument;(b)

to make reference to, enquiry of or to take account ofstatements or instructions from the Customer or any
other party;(c)to make any investigation or inquiry into, or raise or
exercise, any defence or argument whether suchdefences or arguments relate to ANZ or the Customer
or relate to the validity, accuracy, and enforceability ofany provision under an Instrument or its underlying
contract; or(d)to notify the Customer that a demand or document is
not compliant prior to dishonour.

9.4

Examination of Demands(a)Unless otherwise specified in the Instrument, alldemands and documents must be presented at thecounters of the ANZ Office or Correspondent Bank
issuing the Instrument.

(b)

ANZ and its Correspondent Banks (as applicable) will
examine any demand and required documents on theirface alone, without further investigation or enquiry, todetermine whether or not there has been a complying
presentation under the Instrument.

(c)

ANZ and its Correspondent Bank are not responsible forthe genuineness, correctness or validity of any demands,
notices, instructions or other documents received by it.

9.5

Compliant demands(a)

ANZ and its Correspondent Banks will pay all demands
complying with the terms of the Instrument.

(b)

ANZ may make any payment or discharge any liability
under an Instrument by way of an actual cash payment,book entry, transfer of funds or otherwise as determined
by ANZ and a reference to ‘pay’ or ‘payment’ in theseTerms is a reference to such payment.

9.6

Reimbursement obligation(a)

The Customer will pay to ANZ an amount equal to andin the same currency as all amounts paid or discharged
by ANZ in connection with an Instrument, on the dayon which ANZ makes or is required to make thatpayment or discharges its liability.

(b)

If ANZ specifies, the Customer will on or shortly before
the date on which ANZ makes (or is likely to make) apayment under an Instrument pay to ANZ a sum equal
to such payment. ANZ may hold all or part of such sum
in an account in ANZ’s name, under ANZ’s sole control
and/or apply all or part of such sum against theCustomer’s reimbursement obligations to ANZ.

8.10 Representations and warranties
The Customer represents and warrants to ANZ that:
(a)

(b)

Trade Documents to be sent on Collection and/or
financed or negotiated:(1)

are not and will not be encumbered in any way to
any person other than ANZ; and(2)

relate to a genuine sale of the Goods or theprovision of Services as described in those Trade
Documents; andthe Goods are being shipped or have been shippedand delivered to, or the Customer has fully performed
the Services for, the buyer.

9.
STANDBY LETTERS OF CREDIT AND
GUARANTEES
9.1

Issuance(a)

Unless ANZ agrees otherwise in writing:

(b)

(c)

(1)

each standby letter of credit will be issued subject
to ISP or UCP; and(2)each demand guarantee, bond or undertaking to
pay any person (other than the Customer) issued
by ANZ will be subject to the URDG.

ANZ may issue an Instrument itself or arrange for theInstrument to be issued by its Correspondent Bank andmay issue a counter-indemnity, on terms acceptable to
ANZ, in favour of that Correspondent Bank in return for
it doing so.
Each Instrument will be irrevocable and issued in formand substance acceptable to ANZ and, if applicable, its
Correspondent Bank.

(d)

ANZ and its Correspondent Banks are not obliged tocheck or ensure the accuracy of any information
supplied to it for inclusion in any Instrument.

(e)

The Customer is solely responsible for ensuring that theterms or requirements in an Instrument are correct andmeet its requirements. ANZ and its Correspondent
Banks are not responsible and have no duty
whatsoever to advise the Customer on such issues.

(f)

ANZ may issue, at the Customer’s request, an
Instrument to facilitate the business transactions ofanother party with the beneficiary and with that otherparty named as the applicant or contracting party inthat Instrument. If ANZ does so, the Customer’s
reimbursement obligations to ANZ under these Terms
will still apply.

9

ANZ TR ADE TERMS
9.7

Non-compliant demand(a)

ANZ may refuse to pay and may reject any demand or
document presented to ANZ under the Instrument, if
any such demand or document does not comply with
the Instrument terms.

(b)

ANZ does not have to seek the Customer’s waiver ofany discrepancies before refusing to pay the demand.
Any decision by ANZ to seek a waiver of discrepancies
does not oblige ANZ to seek a waiver of otherdiscrepancies at any other time.

9.8(legal or otherwise) in connection with such Disputeother than to the extent such costs or losses are due tothe negligence, fraud or wilful default of ANZ, its
employees, officers, contractors, agents, or any receiverappointed by ANZ. ANZ and its Correspondent Banks
reserve the right to determine whether or not toparticipate in any Dispute. The Customer agrees towaive its rights (if any) to claim any damages against
ANZ and/or its Correspondent Bank;(c)

to waive any right (if any) to protest or object to any
payment made or to be made by ANZ and its
Correspondent Bank in connection with any Instrument(including any payments made after the Relevant
Expiry Date specified on the relevant Instrument, or any
Instrument which is subsequently rendered void,
voidable and/or unenforceable in any manner under
any applicable Laws), and agrees to endorse any action
performed and taken by ANZ and its Correspondent
Bank under any Instrument. The Customer further
waives any rights, arguments or any other kind of
benefit that it may have under any applicable Law
against ANZ and its Correspondent Bank, including(without limitation) any defence it may have on thevalidity and enforceability of any underlying contract orarrangement in connection with any Instrument;(d)to indemnify ANZ against, and will pay ANZ on demand
the amount of, all and any demands, claims, actions,proceedings, liabilities, payments, interest, reasonable
costs, charges and expenses (including legal expenses
on a full indemnity basis and taxes) which ANZ and/or
its Correspondent Banks may directly suffer, incur or
make in connection with any Instrument,(other than tothe extent they are due to the negligence, fraud or
wilful default of ANZ, its employees, officers,
contractors, agents or any receiver appointed by ANZ)
including, (i) in relation to any payment made or to bemade by ANZ and/or its Correspondent Bank under any
Instrument (including, any payments made after the
Relevant Expiry Date specified on the relevant
Instrument, or any Instrument which is subsequently
rendered void, voidable and/or unenforceable in any
manner under any applicable Laws) and/or (ii) any
failure, inability or refusal on the part of ANZ and/or its
Correspondent Banks to honour any Instrument
because of a court order or other similar obligation.

10.

TRADE FINANCE LOANS

Payment without demand

ANZ may, at any time, discharge all its obligations under an
Instrument by paying, whether or not ANZ has received ademand, the undrawn amount of the Instrument (or suchlesser amount that the beneficiary requires) to the beneficiaryand the Customer’s reimbursement obligations to ANZ will
still apply.
9.9

Assignment

If ANZ consents to a transfer of the rights under theInstrument to another person, the Customer’s reimbursement
obligations to ANZ will still apply in all respects to that
Instrument as transferred.
9.10 Branches
If a branch of ANZ is the beneficiary of an Instrument issued
by another branch of ANZ, the branches will be treated as
separate legal entities.
9.11

Expiry of Instrument

If for any reason (including but not limited to for legal or
regulatory reasons) ANZ’s obligations under an Instrument
continue beyond the stated expiry date or expiry event, or the
relevant Instrument is rendered void, voidable and/or
unenforceable in any manner under any applicable Laws, theCustomer agrees:
(a)

(b)

10

for so long as the relevant beneficiary specified in theInstrument (the “Relevant Beneficiary”) has not returned
the relevant original Instrument to ANZ and/or the
Correspondent Bank on or after the expiry datespecified in the relevant Instrument (the “Relevant
Expiry Date”), to pay ANZ such fees and charges agreed
in or in accordance with the relevant Trade Agreement(as if such relevant expiry date had not occurred). The
Customer further agrees to provide cash cover to ANZ
promptly upon provision of reasonable notice, if theRelevant Beneficiary has not, on or after the date falling
60 days after the Relevant Expiry Date, returned theoriginal Instrument to ANZ and/or the Correspondent
Bank. The cash cover shall be an amount equal to the
maximum amount specified in the relevant Instrument(the “Relevant Maximum Amount”) or, where part
payment of such Relevant Maximum Payment has been
made under the relevant Instrument on or prior to theRelevant Expiry Date specified on the Instrument, theremaining balance outstanding under such Instrument,or such other amount as ANZ may (in its sole discretion)
reasonably require;
if there is any dispute, controversy, or claim (“Dispute”)
arising in connection with any Instrument or theunderlying contract or arrangement (in connection
with which the Instrument may have been provided),and ANZ and/or its Correspondent Banks are caused(for any reason) to participate in any such Dispute, theCustomer agrees to indemnify ANZ, and keep ANZ
indemnified against, and will pay on demand theamount of, any reasonable costs or losses which any of
ANZ and/or its Correspondent Bank may suffer or incur,
including (without limitation), any reasonable costs andexpenses incurred by any of its professional advisors

10.1 Purpose
If ANZ agrees to the request of the Customer for a tradefinance loan, those loans may finance:(a)Import Credits, import Collections or import invoices(including against the trust receipt provisions);(b)export invoices on an insured or uninsured basis(including freight, pre-shipment (packing) and post
shipment loans); or(c)the Customer’s other trade commitments as agreed
with ANZ in writing.

10.2 Open account
If ANZ finances open account Trade Transactions:(a)the Customer must deliver evidence of the underlying
Trade Transaction to ANZ of a type and in terms
satisfactory to ANZ, including bills of lading, sales
contracts, purchase orders and commercial invoices;
and

(b)

unless ANZ agrees in writing otherwise, for preshipment/ post-shipment financing relating to imports
ANZ will remit any proceeds of that financing direct to
the Customer’s supplier.

10.3 Representations, warranties and undertakings
The Customer warrants and represents (on a continuing basis)
and undertakes to ANZ that:(a)all Trade Documents provided to ANZ in connection
with a trade finance loan:(1)

are not and will not be (while they are the subjectof a trade finance loan) encumbered in any way to
any person other than ANZ; and(2)

represent a genuine sale and delivery of Goods
and/ or Services originated in the ordinary andusual course of the Customer’s business, in goodfaith and without actual or alleged fraud, illegality
or unauthorised act committed by any person;(b)

the Goods are being shipped or have been shippedand delivered to, or the Customer has fully performed
the Services for, the buyer; and(c)in relation to pre-shipment finance loans, where thematurity date for any such trade finance loan falls on orafter the shipment date referred to in the relevant tradefinance loan application, it shall provide to ANZ, no later
than 5 days after the relevant shipment date so
specified, the supporting documents required (if any)
under the relevant Trade Agreement and/or the
relevant trade finance loan application, together withsuch other documents reasonably requested by ANZ, ineach case, in form and substance satisfactory to ANZ(acting reasonably).

10.4 Prepayment
If the Customer wants to prepay all or any part of a tradefinance loan it will:
(a)

(b)

notify ANZ in writing of the amount and the Business
Day on which it will make the prepayment at least 1
Business Day before the prepayment date, unlessotherwise agreed in writing by ANZ; andmake the prepayment on the day specified in thenotice together with accrued interest on the amount
prepaid (if any) and break funding costs or early
repayment fees, if any, determined by ANZ and notified
in writing to the Customer.

10.5 Repayment
The Customer will repay the trade finance loan in full together
with unpaid interest (if any) on the maturity date of the tradefinance loan in accordance with its repayment election in therelevant trade finance loan application or other Trade
Agreement.
10.6 Incoming payments
Without affecting the Customer’s obligation to pay ANZ, theCustomer must ensure that any amount which is due to it by
any person under or relating to the underlying Trade
Transaction financed by ANZ is paid directly to ANZ and theCustomer agrees to:(a)give an irrevocable payment instruction to that person
if ANZ requests it to do so; and(b)provide all assistance ANZ requires to allow it to collectthat amount.

10.7 Rollover(a)

The Customer may apply to rollover all or part of an
existing trade finance loan on its existing maturity date.

(b)

If ANZ agrees to make a new trade finance loan,
accrued interest on the existing trade finance loan mustbe paid by the Customer to ANZ on the existing
maturity date of the existing trade finance loan.

11. TRADE PRODUCTS - GENERAL TERMS
AND CONDITIONS
11.1

Terms applying

Unless a contrary indication appears, Clause 11 applies to all
Trade Products.
11.2 Interpretation and definitions(a)

In these Terms, unless the context otherwise requires,
terms will be interpreted in accordance with theinterpretation provisions of the relevant Trade
Agreement.

(b)Unless ANZ notifies the Customer otherwise, any futurerevision of any ICC Rules will automatically apply when
it is stated by the ICC to come into effect.

(c)

Terms not otherwise defined in the relevant Trade
Agreement or applicable ICC Rules have the following
meanings:
Affiliate means, in relation to any person, a subsidiaryof that person or any holding company of that person
or any other subsidiary of any such holding company
and any joint venture, partnership or similararrangement in which it holds a direct or indirectinterest.
AML/ETS Laws mean any anti-money laundering,counter- terrorism financing or economic or trade
sanctions laws or regulations.
ANZ means the ANZ Group Member (and all of its
branches and offices) that provides the Trade Productto the Customer.
ANZ Group Member means Australia and New Zealand
Banking Group Limited ABN 11 005 357 522 and its
Affiliates.
ANZ Office means the branch or office of the ANZGroup Member that provides the Trade Product to theCustomer. Generally, this will be specified in a Trade
Agreement or the application completed by the
Customer in relation to a Trade Product.
Authority means any local or foreign regulatory,administrative, government, quasi-governmental, law
enforcement, supranational, judicial person or
supervisory body, authority, court or tribunal andincludes any self-regulatory organisation whether or
not established under statute or any stock exchange.
Authorised Representative, in respect of a Customer,
means a person whose identity has been verified to thesatisfaction of ANZ who the Customer nominates fromtime to time to act on its behalf to submit any
application or request, or give any Communications
and in relation to whom ANZ has not received noticethat the appointment has been revoked and includes
any persons who are authorised by the Customer to
use the Electronic Channel.
BtB Import Credit means a back-to-back Import Credit
issued at or about the same time as a Master Credit,
both Documentary Credits covering the same Goods
purchased from a supplier and on sold to a buyer by
the Customer.
Business Day means a day (other than a statutory or
public holiday, a Saturday or Sunday) on which banks
are open for general banking business in the Governing
Jurisdiction and, in relation to any date for payment orpurchase of funds, in the principal financial centre forthe currency of those funds or the location in which the
products are provided.
Carrier means any owner of a vessel, aircraft or otherconveyance, forwarder, charterer and includes theiragent, representatives or any person purporting to act
on their behalf.

11

ANZ TR ADE TERMS
Communication means any instruction, notice,consent, request, approval, acceptance, confirmation,
information or document.
Correspondent Bank means any bank (including any
branch or office of ANZ or any ANZ Group Member)which provides any banking or other services inconnection with a Trade Product to ANZ.
Compliant Trade Documents means Trade Documents
under an Export Credit which, in ANZ’s sole andabsolute opinion, are in strict compliance with the
Export Credit terms, provided that discrepant
documents may, at ANZ’s sole discretion and subject tosuch additional terms as the parties may agree, betreated as Compliant Trade Documents if the IssuingBank has waived all such discrepancies and/or has
accepted the relevant documents or draft(s).
Credit Risk means, in relation to the Issuing bank andthe Confirming bank (if any), the inability to effectpayments due to insolvency of the Issuing bank andthe Confirming bank (if any), such as winding up,
dissolution, administration or re- organisation of theIssuing bank and the Confirming bank (if any) or theappointment of receivers, receivers and managers,
liquidators, administrators, custodians, trustees orsimilar officers of any or all of the assets of the Issuingbank and the Confirming bank (if any).
Customer means any person or entity that applies for,and is issued or provided with, any Trade Productcovered by these Terms and includes a reference to a
Borrower in any Trade Agreement.
Customer Information means information held or
acquired by any ANZ Group Member relating to theCustomer, any Trade Agreement or a transaction underor relating to a Trade Product and includes Personal
Information but does not include publicly available
information.
Document Acceptance means, in relation to an Export
Credit an authenticated SWIFT message or tested telex
from the Issuing bank to ANZ confirming unconditional
acceptance of the Documents and at maturity funds
will be remitted according to ANZ’s instructions.
Documentary Credit means an irrevocable
documentary credit that is subject to UCP and includes
all extensions, renewals, amendments, modifications,replacements and variations to the documentary credit.
Documentary Risk means the non-compliance of any
Trade Documents presented to ANZ with the terms of
an Export Credit after ANZ has ascertained and certified
that the Trade Documents do comply with the terms ofthat Export Credit.
Draft means a bill of exchange or other written
payment instruction by one person (drawer) to anotherperson (drawee) to pay the drawer or a third person(payee).
Electronic Channel means any internet/online orsimilar channel established by ANZ or a third party
which enables the Customer to use any Trade Productand/or give any Communication.
Electronic Communication means a Communication
sent by facsimile, E-mail or any other electronic way ofsending, receiving and retrieving data now or in the
future, whether provided by ANZ or any third party.
E-mail means information transmitted electronicallyover the internet or other electronic networks which isboth delivered to an email or other electronic address
and recovered or downloaded from that address using
a post office protocol, internet message access protocol
or similar system.

12

Encumbrance means any mortgage, charge,
assignment, pledge, lien, rights of set-off, arrangements
for retention of title or hypothecation or trust
arrangement for the purpose of, or which has the effectof, granting or conferring security.
Exchange Rate means the rate for converting one
currency into another currency determined by ANZ in
accordance with its standard procedures for currency
conversion or the rate pre-arranged between ANZ and
the Customer.
Export Credit means a Documentary Credit issued infavour of the Customer which ANZ advises, honours,
negotiates, purchases, presents, transfers, collects,
finances, discounts, commits to pay and/or confirms to,for or at the request of the Customer.
Financing means Negotiation, purchase of a draft
accepted by ANZ (under an acceptance Export Credit)or prepayment of a deferred payment undertaking
incurred by ANZ (under a deferred payment Export
Credit), and the term Finance will be construed
accordingly.
Force Majeure means any event beyond ANZ’s or the
Customer’s reasonable control, including any:(a)fire, flood, earthquake, storm or other natural
event, strike or other labour dispute or war,
insurrection, terrorism or riot;(b) acts of or failure to act by any Authority andchanges in Law or any order of any Authority;(c)restriction or impending restriction on theavailability, credit or transfer of foreign exchange;(d) failure, disruption or interference failures of any
telecommunications, electricity supply and otherutilities;(e)technical failure, disruptions, corruption orinterference to any computer system; or(f)failure or disruption of or interference with any
product or service provided by any third party,
including Correspondent Banks or the acts of or
failure to act of that third party.

FtB Import Credit means a front-to-back Import Credit
issued before (and within a period which is acceptable
to ANZ) a Master Credit, both Documentary Credits
covering the same Goods purchased from a supplierand on sold to a buyer by the Customer.
Goods mean the goods or produce described in a
relevant Documentary Credit, invoice or sales contract.
Governing Jurisdiction means, unless otherwise
agreed in writing between ANZ and the Customer, thejurisdiction in which the ANZ Office is located.
ICC means the International Chamber of Commerce.
ICC Rules means any ICC rule published by the ICC
relating to a Trade Product, including UCP, URR, URC, ISP
and URDG.
Import Credit means a Documentary Credit issued by
ANZ for or at the request of the Customer.
Import Obligations means, in relation to an Import
Credit or import Collection, all present and futureindebtedness and liabilities due, owing or incurred by
the Customer to ANZ (in each case whether alone or
jointly, or jointly and severally, with any other person,
whether actual or contingent or whether as principal,
surety or otherwise). For the avoidance of doubt, thisincludes any amount owing to ANZ under a tradefinance loan that has been applied to finance an Import
Credit or import Collection.

Indirect Loss means any indirect or consequential loss
including loss of profits or anticipated savings, loss ofbusiness opportunity, loss of goodwill or reputation,business interruption, unauthorised access to or loss ofdata, economic loss or any special, indirect orconsequential damage and includes any Costs arisingin connection with any of them. The parties agree thatIndirect Loss does not include any Loss that arises in theusual course of things from the relevant act oromission.

Recourse Event means any one of the following eventsoccurring in connection with an Export Credit:(a)a fraud, forgery, illegality or unauthorised act is or
is alleged to have been committed by any person(other than ANZ);(b) ANZ is not paid in full or ANZ is required toreimburse any person for moneys received by itfrom any person as a result of:(1)

a commercial dispute between the Customer
and any other person upon which that
person or another person relies or purports
to rely to deny payment or require
reimbursement (whether or not subsequently
settled); or(2)

any applicable Law, injunction, stop order orother court order (whether or not
subsequently discharged);Indirect Tax means any goods and services tax,
consumption tax, value added tax, stamp duty,transaction tax or tax of a similar nature.
Instrument means any kind of standby letter of credit,
demand guarantee, bond, work cover bond, or
undertaking to pay any person (other than the
Customer) and any counter-indemnity issued by ANZ in
favour of its Correspondent Bank to facilitate theissuance of the Instrument in a particular jurisdiction
and any amendment or replacement of any of them.
ISP means the ICC International Standby Practices in
effect from time to time.
Law means any treaty, law, statute, rule, regulation,
decision, order, request or directive, code or standard,or guideline, notice, or statement of policy or practiceof any Authority, having the force of law or, if nothaving the force of law, in respect of which compliancein the relevant jurisdiction is customary.
Loss means any damage, loss, liabilities, costs andexpenses (including legal costs on a full indemnity
basis and taxes) delay or diminution of value.
Master Credit means an Export Credit issued either at
or about the same time as a related BtB Import Credit
or after (and within a period which is acceptable toANZ) a related FtB Import Credit.
Negotiation means the purchase by the Nominatedbank of Compliant Trade Documents, by advancing or
agreeing to advance funds to the Customer under an
Export Credit on or before the Business Day on which
reimbursement is due to the Nominated bank, and theterm negotiate will be construed accordingly.
Payment Undertaking means, in respect of an Export
Credit, the commitment to pay or honour as set out inClause 7.3 (which includes, without limitation, aconfirmation under UCP) subject to these Terms.
Personal Information means information about anindividual which identifies an individual.
Pledge means any pledge security interest theCustomer grants to ANZ over any Pledged Assets ascontemplated in these Terms.
Pledged Assets means all Trade Documents andGoods which belong to the Customer and are at any
time in ANZ’s or ANZ’s agent’s, trustee’s orrepresentative’s possession or where ANZ has issued an
Import Credit, in the possession of a Nominated bank,where any such possession may be actual orconstructive.
Political Risk means any extraordinary political eventsoccur which prevent payments or procurement offunds and covers events such as acts of war,
revolutions, change of government or political system,
riots or civil unrest or the like in the country(ies) of theIssuing bank and the Confirming bank (if any).
Post means the input into the Electronic Channel by
the Customer or ANZ and the initial processing of such
input by the Electronic Channel so that the input isvisible in the Electronic Channel.

(c)the Customer is in breach of any of its
representations, warranties, undertakings or
obligations;(d) it is or is likely to become unlawful in any
jurisdiction for ANZ to perform its obligations orenforce its rights; or(e)at any time there is a breach of any AML/ETS Laws.

Services means the services described in theDocumentary Credit, Instrument or other document
which are performed, supplied or provided by the
Customer to the beneficiary of the Documentary
Credit, Instrument or other document.
Shipping Guarantee means a guarantee or indemnity
to be issued or a shipping guarantee signed by the
Customer and to be endorsed or countersigned by ANZ
and given to a Carrier to enable the Customer to obtainreplacement bills of lading and/ or delivery of Goods.
Trade Agreement means any agreement, document,
letter, schedule, booklet, brochure, flyer, manual,
instruction, notice or application containing terms
relating to any Trade Product, including any facility
agreement or letter of offer (and any applicable trade
specific terms) entered into by ANZ and the Customer
and these Terms.
Trade Country Addendum means the addendum foreach country in which ANZ operates containing theterms relating specifically to the provision by ANZ to, or
use by the Customer in that country, of Trade Products.
Trade Documents mean any Documentary Credit, any
Draft, any sale and purchase agreement, any bills of
lading and all other documents of title and transport
documents and any other insurance policies, invoices,
certificates, reports, receipts, warrants or otherdocuments in relation to a Trade Transaction, whether
in a paper or electronic format.
Trade Product means any trade related product,
Service, functionality or facility requested or applied forby the Customer and provided by ANZ to the Customer.
Trade Transaction means the transaction (or relatedtransactions) in connection with Goods and/or Services
which is the subject of any Trade Product ANZ provides
and includes the Financing, advances or other financial
accommodation which ANZ makes available in relation
to any such transaction.
Transfer and Economic Risk means the inability toeffect payments or to effect payments in the currencyof the Export Credit as a consequence of any foreignexchange control in the country(ies) of the Issuing bankand the Confirming bank (if any) or the country of theExport Credit’s currency.

13

ANZ TR ADE TERMS
Trust Receipt means a trust receipt in a format
specified by ANZ.
UCP means the ICC Uniform Customs and Practice forDocumentary Credits in effect from time to time.

11.5 Foreign exchange Laws(a)

The Customer will keep itself informed of and comply
with all applicable foreign exchange Laws and any
relevant regulatory and policy requirements andrestrictions relating to the currency requested and its
use of the Trade Product in that currency. ANZ is not
responsible and has no duty to inform or advise theCustomer on those issues.

(b)

ANZ may terminate, revise or cancel any Trade Productin consultation with the Customer, in order to comply
with any applicable foreign exchange Laws and any
relevant regulatory and policy requirements andrestrictions relating to the currency requested or inwhich a Trade Product is drawn.

URDG means the ICC Uniform Rules for Demand
Guarantees in effect from time to time.
URC means the ICC Uniform Rules for Collections ineffect from time to time.
URR means ICC Uniform Rules for Bank-to-Bank
Reimbursements under Documentary Credits in effectfrom time to time.
11.3 Trade Agreements and inconsistency(a)

The Trade Products applied for by the Customer will be
provided by ANZ in accordance with and subject tothese Terms and any other relevant Trade Agreement.

(c)

(b)

If these Terms and the terms in any applicable ICC Rules
are inconsistent or conflict, these Terms will prevail.

The Customer will keep and maintain accurate records
and documents relating to each Trade Product and its
use of that product.

(d)

(c)

If these Terms are inconsistent with any Trade
Agreement, then where the relevant Trade Agreement
states expressly that it prevails to the extent of theinconsistency, it will so prevail over these Terms andotherwise, these Terms prevail to the extent of theinconsistency.

If requested by ANZ, the Customer will promptly
provide to ANZ complete and accurate documents
and/or information required to comply with any foreignexchange Laws applicable to the Trade Product usedby it and authorises ANZ to provide those documents
and that information to any relevant Authority.

(e)Without limiting any other consent that the Customer
has given or may give ANZ, the Customer agrees that
ANZ may disclose any Customer Information relating toit (including, for example, customer transaction data
and details relating to any facility) to relevant
Authorities, clearing or settlement banks or agents,
professional bodies and other third parties in any
country having functions or responsibilities inconnection with the currency in which the Trade
Product is provided to the Customer.

(f)

The Customer will pay ANZ on demand any amount
ANZ may be required to expend on account of any
foreign exchange Laws applicable to the Trade Productused by the Customer.

(g)

ANZ will not be liable in any way to the Customer andthe Customer will on demand reimburse ANZ theamount of any Loss it may suffer or incur relating to any
requirements imposed by, or the exercise of orconditions imposed under any applicable foreignexchange Laws by any Authority.

11.4 Currencies
(a)

(1)

is not obliged to, and will not, provide the Trade
Product in that currency. If possible and practical,
ANZ and the Customer may agree an alternative
currency in which the Trade Product will be
provided; and(2)will not be responsible for any loss or liability
which the Customer may suffer or incur by reasonof or in connection with non-availability to ANZ of
the relevant currency for the purpose of providing
any Trade Product to the Customer.

(b)

Unless otherwise agreed in writing with ANZ, allpayments to ANZ under any Trade Agreement must be
made in the same currency as the drawing or
obligation to which it relates (Payment Currency).

(c)

If ANZ reasonably determines that the Payment
Currency is unavailable to the Customer, ANZ will notify
the Customer in writing of an alternative currency andamount which the Customer must pay ANZ to satisfy its
payment obligation. The Customer will pay thatcurrency and amount to ANZ within 2 Business Days ofthe date of the notice.

(d)

(e)

14

If the currency requested by the Customer for a Trade
Product is not available to ANZ after exercisingreasonable endeavours to obtain it, ANZ:

If the Customer pays ANZ, or monies to discharge theliability of the Customer to ANZ are received oravailable to be applied by ANZ against that liability, in adifferent currency from that of the Payment Currency,
ANZ will convert the amount paid, received or applied
into the Payment Currency using the Exchange Rateapplicable on the date of receipt or application. The
Customer must pay ANZ on demand for any shortfall
arising from the conversion. The Customer
acknowledges that it may be necessary for ANZ topurchase one currency with or through anothercurrency.
An equivalent amount in one currency (first currency)
to an amount in another currency (second currency)
will be that amount in the first currency converted into
the second currency at the Exchange Rate at the time
ANZ determines the equivalent amount.

11.6 Laws, licences, permits and authorisations(a)

The Customer will, at all times, while any obligation isoutstanding in respect of a Trade Product, hold all
licences, permits and other authorisations relating to
the Goods (including for the import and/or export ofGoods) and/or Services.

(b)

If ANZ needs to inspect any such licence, permit or
authorisation, the Customer will provide the original ofthat licence, permit or authorisation to ANZ at the timeof making application for the relevant Trade Product.
Otherwise, the Customer will promptly provide a copy
(certified as a true and correct copy in a manner
acceptable to ANZ) of any such licence, permit or
authorisation to ANZ at its request, acting reasonably.

(c)

The Customer will comply with: (1) in all material
respects, all Laws binding on it and (2) the terms ofany licence, permit or authorisation relating to theGoods and/or Services and the export or import ofGoods.

11.7 Double use
When the Customer applies to use a Trade Product it warrants
and represents (on a continuing basis) and undertakes to ANZthat the underlying Trade Transaction has not previously been,
and will not while the subject of the requested Trade Productbe, the subject of another Trade Product provided by ANZ(unless agreed by ANZ in writing) or a trade product (whetherof the same or a similar effect or not) provided by any otherperson.

11.11 Fees, commissions, charges and expenses(a)

The Customer will pay ANZ all fees, commissions andcharges in respect of each Trade Product as stated,from time to time, in any relevant Trade Agreement.

11.8 Payments generally(b)

The Customer will pay to ANZ, on demand, allcommissions, fees, charges and expenses which are
incurred or suffered by ANZ or levied on ANZ by any
third party (including any Correspondent Bank or
negotiating bank or its agent) in connection with any
Trade Product.

(c)

The Customer will pay all:

(a)

(b)

The Customer must make all payments to ANZ undereach Trade Agreement in immediately available, freelytransferable funds to the accounts with the banks andin the currency as ANZ may notify to it, without any
set-off, counterclaim, deduction or withholding of any
kind including, to the extent permitted by Law, tax.
If any deduction or withholding (including in respect oftax) is made to a payment to ANZ, whether from theCustomer or another person, the Customer:
(1)

(2)

will pay ANZ, when the payment is due if thepayment is from the Customer and on demand if
the payment is from another person, whatever
additional amount is needed so that the amountthat ANZ actually receives, after taking into
account the deduction or withholding, is theamount ANZ would have been entitled to receive
if no deduction or withholding had been made;andmust provide ANZ with any evidence ANZ may
require (including certified copies of receipts) thatpayment in full of the amount of the deduction orwithholding has been made to the relevant
Authority.

11.9 Interest
(a)

(b)

(c)

If ANZ negotiates, finances, discounts or advances orlends money to or for the Customer in connection witha Trade Product, the Customer will pay interest on thatamount at the rate and margin and paid in advance orarrears as specified in the relevant Trade Agreement oras otherwise agreed with ANZ.
Interest will be calculated from (and including) the dayon which the amount is credited or advanced up to(but excluding) the maturity date of the advance or day
upon which ANZ anticipates receiving payment fromthe party responsible for making the payment (andinterest may be adjusted by ANZ, and is payable by the
Customer on demand by ANZ, if the actual payment
date is different from the anticipated payment date).
Interest accrues daily on the basis of either a 360 or 365
day year (depending on the currency) as determined by
ANZ and may be fixed or variable for the drawing termand paid in advance or in arrears.

(b)

On any amount the Customer does not pay ANZ on thedue date, the Customer must pay ANZ an overdue fee
calculated at a rate being the aggregate of the interest
rate specified in the relevant Trade Agreement and 2%
p.a. applied to the period from the due date to the date
it is paid to ANZ, unless ANZ agrees in writing
otherwise.
The overdue fee:(1)

is payable on demand or if ANZ does not makeany demand, on the first Business Day of eachmonth and on the date the overdue amount is
paid;

(2)

accrues daily for the period it remains unpaid; and(3)

if unpaid, may be compounded by ANZ monthly
unless otherwise agreed or, if an applicable Law
provides otherwise, at the minimum period
allowed by that Law.

charges, duties (including stamp, documentary
and transaction duties) and taxes (including
Indirect Taxes) payable in connection with theGoods and/or Services, the export or import ofGoods, any Trade Product, any assignment andany Trade Agreement; and(2)freight and other amounts payable under any
contract of carriage or otherwise in relation to a
Trade Product.

(d)

All fees, commissions and charges paid to ANZ are
non-refundable unless agreed otherwise in writing by
ANZ.

(e)

The Customer will pay, on demand, all commissions,fees, charges and reasonable costs and expenses which
are incurred or suffered by ANZ’s Correspondent Bankin connection with any Trade Product.

11.12 Application of moneys received
ANZ may apply any amount received by it on the Customer’sbehalf or for the Customer’s account in respect of any Trade
Product from any person against any amount the Customer
actually or contingently owes it in any manner it reasonably
chooses,
11.13 Authority to debit(a)

The Customer authorises ANZ to debit from its
accounts any amount due and payable to ANZ in
respect of a Trade Product in accordance with thisClause 11.13.

(b)

If ANZ reasonably requires the Customer to provide
ANZ with authority to debit an account it holds withanother financial institution for any amount due andpayable to ANZ, the Customer agrees to execute any
document necessary to authorise ANZ to debit that
account.

(c)

ANZ may debit any amount payable in respect of a
Trade Product or Trade Agreement, including any
interest, fees or indemnified amounts (except forindemnified amounts payable under clause 11.25),
which are not paid when due from any of the
Customer’s accounts held with ANZ or as required by
Law..

(d)

ANZ does not have to debit any Customer account andmay require the Customer to pay the relevant amountto it.

(e)

If ANZ does debit any Customer account it will notify
the Customer that it has done so.

11.10 Late payment
(a)

(1)

11.14 Cash cover(a)

Unless otherwise agreed under a Trade Agreement, if
ANZ requests (acting reasonably), the Customer must
pay ANZ a sum up to or equal to ANZ’s contingent or
unmatured liability (as determined by ANZ) under or in
relation to an Instrument or Documentary Credit.

(b)

ANZ is not obliged to refund any cash cover unless the
Customer’s contingent or unmatured liability(ies) cease
to exist before they mature or do not mature in full.

15

ANZ TR ADE TERMS(c)

Unless ANZ agrees in writing otherwise, no interest willaccrue on any such sum.

(2)

introduce a new fee, commission or charge;(3)

how interest is calculated or the frequency withwhich interest is debited or credited;(4)

repayment amounts or any existing non-statutoryfee, commission or charge,(5)

the method of calculation, frequency of, or
payment date for, such repayments or fees
commissions or charges;(6)

reflect ANZ’s business, communications or
technological systems or processes;

11.15 Drawing against funds
If ANZ permits the Customer to draw against uncleared funds
yet to be collected or transferred from any account(s), theCustomer will on demand by ANZ reimburse ANZ in full theamount drawn if ANZ does not receive the funds in full at thetime when ANZ ought to have received the same.
11.16 Payment not final(a)

The parties agree that where ANZ receives a payment
from any person in connection with a Trade Product(the Relevant Payment) which ANZ is subsequently
required under law relating to insolvency to repay tothat person or its estate, whether in whole or in part:
(1)

(b)

all of ANZ’s rights in respect of the Relevant
Payment will be reinstated as if the Relevant
Payment had never been made or accepted;(2)

the underlying liability that would have beendischarged by the Relevant Payment will not havebeen extinguished; and(3)

any release, discharge or settlement provided by
ANZ in consideration of the Relevant Payment will
be of no force or effect.

(b)

The Customer agrees that where ANZ incurs a liability
to a third party at the request, or otherwise on behalf,of the Customer, ANZ may discharge all or part of thatliability at any branch or office of ANZ in any country
and in any currency at ANZ’s discretion (acting
reasonably).

(c)

Where ANZ discharges a liability, the Customer will pay
ANZ the relevant amount at the branch or office in the
country and in the currency which ANZ directs.

11.19 Variations
Unless agreed otherwise with the Customer, ANZ maychange the terms of any Trade Agreement as provided
in this clause 11.19 by notifying the Customer of therelevant change in writing, or by Electronic
Communication, or making the change available on theElectronic Channel as specified in clause 11.29(d), or(except for clauses 11.19(b) (2) and (3) below) by
publication in the local or national media.
ANZ may, in any Trade Agreement, make changes fromtime to time to:(1)

16add, change or remove any Customer discounts,
benefits or concessions;(13) reflect current industry or market practice or
conditions.
(c)

ANZ will give 30 days’ prior notice to the Customer ofany change it makes to the terms of any Trade
Agreement but:
(1)

if the changes are beneficial to the Customer,
outside ANZ’s control or in ANZ’s reasonable
opinion required to address the risk of fraud, illegal
activity or to protect the interests of the Customer,
then the change may take effect immediately,
except to the extent prior notification is requiredby an applicable Law; or(2)

if an applicable Law provides for:

Until the Customer makes that payment, those moneys
will be kept separate from its other moneys and held by
it on trust for ANZ and failing that as ANZ’s fiduciary
and/ or agent and in each case for ANZ’s sole benefit.

If ANZ intends to discharge a liability otherwise than inaccordance with the terms of a Trade Agreement, ANZ
will notify the Customer prior to discharging the liability
unless it is prevented from doing so by Law or any
relevant regulation.

(b)

(9)

(12) benefit the Customer;

The Customer will immediately pay ANZ any moneys
meant for ANZ which it inadvertently or mistakenly
receives or recovers in connection with a Trade
Product.

(b)(a)

in ANZ’s reasonable opinion, protect any personfrom the risk of fraud, loss or illegal activity;(11) reflect changes in the relevant Trade Product orensure the terms of any Trade Agreement remain
consistent with ANZ operational processes orreplace a Trade Product with a different Trade
Product with similar features;

11.18 Discharge of ANZ’s liability
(a)

(8)

(10) simplify the terms of any Trade Product or Trade
Agreement;

The Customer’s obligations under this Clause 11.16 arecontinuing obligations, independent of the any otherobligations under these Terms or Trade Agreement andcontinue despite the termination of any Trade
Agreement or discharge of any Trade Product.

11.17 Inadvertent payments(a)(7) comply with applicable Law or any change in Law,or any decision, recommendation, regulatory
guidance or standard of any court, tribunal,
ombudsman service or any other similar body;any applicable interest rate or margin;i.

another period, the notice period will be theperiod specified by that applicable Law; orii.

the change to take effect immediately, thechange will take effect immediately.

(d)

If ANZ notifies a Customer of a change to the terms ofthat Customer’s Trade Product or Trade Agreement theCustomer may cancel their Trade Agreement by giving
ANZ written notice, paying all amounts owing to ANZ
and complying with any remaining obligations under
the terms of the relevant Trade Agreement.

(e)Changes specific to the Customer will take effect only
by agreement with that Customer, despite anything to
the contrary in this clause 11.19.

11.20 Anti-money laundering and sanctions(a)

ANZ does not have to do anything in relation to a Trade
Product if it considers doing so would breach any AML/ETS Laws applicable to it.

(b)

The Customer must provide to ANZ all information anddocuments that are within its possession, custody orcontrol reasonably required by ANZ in order for ANZ tocomply with any AML/ETS Laws.

(c)

The Customer will exercise its rights and perform its
obligations under a Trade Agreement and any
transaction related to a Trade Agreement in accordancewith all applicable AML/ETS Laws.

11.21 Liability for Loss
(a)

(b)

the Customer, its business or assets, a Trade
Product or anything in connection with them;

ANZ will not be liable to the Customer for any Losssuffered or incurred in connection with any Trade
Product, Trade Agreement or act or omission of ANZ(including breach of contract) other than to the extent
that Loss is caused by ANZ’s gross negligence, wilful
misconduct or fraud.

(6)(7) any claim made against ANZ by a third party
relating to any Trade Product or Trade Agreement;

No party is liable to any other party for any Indirect Lossother than as expressly provided for in these Terms or
any Trade Agreement.

11.22 Exclusions
To the extent permitted by Law and unless otherwise statedin a Trade Agreement, all statutory terms, conditions,warranties, and undertakings, whether express or implied
relating to a Trade Product are excluded.

(b)

All instructions and correspondence sent by ANZ at therequest or on behalf of the Customer to any person)
relating to any Trade Product will be sent at theCustomer’s risk.
Subject to and without limiting Clause 11.21, ANZ is not
responsible and will not be liable for any Loss arising
from:
(1)

ANZ acting in accordance with applicable Laws,
regulations or rules;(2)

the acts and omissions of Correspondent Banks;
and

(3)
(c)

Neither party is responsible for a Force Majeure event
occurring.

(b)

ANZ may suspend providing any Trade Product until a
Force Majeure event has ended.

11.25 Indemnity(a)

The Customer agrees to indemnify ANZ for and makegood all reasonable costs (including those incurred inconnection with advisers and any legal costs on a fullindemnity basis) or losses (not due to the negligence,
fraud or wilful default of ANZ, its employees, officers,
contractors, agents or any receiver appointed by ANZ)
which any of them may suffer or incur in connection
with:
(1)

a representation, warranty or statement made, or
taken to be made, by or on behalf of the Customer
in relation to a Trade Product being incorrect ormisleading (including by omission) when made or
taken to be made;(9)

ANZ reasonably relying on any Communicationthat it reasonably believes to have been sent by
the Customer or an Authorised Representative;(12) any transaction to which a Trade Product relates inany way being tainted by fraud or alleged fraud(other than ANZ’s fraud).
(b)

ANZ will give the Customer written notice of theamount it must pay ANZ under Clause 11.25. The
Customer must make that payment on the date and in
the manner reasonably specified by ANZ in the notice.

(c)

Any indemnity, reimbursement or similar obligation inthese Terms or any Trade Agreement:

ANZ is not responsible for any Goods, Trade Documents
or items not in its possession. Where Goods or Trade
Documents are in its possession, ANZ will exercise
reasonable care.

(a)it being unlawful in any jurisdiction for ANZ toperform its obligations or enforce its rights;(11) any breach by the Customer of a Law or
requirement of any Authority; orloss of Trade Documents or Trade Agreements intransit;11.24 Force Majeure(8)(10) any breach of any AML/ETS Law (other than by ANZ);

11.23 Responsibility(a)exercising, enforcing or preserving rights, powers
or remedies in connection with these Terms or a
Trade Product;

(d)

(1)

is a continuing obligation despite any intervening
payment, settlement or other thing;(2)

independent of the Customer’s other obligations;(3)

survives the termination or discharge of any Trade
Product and the satisfaction of any payment or
obligation secured by and Pledge or security
provided in relation to a Trade Product; and(4)

is in addition to any other rights that ANZ has
under these Terms, any Trade Agreement or given
independently by law.

It is not necessary for ANZ to incur expense or makepayment before enforcing a right of indemnity inconnection with these Terms

11.26 Trade Product disclosure
The Customer will only disclose the fact that ANZ provides itwith a Trade Product or the terms upon which it does so to
any other person if it has obtained ANZ’s prior written consent
or if it is compelled by Law to do so.
11.27 Information disclosure
A party must not disclose information provided by the otherparty that is not publicly available except:(a)to any of its Affiliates and any of its or an Affiliate’s
officers and employees with a genuine reason to see it;(b)to any of its agents, service providers or professional
advisers who are under a duty of confidentiality;(c)

any disclosure the disclosing party reasonably believes
is required by any Law or Authority;(2)

any transfer by the Customer of a Documentary
Credit without ANZ’s prior consent;(d)with the non-disclosing party’s prior written consent;
and

(3)

any inability of ANZ to collect or freely deal withfunds which it receives in relation to an amountowing by, or advanced to, the Customer (otherthan due to ANZ’s negligence);

(e)

(4)

any determination or decision made to act orrefusal to act by ANZ in connection with the Trade
Product because of a court order or other similar
obligation (whether or not subsequently
discharged);(5)

doing anything in connection with a subpoena,
notice, order or enquiry by an Authority involving

for ANZ only: (1) to any person with whom ANZ may
enter into any transfer, assignment, participation,
insurance or other agreement in connection with, or
any Trade Product or transaction contemplated under,
any Trade Agreement, (2) to any ratings agency,
insurance broker or proposed or actual provider ofcredit protection, security or credit support, (3) toparticipants in any payment systems (such as financial
institutions, correspondent banks, payment clearing
entities and associations and SWIFT) and (4) to any
regulator if ANZ believes it is necessary or appropriate
to do so (even if it is not legally obliged to).

17

ANZ TR ADE TERMS
11.28 Communications generally(a)Communications must be:
(1)

(2)

(3)

(b)

sent to the address for the recipient set out in therelevant Trade Agreements or as most recently
advised in writing. The Customer must keep its
contact details updated;legible and in English or provided with a certified
English translation if the original Communication is
not in English. If there is a difference between thewritten Communication and the English
translation, the English translation will apply unless
ANZ agrees in writing otherwise or if a Law of theGoverning Jurisdiction requires otherwise; andsigned by an Authorised Representative of the
Customer. Communications sent by email aretaken to be signed by the named sender.
Communications sent by Posting to the Electronic
Channel are taken to be signed by the logged inuser. If that person is not an Authorised
Representative of the Customer, ANZ may ignorethat Communication.

(1)

if sent by facsimile – from the time thetransmission report shows it as having been sent
successfully;(2)

if sent by post – when it is actually received;(3)

if sent by E-mail – at the time it is sent unless thesender receives an automated message that theE-mail has not been delivered; and(4)

if Posted in the Electronic Channel - at the time ofPosting.

11.29 Verbal and Electronic Communications

18

If the Customer sends Electronic Communications or
gives them verbally in person or by telephone:(1)

the Customer acknowledges that there are risks incommunicating in this manner and agrees that itis responsible for those risks;(2)

the Customer must comply with any security
measures agreed with ANZ (security procedures);(3)

ANZ may accept or reject any verbal
Communications; and(4)

if ANZ receives a verbal Communication orElectronic Communication it reasonably believes
to be genuine, complete and which complies withthe security procedures (if any): (i) ANZ need notverify the authenticity or completeness of theCommunication, even if the Communication
instructs ANZ to make a payment and (ii) any such
Communication will be treated as authorised by
the Customer and will be binding on it.

(b)

ANZ may give the Customer notice at any time that it
will no longer accept any or specified verbal
Communications or Electronic Communications. The
notice is effective from when it is received by the
Customer until ANZ advises the Customer in writingthat it will accept verbal Communications or Electronic
Communications again.

(c)

If the Law permits, ANZ may record ANZ’s telephone
conversations with the Customer and use the recorded
conversations or transcripts in any dispute inconnection with a Trade Product.

If the Customer has access to the Electronic Channel(1)

ANZ and the Customer may Post Communicationsin the Electronic Channel relating to a Trade
Product accessed using the Electronic Channel;(2)

ANZ will promptly E-mail the Customer that theCommunication has been Posted and describing
what the Communication is unless otherwise
agreed in writing; and(3)

the Customer may request a paper copy of a
Communication Posted on the Electronic Channel
at any time within 6 months of ANZ advising theCustomer that the Communication had been
Posted.

11.30 Assignment(a)

The Customer must not transfer, grant security over or
declare a trust over any of its rights arising under theseTerms, any Trade Agreement or in respect of a Trade
Product without ANZ’s prior written consent. ANZ may
transfer, grant security over or declare a trust over anyof its rights under these Terms, any Trade Agreement orin respect of any Trade Product without the Customer’s
consent.

(b)

ANZ may receive fees or payments in connection withsuch dealings without disclosing them to the Customer.

A Communication is effective:

Despite the above, if a Communication is received after
5:00pm or on a day which is not a Business Day, it is effective
the following Business Day.

(a)

(d)

11.31 Severability
If any provision of these Terms or any other Trade Agreement
is or becomes illegal, invalid or unenforceable in a jurisdiction,that term is severed only for that jurisdiction. All other terms
continue to have effect in that jurisdiction.
11.32 Further Assurance
The Customer will do all acts, matters and things including
executing all agreements, instruments or documents as may
be necessary or desirable to give full effect to the provisions ofthese Terms and the transactions contemplated by them.
11.33 Governing Law
Unless specified otherwise, these Terms and the transactions
under or relating to a Trade Product will be governed by andconstrued in accordance with the Laws of the Governing
Jurisdiction and the parties submit to the jurisdiction of the
Courts of that Governing Jurisdiction and of any Courts
competent to hear appeals from those Courts.

12.

TRADE COUNTRY ADDENDUM

12.1

These ANZ Trade Terms and each Trade Country
Addendum will be read and construed as one
document.

12.2

Words used in the Trade Country Addendum if definedin these ANZ Trade Terms have the same meaning
unless the context otherwise requires.

12.3

If these ANZ Trade Terms and a Trade Country
Addendum are inconsistent the terms in the Trade
Country Addendum prevail to the extent of theinconsistency.

ANZ TRADE TERMSSAMOA – TRADE COUNTRY ADDENDUMSAMOA AS GOVERNING JURISDICTIONANZ Bank (Samoa) Limited.

(c)	Each Customer will promptly take all reasonable steps
which are prudent for its business under or in relation
to the PPSA, including doing anything reasonably
requested by ANZ for that purpose. For example, each
Customer will: (i) create and implement appropriate
policies and systems; and (ii) take reasonable steps
to identify security interests in its favour and toperfect and to protect them, with the highest
priority reasonably available, except to the extent it isreasonable not to do so, taking into account the costs
and risks involved.

2. Foreign Currency
The provision of the Trade Products or Services is subject
to the foreign exchange laws and regulations applicableto the transaction, which include the provisions of the
Exchange Control Regulations 1999 as may be amended
from time to time.

(d)	Everything the Customer is required to do under thisclause 4 is at the Customer’s expense. The Customer
agrees to pay or reimburse the reasonable costs andexpenses (including costs of advisors and legal costs)of ANZ in connection with anything the Customer isrequired to do under this clause.

The provision of the Trade Products or Services is subject
to the foreign exchange laws and regulations applicable tothe transaction, which include the provisions of the Central
Bank Act 2015, as may be amended from time to time.

(e)	To the maximum extent permitted by Law, theCustomer waives the Customer’s right to do any of thefollowing that would otherwise arise under the PPSA:This document is the Trade Country Addendum for Samoa.
The provisions in this Trade Country Addendum form
part of the Trade Terms and apply where Samoa is theGoverning Jurisdiction.
1. Definitions
The following entity is the ANZ Group Member providing
the Trade Product or Service to the Customer in thisjurisdiction:

3.	Compliance with laws relating to Goods andServices
Certain legislation (such as but not limited to) the
Competition and Consumer Act 2016 may imply warranties
or conditions or impose obligations upon ANZ whichcannot be excluded, restricted or modified except to alimited extent.
Where any legislation implies warranties or conditions or
imposes obligations on ANZ that cannot be excluded byclause 11.21, clause 11.22 or clause 11.25 of the Terms,
the terms and conditions applicable to a Trade Product orService are read subject to the statutory provisions referred
to above.
4. Personal Property Security Act(a)	In this clause 4, unless the contrary intention appears,
a reference to a term defined in the PPSA has themeaning as it has in the PPSA.
(b)	Whenever ANZ requests a Customer to do anything:(i) to ensure any Trade Agreement (or any security
interest (as defined in the PPSA) or other Security, rightor power under any Trade Agreement) is fully effective,
enforceable and perfected with the contemplated
priority; (ii) for more satisfactorily assuring or securing
to ANZ the property the subject of any such security
interest or other Security in a manner consistent
with the Trade Agreement; or (iii) for aiding theexercise of any right or power provided for in theTrade Agreement, the Customer shall do it promptly
at its own cost. This may include obtaining consents,
getting documents completed and signed, supplying
information, delivering documents and evidenceof title and executed blank transfers, and giving
possession or control with respect to any property the
subject of any security interest or Security.

		 (i)		receive notice of ANZ’s proposal to retain any
collateral (as defined in the PPSA) under section
56 of the PPSA;
		 (ii)	object to ANZ’s proposal to retain any collateral
under section 56 of the PPSA; and		 (iii)	redeem any collateral under section 59 of the
PPSA.
5. Amendments to the Trade Terms
The clauses in the ANZ Trade Terms are amended asfollows:
Clause 4: The heading is amended to read “Import Credits,
Import Collection and Export Credits – Pledge and Trust
Receipt”.
Clause 4.1: Clause 4.1 is replaced with the following:“(a) 	As continuing security for the payment and discharge
on demand to ANZ of the Import Obligations andthe Export Obligations, the Customer grants to ANZ
a Security Interest over and pledges in favour of ANZ,
the Pledged Assets.
(b) 	The Customer agrees to execute all documents anddo all things necessary to enable ANZ to register its
Security Interest in any Pledged Asset on the Personal
Property Securities Register.
(c) 	The Customer waives any right to receive from ANZ
a copy of any financing statement, financing change
statement or verification statement that is registered,issued, or received at any time in relation to the Terms.
(d)	To the full extent permitted by law, the Customer
will pay all of ANZ’s reasonable costs and expenses inrelation to the compliance with any demand given by
the Customer whether in relation to any application
for, or the obtaining of, a court order to maintain any
registration in respect of the Security Interest createdby the Terms and the servicing of any such court order
19

ANZ TR ADE TERMS SAMOA – TR ADE COU NTRY ADDENDU M
on the Customer or the Registrar of Personal Property
Securities or otherwise.”
Clause 4.2: Clause 4.2 is replaced with the following: “TheCustomer will hold all risk in any Pledged Asset. To thefull extent permitted by law, ANZ is not responsible for
any Pledged Asset and will not be liable for any Loss inrelation to, or depreciation in the value of, any Pledged
Asset including while they are in the possession, custody orcontrol of ANZ or its employees or agents.”
Clause 4.6(a): Clause 4.6(a) is replaced with the following:“those Pledged Assets are subject to a Security Interest andpledged in favour of ANZ upon the terms of these Terms
and that the Pledge will continue notwithstanding therelease of those Pledged Assets by ANZ to the Customer;”
Clause 4.6(c): Clause 4.6(c) is replaced with the following:“it has no claim, lien or set-off of any kind in respect ofanything which the Customer holds on trust for ANZ”
Clauses 4.7(c), (d), (e) and (f ): New clauses 4.7(c), (d), (e)and (f ) are inserted to read as follows:“(c) 	If the Customer fails to observe any of its obligations
to ANZ in respect of the Trade Product in connection
with Goods to be exported, ANZ may at its absolute
discretion and without notice to the Customer (andwithout prejudice to any of its other rights andremedies) cause the Goods (or any part thereof ), to belanded, docked, stored, transported, insured, and/or
sold (or sold without landing) or otherwise disposedof or the Trade Documents to be dealt with in any
way on such terms and for such consideration, as ANZ
considers appropriate, in which circumstance:		 (i) 	ANZ is not liable for any loss suffered by the
Customer as a consequence of such action;
		 (ii) 	the Customer must pay to ANZ, on demand all
reasonable costs and expenses incurred by ANZ
in respect of any actual or attempted landing,docking, storage, insurance, transportation, saleor other disposal of the Goods or dealing with
the Trade Documents (other than where thecosts or losses are due to the negligence, fraud
or wilful default of ANZ, its employees, officers,
contractors agents or any receiver appointed
by ANZ);		 (iii) 	the Customer will remain liable for and must pay
any deficiency that may remain owing to ANZ
after the sale or disposal of the Goods or dealing
with the Trade Documents (other than where thecosts or losses are due to the negligence, fraud
or wilful default of ANZ, its employees, officers,
contractors agents or any receiver appointed
by ANZ);		 (iv) 	the Customer must do anything which includes
endorse, assign, sign, execute and deliver any
transfers, deeds or documents (or arrange any
such matters) which ANZ requires in order toperfect ANZ’s title to the Goods or to otherwise
give effect to any proposed landing, docking,storage, insurance, sale or other disposal or
dealing.
(d) The Customer shall, upon request by ANZ, forthwith:20

		 (i) 	appear and defend at its own cost and expense
any action which may be brought in connection
with the Trade Product in connection with Goods
to be exported; and/or		 (ii) 	make any claim or take any action or instituteany proceedings which ANZ may consider
necessary or desirable to recover any proceeds,
compromise or settle any dispute in connection
with any Trade Documents or Goods over which
ANZ has a Security Interest, Trade Product inconnection with Goods to be exported, relevant
documents, charged property, sales proceeds orinsurance proceeds on such terms as ANZ may
in its absolute discretion consider appropriate,
failing which ANZ may do it in its name or the
Customer’s name at the Customer’s cost.
(e) For the purposes of clause 4.7, ANZ may:		 (i) 	demand delivery and endorsement to ANZ of all
Trade Documents; and		 (ii) 	exercise all the Customer’s rights (if any) as
unpaid seller of the Goods.
(f ) 	Where the enforcement provisions of Part 4 of the
PPSA apply to the enforcement by ANZ of the Security
Interests created by the Terms, the Customer agrees
that sections 52(1)(a) and 57 shall not apply to suchenforcement. The Customer also waives any rights it
may have under sections 12, 28(9)-(11), 53 and 56 of
the PPSA on such enforcement.”
Clause 7.10: A new clause 7.10 is inserted:“7.10 Payment of Assigned Export Credit Proceeds(a)	This clause 7.10 applies if the Customer has assigned
the proceeds of an Export Credit to a third party(Payee).
Assignment(b)	An assignment by the Customer to the Payee must
be an unconditional assignment of all or part of theExport Credit proceeds.
(c)	The Customer is solely responsible for ensuring theenforceability or effectiveness of the assignment
between it and the Payee. ANZ is not responsible andhas no duty whatsoever to advise the Customer onsuch issues.
(d)	The Customer undertakes not to assign any further
rights to the Export Credit proceeds or issue additional
instructions in relation to payment of those proceeds.
(e)	The Customer represents that (i) it has the power tomake each assignment of the Export Credit proceeds
referred to in each application and instruction it gives
ANZ and (ii) to the best of its knowledge, no payment
under the assignment of Export Credit proceeds could
be avoided by law or will be encumbered or subject
to any other claims.
Payment(f )		All payment instructions given by the Customer
to ANZ to pay the Export Credit proceeds to the
Payee are irrevocable unless the Payee gives written
authority to cancel them, and the Payee may request
alternative disbursement arrangements.

ANZ TR ADE TERMS SAMOA – TR ADE COU NTRY ADDENDU M(g)	ANZ relies on the information contained in all
payment instructions delivered to ANZ and ANZ
will make no further or independent enquiries intosuch matters.
(h)	ANZ will advise the Payee that payment will be madeto it of the Export Credit proceeds in form and content
acceptable to ANZ.
(i)		ANZ will only pay Export Credit proceeds to the Payee(i) if documentation is presented under the Export
Credit and the subsequent reimbursement claim ishonoured by the Issuing/reimbursing bank and (ii)after actual receipt of the Export Credit proceeds by
ANZ from the Issuing/reimbursing bank.
(j)		ANZ does not add its commitment, either actual or
implied, to the arrangements entered into between
the Payee and Customer which have resulted in theassignment.
(k)	The Customer will pay to ANZ on demand any fees,
charges and out of pocket expenses associated with
the issuance of ANZ’s advices in respect to, and theprocessing of, the payment instruction(s).”Clause 9.10: Clause 9.10 is deleted.
Clause 11.2(c) Definitions: The following definitions areinserted in clause 11.2(c) in alphabetical order:“Export Obligations means, in relation to an Export Credit,
all present and future indebtedness and liabilities due,owing or incurred by the Customer to ANZ (in each casewhether alone or jointly, or jointly and severally, with anyother person, whether actual or contingent or whether as
principal, surety or otherwise).
Personal Information means information or an opinion
about an identified individual or an individual who isreasonably identifiable.
PPSA means the Personal Property Security Act 2013
(Samoa).
Security Interest means a security interest as defined in
the PPSA.”
Clause 11.2(c): The definition for “Encumbrance” is replacedwith the following:“Encumbrance means any mortgage, charge, assignment,
pledge, lien, rights of set-off, arrangements for retention of
title or hypothecation or trust arrangement for the purposeof, or which has the effect of, granting or conferring
security and includes, without limitation, a Security Interest.
Clause 11.2(c): Amend the definition of “Pledge” to read as
follows:“Pledge means any pledge or Security Interest theCustomer grants to ANZ over any Pledged Assets”.
Clause 11.6(c): Clause 11.6(c) is amended to read as
follows:“(c)	The Customer will comply with: (1) all Laws binding
on it and (2) the terms of any licence, permit or
authorisation relating to the Goods and/or Services
and the export or import of Goods.”

Clause 11.19(a); Clause 11.19(a) is replaced with thefollowing:“(a)	Unless agreed otherwise with the Customer, ANZ maychange the terms of any Trade Agreement as provided
in this clause 11.19 by notifying the Customer of therelevant change in writing. Such notice may be byElectronic Communication, or by making the change
available on the Electronic Channel as specified inclause 11.29(d), or by publication on the ANZ Group
Member’s website, or in the local or national media.”
Clause 11.27: Clause 11.27 is supplemented by thefollowing:(a)	ANZ, in order to disclose the Customer information
described in clause 11.5 and 11.27, has obtained theconsent of the Customers.
(b)	Where ANZ has entered into an agreement with aforeign government for the provision of information
for taxation purposes, ANZ may disclose Customer
Information to such foreign government.
(c)	If the Customer does not provide ANZ with some or
all of the Personal Information that ANZ requests, ANZ
may be unable to provide the Customer with any
product or service.
(d)	The Customer also acknowledges and agrees that
despite the operation of any Law:
		 (i)		the Customer consents to the disclosure of
Personal Information; and		 (ii)	if the Customer does not provide ANZ withsome or all of the Personal Information that ANZ
requests, ANZ may be unable to provide theCustomer with any Trade Product.
(e)	Customer Information which the Customer provides
to ANZ will be kept strictly confidential and will be
securely held by ANZ and/or by any ANZ Group
Member. The Customer has a right to access its
information by calling its ANZ relationship manager
and may also request that the Personal Information becorrected. In each case, a fee may be payable by the
Customer to ANZ.
(f )		ANZ will make every effort to keep Personal
Information up to date.
(g)	How ANZ uses Customer Information will dependon the purpose for which that Customer Information
was collected.
(h) ANZ may collect and use Customer Information to:		 (i)		consider applications for facilities, Products orServices;		 (ii)	administer, manage and monitor any facilities,
Products or Services provided to the Customer;		 (iii)	conduct market research, data processing andstatistical analysis;
		 (iv)	perform administrative and operational tasks(including risk management, debt recovery,
exposure aggregation, systems development
and testing, credit scoring, staff training andmarket or customer satisfaction research); and21

ANZ TR ADE TERMS SAMOA – TR ADE COU NTRY ADDENDU M
		 (v)	unless the Customer notifies ANZ otherwise inwriting, provide the Customer with information
about other facilities, products or services
including certain third party products or services.
(i)		ANZ may use Customer Information for the purposeof data matching and in doing so may collectinformation about the Customer. ‘Data matching’ isthe process of comparing Customer Information withpublicly available information and/or with information
held by a reputable entity ANZ has an ongoing
relationship with in order to better enable ANZ tocarry out any of the above purposes.
(j)		ANZ may disclose Customer Information to carefully
selected third parties for the purposes of data
matching, provided those third parties are subject toan obligation of confidentiality.
(k)	ANZ may obtain information and make such enquiries
about the Customer as ANZ may consider warranted
from any source including any ANZ Group Member
and credit reference agencies for the above purposes.
(l)		ANZ may disclose Customer Information to credit
reference agencies for the purpose of obtaining credit
reports. Those credit reference agencies may retainthat information and provide it to their customers who
use their credit reporting services. If the Customer
defaults in any obligations to ANZ, then ANZ may
disclose Customer Information about the Customer
to credit reference or debt recovery agencies. Those
credit reference agencies may retain that informationand provide it to their customers who use their credit
reporting services.
(m)	ANZ may use Customer Information to identify,
prevent or investigate any actual or suspected fraud,
unlawful activity, misconduct or threats to our systems
and our use of information may include monitoring
traffic and information to and from our website andother IT systems for those purposes;(n)	ANZ may disclose Customer Information to a carefully
selected contractor, service provider or Agency who
assists us to identify, prevent or investigate any actualor suspected fraud, unlawful activity, misconduct orthreats to our systems, including by monitoring traffic
and information to and from our website and other IT
systems for those purposes. Such a contractor, service
provider or Agency may retain information and use it
in connection with the purpose of any arrangements
entered into with ANZ.
(o)	ANZ’s security standards are maintained and its
technology regularly updated to provide protection
for the information it holds. ANZ does not sell, publish
or give away Customer Information.
(p)	Certain Laws also require ANZ to disclose Customer
Information on request, for example tax laws.
Clause 12.4: A new clause 12.4 is inserted:“12.4 	If there is any inconsistency between a letter of offer
or facility agreement, and the Trade Terms, the letterof offer or facility agreement shall prevail to theextent of the inconsistency.”

22

Australia and New Zealand Banking Group Limited (ANZ) ABN 11 005 357 522. Item No. 96484_SAMOA 09.2019 WX234027

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