Exhibit 4.1.3


 


Trade Mark Licence


 


Lloyds TSB Bank plc (Licensor)


 


The National Bank of New Zealand Limited (Licensee)


 


 


This is the form of Trade Mark Licence described in clause 1.1 of the Share Sale
Agreement dated on or about 24 October 2003 between Lloyds TSB Bank
plc, Lloyds Bank Subsidiaries Limited, Australia and New Zealand Banking Group
Limited and ANZ Banking Group (New Zealand) Limited and initialled for the
purposes of identification on 24 October 2003.


 


 


	
  /s/ GR Taylor

  	
   

  	
   

  	
  /s/ DB Valentine

  	
   

  
	
  Name:

  for Lloyds TSB Bank plc and Lloyds

  Bank Subsidiaries Limited

  	
   

  	
  Name:

  for Australia and New Zealand Banking

  Group Limited and ANZ Banking Group

  (New Zealand) Limited

  



 


 





 

















 


TABLE OF CONTENTS


 


	
  1

  	
  INTERPRETATION

  	
   

  
	
  1.1

  	
  Definitions

  	
   

  
	
  1.2

  	
  Construction of References

  	
   

  
	
   

  	
   

  	
   

  
	
  2

  	
  GRANT OF NEW LICENCES

  	
   

  
	
  2.1

  	
  Grant of
  Licences

  	
   

  
	
  2.2

  	
  Restrictions
  on licences

  	
   

  
	
  2.3

  	
  Use by Agents

  	
   

  
	
  2.5

  	
  Sponsorship
  Restriction

  	
   

  
	
  2.6

  	
  Permitted
  Sponsorships

  	
   

  
	
  2.7

  	
  Black Horse
  Brands

  	
   

  
	
  2.8

  	
  Licensor’s
  Consent

  	
   

  
	
  2.9

  	
  Thoroughbred
  Trade Mark

  	
   

  
	
  2.10

  	
  Private Banking

  	
   

  
	
  2.11

  	
  IPONZ Notices

  	
   

  
	
  2.12

  	
  Use of the
  name ‘Lloyds’ and ‘Black Horse’

  	
   

  
	
  2.13

  	
  Licensee Group

  	
   

  
	
  2.14

  	
  Licensor’s
  obligations

  	
   

  
	
  2.15

  	
  ING
  Use of Trade Marks

  	
   

  
	
  2.16

  	
  Exceptions
  to compliance with Brand Standards

  	
   

  
	
  2.17

  	
  Restricted
  Services

  	
   

  
	
  2.18

  	
  Permitted
  Product Names

  	
   

  
	
   

  	
   

  	
   

  
	
  3

  	
  TERM AND CONSIDERATION

  	
   

  
	
  3.1

  	
  Term

  	
   

  
	
  3.2

  	
  Consideration

  	
   

  
	
   

  	
   

  	
   

  
	
  4

  	
  TERMINATION OF
  EXISTING LICENCES

  	
   

  
	
  4.1

  	
  Termination

  	
   

  
	
  4.2

  	
  Cancellation of
  Registrations

  	
   

  
	
   

  	
   

  	
   

  
	
  5

  	
  QUALITY AUDITOR

  	
   

  
	
  5.1

  	
  Appointment

  	
   

  
	
  5.2

  	
  Quality
  Auditor’s Rights

  	
   

  
	
  5.3

  	
  Licensor
  To Ensure Compliance by Quality Auditor

  	
   

  
	
   

  	
   

  	
   

  
	
  6

  	
  QUALITY REQUIREMENTS
  AND USE OF TRADE MARKS

  	
   

  
	
  6.1

  	
  General Use

  	
   

  
	
  6.2

  	
  Notification
  to Licensor

  	
   

  
	
  6.3

  	
  Notification
  to Licensor of Changed Circumstances

  	
   

  
	
  6.4

  	
  Goodwill
  and Reputation

  	
   

  
	
  6.5

  	
  No other Association
  with Licensor

  	
   

  
	
  6.6

  	
  Horse Themes, Imagery
  etc

  	
   

  
	
  6.7

  	
  Future
  Trade Marks

  	
   

  



 

















 


	
  6.8

  	
  Registration
  of Approved Future Trade Marks

  	
   

  
	
  6.9

  	
  Changes
  to Quality Standards or Brand Standards

  	
   

  
	
   

  	
   

  	
   

  
	
  7

  	
  NO ENCUMBRANCES

  	
   

  
	
   

  	
   

  	
   

  
	
  8

  	
  BLACK HORSE BRANDS

  	
   

  
	
  8.1

  	
  Vested Exclusively in
  Licensor

  	
   

  
	
  8.2

  	
  No Licensee
  Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  9

  	
  LLOYDS TSB COPYRIGHTS

  	
   

  
	
  9.1

  	
  Owned by
  Licensor

  	
   

  
	
  9.2

  	
  Contracts
  with Creators

  	
   

  
	
  9.3

  	
  Waivers

  	
   

  
	
  9.4

  	
  Assignment of
  Copyrights by Licensee

  	
   

  
	
   

  	
   

  	
   

  
	
  10

  	
  FURTHER
  ASSIGNMENTS OF LLOYDS TSB COPYRIGHTS/TRADE MARKS

  	
   

  
	
   

  	
   

  	
   

  
	
  11

  	
  RESERVED RIGHTS

  	
   

  
	
  11.1

  	
  Other Use

  	
   

  
	
  11.2

  	
  Sponsorship

  	
   

  
	
   

  	
   

  	
   

  
	
  12

  	
  MAINTENANCE OF
  TRADE MARK REGISTRATIONS

  	
   

  
	
  12.1

  	
  No
  Obligation to Maintain

  	
   

  
	
  12.2

  	
  Licensee to Provide
  Assistance

  	
   

  
	
  12.3

  	
  Colour Green Applications

  	
   

  
	
   

  	
   

  	
   

  
	
  13

  	
  INFRINGEMENT

  	
   

  
	
  13.1

  	
  Notification of
  Infringements

  	
   

  
	
  13.2

  	
  Black Horse Brands

  	
   

  
	
   

  	
   

  	
   

  
	
  14

  	
  TERMINATION

  	
   

  
	
  14.1

  	
  Termination By
  Licensor for Cause

  	
   

  
	
  14.2

  	
  Termination By
  Licensor for Non-Use

  	
   

  
	
  14.3

  	
  Termination
  of A Member of Licensee Group

  	
   

  
	
  14.4

  	
  Termination
  By Licensee

  	
   

  
	
   

  	
   

  	
   

  
	
  15

  	
  EFFECT OF
  TERMINATION/EXPIRY

  	
   

  
	
  15.1

  	
  Cessation
  of Use etc

  	
   

  
	
  15.2

  	
  Specific
  Trade Marks

  	
   

  
	
   

  	
   

  	
   

  
	
  16

  	
  INDEMNITY

  	
   

  
	
   

  	
   

  	
   

  
	
  17

  	
  MISCELLANEOUS

  	
   

  
	
  17.1

  	
  Notices

  	
   

  
	
  17.2

  	
  Designated
  Addresses

  	
   

  
	
  17.3

  	
  Waiver

  	
   

  
	
  17.4

  	
  Governing Law

  	
   

  



 

















 


	
  17.5

  	
  Other Disputes

  	
   

  
	
  17.6

  	
  Submission to Jurisdiction

  	
   

  
	
  17.7

  	
  Process Agent

  	
   

  
	
  17.8

  	
  Severability

  	
   

  
	
  17.9

  	
  Amendments

  	
   

  
	
  17.10

  	
  Execution
  and Delivery

  	
   

  
	
  17.11

  	
  Counterparts

  	
   

  
	
  17.12

  	
  Further
  Assurances

  	
   

  
	
  17.13

  	
  Confidentiality

  	
   

  
	
  17.14

  	
  Assignment/Sub-licence

  	
   

  
	
  17.15

  	
  No
  Partnership/Agency/Joint Venture

  	
   

  
	
  17.16

  	
  Time
  is of the Essence

  	
   

  
	
  17.17

  	
  Contracts
  (Privity) Act

  	
   

  
	
  17.18

  	
  Other Rights

  	
   

  
	
  17.19

  	
  Entire Agreement

  	
   

  
	
  17.20

  	
  Rights
  of Lloyds TSB Group and the Licensee Group

  	
   

  
	
  17.21

  	
  Survival
  of Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  FIRST
  SCHEDULE Trade Marks

  	
   

  
	
   

  	
   

  
	
  SECOND
  SCHEDULE Thoroughbred Trade Mark

  	
   

  
	
   

  	
   

  
	
  THIRD
  SCHEDULE Quality Standards

  	
   

  
	
   

  	
   

  
	
  FOURTH
  SCHEDULE Quality Control Requirements

  	
   

  
	
   

  	
   

  
	
  FIFTH SCHEDULE Quality Control Report

  	
   

  
	
   

  	
   

  
	
  SIXTH
  SCHEDULE Infringement

  	
   

  
	
   

  	
   

  
	
  SEVENTH
  SCHEDULE Party Directory

  	
   

  
	
   

  	
   

  
	
  EIGHTH
  SCHEDULE Dispute Resolution

  	
   

  
	
   

  	
   

  
	
  NINTH
  SCHEDULE Deed of Covenant

  	
   

  
	
   

  	
   

  
	
  TENTH
  SCHEDULE ANZ Logo

  	
   

  



 

















 


Date:


 


PARTIES


 


Lloyds TSB Bank plc
at London, England (Licensor)


 


The National Bank of
New Zealand Limited at Wellington, New Zealand (Licensee)


 


IT IS AGREED between the Parties as follows:


 


1                                    INTERPRETATION


 


1.1                           Definitions


 


In this Agreement, unless inconsistent with the context, the following
terms shall have the following meanings:


 


Agreement  means this Agreement, including the
Schedules, as amended from time to time by the Parties;


 


ANZ Logo  means the logo depicted in the Thirteenth Schedule and any other
forms or versions of it but not using the colour green used by the Licensee
immediately prior to the Commencement Date or any confusingly similar colour;


 


Approved Future Trade Marks  means any Future
Trade Mark, the development and use of which the Licensor has consented to and
approved pursuant to clause 6.7;


 


Black Horse Brands  means the black horse brand and marketing
concept, including all depictions of, or allusions or references to, horses (of
any colour), including live horses, animations and any other forms of
representation of the black horse brand and marketing concept in any language
or by any means (but only to the extent that they are capable of protection or
ownership at law or in equity by the Licensor or any other member of the Lloyds
TSB Group) and includes:


 


(a)                                  the Trade Marks;


 


(b)                                 the words or trade
mark “BLACK HORSE”;


 


(c)                                  the word or trade
mark “LLOYDS”; and


 


all similar
trade marks and things (but only to the extent that they are capable of
protection or ownership at law or in equity by the Licensor or any other member
of the Lloyds TSB Group) including Future Trade Marks;


 


Black Horse Logo Trade Mark  means the logo
depicted in Part A of the First Schedule;


 


1

















 


Black Horse Shield Trade Mark  means the logo
depicted in Part B of the First Schedule;


 


Brand Standards  means, in relation to a Trade Mark, the
Licensor’s standards, guidelines and policies in respect of the Licensee’s
business, current immediately prior to the Signing Date disclosed to the
Purchaser before the execution of the Share Sale Agreement being:


 


(a)                                  Principles and
Guidelines for Presenting The National Bank Brand (August 2001);


 


(b)                                 Visual Standards Guide
Version 7.0 – General Brand Guidelines, September 2002;


 


(c)                                  Visual Standards
Guide Version 7.0 – Advertising, September 2002; and


 


(d)                                 Visual Standards Guide
Version 7.0 – Retail Collateral, September 2002,


 


(and any other standards, guidelines or policies substantially
consistent with or subordinate to these and that the Licensee has been required
to comply with for a period of at least six (6) months prior to the Signing
Date) and
any variations, additions or deletions to any of them as otherwise agreed by
the Licensee and the Licensor in writing including:


 


(e)                           pursuant to clause 6.7 in relation to the physical and visual
presentation of any Trade Mark including the colour, size and style of
representation of the Trade Mark; and


 


(f)                             in relation to any
restrictions on the use of that Trade Mark in conjunction with other marks,
words or images or contexts, or other directions as to appropriate use of any
Trade Mark;


 


Business 
means the New Zealand banking, finance,
insurance and funds management businesses of the members of the Licensee Group
(as the Licensee Group is constituted immediately following Closing), of the
generic type as carried on by those entities immediately prior to the
Commencement Date;


 


Business Day  means a day on which banks are open for
general over-the-counter banking business in London and Wellington as the case
may be;


 


Cleansing Term means a period of
two (2) years commencing on the end of the Term;


 


Closing 
has the meaning given to it in the Share Sale
Agreement;


 


Colour Green Trade Mark  means the colour
green as used by the Licensee for its branding immediately prior to
Commencement Date, including Pantone 354;


 


2

















 


Commencement Date  means
the date this Agreement is signed by both Parties;


 


Encumbrance  means
any mortgage, lien, charge, security interest or other encumbrance whether
equitable or otherwise;


 


Farm Cover Trade Mark  means the logo depicted in Part D of the First Schedule;


 


Future Trade Mark  has the meaning given to it in clause 6.7;


 


Galloping Horses Trade Mark  means any depiction of a black horse (whether
galloping, moving or stationary) including live horses, animations and any
other forms, and any sounds  of or made
by horses;


 


ING means each of ING
(NZ) Limited and ING Investment Services Limited;


 


ING Joint Venture Arrangements means the
arrangement contemplated by the terms of the joint venture between Australia
and New Zealand Banking Group Limited and ING Insurance International BV,
effective from 1 May 2002, and operated in New Zealand by ING;


 


Licensee Group  means:


 


(a)                           NBNZ Holdings;


 


(b)                          the Purchaser
immediately following Closing;


 


(c)                           any New Zealand
company incorporated under the New Zealand Companies Act 1993 which is  a wholly owned subsidiary of:


 


(i)                           NBNZ Holdings at the Signing
Date; or


 


(ii)                        the Purchaser immediately
following Closing (but only if that company was a wholly owned subsidiary of
the Purchaser at the Signing Date);


 


(d)                          any Permitted
Acquisition; and


 


(e)                           any company formed
by an amalgamation of any company with any of the companies referred to in paragraphs (a) - (d) of this
definition with the prior written consent of the Licensor,


 


but:


 


(f)                             in
the case of any of these companies (other than NBNZ Holdings or the Purchaser),
only while that company remains a wholly owned subsidiary of either NBNZ
Holdings or the Purchaser as the case may be; and


 


3

















 


(g)                          (for the
avoidance of doubt) not any company formed by amalgamation if any of the
amalgamating companies, but for such amalgamation, would not be a company
referred to in paragraphs (a)-(d)
of this definition;


 


and, unless
inconsistent with the context, means each such company individually;


 


Licensed Purpose  means,
in relation to a particular Trade Mark, the use of the Trade Mark by the
Licensee:


 


(a)                           on or in relation to the Products
and Services; or


 


(b)                          for or in connection with the
conduct of the Business,


 


but not for or in relation to any Restricted Services except as
provided in clause 2.17 nor
for any products or services which are not comprised in Products and Services;


 


Lloyds TSB Brand Manager  means the Group Marketing Director of the
Licensor for the time being or any person holding the equivalent office;


 


Lloyds TSB Copyrights  means all:


 


(a)                       Trade Mark
Copyrights; and


 


(b)                      all copyrights
(including future copyrights) in all media in any of the Future Trade Marks;


 


Lloyds TSB Group  means Lloyds TSB Group plc (a company incorporated
in Scotland) and its subsidiaries excluding NBNZ Holdings and all of NBNZ
Holdings’ wholly owned subsidiaries and unless inconsistent with the context,
means each such company individually;


 


NBNZ Group 
has the meaning given to it in the Share Sale
Agreement;


 


NBNZ Incidental Use
means use of any of the Trade Marks outside New Zealand:


 


(a)                          but only where that use is
solely incidental to the use of the Trade Marks for the Business which, for
example, may include:


 


(i)                           advertising in publications
primarily for distribution in New Zealand which are distributed outside New
Zealand where the advertising is not primarily targeted at customers or
potential customers outside New Zealand;


 


(ii)                        websites targeted at customers,
potential customers or others in New Zealand, and which use first-level domain
names for New Zealand even if they are accessible outside New Zealand (but not
websites


 


4

















 


which use first-level domain names for anywhere other than New
Zealand);


 


(iii)                    the operation of NBNZ International
Limited’s London branch (from whichever location in the United Kingdom to which
it might relocate);


 


(iv)                    the use of any credit card, debit
card, charge card, or similar card issued in New Zealand by the Licensee or a
member of the Licensee Group;


 


(v)                       the conduct of correspondent
banking;


 


(vi)                    communicating with persons who are
customers of the Licensee or any other member of the Licensee Group wherever
they are located,


 


but not any use involving advertising,
promotion or marketing primarily targeted outside New Zealand; or


 


(b)                         to promote Products and
Services to students and potential students from Hong Kong and other countries
in South East Asia but only:


 


(i)                          in relation to Products and
Services relevant to their study in New Zealand;


 


(ii)                        targeting the students and
likely potential students and their immediate family (and not others); and


 


(iii)                     using the
Trade Marks only in direct association with the business name of the Licensee
or other member of the Licensee Group (which business name must not include any
of the Black Horse Brands); or


 


(c)                          any other use to
which the Licensor consents;


 


NBNZ Holdings  means NBNZ Holdings Limited, a company incorporated
in New Zealand (Registered Number WN 421963);


 


Parties 
means the parties to this Agreement;


 


Permitted Acquisition means
any New Zealand company registered under the New Zealand Companies Act 1993:


 


(a)                       all of the
shares in which are acquired by any member of the Licensee Group after Closing
provided that the net tangible assets of that company do not exceed 5% of the
net tangible assets of the Licensee Group, in each case determined by reference
to the most recent audited annual financial statements of that company and the
Licensee Group; or


 


5

















 


(b)                      acquired by
any member of the Licensee Group with the prior written consent of the
Licensor;


 


Permitted Co-Branding means the use by the
Licensee or any other member of the Licensee Group of the ANZ Logo together
with the name “National Bank of New Zealand Limited”, the trade mark NATIONAL
BANK, the Black Horse Logo Trade Mark, the Black Horse Shield Trade Mark, the
FARM COVER TRADE MARK, the Thoroughbred Trade Mark and the Colour Green Trade
Mark (or any of them) where:


 


(a)                        the use of any of those trade
marks or names as the case may be is not sub-ordinated to the ANZ Logo; and


 


(b)                       the use of those Trade Marks
otherwise complies with the Brand Standards, or as otherwise permitted by the
Licensor;


 


Person or Event  means:


 


(a)                           rugby;


 


(b)                          any other event,
activity, sport or performance; or


 


(c)                           any organisation,
person, personality, animal or thing,


 


or any
similar things (or any of them);


 


Private Banking Trade Mark  means the logo depicted in Part C of the First
Schedule;


 


Products and Services  means
banking, finance, insurance and funds management products and services of the
generic type provided by:


 


(a)                           the Licensee; and


 


(b)                           other members of the
Licensee Group (as the Licensee Group is constituted immediately following
Closing),


 


immediately prior to the Commencement Date;


 


Products and Services Trade Marks  means the trade marks set out in Part E of the First
Schedule;


 


Purchaser  means ANZ Banking Group (New Zealand)
Limited, a company incorporated in New Zealand (Registered Number 35976);


 


Quality Auditor  means
the quality auditor for the purposes of clause 5;


 


6

















 


Quality Control Event  means any of the matters or events described
as “quality control events” in paragraph 8 of the Fourth Schedule;


 


Quality Control Report  means a report containing the information
described in the Fifth Schedule;


 


Quality Control Requirements  means
the requirements specified in the Fourth Schedule;


 


Quality Standards  means the quality requirements and standards
specified in the Third Schedule or as otherwise
agreed in writing between the Licensor and Licensee from time to time pursuant
to clause 6.9;


 


Related Company has the meaning
given to that term in section 2(3) of the New Zealand Companies Act 1993;


 


Reserved Rights means use of any
of the Black Horse Brands or any other trade marks which use:


 


(a)                            is for or in
relation to any activity or arrangement which is not a breach of clause 8.2 of the Share Sale Agreement; or


 


(b)                           in New Zealand is solely
incidental to the business of Lloyds TSB Group members or the use of the Black
Horse Brands or other forms or variations of them outside New Zealand which,
for example, may include:


 


(i)                          advertising in publications
primarily for distribution outside New Zealand which are distributed inside New
Zealand where the advertising is not primarily targeted at customers or potential
customers inside New Zealand; and


 


(ii)                       websites targeted
at customers, potential customers or others outside New Zealand, and which use
first-level domain names for countries other than New Zealand even if they are
accessible inside New Zealand (but not websites which use first-level domain
names for New Zealand);


 


Restricted Activity means carrying on
in New Zealand any business in competition with the business carried on by the
NBNZ Group as at Closing;


 


Restricted Services
means any activity undertaken by any member of the Licensee Group for its own
corporate purpose, (other than for the purpose of its day to day Business
activities) including for fundraising for any member of the Licensee Group,
capital raising and related materials and publications;


 


Share Sale Agreement  means
the Share Sale Agreement dated on or about 24 October 2003 between
Lloyds Bank Subsidiaries Limited as vendor, the 


 


7

















 


Licensor as guarantor of the vendor, ANZ Banking Group (New Zealand)
Limited as purchaser, and Australia and New Zealand Banking Group Limited as
guarantor of the purchaser;


 


Signing Date means
the date of signing of the Share Sale Agreement;


 


Sponsorship 
means any sponsorship, endorsement or
affiliation (and “Sponsor”, “Sponsored” and “Sponsoring” will be interpreted
accordingly);


 


Term  has the meaning given to it in clause 3.1;


 


Thoroughbred Trade Mark  means the word or
trade mark “THOROUGHBRED” and the trade marks in the Second
Schedule marked with an asterisk *;


 


Trade Marks  means
the Trade Mark Brands and the Trade Mark Copyrights;


 


Trade Mark Brands  means:


 


(a)                           the Black Horse Logo Trade Mark;


 


(b)                          the Black Horse Shield Trade Mark;


 


(c)                           the Thoroughbred Trade Mark;


 


(d)                          the Colour Green Trade Mark;


 


(e)                           the Galloping Horses Trade Mark;


 


(f)                             the Private Banking Trade Mark;


 


(g)                          the Farm Cover Trade Mark;


 


(h)                          the Products and Services Trade Marks;


 


(i)                              the Approved Future Trade Marks;  and


 


(j)                              any other trade marks or trade mark
applications that the Licensor and the Licensee agree in writing from time to
time will form part of the Trade Marks;


 


Trade Mark Copyrights  means all copyrights (including future
copyrights) in all media, everywhere in the world, in :


 


(a)                           the Trade Mark
Brands and in all variations of them depicted, represented or described in the
Brand Standards; and


 


(b)                          the Approved
Future Trade Marks.


 


8

















 


1.2                          Construction of References


In this Agreement, unless the context
requires otherwise:


 


Clauses, paragraphs and Schedules:  references to clauses and Schedules are to and clauses of and
schedules to, this Agreement and, unless stated otherwise, a reference in a
schedule to a clause or a paragraph is a reference to a clause or a paragraph
in that schedule;


 


Black Horse Brands:  a reference to Black Horse Brands is to all
of the Black Horse Brands and to each of the Black Horse Brands;


 


Business Days: 
anything required by this Agreement to be done on a day which is not a
Business Day may be done effectually on the next Business Day;


 


Headings:  headings appear as a matter of convenience and do not affect the
construction of this Agreement;


 


Including:  the words “include”, “includes” or “including” will be deemed to
be followed by the words “without limitation”;


 


Lloyds TSB Copyrights:  a reference to
Lloyds TSB Copyrights is to all of the Lloyds TSB Copyrights and to each of
them;


 


Material breach:  a reference to a material breach includes a
series of persistent or recurring breaches of a similar kind which, although
not material in each particular instance, are material in aggregate;


 


Negative Obligations:  a reference to a prohibition on the Licensee
doing any thing includes a reference to the Licensee not permitting, suffering
or causing that thing to be done;


 


No Contra Proferentem Construction:  the rule of construction known as the contra
proferentem rule does not apply to this Agreement;


 


Parties: 
references to a party to this Agreement or any other document includes
that party’s successors and permitted assigns;


 


Person:  a reference to a person includes an individual, body corporate, an
association of persons (whether corporate or not), a trust, a state and an
agency of a state (in each case, whether or not having separate legal
personality and whether incorporated or existing in New Zealand or
elsewhere);


 


Precedence:  If there is a conflict between any of the
terms of the Schedules, and any other terms of this Agreement those other terms
of this Agreement shall prevail (except where expressly provided to the
contrary);


 


9

















 


Related Companies:  All references in this Agreement to a
subsidiary or Related Company of a Party shall (if that Party is not a company
incorporated under the Companies Act 1993) be construed as if that Party is
such a company.


 


Singular, Plural and Gender: 
the singular includes the plural and vice versa, and words importing one
gender include the other genders;


 


Statutes and Regulations: 
a reference to an enactment or any regulations is a reference to that
enactment or those regulations as amended, or to any enactment or regulations
substituted for that enactment or those regulations;


 


Time:  unless otherwise stated references to time
are references to New Zealand time;


 


Trade Marks:  a reference to Trade Marks is to all of the
Trade Marks and to each of the Trade Marks;


 


Use:  a reference to “use” in relation to any of
the Trade Mark Copyrights includes where not inconsistent with the context,
possession, use or reproduction or the creation of new versions of all works in
the manner permitted by this Agreement; and


 


Writing:  a reference to “written” or “in writing”
shall be construed as including references to words printed, type-written,
telexed, communicated by electronic mail or on computer disk, lithographed or
otherwise traced, copied or reproduced includes all modes of presenting or
reproducing words, figures and symbols in a tangible and permanently visible
form.


 


2                                   GRANT
OF NEW LICENCES


 


2.1                          Grant of Licences


Subject to the terms of this Agreement, the Licensor grants to the
Licensee:


 


(a)                                  a sole licence to use
each of the Trade Marks (including by permitting other members of the Licensee
Group to use each of the Trade Marks), but only in carrying on the Business in
New Zealand and only:


 


(i)                               during the Term; and


 


(ii)                            for the Licensed Purpose;


 


(b)                                 a non-exclusive
licence to use each of the Trade Marks (including by permitting other members
of the Licensee Group to use each of the Trade Marks), but only in carrying on
the Business, and only:


 


(i)                               during the Term;  and


 


10

















 


(ii)                            for NBNZ Incidental Use;
and


 


(c)                                  a non-exclusive
licence to use the Colour Green Trade Mark in New Zealand (including by
permitting other members of the Licensee Group to use the Colour Green Trade
Mark), but only in carrying on the Business, and only:


 


(i)                         during the Cleansing Term; and


 


(ii)                            for the Licensed Purpose
and NBNZ Incidental Use.


 


2.2                          Restrictions on licences


The licences granted pursuant to this Agreement do not extend to, and
no member of the Licensee Group may use the Trade Marks on in connection with
or in relation to any business or assets (whether tangible or intangible)
acquired by any member of the Licensee Group where the fair value of  that business or those assets is greater
than 5% of the net tangible assets of the Licensee Group determined by
reference to the most recent audited annual financial statements of the Licensee
Group.


 


2.3                           Use by Agents


The licences granted under clause
2.1 extend to the use of those Trade Marks by agents or contractors
to the Licensee (or another member of the Licensee Group), but only for the
creation, development and production of materials, used or to be used in the
Business in accordance with and subject to the terms of this Agreement and not
in any way that prejudices the Licensor’s right, title and interest in the
Trade Marks and without limitation, the provisions of clauses 9 and 10 apply to these agents and contractors.


 


2.4                           Registration of Licensee


(a)                                  If requested by the
Licensor, the Licensee will at the reasonable cost of the Licensor promptly do
all things and execute all documents reasonably necessary to enable the
Licensee to be entered on the New Zealand Trade Marks Register as a licensee of
the Trade Marks which are registered trade marks (or any of them).


 


(b)                                 If requested by the
Licensee, the Licensor will at the reasonable cost of the Licensee promptly do
all things and execute all documents reasonably necessary to enable the
Licensee to be entered on the New Zealand Trade Marks Register as a licensee of
those of the Trade Marks which are registered trade marks (or any of
them).  The Licensee by executing this
Agreement requests that the Licensee be promptly registered following the
Commencement Date as a licensee of those of the Trade Marks that are registered
at the Commencement Date.


 


(c)                                  In each case the
Licensor and the Licensee shall agree the form of the statutory declaration
required to be filed with any application for 


 


11

















 


registration of the Licensee as a licensee of
the Trade Marks (agreement not to be unreasonably withheld) and the intention
is that any registration of the Licensee as a licensee of the Trade Marks is
consistent with the licences granted under this Agreement.  If difficulties are experienced with IPONZ
in achieving this, the parties will liaise and use reasonable efforts to agree
an appropriate course of action consistent with the intent of this clause 2.4(c).


 


2.5                          Sponsorship Restriction


Subject to the provisions of clause
2.6, the Licensee must not (and must ensure that other members of
the Licensee Group do not) at any time use any of the Trade Marks for
Sponsorship of:


 


(a)                                  any Person or Event
exploited, or with exposure (including whether by media coverage, advertising,
public visibility or otherwise), outside New Zealand; or


 


(b)                                 rugby, rugby players
or rugby personalities anywhere; or


 


(c)                                  a Person or Event the
same as or of the same or similar type as any Person or Event Sponsored by any
member of the Lloyds TSB Group in any country;


 


without the prior written consent of the
Licensor (not to be unreasonably withheld, provided that it will not be
unreasonable for the Licensor to withhold its consent if the Licensor or any
other member of the Lloyds TSB Group sponsors, endorses or is affiliated with
any Person or Event of the same, or of a similar type, in any country or, at
the time of receipt of the request, is considering doing so whether or not
there are definite plans in relation to that Sponsorship or Person or Event).


 


2.6                          Permitted Sponsorships


Nothing in this Agreement will prevent :


 


(a)                                  the Licensee from
continuing any Sponsorship or agreement it is party to immediately prior to the
Commencement Date including of New Zealand Cricket Inc, Netball New Zealand Inc
and the New Zealand Symphony Orchestra Limited;


 


(b)                                 the Licensee or any
member of the Licensee Group from Sponsoring any Person or Event other than
rugby where that Sponsored Person or Event is based solely within New Zealand
and where there is no exposure (including whether by media coverage,
advertising, public visibility or otherwise), or exploitation of, the Trade
Marks in other countries,


 


12

















 


(c)                                  the Licensee or any
member of the Licensee Group from Sponsoring school or university rugby except
to the extent that any particular event is played internationally.


 


2.7                           Black Horse Brands


The Licensee will not, and will procure that no other member of the
Licensee Group nor any person that the Licensee controls or is responsible for
will, use any trade mark, name, company name, brand, logo or domain name
comprising or incorporating the Trade Marks or use any of the Black Horse Brands
other than as expressly permitted by this Agreement.


 


2.8                           Licensor’s Consent


Where by this Agreement the consent or approval of the Licensor is
required in order for the Licensee or any person (other than a member of the
Lloyds TSB Group) to do or omit to do any thing, all requests for such consents
or approvals must be directed to the Lloyds TSB Brand Manager (in writing) at
the designated address for the Licensor and no consent or approval given in
relation to the subject matter of this Agreement by any person other than the
Lloyds TSB Brand Manager will bind the Licensor unless the response from the
Licensor is in writing and in response to a written request made in accordance
with this provision.


 


2.9                           Thoroughbred Trade Mark


The Licensee may only use each Thoroughbred Trade Mark in the manner
set out in the Second Schedule,
and the Licensee must not use any Thoroughbred Trade Marks alone or in
combination with any other words, symbols or trade marks, nor use any of the
Thoroughbred Trade Marks in any other way (whether as a trade mark, in a trade
mark sense or otherwise), except as permitted by the provisions of clause 2.18 or clause 6.1(e) or as the Licensor may
consent in writing from time to time (such consent not to be unreasonably
withheld).


 


2.10                     Private Banking


The Licensee may at any time use the words “private banking” in
conjunction with any trade mark or word which does not form part of the Trade
Marks, but may not use the words “private banking” in conjunction with any of
the Trade Marks except as part of the Private Banking Trade Mark in the form
permitted by this Agreement.


 


2.11                     IPONZ Notices


The Licensor will copy to the Licensee all notices received from the
Intellectual Property Office of New Zealand concerning the Trade Marks and the
Licensee as registered licensee.


 


2.12                     Use of the name ‘Lloyds’
and ‘Black Horse’


The Licensee is authorised by the Licensor to continue to use the names
‘Lloyds’ and ‘Black Horse’ on the basis set out below (but not to use either of
them as a trade mark at any time):


 


13

















 


(a)                                  for a period of 6
months after Closing, but only in documentation existing as at Closing that is
not documentation used for or in connection with the promotion of the Licensee
or the marketing or offering of the Products and Services; and


 


(b)                                 to the extent required
to enable the Licensee to comply with its legal company reporting and other
legal requirements,


 


and only in compliance with all applicable laws, enforcements,
regulations and other similar instruments.


 


2.13                     Licensee Group


The Licensee will ensure, and at all times be responsible to the
Licensor for, the compliance of all other members of the Licensee Group with
the terms of this Agreement as if each of those other members of the Licensee
Group were the Licensee.


 


2.14                     Licensor’s obligations


Subject to the provisions in this Agreement for:


 


(a)                                  Reserved Rights, the
Licensor must not (and will procure that no member of the Lloyds TSB Group
will) during the Term for any Trade Mark and during the Cleansing Term use or
permit the use of or promote, that Trade Mark in New Zealand;


 


(b)                                 Infringement, the
Licensor must not (and will procure that no member of the Lloyds TSB Group
will) during the Term for any Trade Mark (and, in the case of the Colour Green
Trade Mark, if registered, the Cleansing Term) cancel, disclaim, or alter any
registrations for, or registrations of the Licensee as a user of, that Trade
Mark or any of the goods or services in respect of which that Trade Mark is registered,
without the prior written consent of the Licensee (not to be unreasonably
withheld); or


 


(c)                                  Infringement, the
Licensor must not (and will procure that no member of the Lloyds TSB Group
will) during the Term for any Trade Mark (and, in the case of the Colour Green
Trade Mark, if registered, the Cleansing Term) withdraw any pending New Zealand
trade mark applications for that Trade Mark in the Licensor’s name current at
the Commencement Date without the prior written consent of the Licensee (not to
be unreasonably withheld).


 


2.15                     ING Use of Trade Marks


The Licensee may sub-license ING to use the Trade Marks but only for
purposes within the scope of the licence granted under this Agreement to the
Licensee on the terms of the Agreement, and subject to ING entering into and
delivering to the Licensor a duly executed Deed of Covenant substantially in
the form set out in the Ninth Schedule.  ING may only use the Trade Marks:


 


14

















 


(a)                                  for the purposes of performing
the activities contemplated by, and in accordance with the terms of, the ING
Joint Venture Arrangements; and


 


(b)                                 in accordance with the
terms of this Agreement; and


 


(c)                                  in relation to funds
management and insurance products and services offered or distributed by ING in
New Zealand to customers of the Licensee Group,


 


provided that none of the brands or trade marks of ING (or of any of
its Related Companies) or any other person (except for members of the Licensee
Group as expressly permitted by this Agreement) are used on or in relation to
those products or services.


 


2.16                     Exceptions to
compliance with Brand Standards


Notwithstanding the Licensee’s obligations under this Agreement to
comply with the Brand Standards, the Licensee may:


 


(a)                                  use the name The
National Bank of New Zealand Limited and the trade mark NATIONAL BANK other
than in connection or combination with any of the Trade Marks; and


 


(b)                                 engage in Permitted
Co-branding only in carrying on the Business in New Zealand, during the Term and
for the Licensed Purpose.


 


Any provision in this Agreement requiring the Licensee to comply with
the Brand Standards will be subject to this clause 2.16.


 


2.17                     Restricted Services


The Licensee will not use the Trade Marks in respect of Restricted
Services in any way except for such use on:


 


(a)                                  letterhead; and


 


(b)                                 corporate
documentation,


 


and not in or for any advertising, marketing or promotional context or
purpose.


 


2.18                     Permitted Product Names


During the Term and thereafter, the Licensee may use any of the
following words other than in the form registered and alone or in combination
with any word or trade mark that is not a Trade Mark, namely:


 


FARMCOVER; INVESTOR; CASHBACK; GOAL SAVER;
SELECT; and ONE.


 


If the Licensee is using any of them in combination, or as part of, a
Trade Mark, it may only use it in the form prescribed by the Brand Standards
or, in the case of 


 


15

















 


FARMCOVER in the form registered, and the Licensee may not use those
words in combination with the Trade Marks following expiry or earlier
termination of this Agreement.


 


3                                    TERM AND
CONSIDERATION


 


3.1                           Term


The licences granted under this Agreement will commence on the
Commencement Date and continue thereafter in respect of each Trade Mark:


 


(a)                           until the seventh
anniversary of Closing; or


 


(b)                          until this Agreement is
terminated (whether in whole or only in respect of that Trade Mark) by either
party in accordance with the provisions of this Agreement,


 


whichever is the earlier.


 


3.2                           Consideration


The consideration for the licences granted under this Agreement is the
sum of NZ$1, receipt of which the Licensor hereby acknowledges.


 


4                                    TERMINATION
OF EXISTING LICENCES


 


4.1                           Termination


 


All the current licences of trade marks from the Licensor (or from any
other member of the Lloyds TSB Group) to the Licensee (or to any other member
of the Licensee Group), whether in writing or otherwise, which are in effect
immediately before the Commencement Date will terminate on the Commencement
Date.


 


4.2                           Cancellation of Registrations


The parties will promptly following the Commencement Date at the cost
of the Licensor do all things necessary to remove or cancel all the current
registrations of the Licensee or any other member of the Licensee Group as a
user or licensee of any trade marks owned by the Licensor or by any other
member of the Lloyds TSB Group and, on the request of the Licensor, the
Licensee will promptly do all things and execute all documents necessary to
achieve this (and will procure any other member of the Licensee Group to do
so).


 


5                                    QUALITY
AUDITOR


 


5.1                           Appointment


 


The Licensor may appoint a quality auditor to verify on behalf of the
Licensor that the Licensee or any member of the Licensee Group is, and has
been, complying with the Quality Standards and to carry out any functions of
the Licensor under the Quality Control Requirements (or to assist the Licensor
in that regard).


 


16

















 


5.2                           Quality Auditor’s Rights


The Licensee acknowledges that where under this Agreement the Licensor
is entitled to do anything, or to require the Licensee to do anything, relevant
to the Quality Standards or the Quality Control Requirements, then the Quality
Auditor has the same rights as the Licensor and to the extent that under this
Agreement the Licensee must comply with requests of the Licensor, the Licensee
must also comply with the requests of the Quality Auditor as if the Quality
Auditor were the Licensor and ensure that all members of the Licensee Group do so.


 


5.3                           Licensor To Ensure
Compliance by Quality Auditor


The Licensor shall ensure that the Quality Auditor complies with the
relevant obligations of the Licensor under this Agreement including the
provisions of clause 17.13
as if the Quality Auditor was a party to this Agreement.


 


6                                    QUALITY REQUIREMENTS AND USE OF TRADE MARKS


 


6.1                          General Use


The Licensee must:


 


(a)                                  use the Trade Marks
only as permitted by this Agreement and must not use the Trade Marks on or in
relation to any other products or services, or for any other purposes;


 


(b)                                 when reasonably
requested by the Licensor by notice in writing, use the Trade Marks in a manner
that gives clear notice to customers and the public that the Trade Marks are
licensed to the Licensee by the Licensor and, without limitation:


 


(i)                              on and following Closing,
the Licensee will not make any reference to the Licensor as owner of the Trade
Marks or make any reference to, or use of, the name or trade mark LLOYDS or the
words “BLACK HORSE” except as permitted by clause 2.12,
this clause 6.1(b) or with
the prior written consent of the Licensor or as the Licensor requests from time
to time;


 


(ii)                           on and following Closing,
the Licensee will not use the “TM” or “®” symbol or the words, “trade mark” or
“registered” in relation to any of the Trade Marks except in conjunction with a
statement acknowledging the Licensor’s proprietorship of the Trade Marks as
requested by the Licensor under this clause 6.1(b);


 


(iii)                        on and following Closing, the
Licensee must, in respect of all its automatic teller machines using the
CASHPOINT trade mark, provide a notice stating that “CASHPOINT is a registered
trade mark of Lloyds TSB Bank plc used under licence by the National Bank” or
as otherwise agreed in writing by the Parties, such notices to be applied to
all existing automatic teller machines within 


 


17

















 


6 months of Closing, and on all new or replacement automatic
teller machines on or before installation; and


 


(iv)                       the Licensee must as soon as
practicable following Closing and in any event within one (1) month after
Closing provide a written acknowledgement in the corporate information
section of the Licensee’s websites and in the Licensee’s Annual Report to
the effect that “the Black Horse, Shield Device and Colour Green trade marks
are used by the National Bank of New Zealand Limited under licence from Lloyds
TSB Bank plc following the acquisition of the National Bank of New Zealand
Limited from the Lloyds TSB Group by the ANZ Group in 2003”,


 


provided that the Licensor will (and without limitation to the other
provisions of this clause 6.1(b)),
unless circumstances require otherwise, give the Licensee 6 months’ prior
notice of any request under clause 6.1(b)
except for clause 6.1(b)(iii) and
(iv);


 


(c)                                  except as otherwise
expressly provided in this Agreement comply with all of the Brand Standards;


 


(d)                                 without limitation to
the Licensee’s obligations in clause 6.1(c),
only use the Black Horse Logo Trade Mark, the Black Horse Shield Trade Mark and
the Private Banking Trade Mark in the form depicted in the First Schedule and not in any other
manner, except as the parties have otherwise agreed in accordance with the
terms of this Agreement; and


 


(e)                                  on and from Closing
not use the Trade Marks in conjunction with other trade marks which do not form
part of the Trade Marks (whether or not registered), except as Permitted
Co-Branding or:


 


(i)                               in the manner and for
the purposes that those other trade marks were used in conjunction with the
relevant Trade Marks in carrying on the Business immediately prior to Closing;
or


 


(ii)                            in any other manner to
which the Licensor gives its prior written consent, such consent not to be
unreasonably withheld or delayed having regard to:


 


(aa)                     the Licensor’s interest in
maintaining the integrity, goodwill and reputation of the Trade Marks;


 


(bb)                   the then current degree of
sensitivity attached to the relevant Trade Marks by the Licensor;


 


18

















 


(cc)                     the Licensee’s need to manage an
orderly transition of the Business to the Purchaser’s existing brand or to a
new brand; and


 


(dd)                   the need for such transition to be
conducted efficaciously and in a timely manner without undue delay in
completing the transition; and


 


(f)                                    without limitation
to clause 6.1(c) or 6.1(e), not under any circumstances create
or use any merged or hybrid trade marks comprised of any of the Trade Marks (or
any part of any of the Trade Marks) and any trade mark (or any part of any
trade mark) not forming part of the Trade Marks without the prior written
consent of the Licensor.


 


6.2                           Notification to Licensor


The Licensee must promptly notify the Licensor in writing if, in
respect of any Trade Mark, for any continuous period of 30 months the Licensee
or other member of the Licensee Group does not make genuine use of that Trade
Mark and neither the Licensee nor any other member of the Licensee Group intend
to make use of that Trade Mark in the course of the next six months.


 


6.3                           Notification to
Licensor of Changed Circumstances


If the Licensee has not given notice to the Licensor pursuant to clause 6.2 in relation to any Trade Mark,
in respect of which for a continuous period of 30 months the Licensee or
other member of the Licensee Group has not made genuine use of the Trade Marks,
because the Licensee or another member of the Licensee Group intended to make
use of that Trade Mark in the course of the following six months, then:


 


(a)                                  if at any time during
that six month period that intention changes; or


 


(b)                                 if at the end of that
six month period there has not been genuine use of that Trade Mark,


 


the Licensee must immediately give notice to the Licensor of the
relevant non-use.


 


6.4                           Goodwill and Reputation


The Licensee acknowledges that the Licensor has a fundamental interest
in maintaining its goodwill and reputation in the Trade Marks.  Accordingly the Licensee must comply with
the Quality Standards, the Quality Control Requirements and the Brand Standards
and ensure that all members of the Licensee Group do so.  Any disputes arising between the Licensor
and Licensee concerning the Licensee’s compliance with the Quality Standards,
the Quality Control Requirements or the Brand Standards or in respect of any
dispute concerning any matter the subject of the Fourth Schedule (Disputes)
will be resolved in accordance with the provisions of the Eighth Schedule.


 


19

















 


6.5                           No other Association with
Licensor


(a)                        Except as expressly authorised
by this Agreement or with the prior written consent of the Licensor the
Licensee must not at any time anywhere in the world register, file an
application for or attempt to register any trade mark, business name, company
name, domain name, (or anything of a similar nature to any of these things),
that is identical to, confusingly similar to, derived from, a colourable
imitation of, or which incorporates the Black Horse Brands (or any of them) or
include any of these things as part of any corporate, business or trading name
or style anywhere in the world (or any of them) and the Licensee will ensure
that no other member of the Licensee Group does any of these things.


 


(b)                       Subject to the provisions of
this Agreement relating to trade mark and copyright notices, neither party may
at any time do or omit to do any thing, or make any representation which
implies, suggests, or is likely to make any person believe, that the Licensee
is connected with, or has any commercial or business relationship with, the
other than the relationship which exists under this Agreement (and each party
will ensure that no Related Company does or omits to do any of these things).


 


6.6                           Horse Themes,
Imagery etc


Except as expressly permitted by this Agreement, the Licensee must not
at any time (including after termination or expiry of this Agreement) adopt or
use in any manner (including as a company name, domain name, brand or in
marketing or promotional materials or activities) any trade marks, signs,
symbols, logos, themes, ideas or imagery:


 


(a)                           of, based on or derived from
horses or horse-related themes or the Black Horse Brands to the extent that
they are capable of protection or ownership at law or in equity by the Licensor
or any member of the Lloyds TSB Group; or


 


(b)                          do anything, which would
dilute, take unfair advantage of, or be detrimental to, the distinctive
character or repute of any of the Black Horse Brands,


 


except for any uses, references to or depictions of horses or
horse-related activities which are purely incidental to (and not a dominant
aspect of) the Licensee’s marketing or other activities where such use:


 


(c)                           is not in any manner which
might be taken as being use as a trade mark or in a branding sense; and


 


(d)                          does not derive or attempt to
derive any benefit from the goodwill in the Black Horse Brands,


 


20

















 


and the Licensee will ensure that no other member of the Licensee Group
does any of these things.


 


6.7                           Future Trade Marks


If at any time during the Term the Licensee wishes to:


 


(a)                                  use any of the Trade
Marks in a form other than the form in which that Trade Mark is registered
(whether or not this alters its distinctive character); or


 


(b)                                 modify or vary:


 


(i)                               or use any new forms of,
any of the Trade Marks; or


 


(ii)                            any forms of the Trade
Marks in the Brand Standards,


 


(Future Trade Marks) the
Licensee must not commence use of the Future Trade Mark unless the Licensor has
first approved in writing:


 


(c)                                  the Future Trade Mark
for use by the Licensee; and


 


(d)                                 the relevant Brand
Standards in respect of the Future Trade Mark.


 


Upon approvals by the Licensor pursuant to this clause 6.7 that approved Future Trade Mark
(Approved Future Trade Mark) will
then form part of the Trade Mark Brands.


 


6.8                           Registration of
Approved Future Trade Marks


In respect of any Approved Future Trade Mark, at the cost of the
Licensee:


 


(a)                                  the Licensor may
apply in its own name for registration of that Approved Future Trade Mark; or


 


(b)                                 if the Licensor does
not wish to register that Approved Future Trade Mark, the Licensee may apply in
the Licensor’s name for registration of that Approved Future Trade Mark, and
the Licensee will comply with all the Licensor’s reasonable directions in that
regard,


 


and the Licensor or Licensee (as the case may be) will provide all
assistance reasonably required by the other in registering such Approved Future
Trade Marks.


 


6.9                           Changes to Quality
Standards or Brand Standards


The Licensee may, at any time, make a written request to the Licensor
for a change to the Quality Standards or (without limiting clause 6.7) the Brand Standards.  Such request shall set out:


 


21

















 


(a)                           the specific change or
changes proposed;


 


(b)                          the reason why such change or
changes are requested; and


 


(c)                           the grounds upon which the
Licensee believes that such change or changes will not result in any overall
material lessening of the Quality Standards or Brand Standards established
under this Agreement.


 


The Licensor shall consider any such written request made by the
Licensee.  If the Licensor approves the
proposed change or changes the Licensor will notify the Licensee in writing,
and the applicable Quality Standards or Brand Standards shall then be deemed to
be modified accordingly.


 


7                                    NO
ENCUMBRANCES


 


Unless the Licensor has given its prior written consent, the Licensee
must not create, or permit to subsist, any Encumbrance whatsoever over this
Agreement or over the Licensee’s rights or interest in or to the Trade Marks,
except any Encumbrance which is over all, or substantially all, of the business
assets of the Licensee or which arises solely by operation of law or in the
ordinary course of, and for the purposes of carrying on, the Licensee’s
ordinary business.


 


8                                    BLACK HORSE BRANDS


 


8.1                           Vested Exclusively in
Licensor


The Licensor asserts (and the Licensee acknowledges) that save for the
licences granted under this Agreement all right, title and interest in and to
the Black Horse Brands is (and will remain) vested exclusively in the Licensor.


 


8.2                           No Licensee Claim


Save for the licences granted under this Agreement neither the Licensee
nor any other member of the Licensee Group presently has, or will acquire or
claim, any right, title or interest in or to the Black Horse Brands or the
goodwill attaching to any of them, and the Licensee acknowledges that all
goodwill in the Black Horse Brands arising from the use of the Trade Marks by
the Licensee or any other member of the Licensee Group (or from the use of the
Trade Marks by anyone else that the Licensee or any other member of the
Licensee Group permits to do so), whether or not that use is permitted by this
Agreement, will enure for the benefit of the Licensor.  The Licensor acknowledges that neither the
Licensee nor any other member of the Licensee Group is obliged to account to
the Licensor for the value of this goodwill.


 


9                                    LLOYDS
TSB COPYRIGHTS


 


9.1                           Owned by Licensor


The Licensee acknowledges and agrees that all Lloyds TSB Copyrights in
works developed by or for the Licensee are and will be owned everywhere in the
world 


 


22

















 


by the Licensor and that none of the Licensee, any other member of the
Licensee Group, any of their agents or contractors (or their respective
personnel), or any person controlled by the Licensee or any other member of the
Licensee Group for which the Licensee or any other member of the Licensee Group
is responsible, will at any time own any of the Lloyds TSB Copyrights or have
any rights to use the Lloyds TSB Copyrights except as expressly provided in
this Agreement.


 


9.2                           Contracts with Creators


If any works are produced by or for the Licensee (or any other member
of the Licensee Group) which form part of or reproduce any of the Lloyds TSB
Copyrights, the Licensee must ensure that every person involved in the
creation, development or production of the works that will have any right,
title or interest in copyright in that work or moral rights in or to that work,
enters into a prior written agreement in a form reasonably acceptable to the
Licensor that:


 


(a)                                  irrevocably waives
all that person’s moral rights in or to the work; and


 


(b)                                 assigns all that
person’s right, title and interest in and to any Lloyds TSB Copyrights to the
Licensor (or to any other person nominated by the Licensor from time to time).


 


9.3                           Waivers


The Licensee must deliver to the Licensor promptly following execution
all waivers or assignments executed in accordance with clause 9.2.


 


9.4                           Assignment of Copyrights
by Licensee


By entering into this Agreement the Licensee assigns to the Licensor, subject
to Closing being effected under the Share Sale Agreement, all its right, title
and interest in and to any Lloyds TSB Copyrights effective:


 


(a)                                  at the Commencement
Date in the case of Lloyds TSB Copyrights existing at the Commencement Date;
and


 


(b)                                 in the case of any
Lloyds TSB Copyrights not existing at the Commencement Date, at the time that
those Lloyds TSB Copyrights come into existence.


 


10                              FURTHER ASSIGNMENTS OF LLOYDS TSB COPYRIGHTS/TRADE MARKS


 


To the extent that:


 


(a)                                  any right, title or interest
in or to Trade Marks or Lloyds TSB Copyrights is not effectively assigned to
the Licensor by this Agreement;


 


(b)                                 the Licensee or any
other member of the Licensee Group has, or obtains, any right, title or
interest in or to the Black Horse Brands (including in any goodwill in them);
or


 


23

















 


(c)                                  the Licensee or any
other member of the Licensee Group has, or obtains, any right, title or
interest in or to any business name, company name, domain name, (or anything of
a similar nature to any of these things), that is identical to, confusingly
similar to, derived from, a colourable imitation of, or which incorporates any
of the Black Horse Brands,


 


the Licensee will promptly, on request of the Licensor, and at the cost
of the Licensor, do all things and execute all documents necessary to assign
all that right, title and interest to the Licensor to the extent possible at
law and will procure that any person controlled by the Licensee, or for which
the Licensee is responsible, or that is a member of the Licensee Group, or is
referred to in clause 9.2,
also does so provided that the Licensor confirms that nothing in this clause
obliges the Licensee or any member of the Licensee Group to account to the
Licensor for any value of the goodwill in the Trade Marks.


 


11                              RESERVED
RIGHTS


 


11.1                     Other Use


The Licensee acknowledges and agrees that the Licensor or any other
member of the Lloyds TSB Group may use (directly or indirectly):


 


(a)                       any of the Black Horse Brands,
or any other trade marks, for or in connection with any Reserved Rights at any
time in New Zealand;


 


(b)                      any of the Black Horse Brands, or
any other trade marks, in any manner in any country in the world other than
New Zealand during the Term and thereafter; and


 


(c)                       any Trade Mark, or any trade
mark which is confusingly or deceptively similar to any Trade Mark, in New
Zealand at any time for any purpose except during the Term and (except in
relation to the Colour Green Trade Mark) during the Cleansing Term.


 


11.2                     Sponsorship


Nothing in this Agreement prevents any member of the Lloyds TSB Group
from:


 


(a)                                  using its trade marks
for any Sponsorship of any Person or Event not based in New Zealand; or


 


(b)                                 continuing any
Sponsorship or agreement it is party to immediately prior to the Commencement
Date.


 


12                              MAINTENANCE OF TRADE MARK REGISTRATIONS


 


12.1                     No Obligation to Maintain


Subject to the provisions of clauses
2.14(b), 2.14(c), 6.8 and
 13, the Licensor has no obligation:


 


24

















 


(a)                                  to maintain the Trade
Marks other than to pay necessary New Zealand renewal fees for the renewal of
the registration of any of the Trade Marks during the Term;


 


(b)                                 to progress any
applications for registration of Trade Marks (but subject to the provisions of clause 6.8 and clause 12.3); or


 


(c)                                  to defend, enforce or
protect the Trade Marks,


 


provided that if the Licensor does not pay the New Zealand renewal
fee for the renewal of the registration of any Trade Mark during the relevant
Term, the Licensee may do so but subject, without limitation, to the provisions
of clauses 8 and 10.  In this case the Licensor will promptly
reimburse the Licensee for the amount of the renewal fee.


 


12.2                     Licensee to Provide
Assistance


The Licensee will (and will procure that any other member of the
Licensee Group will) promptly on request of the Licensor do all things
reasonably required by the Licensor (at the reasonable expense of the
Licensor), to register in New Zealand in the name of the Licensor (or its
nominee) any applications for registration of any of the Trade Marks and of any
trade marks similar to, or which incorporate any of, the Trade Marks.


 


12.3                     Colour Green Applications


The Licensor may progress any of its applications for the registration
of the Colour Green Trade Marks (Colour
Green Applications) (or not do so) as it sees fit, provided that if
the Licensee requests the Licensor to do so, the Licensor will at the
reasonable cost of the Licensee take reasonable steps to try to register the
Colour Green Applications (but the Licensor has no obligation to do so if the
prospects of successfully registering the Colour Green Applications for a
reasonable cost are considered by the Licensor on reasonable grounds to be
unlikely).


 


13                              INFRINGEMENT


 


13.1                     Notification of Infringements


Each party must promptly notify the other in writing if it becomes
aware of:


 


(a)                                  any act, or suspected
or threatened act, of infringement, passing off, unfair competition or breach
of the Fair Trading Act 1986 in relation to the Trade Marks;


 


(b)                                 any actual, suspected
or threatened challenge to any Trade Mark or any goodwill associated with the
Trade Mark (including by the Commissioner of Trade Marks or another third
party);


 


25

















 


(c)                                  any actual, suspected
or threatened allegation, complaint or claim by a third party in relation to
the use or intended use of the Trade Marks by the Licensee or any member of the
Licensee Group; or


 


(d)                                 any unauthorised use,
reproduction or copying of Lloyds TSB Copyrights,


 


including where it adversely affects the Trade Marks (or the Licensee’s
use of them) (all of which together with any defence of any of these things are
referred to in this Agreement as “Infringement”).


 


The provisions of the Sixth Schedule will
apply to all instances of Infringement.


 


13.2                     Black Horse Brands


The Licensee must promptly notify the Licensor in writing if it becomes
aware of any act, or suspected or threatened act, of infringement, passing off,
unfair competition or breach of the Fair Trading Act 1986, or breach of
copyright, in relation to any of the Black Horse Brands other than the Trade
Marks.


 


14                              TERMINATION


 


14.1                     Termination By Licensor for
Cause


The Licensor may terminate this Agreement in whole or in part immediately
on written notice to the Licensee if:


 


(a)                                  the Licensee makes an
assignment for the benefit of or makes any arrangement or composition with its
creditors (or threatens any of these things) other than for purposes of a
solvent reconstruction, amalgamation, merger or consolidation exclusively
within the Licensee Group;


 


(b)                                 the Licensee is
insolvent and/or unable to pay its debts as they fall due, or stops, suspends
or threatens to stop or suspend payment of all or any material part of its
debts (other than debts which are being contested by it in good faith and by
appropriate proceedings) (or threatens any of these things);


 


(c)                                  the Licensee is wound
up or goes into liquidation (voluntarily or otherwise) (or threatens any of
these things) other than for purposes of a solvent reconstruction,
amalgamation, merger or consolidation exclusively within the Licensee Group;


 


(d)                                 a receiver, official
administrator, custodian, statutory manager or other similar officer is
appointed to the Licensee or in relation to all or any material part of its
assets;


 


(e)                                  the Licensee ceases
to carry on its usual business in New Zealand (or threatens to do so)
other than for purposes of a solvent reconstruction, 


 


26

















 


amalgamation, merger or consolidation
exclusively within the Licensee Group;


 


(f)                                    the Licensee or any
other member of the Licensee Group challenges, or threatens to challenge, the
validity of, or the ownership by the Licensor or any other member of the Lloyds
TSB Group of, any of the Trade Marks, or assists anyone to do so;


 


(g)                                 the Licensee commits
any breach of any of its obligations under clause  17.14;


 


(h)                                 without limitation to
the other provisions of this Agreement, the Licensee commits a material breach
of this Agreement or of clause 6.5(a)
of this Agreement:


 


(i)                               not capable of remedy;
or


 


(ii)                            capable of remedy and the
Licensee does not remedy the breach within 30 days of the Licensor giving to
the Licensee notice in writing specifying the breach and requiring it to be
remedied;


 


(or a member of the Licensee Group does
anything which if done by the Licensee would enable termination under this clause 14.1(h));


 


(i)                                     a Quality Control
Event occurs (or is deemed to occur pursuant to the provisions of paragraph 8 of the Fourth Schedule); or


 


(j)                                     the Licensee or
any member of the Licensee Group has amalgamated with any company not part of
the Licensee Group prior to such amalgamation and that amalgamated company uses
any of the Trade Marks without the prior written consent of the Licensor and
fails to cease such use within 14 days of the Licensor giving to the Licensee
notice in writing specifying the breach and requiring it to be remedied.


 


14.2                     Termination By Licensor
for Non-Use


The Licensor may terminate this Agreement in respect of a Trade Mark
immediately on written notice to the Licensee if for any continuous period of
36 months, the Licensee does not make genuine use of that Trade Mark.


 


14.3                     Termination of A
Member of Licensee Group


Without limiting the provisions of clause
14.1, if any of the events (specified in clauses 14.1(a), (b), (c), (d) or (e) occur in respect of a
member of the Licensee Group other than the Licensee, the Licensor may
immediately on written notice of the Licensee and that Licensee Group member
terminate any rights or benefits conferred on that member of the Licensee Group
under this Agreement and the Licensee shall procure that that member ceases use
of the Trade Marks.


 


27

















 


14.4                     Termination By Licensee


The Licensee may terminate this Agreement at any time, but only by
giving the Licensor prior written notice to this effect, such termination to be
effective on the date stated in that notice or the date 3 months after the
receipt by the Licensor of that notice (whichever date is later).


 


15                              EFFECT
OF TERMINATION/EXPIRY


 


15.1                     Cessation of Use etc


On and following termination or expiry of this Agreement (and in the
case of the Colour Green Trade Mark, on and following termination or expiry of the
Cleansing Term) all rights granted to the Licensee in respect of the Trade
Marks will immediately cease, and:


 


(a)                                  the Licensee must
immediately cease to use, reproduce or exploit the Trade Marks (or any trade
mark or representation identical to, confusingly similar to, or a colourable
imitation of, the Trade Marks) and Lloyds TSB Copyrights in any way;


 


(b)                                 the Licensee must not
represent that it has any association with the Licensor or do anything (or omit
to do anything) which is likely to lead any person to consider that the
Licensee is permitted to use the Black Horse Brands or is in any way connected
with the Licensor or any other member of the Lloyds TSB Group;


 


(c)                                  the Licensee must
promptly execute all documents and do all things necessary to remove or cancel
any registrations of the Licensee, or any other member of the Licensee Group,
as a user or licensee (as “licensee” is defined in section 5(1) of the New
Zealand Trade Marks Act 2002) of the Trade Marks (and will procure any other
member of the Licensee Group to do so);


 


(d)                          the Licensee must promptly:


 


(i)                         disclose to the Licensor all
domain names; and


 


(ii)                      at the request of the Licensor
execute all documents and do all things necessary to cancel, or transfer to the
Licensor or its nominee, any domain names,


 


owned or held by the Licensee, or by any other member of the Licensee
Group, that are identical to, confusingly similar to, derived from, a
colourable imitation of, or which incorporate any of the Black Horse Brands;
and


 


28

















 


(e)                                 the Licensee must not
use the Lloyds TSB “green” (Pantone 354) in combination with Lloyds TSB blue
(Pantone 293) as part of any trade mark, branding or promotional material,


 


and the Licensee will procure that any person controlled by the
Licensee, or for which the Licensee is responsible, or that is a member of the
Licensee Group, also does so.


 


15.2                     Specific Trade Marks


If this Agreement is terminated by the Licensor at any time in relation
to specific Trade Marks the provisions of clauses 15.1
and 17.19 will apply
in respect of those Trade Marks.


 


16                              INDEMNITY


 


The Licensee will at all times be liable for, and will indemnify and
hold harmless the Licensor and each other member of the Lloyds TSB Group
(together with the Licensor’s and Lloyds TSB Group’s officers, employees and
agents) against (and on demand will pay an amount equal to), any and all
claims, losses, damages, penalties, costs (including legal costs on a
solicitor/client basis) taxes, duties, and levies (and in the case of taxes,
duties and levies, only those imposed by New Zealand or a governmental
authority thereof) of a type or nature which is reasonably foreseeable (other
than loss of profits) but not any other liabilities or expenses of any nature or
description whatsoever incurred or suffered or payable by the Licensor or any
other member of the Lloyds TSB Group (together with the Licensor’s and Lloyds
TSB Group’s officers, employees or agents):


 


(a)                        arising because or by reason of
the entry into or termination or expiry of this Agreement, or the grant or
terms or conditions of the licence contained in this Agreement (and in the case
of any term or condition whether as expressed in this Agreement or as adjusted
or reconstructed (or deemed adjusted or reconstructed) by any taxation or other
competent authority or court for any purpose and whether as part of, or for the
purposes of, an adjustment or reconstruction (deemed or otherwise) of the terms
or conditions of any other agreement), or the performance by the Licensor of
this Agreement; or


 


(b)                       arising out of the performance
or non-performance by the Licensee of this Agreement; or


 


(c)                        resulting from any and all
liability claims arising from products or services upon which, or in connection
with which, the Trade Marks have been used; or


 


(d)                       arising from acts or omissions
of the Licensee or any other member of the Licensee Group but only to the
extent that this arises because of the 


 


29

















 


relationship between the Licensor and the
Licensee under this Agreement and the licences granted under this Agreement (or
any of them); or


 


(e)                        arising from any proceedings
taken by the Licensee (including proceedings to which the Licensor is joined at
the request of the Licensee) against a third party, including for Infringement.


 


17                              MISCELLANEOUS


 


17.1                     Notices


Subject to clause 2.8,
any notice or communication which a party is required or intends to give to the
other party concerning any matter or thing related to this Agreement shall be
in writing.  Notices to a party shall be
delivered to the designated address of the party to which the notice is to be given
or shall be sent by facsimile message to the relevant party at that
address.  Any such notice or
communication shall be deemed to have been given:


 


(a)                           on the day of delivery, where the notice or communication is delivered
during business hours on a Business Day in the city of delivery;


 


(b)                          on the following Business Day, where the
notice or communication is delivered after the end of business hours in the
city of delivery or on a day that is not a Business Day;


 


(c)                           on the day of despatch, where a
facsimile message is despatched on a Business Day and during business hours in the city to where the message is sent; and


 


(d)                          on the day after despatch, where a facsimile message is
despatched after the end of business hours in the city to where the message is
sent or on a day that is not a
Business Day.


 


17.2                     Designated Addresses


A
designated address for
the purpose of this Agreement shall be that specifically designated
in the Seventh Schedule or
such other address as shall be specifically designated by a party by notice
given to the other party in substitution therefore.


 


30

















 


17.3                     Waiver


It is agreed that:


 


(a)                           the performance of any covenant, obligation
or agreement of this Agreement by
the Licensor may be expressly waived in
writing by the Licensee, and the performance
of any covenant, obligation or agreement of this Agreement by the Licensee may be expressly waived only in writing by the
Licensor;


 


(b)                          any waiver
hereunder shall be effective
only in the specific instance and for the purpose of the waiver; and


 


(c)                           no failure on the part of a party to
exercise, and no delay by a party in exercising, any right under this Agreement
will operate as a waiver thereof,
nor will any single or partial exercise of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any
other right.


 


17.4                     Governing Law


This Agreement shall be construed and take
effect in accordance with the laws of New Zealand and any dispute between the
parties touching or concerning the construction, meaning or effect of this
Agreement or the rights or liabilities of the parties hereunder shall be
governed by the laws of New Zealand.


 


17.5                     Other Disputes


Where a dispute arises in relation to this Agreement other than a
Dispute for the purposes of clause 6.4,
the parties will consider on reasonable grounds whether an agreed form of
alternative dispute resolution would be a better way to resolve or mediate that
dispute, before taking the dispute for adjudication before the New Zealand
Courts (but subject always to the right to obtain urgent interlocutory relief
from the Courts and except for a dispute in respect of this clause).


 


17.6                     Submission to Jurisdiction


The parties agree that any legal action,
suit or proceedings (each a Proceeding)
in connection with this Agreement or the transactions contemplated hereby may
be brought in the New Zealand Courts, which shall have non-exclusive
jurisdiction to settle any disputes arising out of or in connection with this
Agreement.  The parties hereby
irrevocably and unconditionally consent to submit to the non-exclusive
jurisdiction of the Courts of New Zealand for any Proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby.  The parties further irrevocably and
unconditionally waive any objection to the laying of venue of any Proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby, in the Courts of New Zealand, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim to any such Court that
such Proceeding is brought in an inconvenient forum.  The parties further irrevocably agree that a judgment in any
Proceeding may be enforced in the Courts of any other jurisdiction.  The foregoing submission to the 


 


31

















 


jurisdiction of the Courts of New Zealand
shall not limit the right of a party to bring a Proceeding against the other
party in any other Court of competent jurisdiction, nor shall the taking of a
Proceeding in one or more jurisdictions preclude the taking of a Proceeding in
any other jurisdiction whether concurrently or not.


 


17.7                     Process Agent


The Licensor hereby appoints the firm of
Chapman Tripp (Attention: Barry Brown) at its address at Level 6,
Optimation House, 1-13 Grey Street, Wellington, New Zealand (or such other
New Zealand address of Chapman Tripp as Lloyds TSB or Chapman Tripp may
notify the Licensee in writing) as its agent to accept service of process
in any Proceeding commenced in the courts of New Zealand.  The Licensor agrees that service of any
process, summons, notice or document by delivery to the above mentioned address
of its process agent shall be effective service of process for any Proceeding
brought against it in a New Zealand court.


 


17.8                     Severability


If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable under any applicable law, then
such contravention or invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement. 
Such provision shall be deemed to be modified to the extent necessary to
render it legal, valid and enforceable, and if no such modification shall
render it legal, valid and enforceable then this Agreement shall be construed
as if not containing the provision held to be invalid, illegal or
unenforceable, and the rights and obligations of the parties shall be construed
and enforced accordingly.


 


17.9                     Amendments


Any
amendments to this
Agreement shall be executed by each party in the same manner and with the
same formality as this Agreement is executed.


 


17.10               Execution and Delivery


This
Agreement shall not be binding on either party until it has been executed and
delivered by each of the parties. An executed copy of this Agreement which is
delivered by a party by facsimile shall be binding on the other party as if it
was an original.


 


17.11               Counterparts


This Agreement may be executed in two counterparts, each of which will
be deemed to be an original, and all of which together shall constitute one and
the same instrument.  Delivery by
a party of an executed signature page by facsimile transmission shall be as
effective as delivery of a manually executed counterpart.  Furthermore, where a party executes this
Agreement by having it signed by more than one person then those persons may
sign the same or different signature pages either or both of which signature
pages may be delivered by facsimile.


 


32

















 


17.12               Further Assurances


Each party agrees to execute and deliver any documents and do all
things as may reasonably be required by the other party to obtain the full
benefit of this Agreement according to its true intent.


 


17.13               Confidentiality


No party shall for any purpose other than those provided for or
anticipated by this Agreement use or disclose to any other person (who is not
the other party or a related company of another party) the terms of this
Agreement or any information identified as confidential and disclosed to the
other under this Agreement except:


 


(a)                           with the prior written
consent of the other party;


 


(b)                          where disclosure is required
by law or is made in compliance with the order of any Court of competent
jurisdiction or any regulatory authority;


 


(c)                           disclosure of information
which is in the public domain, if the relevant information has entered the
public domain otherwise than by reason of a breach of this clause by that party
or a related company of that party;


 


(d)                          disclosure to a Related
Company of the disclosing party where the disclosing party has informed the
relevant Related Company that the relevant information is confidential and has
taken such reasonable steps as are within its powers to ensure that the
relevant Related Company does not disclose such information; or


 


(e)                           disclosure to an independent
financial, legal or accounting consultant to the disclosing party or a Related
Company of the disclosing party where such consultant needs to know such
information for the purposes of providing advice to the disclosing party or to
a related company of the disclosing party and the relevant consultant is under
a duty or obligation to maintain the confidentiality of the information being
disclosed.


 


17.14               Assignment/Sub-licence


(a)                           The Licensee must not
without the prior written consent of the Licensor sub-licence, sub-contract,
transfer, assign or otherwise dispose of any of its rights or obligations under
this Agreement or in and to the Trade Marks except that the Licensee may
sub-licence all or any of its rights under this Agreement or in and to one or
more of the Trade Marks to one or more members of the Licensee Group without
the prior consent of the Licensor;


 


(b)                          Either a change in control:


 


(i)                               of the voting rights of
the Licensee; or


 


(ii)                            of the effective management
or control of the Licensee,


 


33

















 


in each case as it exists immediately after Closing is deemed to be an
assignment of this agreement; and for these purposes:


 


(aa)                  the
voting rights of the Licensee is a reference to the voting rights
(x) to shares owned in the ultimate company of which the Licensee is a wholly
owned subsidiary immediately following Closing, (y) to shares of any other
company in respect of which at that time the Licensee is a wholly owned
subsidiary, and (z) to shares in the Licensee (determined as necessary on a
look through basis); provided that to the extent a change in control is caused
solely as a consequence of shares issued pursuant to a rights issue or an offer
of shares to the public at large, there shall be deemed to be no change in
control; and


 


(bb)                a change
in control, with reference to all of the shares in a company, means
a change in the right to vote or to control or direct the vote (determined as
necessary on a look through basis or by contract) attached to more than 50% of
the shares; and


 


(cc)                  except as expressly permitted in this
Agreement a change in control, with reference to the effective management or
control of the Licensee, means a change in who may appoint or remove (whether
pursuant to voting rights or by contract) the majority of directors to a
company described in paragraph (aa).


 


(c)                           The Licensor may
sub-license, sub-contract, transfer, assign or otherwise dispose of in whole or
in part any of its rights and obligations under this Agreement or in and to the
Trade Marks without the need for consent of the Licensee or any other person
provided that the Licensee will continue thereafter to have the full benefits
of the rights granted to it under this Agreement (without limiting the
Licensor’s unfettered discretions as to the identity of that sub-licensee,
sub-contractor, transferee or assignee as the case may be, irrespective of its
ownership, management or control.


 


17.15               No
Partnership/Agency/Joint Venture


Nothing in this Agreement nor any actions taken by the parties pursuant
to this Agreement will evidence or be deemed to constitute either party as an
agent, partner, or joint venturer of the other and neither party may pledge the
credit of the other nor represent to anyone that:


 


(a)                       it is an agent, partner, or
joint venturer of the other; or


 


(b)                      it has any power or authority to
incur an obligation of any nature on behalf of the other party.


 


34

















 


17.16               Time is of the Essence


Time shall be of the essence in the performance of all obligations
under this Agreement.


 


17.17               Contracts (Privity) Act


Except as provided by clause 17.20 the
provisions of Section 4 of the Contracts (Privity) Act 1982 shall not
apply to this Agreement and no person not explicitly a party to this Agreement
is intended to derive, nor shall derive, any benefit of an enforceable nature
from any of the provisions of this Agreement.


 


17.18               Other Rights


Nothing in this Agreement limits either Party’s rights, or the rights
of any other member of the Lloyds TSB Group or the Licensee Group under any
other agreements, in law or in equity.


 


17.19               Entire Agreement


This Agreement constitutes the entire agreement between the parties
with respect to the matters dealt with herein and replaces all earlier
negotiations, representations, warranties, undertakings and agreements whether
oral or written between the parties relating to the matters dealt with herein.


 


17.20               Rights of Lloyds TSB
Group and the Licensee Group


Notwithstanding anything else in this Agreement, for purposes of the
Contracts (Privity) Act 1982:


 


(a)                        the Licensee acknowledges that
any provision of this Agreement by which the Licensee confers a benefit on the
Licensor is intended to confer a benefit on each other member of the Lloyds TSB
Group (in addition to the Licensor), which benefit (including clauses 2.5, 4.1, 4.2, 6.6, 11.1, 11.2, 15.1, 16
and 17) will be
enforceable by any member of the Lloyds TSB Group; and


 


(b)                       the Licensor acknowledges that
any provision of this Agreement by which the Licensor confers a benefit on the
Licensee is intended to confer a benefit on each other member of the Licensee
Group (in addition to the Licensee), which benefit (including clause 2.1) will be enforceable by any
member of the Licensee Group, provided that no member of the Licensee Group
shall have any recourse against the Licensor in respect of any loss arising
from a breach of this Agreement (Loss):


 


(i)                          to the extent that such Loss
arises from any act or omission of any other member of the Licensee Group; or


 


(ii)                       to the extent that any claim has been made against the Licensor for the
same loss by any other member of the Licensee Group.


 


35

















 


However this Agreement may be
amended (in accordance with its terms) by the parties without the need to
obtain the consent of any member of the Lloyds TSB Group other than the
Licensor or any member of the Licensee Group other than the Licensee.


 


17.21               Survival of Provisions


This clause and the following clauses and
schedules will continue in effect after termination, cancellation or expiry of
this Agreement:


 


	
  Clause

  	
   

  	
  Section
  Description

  
	
  1

  	
   

  	
  Definitions and Construction

  
	
  6.5

  	
   

  	
  Quality Requirements and Use of Trade Marks – No other Association
  with Licensor

  
	
  6.6

  	
   

  	
  Quality Requirements of Use of Trade Marks – Horse Themes, Imagery
  etc

  
	
  8

  	
   

  	
  Black Horse Brands

  
	
  9

  	
   

  	
  Lloyds TSB Copyrights

  
	
  10

  	
   

  	
  Further Assignments of Lloyds TSB Copyrights/Trade Marks

  
	
  11

  	
   

  	
  Reserved Rights

  
	
  15

  	
   

  	
  Effect of Termination/Expiry

  
	
  16

  	
   

  	
  Indemnity

  
	
  17.1

  	
   

  	
  Notices

  
	
  17.3

  	
   

  	
  Waiver

  
	
  17.4

  	
   

  	
  Governing Law

  
	
  17.5

  	
   

  	
  Other Disputes

  
	
  17.6

  	
   

  	
  Submission to Jurisdiction

  
	
  17.7

  	
   

  	
  Process Agent

  
	
  17.8

  	
   

  	
  Severability

  
	
  17.12

  	
   

  	
  Further Assurances

  
	
  17.13

  	
   

  	
  Confidentiality

  
	
  17.15

  	
   

  	
  No Partnership/Agency/Joint Venture

  
	
  17.16

  	
   

  	
  Time is of the essence

  
	
  17.17

  	
   

  	
  Contracts (Privity) Act

  
	
  17.18

  	
   

  	
  Other rights

  
	
  17.19

  	
   

  	
  Entire Agreement

  
	
  First Schedule

  	
   

  	
  Trade Marks

  
	
  Seventh Schedule

  	
   

  	
  Party Directory

  



 


36

















 


FIRST SCHEDULE

Trade Marks


(Clause 1.1)


 


Part A – BLACK HORSE LOGO TRADE MARK


 





 


Part B – BLACK HORSE SHIELD TRADE MARK


 





 


Part C – PRIVATE BANKING TRADE MARK


 





 


Part D – FARM COVER TRADE MARK


 





 


Part E – PRODUCTS AND SERVICES TRADE MARKS


 


CASHPOINT


 


CREDITPOINT


 


DEPOSIT POINT


 


37

















 


SECOND SCHEDULE

Thoroughbred Trade Mark


(Clause
2.9)


 


•                      The
Thoroughbred Among Banks


 


•                      Thoroughbred
Card


 


•                      Thoroughbred
Gold Card


 


•                      Thoroughbred
One *


 


•                      Thoroughbred
Select *


 


•                      Thoroughbred
Home Loan


 


•                      Thoroughbred
Flexible Home Loan


 


•                      Thoroughbred
Education Fund


 


•                      Thoroughbred
Saver


 


•                      Thoroughbred
Goal Saver *


 


•                      Thoroughbred
Cash Fund


 


•                      Thoroughbred
Unit Trust


 


•                      Thoroughbred
Investor *


 


•                      Thoroughbred
Superannuation Scheme


 


•                      Thoroughbred
Balanced Trust


 


•                      Thoroughbred
NZ Equity Growth Trust


 


•                      Thoroughbred
Australian Equity Growth Trust


 


•                      Thoroughbred
Trans Tasman Growth Trust


 


•                      Thoroughbred
Conservative Trust


 


•                      Thoroughbred
Corporate Bond Trust


 


•                      Thoroughbred
International Equity Growth Trust


 


•                      Thoroughbred
Growth Trust


 


38

















 


•                      Thoroughbred
Cashback*


 


•                      Thoroughbred
International Bond Trust


 


39

















 


THIRD SCHEDULE

Quality Standards


(Clause
6.4)


 


The Licensee must:


 


(a)                            ensure that the Trade Marks
are not used in a manner, or for or in connection with Products and Services
that by their nature or quality, or the manner in which they are provided or
supplied, would materially lessen the level of goodwill, reputation and
standing which attached to the Trade Marks immediately prior to the
Commencement Date;


 


(b)                           in a manner and to an extent
generally consistent with customs and practices adopted by the Purchaser and
all or some of the other New Zealand banking industry generally, comply in all
material respects with all relevant laws and other directives, codes or other
requirements of Governmental Authorities (as defined in the Share Sale
Agreement) with whose directives, codes or other requirements New Zealand
registered banks customarily comply, where failure to so comply with such laws,
directives, codes or other requirements would materially adversely affect the
goodwill, reputation and standing of the Trade Marks;


 


(c)                            not do or fail to do
anything which may in a material manner discredit the Trade Marks or endanger
the value, validity or goodwill of the Trade Marks to a material degree or
bring the Trade Marks, the Licensee or the Licensor into disrepute; and


 


(d)                           (within the context of the
other provisions of this Agreement) treat the Trade Marks with at least the
same care as the Licensee would if it were the owner of the Trade Marks.


 


40

















 


FOURTH SCHEDULE

Quality Control Requirements


(Clause
6.4)


 


Annual
Report


1                                    The Licensee shall
provide the Licensor no later than 30 November each year during the
Term (other than in 2003) with a Quality Control Report certified by a senior
executive of the Licensee (being of a similar position as and with similar
authority to the Lloyds TSB Brand Manager) as being true and correct in respect
of the immediately preceding twelve month period (each such period, an annual reporting period).


 


Inspection


2                                    At such reasonable
intervals as the Licensor may determine (but unless the Licensor considers on
reasonable grounds that the Licensee has committed a material breach of the
Quality Standards, the Brand Standards or this Agreement, not more than once in
any year), upon request by the Licensor, the Licensee shall permit the Licensor
to inspect:


 


(a)                           samples of any products upon
which any of the Trade Marks appears;


 


(b)                          copies of printed
advertising, point of sales materials, and other promotional materials on which
any of the Trade Marks is or has been used;


 


(c)                           applicable web-sites upon
which any of the Trade Marks appear;


 


(d)                          copies of materials on which
any of the Trade Marks is or has been used;


 


(e)                           copies of radio, television
or other audio visual promotional materials in which any of the Trade Marks is
or has been featured;


 


(f)                             any business premises used
by the Licensee in producing goods or providing services in connection with the
Trade Marks;


 


(g)                          other information and
materials relevant to determining whether the Licensee has met the quality
standards specified in the Third
Schedule of this Agreement,


 


and the Licensee shall provide reasonable access to personnel,
operation and records reasonably necessary for the purposes of:


 


(h)                          confirming that the Licensee
has materially complied with the Quality Standards in the period to which the
relevant report relates;


 


(i)                              confirming that use of
the Trade Marks by the Licensee has materially complied with the relevant Brand
Standards; and


 


41

















 


(j)                              satisfying itself that
the manner in which the Trade Marks are being used by the Licensee is
materially consistent with the Licensee’s obligations under this Agreement.


 


Notice
of Non-Compliance


3                                    If it appears (in
the Licensor’s reasonable opinion) from any Quality Control Report submitted by
the Licensee to the Licensor pursuant to paragraph 1
of this Schedule, any information available to the Licensor, or any inspection
conducted by the Licensor under paragraph 2
of this Schedule that:


 


(a)                           the Licensee has not
materially complied with Quality Standards in the period to which the relevant
report relates;


 


(b)                          use of any Trade Mark by the
Licensee fails to materially comply with the relevant Brand Standard; or


 


(c)                           use by the Licensee of any
Trade Mark has failed to comply with this Agreement in a material respect;


 


(or that any of these things are likely to have occurred, likely to
occur or threatened) the Licensor may provide the Licensee with a written
notice (Compliance Notice)
specifying why the Licensee has failed to meet the relevant requirements.


 


Rectification
Plan


4                                    The Licensee must
then submit a rectification plan to the Licensor within 45 days of receipt
of a Compliance Notice from the Licensor (Rectification
Plan).  The Rectification
Plan may be submitted in conjunction with a proposed change to the applicable
Quality Standards submitted or the applicable Brand Standards in accordance
with paragraph 9 of this Fourth Schedule and the Rectification
Plan must include a period of time during which the relevant matters will be
rectified.


 


Meeting


5                                    The Licensee and
the Licensor shall meet promptly following submission of the Rectification Plan
to discuss the acceptability of the plan and, if there has been a proposal to
change any of the applicable Quality Standards or the applicable Brand
Standards, the acceptability of that change.


 


Implementation
of Rectification Plan


6                                    If the Licensee and
the Licensor reach agreement on an appropriate Rectification Plan (having
regard to any change which may be agreed to any applicable Quality Standards or
the applicable Brand Standards) within 30 days of submission of the proposed
Rectification Plan, the Licensee shall rectify its performance in accordance
with the requirements of the Rectification Plan.


 


42

















 


No
Agreement on Rectification Plan


7                                    If the Licensee and
Licensor fail to reach agreement on an appropriate Rectification Plan within 30
days of submission of the proposed Rectification Plan, having acted in good
faith in attempting to do so, the Licensee shall restore its performance to a
level satisfying the required Quality Standards (or any agreed modified Quality
Standards), the relevant Brand Standard or otherwise to comply with this
Agreement, as the case may be, as soon as reasonably practicable and in any
event no later than the annual reporting period after the period in which the
meeting held in accordance with paragraph 5
of this Fourth Schedule occurs.


 


Quality
Control Event


8                                    If:


 


(a)                           the Licensee fails to submit
a Rectification Plan to the Licensor within the 45 day period provided for
in paragraph 4 of this Fourth Schedule; or


 


(b)                           (i)                              the Licensee fails to
rectify its performance in accordance with the requirements of the
Rectification Plan agreed to by the Licensor pursuant to paragraph 6 of this Fourth Schedule;


 


(ii)                            a Rectification Plan has
not been agreed within 30 days of submission of the proposed Rectification Plan
to the Licensor and the Licensee fails to restore its performance to a level
satisfying the applicable Quality Standards (or any agreed modified Quality
Standards or any agreed modified Brand Standards), the relevant Brand Standard
or the relevant provisions of this Agreement, as the case may be, as soon as
reasonably practicable and in any event no later than the annual reporting
period after the period in which meeting held in accordance with paragraph [5] of this Fourth Schedule occurs; or


 


(c)                             the Licensee commits a
material breach of the Quality Standards not capable of remedy that in the
reasonable opinion of the Licensor has or is likely to have a significant and
sustained adverse affect on the Trade Marks and the Licensor (or either of
them);


 


then a Quality Control Event will be deemed to have occurred.


 


General


9                                    All obligations of
the Licensor under this Fourth
Schedule shall be complied with in a professional manner.


 


43

















 


FIFTH SCHEDULE

Quality Control Report


(Fourth
Schedule)


 


Introduction


1                                    The purpose of the
Quality Control Report is to confirm whether or not the Licensee has complied
with:


 


(a)                           the Quality Standards; and


 


(a)                           the Brand Standards


 


in relation to the use of the Trade Marks.


 


2                                    To achieve this
purpose, each Quality Control Report required pursuant to paragraph 1 of the Fourth Schedule shall include two
parts.  This Schedule provides an
outline of the required content of each part.


 


Part
A: Compliance of Products and Services with Quality Standards


3                                    The Quality Control
Report must confirm the compliance by the Licensee in meeting the Quality
Standards.


 


4                                    The Quality Control
Report must also report in detail on any failure to comply in a material
respect with any applicable Quality Standard and shall provide an assessment of
the seriousness and potential impact of any failure identified.


 


Part
B: Brand Use


5                                    The Quality Control
Report must confirm the compliance by the Licensee with any applicable Brand
Standards in relation to use of the Trade Marks.


 


6                                    The report will
summarise any new uses of the Trade Marks since the date of the last Quality
Report (or, in the case of the Quality Report due by
30 November 2004, since the Commencement Date).


 


7                                    The Quality Control
Report must also identify any material misuses of the Trade Marks as well as
providing an assessment of the seriousness and potential impact of any misuses
identified.


 


8                                    Without limitation
to clause 6.2 of this
Agreement, the Quality Control Report must identify if for any continuous
period of 30 months the Licensee or other member of the Licensee Group has not
made genuine use of a Trade Mark.


 


Further Information


9                                    After providing
each Quality Report and at other times on reasonable notice in writing, the
Licensee will promptly provide to the Licensor further information:


 


44

















 


(a)                           relevant to assessing its
compliance with the Quality Standards and Brand Standards in the period to
which the Quality Report relates; or


 


(b)                          to expand upon or clarify any
matter touched on by the Quality Report,


 


on the reasonable request of the Licensor.


 


45

















 


SIXTH SCHEDULE

Infringement


(Clause 13)


 


Selection of Lead Party


1                                    Within 10 days of
receipt of the first notice in respect of a particular infringement (Infringement),
the parties must advise each other whether they wish to take the lead role (Lead)
in pursuing the Infringement on the terms of the provisions in this
Schedule.  For the avoidance of doubt, a
reference to “pursue” or “pursuing the Infringement” includes references to the
defence or protection of a Trade Mark from challenge by a third party or action
taken by the New Zealand Trade Mark Commissioner.  Nothing in this paragraph 1 shall prevent a party
taking urgent interlocutory action if the circumstances of the Infringement
justify those steps.


 


2                                    The party wishing
to Lead will Lead unless both parties wish to Lead, in which case the Licensor
will Lead.


 


Lead Party Rights and
Obligations


3                                    The Lead party:


 


3.1                          may at its cost pursue the
Infringement by litigation or any other means and will have the sole right to
negotiate and settle the Infringement provided that if the lead party is the
Licensee it may only negotiate and settle the Infringement (or admit liability)
with the prior written consent of the Licensor (not to be unreasonably
withheld); and


 


3.2                          must, if it is Licensee, keep
Licensor and, if it is Licensor, keep Licensee (Reserve party)  fully
informed on the progress of the actions in respect of the Infringement,
including providing copies of all relevant documents, opinions and
correspondence.  An acceptable method of
utilisingcommercially sensitive confidential trade information  will
be agreed, and failing agreement, will be determined by the Expert pursuant to
the provisions of this Schedule.


 


Reserve Party Obligations


4                                    Each Reserve party
will co-operate fully, including taking in its own name any proceedings, or
joining with the Lead party in any proceedings, for Infringement or other
relevant proceedings if called upon by the Lead party to do so. The Lead party
will reimburse the reasonable costs incurred by the Reserve party in complying
with this paragraph 4.


 


Swapping the Lead and other
Disputed Issues


5                                    If:


 


5.1                            a Reserve party believes
that:


 


46

















 


(a)                          the Lead party is failing to
actively pursue the Infringement in a prudent and appropriate manner;


 


(b)                         pursuit of the Infringement is
not justified due to the low chances of obtaining a successful outcome (whether
by way of settlement or otherwise) or where the Reserve Party is the Licensor,
because of a potential material adverse affect on the Trade Marks or other
trade marks of Lloyds TSB Group in New Zealand or elsewhere (or Lloyds TSB
Group’s rights in or to them); or


 


5.2                            either party has a dispute
about the interpretation or application of the provisions of this Schedule,


 


then the aggrieved party may give written notice of the dispute to the
other party naming a senior barrister or other person of appropriate experience
to determine the dispute (Expert). 
If the parties cannot agree on an Expert within 10 days then, the Expert
will be appointed by the President of the Auckland District Law Society.  Before commencing the appointment, the
Expert must sign a binding confidentiality agreement with each of the Licensee
and Licensor to ensure that information disclosed or obtained by the Expert is
only used for the purposes of assessing the dispute and coming to a
determination.


 


6                                    The Expert will
determine the dispute in a manner which the Expert considers appropriate acting
fairly, impartially and in good faith having due regard to the merits of each
party’s position, and will:


 


6.1                            act as an Expert not as an
arbitrator and the provisions of the Arbitration Act 1996 shall not apply;


 


6.2                            determine his or her own
procedure;


 


6.3                            deliver a written opinion
to both parties determining the dispute within 20 days of being appointed; and


 


6.4                            determine, on a merit
basis, the proportions in which the parties will meet his or her costs.


 


7                                    If the Expert
determines that:


 


(a)                         the Lead party is failing to
actively pursue the Infringement in a prudent and appropriate manner; or


 


(b)                         pursuit of the Infringement is
not justified due to the low chances of obtaining a successful outcome (whether
by way of settlement or otherwise) or where the Reserve Party is the Licensor,
because of a potential material adverse effect on the Trade Marks or, other
trade marks 


 


47

















 


of Lloyds TSB Group in New Zealand or elsewhere (or Lloyds TSB Group’s
rights in or to them);


 


then within 5 days of receiving the determination, the relevant Reserve
party that initiated the dispute notification may by written notice to the Lead
party elect to take the lead role in pursuing the Infringement and that Reserve
party will become the Lead party for the purposes of this Agreement from the
date that the incumbent Lead party receives the notice.


 


8                                    The parties will
comply with the reasonable directions of the Expert and the Expert’s
determination of the dispute will be final and binding on the parties.


 


Allocating any Proceeds


9                                    Notwithstanding any
judgement or settlement, as between the parties any award, damages, account of
profits  or monies recovered or
resulting from any action or proceeding referred to in this
Schedule (including by way of settlement) (Payment) will be payable to
the Lead party and any Payment received by the Reserve party must, promptly
following its receipt, be paid to the Lead party without deduction or set off
of any kind.


 


10                              The Payment will be
applied by the Lead party as follows:


 


First:  The Lead party’s legal costs (on a solicitor
and client basis) and all other direct costs incurred in pursuing the
Infringement, including any payments made to the Reserve party;


 


Second:  Direct damages
suffered by the Lead party to the extent established in court or if no
judgement is obtained, then as reasonably provable by the Lead party as being
caused by the Infringement;


 


Third:  Payment to the
Reserve party for amounts claimable by the Reserve party under the two
categories above as if references to the Lead party were references to the Reserve
party;


 


Fourth:
 Payment of any
amount reasonably identifiable as being an account of profits made by the
perpetrator of the Infringement in respect of an Infringement directly relating
to the Lead party;


 


Fifth:
 Payment to the
Reserve party of 50% of any remaining amount of the Payment.


 


48

















 


SEVENTH SCHEDULE

Party Directory


(Clause
17.2)


 


	
  LICENSOR:

  	
  Name:

  	
  Lloyds TSB Bank plc

  
	
   

  	
  Address:

  	
  25 Gresham Street

  
	
   

  	
   

  	
  London EC2V 7HN

  
	
   

  	
   

  	
  England

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
  Contact person(s):

  
	
   

  	
   

  	
   

  
	
  LICENSEE:

  	
  Name:

  	
  The National Bank of New Zealand Limited

  
	
   

  	
  Address:

  	
  Level 10, NBNZ House

  
	
   

  	
   

  	
  Victoria Street

  
	
   

  	
   

  	
  Wellington

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
  Fax:

  	
   

  
	
   

  	
  Contact person(s):

  



 


49

















 


EIGHTH SCHEDULE

Dispute Resolution


(Clause
6.4)


 


1                                A party to this
Agreement may not commence any court proceedings relating to any Dispute unless
it has complied with the following paragraphs of this Schedule except
where the party seeks urgent interlocutory relief.


 


2                                A party to this
Agreement claiming the Dispute has arisen under or in relation to this
Agreement must give written notice to the other party to this agreement
specifying the nature of the Dispute (Notice).


 


3                                On receipt of the
Notice by the other party, both parties to this Agreement must endeavour in
good faith to resolve the Dispute expeditiously using informal dispute
resolution techniques such as mediation, expert evaluation or determination or
similar techniques agreed by them.


 


4                                If the parties do not
agree within seven (21) days of receipt of the Notice (or such period as agreed
in writing by them) as to:


 


(a)                        the dispute resolution
technique and procedures to be adopted;


 


(b)                       the timetable for all steps in
those procedures; and


 


(c)                        the selection and compensation
of the independent person required for such technique,


 


the parties must mediate the Dispute in accordance with the procedures
of LEADR New Zealand, and the Chair of the New Zealand Chapter of LEADR (or the
Chair’s nominee) shall select the mediator and determine the mediator’s
remuneration.


 


5                                The conduct of a
mediation process in accordance with this clause shall be without prejudice to
each party’s ability, pursuant to paragraph
1 of this Schedule, to commence court proceedings upon completion of
such mediation process or after 30 days of the Notice being received, if a
binding agreement has not been reached as a result of that mediation process.


 


50

















 


NINTH SCHEDULE

Deed of Covenant


(Clause
2.15)


 


Date: 
                                                                    
2003


 


PARTIES


 


ING Investment Services Limited


 


ING (NZ) Limited


 


BACKGROUND


 


A                            Lloyds TSB Bank plc (Licensor) has entered into a trade mark
licence agreement with The National Bank of New Zealand Limited (Licensee) on [date] for the Licensee to
use certain trade marks belonging to the Licensor (Trade Marks) in New Zealand carrying on the business of the
Licensee (Trade Mark Licence).


 


B                              Under the Trade Mark
Licence, the Licensee may permit ING to use the Trade Marks for limited
purposes, subject to ING’s agreement to be bound, on the same basis as the
Licensee, under the Trade Mark Licence.


 


C                              ING agrees to be bound to
the Trade Mark Licence in accordance with the terms of this Deed for the
benefit of the Licensor and Licensee.


 


AGREEMENT


 


By this Deed the parties agree as follows:


 


1                               DEFINITIONS


 


1.1                                 In this Deed, unless
the context requires otherwise:


 


(a)                       ING means each of ING (NZ) Limited and ING Investment
Services Limited;


 


(b)                      ING Joint Venture Arrangements means the
arrangement contemplated by the terms of the joint venture between Australia
and New Zealand Banking Group Limited and ING Insurance International BV,
effective from 1 May 2002, and operated in New Zealand by ING;


 


(c)                       all other the capitalised terms appearing
in this deed are defined in the manner set out in this Deed or in the Trade
Mark Licence.


 


51

















 


2                               COVENANT


 


2.1                                 With effect from the
date of this Deed, ING covenants with and for the benefit of the Licensor that
ING will at all times be bound by and will observe and perform those covenants,
terms and conditions expressed or implied in the Trade Mark Licence which are
to be observed and performed by the Licensee, to the extent that those terms
have application to the use of the Trade Marks by ING and subject to the extent
that the covenants, terms and conditions in the Trade Mark Licence are modified
by this Deed.


 


2.2                                 ING confirms that it
has read and understands the terms of the Trade Mark Licence.


 


3                               NO RELEASE


 


Notwithstanding the provisions of this Deed,
the Licensee will continue to be bound by the terms, conditions and covenants
of the Trade Mark Licence.


 


4                               SCOPE OF LICENCE


 


ING acknowledges that the Licensee may grant
a sub-licence to ING to use the Trade Marks only to the extent that activities
permitted under that sub-licence fall within the scope of the licence granted
to the Licensee on the terms of the Agreement and subject to ING entering into
and delivering to the Licensor a duly executed copy of this Deed.  ING may only use the Trade Marks:


 


(a)                        for the purposes of performing
the activities contemplated by, and in accordance with the terms of, the ING
Joint Venture Arrangements; and


 


(b)                       in accordance with the terms of
the Trade Mark Licence; and


 


(c)                        in relation to funds management
and insurance products and services offered or distributed by ING in New
Zealand to customers of the Licensee Group,


 


provided that none of the brands or trade
marks of ING (or of any of its Related Companies) or any other person (except
for the Licensee Group as expressly permitted by Trade Mark Licence) are used
on or in relation to those products or services.


 


5                               EXPIRY AND TERMINATION


 


This Deed will expire or terminate contemporaneously with the expiry or
termination of the Trade Mark Licence (whichever is the earlier), except that
those clauses in the Trade Mark Licence stated to survive termination will
survive in respect of this Deed.


 


52

















 


6                               ASSIGNMENT OR SUB-LICENCES


 


ING must not assign, sub-license or
sub-contract any of its rights or obligations under, or any other interest
arising from, this Deed (or attempt to do so) without the prior written consent
of the Licensor (which may be withheld at the Licensor’s sole discretion).


 


7                               PRESERVATION OF RIGHTS


 


The
exercise by the Licensor of any express right set out in this Deed or the Trade
Mark Licence (“the Express Rights”) will be without prejudice to any other
rights, powers or remedies available to the Licensor under this Deed or the
Trade Mark Licence, at law or in equity including any rights, powers or
remedies which would be available to the Licensor if the Express Rights were
not set out in this deed.


 


8                               FURTHER ASSURANCES


 


ING and the Licensor will at its cost execute
and deliver any documents and do all things as may reasonably be required by
the Licensor to obtain the full benefit of this Deed according to its intent.


 


9                               JOINT AND SEVERAL LIABILITY


 


The liability of ING (NZ) Limited and ING
Investment Services Limited under this Deed and the Trade Mark Licence shall be
joint and several.


 


	
  EXECUTED as a deed

  
	
   

  
	
  ING (NZ) Limited
  by its attorney

  [name]

  
	
   

  
	
   

  	
   

  
	
   

  
	
  in the presence of:

  
	
   

  
	
   

  	
   

  
	
   

  
	
  Name:

  
	
   

  
	
  Occupation:

  
	
   

  
	
  Address:

  



 


53

















 


	
  ING Investment Services Limited

  
	
  by its attorney [name]

  
	
   

  
	
   

  	
   

  
	
   

  
	
  in the presence of:

  
	
   

  
	
   

  	
   

  
	
   

  
	
  Name:

  
	
   

  
	
  Occupation:

  
	
   

  
	
  Address:

  



 


54

















 


TENTH SCHEDULE

ANZ Logo

(Clause 1.1)


 





 





 


55

















 


IN WITNESS WHEREOF this
Agreement has been executed on the date first written above.


 


 


	
  Executed by

  
	
  Lloyds TSB Bank plc
  being signed by its

  Attorney in the presence of:

  
	
   

  
	
  /s/ B Brown

  	
   

  	
   

  	
  /s/ P Moon

  	
   

  
	
   

  	
   

  
	
  Name: Barry Brown

  	
  Name:

  	
   Patrick Moon

  
	
   

  	
   

  
	
  Occupation: Solicitor

  	
  Title:

  	
  Senior Manager

  
	
   

  	
   

  	
  Group Corporate Development

  
	
  Address: Wellington

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Executed by

  	
   

  
	
  The National Bank of New Zealand Limited

  	
   

  
	
  being signed by its Attorney

  in the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ M S Nyein

  	
   

  	
   

  	
  /s/ S M Fyfe

  	
   

  
	
   

  	
   

  
	
  Name: Michael San Nyein

  	
  Name:

  	
  S M Fyfe

  
	
   

  	
   

  	
   

  
	
  Occupation: Company Secretary

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  
	
  Address: Wellington

  	
   

  
									



 


56

















 


CERTIFICATE OF NON-REVOCATION


 


OF POWER OF ATTORNEY


 


I, Patrick Moon of London,
Senior Manager, Group Corporate Development of Lloyds TSB Bank plc certify
that:


 


	
  1

  	
   

  	
  By deed
  dated on 21st October 2003 Lloyds TSB Bank plc appointed me its attorney on
  the terms and conditions set out in that deed.

  
	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  I have
  executed the attached document under the powers conferred on me by that deed.

  
	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  At the date
  of this certificate I have not received any notice or information of the
  revocation of the appointment by the dissolution (however occurring) of
  Lloyds TSB Bank plc or otherwise.

  



 


 


	
  /s/ Patrick
  P. Moon

  	
   

  
	
  Patrick Moon

  
	
   

  
	
  Date: 25
  November 2003

  



 

















 





 


CERTIFICATE OF NON-REVOCATION OF DELEGATION
OF POWER OF ATTORNEY


 


I,
STEVEN MONTGOMERY FYFE Executive Director and Chief
Financial Officer of Wellington in New Zealand formerly known as General
Manager Corporate Banking Division HEREBY
CERTIFY that:


 


1.             By
Deed dated 17 November 1992 deposited in Land Information New Zealand as
Dealing Number 5467839.1 (the “Power of Attorney”), The National Bank of New
Zealand Limited (the “Bank”) did constitute and appoint that person for the
time being and from time to time appointed by the Bank to act as the Chief
Executive of the Bank (the “Attorney”) to be the attorney or agent of the Bank to
represent and act for, and in the name of, the Bank for all objects and
purposes, and with the powers and authorities, set out in the Schedule to the
Power of Attorney.


 


2.             The
Power of Attorney empowers the Attorney to delegate from time to time, either
generally or specifically in writing, to any officer or employee of the Bank or
of any other company in the Lloyds Bank Group for the time being, or any other
person that the Attorney considers an appropriate delegate, all or any powers
and authorities given to the Attorney under the provisions of paragraph 12 of
the Schedule to the Power of Attorney (but not further or otherwise) so that
that delegate will have, and be able to exercise, all those powers and
authorities (but without power to delegate) as fully and effectually as the
Attorney would have done.


 


3.             By
instrument dated 19 November 1992 deposited in the Land Registry Offices
situated at:


 


	
  Auckland

  	
   

  	
  as No.

  	
   

  	
  C.437380.2

  	
   

  
	
  Blenheim

  	
   

  	
  as No.

  	
   

  	
  166109.2

  	
   

  
	
  Christchurch

  	
   

  	
  as No.

  	
   

  	
  A.033435.2

  	
   

  
	
  Dunedin

  	
   

  	
  as No.

  	
   

  	
  821487.2

  	
   

  
	
  Gisborne

  	
   

  	
  as No.

  	
   

  	
  G.190113.2

  	
   

  
	
  Hamilton

  	
   

  	
  as No.

  	
   

  	
  B.116233.2

  	
   

  
	
  Hokitika

  	
   

  	
  as No.

  	
   

  	
  093356.2

  	
   

  
	
  Invercargill

  	
   

  	
  as No.

  	
   

  	
  205198.2

  	
   

  
	
  Napier

  	
   

  	
  as No.

  	
   

  	
  583965.2

  	
   

  
	
  Nelson

  	
   

  	
  as No.

  	
   

  	
  322991.2

  	
   

  
	
  New Plymouth

  	
   

  	
  as No.

  	
   

  	
  396792.2

  	
   

  
	
  Wellington

  	
   

  	
  as No.

  	
   

  	
  B.273065.2

  	
   

  



 


SIR JOHN ANTHONY ANDERSON
of Wellington, being the then Chief Executive of the Bank, delegated all of the
powers and authorities given to him under the provisions of paragraph 12 of the
Schedule to the Power of Attorney to me (among others).


 


4.             At
the date of this Certificate, I have not received any notice of the revocation
of that delegation of powers and authorities to me or notice of the winding-up
of the Bank or other revocation of the Power of Attorney.


 


DATED
at Wellington this 25th day of November 2003


 


 


	
   

  	
  /s/ Steven
  Montgomery Fyfe