**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 SaleAgreement dated on or about 24 October 2003 between Lloyds TSB Bankplc, Lloyds Bank Subsidiaries Limited, Australia and New Zealand Banking GroupLimited and ANZ Banking Group (New Zealand) Limited and initialled for thepurposes 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* |

 

 

 

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**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                                             |   |

 

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| 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                                                 |   |

 

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| 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**                      |                                               |

 

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*Date:*

 

**PARTIES**

 

**Lloyds TSB Bank plc**at London, England (*Licensor*)

 

**The National Bank ofNew 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 followingterms shall have the following meanings:

 

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

 

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

 

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

 

*Black Horse Brands*  means the black horse brand and marketingconcept, including all depictions of, or allusions or references to, horses (ofany colour), including live horses, animations and any other forms ofrepresentation of the black horse brand and marketing concept in any languageor by any means (but only to the extent that they are capable of protection orownership at law or in equity by the Licensor or any other member of the LloydsTSB Group) and includes:

 

(a)                                  the Trade Marks;

 

(b)                                 the words or trademark “BLACK HORSE”;

 

(c)                                  the word or trademark “LLOYDS”; and

 

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

 

*Black Horse Logo Trade Mark *means the logodepicted in *Part A* of the *First Schedule*;

 

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*Black Horse Shield Trade Mark *means the logodepicted in *Part B* of the *First Schedule*;

 

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

 

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

 

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

 

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

 

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

 

(and any other standards, guidelines or policies substantiallyconsistent with or subordinate to these and that the Licensee has been requiredto comply with for a period of at least six (6) months prior to the SigningDate) andany variations, additions or deletions to any of them as otherwise agreed bythe Licensee and the Licensor in writing including:

 

(e)                           pursuant to *clause 6.7* in relation to the physical and visualpresentation of any Trade Mark including the colour, size and style ofrepresentation of the Trade Mark; and

 

(f)                             in relation to anyrestrictions 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 anyTrade 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 thegeneric type as carried on by those entities immediately prior to theCommencement Date;

 

*Business Day*  means a day on which banks are open forgeneral over-the-counter banking business in London and Wellington as the casemay be;

 

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

 

*Closing *has the meaning given to it in the Share SaleAgreement;

 

*Colour Green Trade Mark *means the colourgreen as used by the Licensee for its branding immediately prior toCommencement Date, including Pantone 354;

 

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*Commencement Date*  meansthe date this Agreement is signed by both Parties;

 

*Encumbrance*  meansany mortgage, lien, charge, security interest or other encumbrance whetherequitable 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 (whethergalloping, moving or stationary) including live horses, animations and anyother forms, and any sounds  of or madeby horses;

 

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

 

*ING Joint Venture Arrangements* means thearrangement contemplated by the terms of the joint venture between Australiaand 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 Purchaserimmediately following Closing;

 

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

 

(i)                           NBNZ Holdings at the SigningDate; or

 

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

 

(d)                          any PermittedAcquisition; and

 

(e)                           any company formedby an amalgamation of any company with any of the companies referred to in *paragraphs (a) -**(d)* of thisdefinition with the prior written consent of the Licensor,

 

but:

 

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

 

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(g)                          (for theavoidance of doubt) not any company formed by amalgamation if any of theamalgamating companies, but for such amalgamation, would not be a companyreferred to in *paragraphs (a)-(d)*of this definition;

 

and, unlessinconsistent 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 theLicensee:

 

(a)                           on or in relation to the Productsand Services; or

 

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

 

but not for or in relation to any Restricted Services except asprovided in *clause 2.17* norfor any products or services which are not comprised in Products and Services;

 

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

 

*Lloyds TSB Copyrights*  means all:

 

(a)                       Trade MarkCopyrights; 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 incorporatedin Scotland) and its subsidiaries excluding NBNZ Holdings and all of NBNZHoldings’ 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 SaleAgreement;

 

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

 

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

 

(i)                           advertising in publicationsprimarily for distribution in New Zealand which are distributed outside NewZealand where the advertising is not primarily targeted at customers orpotential customers outside New Zealand;

 

(ii)                        websites targeted at customers,potential customers or others in New Zealand, and which use first-level domainnames for New Zealand even if they are accessible outside New Zealand (but notwebsites

 

4

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

 

(iii)                    the operation of NBNZ InternationalLimited’s London branch (from whichever location in the United Kingdom to whichit might relocate);

 

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

 

(v)                       the conduct of correspondentbanking;

 

(vi)                    communicating with persons who arecustomers of the Licensee or any other member of the Licensee Group whereverthey are located,

 

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

 

(b)                         to promote Products andServices to students and potential students from Hong Kong and other countriesin South East Asia but only:

 

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

 

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

 

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

 

(c)                          any other use towhich the Licensor consents;

 

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

 

*Parties *means the parties to this Agreement;

 

*Permitted Acquisition*meansany New Zealand company registered under the New Zealand Companies Act 1993:

 

(a)                       all of theshares in which are acquired by any member of the Licensee Group after Closingprovided that the net tangible assets of that company do not exceed 5% of thenet tangible assets of the Licensee Group, in each case determined by referenceto the most recent audited annual financial statements of that company and theLicensee Group; or

 

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(b)                      acquired byany member of the Licensee Group with the prior written consent of theLicensor;

 

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

 

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

 

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

 

*Person or Event *means:

 

(a)                           rugby;

 

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

 

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

 

or anysimilar things (or any of them);

 

*Private Banking Trade Mark*  means the logo depicted in *Part C* of the *FirstSchedule*;

 

*Products and Services* meansbanking, finance, insurance and funds management products and services of thegeneric type provided by:

 

(a)                           the Licensee; and

 

(b)                           other members of theLicensee Group (as the Licensee Group is constituted immediately followingClosing),

 

immediately prior to the Commencement Date;

 

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

 

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

 

*Quality Auditor* meansthe quality auditor for the purposes of *clause 5*;

 

6

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

 

*Quality Control Report*  means a report containing the informationdescribed in the *Fifth Schedule*;

 

*Quality Control Requirements*  meansthe requirements specified in the *Fourth Schedule*;

 

*Quality Standards*  means the quality requirements and standardsspecified in the *Third Schedule *or as otherwiseagreed in writing between the Licensor and Licensee from time to time pursuantto *clause 6.9*;

 

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

 

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

 

(a)                            is for or inrelation 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 solelyincidental to the business of Lloyds TSB Group members or the use of the BlackHorse Brands or other forms or variations of them outside New Zealand which,for example, may include:

 

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

 

(ii)                       websites targetedat customers, potential customers or others outside New Zealand, and which usefirst-level domain names for countries other than New Zealand even if they areaccessible inside New Zealand (but not websites which use first-level domainnames for New Zealand);

 

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

 

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

 

*Share Sale Agreement*  meansthe Share Sale Agreement dated on or about 24 October 2003 betweenLloyds Bank Subsidiaries Limited as vendor, the 

 

7

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

 

*Signing Date* meansthe date of signing of the Share Sale Agreement;

 

*Sponsorship *means any sponsorship, endorsement oraffiliation (and “Sponsor”, “Sponsored” and “Sponsoring” will be interpretedaccordingly);

 

*Term*  has the meaning given to it in *clause 3.1*;

 

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

 

*Trade Marks* meansthe 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 markapplications that the Licensor and the Licensee agree in writing from time totime will form part of the Trade Marks;

 

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

 

(a)                           the Trade MarkBrands and in all variations of them depicted, represented or described in theBrand Standards; and

 

(b)                          the ApprovedFuture Trade Marks.

 

8

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## **1.2**                          Construction of References

In this Agreement, unless the contextrequires otherwise:

 

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

 

*Black Horse Brands:*  a reference to Black Horse Brands is to allof 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 aBusiness Day may be done effectually on the next Business Day;

 

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

 

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

 

*Lloyds TSB Copyrights: *a reference toLloyds TSB Copyrights is to all of the Lloyds TSB Copyrights and to each ofthem;

 

*Material breach:*  a reference to a material breach includes aseries of persistent or recurring breaches of a similar kind which, althoughnot material in each particular instance, are material in aggregate;

 

*Negative Obligations:*  a reference to a prohibition on the Licenseedoing any thing includes a reference to the Licensee not permitting, sufferingor causing that thing to be done;

 

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

 

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

 

*Person*:  a reference to a person includes an individual, body corporate, anassociation of persons (whether corporate or not), a trust, a state and anagency of a state (in each case, whether or not having separate legalpersonality and whether incorporated or existing in New Zealand orelsewhere);

 

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

 

9

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

 

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

 

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

 

*Time*:  unless otherwise stated references to timeare references to New Zealand time;

 

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

 

*Use*:  a reference to “use” in relation to any ofthe Trade Mark Copyrights includes where not inconsistent with the context,possession, use or reproduction or the creation of new versions of all works inthe 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 orotherwise traced, copied or reproduced includes all modes of presenting orreproducing words, figures and symbols in a tangible and permanently visibleform.

 

## **2**                                   GRANTOF NEW LICENCES

# ** **

## **2.1**                          Grant of Licences

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

 

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

 

(i)                               during the Term; and

 

(ii)                            for the Licensed Purpose;

 

(b)                                 a non-exclusivelicence to use each of the Trade Marks (including by permitting other membersof the Licensee Group to use each of the Trade Marks), but only in carrying onthe Business, and only:

 

(i)                               during the Term;  and

 

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(ii)                            for NBNZ Incidental Use;and

 

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

 

(i)                         during the Cleansing Term; and

 

(ii)                            for the Licensed Purposeand NBNZ Incidental Use.

 

## **2.2**                          Restrictions on licences

The licences granted pursuant to this Agreement do not extend to, andno member of the Licensee Group may use the Trade Marks on in connection withor 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 greaterthan 5% of the net tangible assets of the Licensee Group determined byreference to the most recent audited annual financial statements of the LicenseeGroup.

 

## **2.3**                           Use by Agents

The licences granted under *clause2.1*extend to the use of those Trade Marks by agents or contractorsto the Licensee (or another member of the Licensee Group), but only for thecreation, development and production of materials, used or to be used in theBusiness in accordance with and subject to the terms of this Agreement and notin any way that prejudices the Licensor’s right, title and interest in theTrade 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 theLicensor, the Licensee will at the reasonable cost of the Licensor promptly doall things and execute all documents reasonably necessary to enable theLicensee to be entered on the New Zealand Trade Marks Register as a licensee ofthe Trade Marks which are registered trade marks (or any of them).

 

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

 

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

 

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registration of the Licensee as a licensee ofthe Trade Marks (agreement not to be unreasonably withheld) and the intentionis that any registration of the Licensee as a licensee of the Trade Marks isconsistent with the licences granted under this Agreement.  If difficulties are experienced with IPONZin achieving this, the parties will liaise and use reasonable efforts to agreean appropriate course of action consistent with the intent of this *clause 2.4(c).*

 

## **2.5**                          Sponsorship Restriction

Subject to the provisions of *clause2.6*, the Licensee must not (and must ensure that other members ofthe Licensee Group do not) at any time use any of the Trade Marks forSponsorship of:

 

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

 

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

 

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

 

without the prior written consent of theLicensor (not to be unreasonably withheld, provided that it will not beunreasonable for the Licensor to withhold its consent if the Licensor or anyother member of the Lloyds TSB Group sponsors, endorses or is affiliated withany Person or Event of the same, or of a similar type, in any country or, atthe time of receipt of the request, is considering doing so whether or notthere 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 fromcontinuing any Sponsorship or agreement it is party to immediately prior to theCommencement Date including of New Zealand Cricket Inc, Netball New Zealand Incand the New Zealand Symphony Orchestra Limited;

 

(b)                                 the Licensee or anymember of the Licensee Group from Sponsoring any Person or Event other thanrugby where that Sponsored Person or Event is based solely within New Zealandand where there is no exposure (including whether by media coverage,advertising, public visibility or otherwise), or exploitation of, the TradeMarks in other countries,

 

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(c)                                  the Licensee or anymember of the Licensee Group from Sponsoring school or university rugby exceptto 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 theLicensee Group nor any person that the Licensee controls or is responsible forwill, use any trade mark, name, company name, brand, logo or domain namecomprising or incorporating the Trade Marks or use any of the Black Horse Brandsother than as expressly permitted by this Agreement.

 

## **2.8**                           Licensor’s Consent

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

 

## **2.9**                           Thoroughbred Trade Mark

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

 

## **2.10**                     Private Banking

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

 

## **2.11**                     IPONZ Notices

The Licensor will copy to the Licensee all notices received from theIntellectual Property Office of New Zealand concerning the Trade Marks and theLicensee 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 ofthem as a trade mark at any time):

 

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(a)                                  for a period of 6months after Closing, but only in documentation existing as at Closing that isnot documentation used for or in connection with the promotion of the Licenseeor the marketing or offering of the Products and Services; and

 

(b)                                 to the extent requiredto enable the Licensee to comply with its legal company reporting and otherlegal 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 theLicensor for, the compliance of all other members of the Licensee Group withthe terms of this Agreement as if each of those other members of the LicenseeGroup were the Licensee.

 

## **2.14**                     Licensor’s obligations

Subject to the provisions in this Agreement for:

 

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

 

(b)                                 Infringement, theLicensor must not (and will procure that no member of the Lloyds TSB Groupwill) during the Term for any Trade Mark (and, in the case of the Colour GreenTrade Mark, if registered, the Cleansing Term) cancel, disclaim, or alter anyregistrations for, or registrations of the Licensee as a user of, that TradeMark 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 unreasonablywithheld); or

 

(c)                                  Infringement, theLicensor must not (and will procure that no member of the Lloyds TSB Groupwill) during the Term for any Trade Mark (and, in the case of the Colour GreenTrade Mark, if registered, the Cleansing Term) withdraw any pending New Zealandtrade mark applications for that Trade Mark in the Licensor’s name current atthe Commencement Date without the prior written consent of the Licensee (not tobe unreasonably withheld).

 

## **2.15**                     ING Use of Trade Marks

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

 

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(a)                                  for the purposes of performingthe activities contemplated by, and in accordance with the terms of, the INGJoint Venture Arrangements; and

 

(b)                                 in accordance with theterms of this Agreement; and

 

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

 

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

 

## **2.16**                     Exceptions tocompliance with Brand Standards

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

 

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

 

(b)                                 engage in PermittedCo-branding only in carrying on the Business in New Zealand, during the Term andfor the Licensed Purpose.

 

Any provision in this Agreement requiring the Licensee to comply withthe 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 RestrictedServices in any way except for such use on:

 

(a)                                  letterhead; and

 

(b)                                 corporatedocumentation,

 

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

 

## **2.18**                     Permitted Product Names

During the Term and thereafter, the Licensee may use any of thefollowing words other than in the form registered and alone or in combinationwith 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, aTrade Mark, it may only use it in the form prescribed by the Brand Standardsor, in the case of 

 

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FARMCOVER in the form registered, and the Licensee may not use thosewords in combination with the Trade Marks following expiry or earliertermination of this Agreement.

 

# **3**                                    TERM ANDCONSIDERATION

 

## **3.1**                           Term

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

 

(a)                           until the seventhanniversary of Closing; or

 

(b)                          until this Agreement isterminated (whether in whole or only in respect of that Trade Mark) by eitherparty 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 thesum of NZ$1, receipt of which the Licensor hereby acknowledges.

 

# **4**                                    TERMINATIONOF EXISTING LICENCES

# ** **

## **4.1**                           Termination

## ** **

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

 

## **4.2**                           Cancellation of Registrations

The parties will promptly following the Commencement Date at the costof the Licensor do all things necessary to remove or cancel all the currentregistrations of the Licensee or any other member of the Licensee Group as auser or licensee of any trade marks owned by the Licensor or by any othermember of the Lloyds TSB Group and, on the request of the Licensor, theLicensee will promptly do all things and execute all documents necessary toachieve this (and will procure any other member of the Licensee Group to doso).

 

# **5**                                    QUALITYAUDITOR

# ** **

## **5.1**                           Appointment

## ** **

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

 

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## **5.2**                           Quality Auditor’s Rights

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

 

## **5.3**                           Licensor To EnsureCompliance by Quality Auditor

The Licensor shall ensure that the Quality Auditor complies with therelevant obligations of the Licensor under this Agreement including theprovisions 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 Marksonly as permitted by this Agreement and must not use the Trade Marks on or inrelation to any other products or services, or for any other purposes;

 

(b)                                 when reasonablyrequested by the Licensor by notice in writing, use the Trade Marks in a mannerthat gives clear notice to customers and the public that the Trade Marks arelicensed 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 TradeMarks or make any reference to, or use of, the name or trade mark LLOYDS or thewords “BLACK HORSE” except as permitted by *clause 2.12*,this *clause 6.1(b)*or withthe prior written consent of the Licensor or as the Licensor requests from timeto 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 astatement acknowledging the Licensor’s proprietorship of the Trade Marks asrequested by the Licensor under this *clause 6.1(b)*;

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)                                  on and from Closingnot use the Trade Marks in conjunction with other trade marks which do not formpart of the Trade Marks (whether or not registered), except as PermittedCo-Branding or:

 

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

 

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

 

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

 

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

 

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(cc)                     the Licensee’s need to manage anorderly transition of the Business to the Purchaser’s existing brand or to anew brand; and

 

(dd)                   the need for such transition to beconducted efficaciously and in a timely manner without undue delay incompleting the transition; and

 

(f)                                    without limitationto *clause 6.1(c)* or *6.1(e)*, not under any circumstances createor use any merged or hybrid trade marks comprised of any of the Trade Marks (orany part of any of the Trade Marks) and any trade mark (or any part of anytrade mark) not forming part of the Trade Marks without the prior writtenconsent of the Licensor.

 

## **6.2**                           Notification to Licensor

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

 

## **6.3**                           Notification toLicensor 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 orother 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 makeuse of that Trade Mark in the course of the following six months, then:

 

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

 

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

 

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

 

## **6.4**                           Goodwill and Reputation

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

 

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## **6.5**                           No other Association withLicensor

(a)                        Except as expressly authorisedby this Agreement or with the prior written consent of the Licensor theLicensee must not at any time anywhere in the world register, file anapplication for or attempt to register any trade mark, business name, companyname, domain name, (or anything of a similar nature to any of these things),that is identical to, confusingly similar to, derived from, a colourableimitation of, or which incorporates the Black Horse Brands (or any of them) orinclude any of these things as part of any corporate, business or trading nameor style anywhere in the world (or any of them) and the Licensee will ensurethat no other member of the Licensee Group does any of these things.

 

(b)                       Subject to the provisions ofthis Agreement relating to trade mark and copyright notices, neither party mayat any time do or omit to do any thing, or make any representation whichimplies, suggests, or is likely to make any person believe, that the Licenseeis connected with, or has any commercial or business relationship with, theother than the relationship which exists under this Agreement (and each partywill 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 notat any time (including after termination or expiry of this Agreement) adopt oruse in any manner (including as a company name, domain name, brand or inmarketing or promotional materials or activities) any trade marks, signs,symbols, logos, themes, ideas or imagery:

 

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

 

(b)                          do anything, which woulddilute, take unfair advantage of, or be detrimental to, the distinctivecharacter or repute of any of the Black Horse Brands,

 

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

 

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

 

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

 

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and the Licensee will ensure that no other member of the Licensee Groupdoes 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 TradeMarks 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 TradeMarks in the Brand Standards,

 

(*Future Trade Marks*) theLicensee must not commence use of the Future Trade Mark unless the Licensor hasfirst approved in writing:

 

(c)                                  the Future Trade Markfor use by the Licensee; and

 

(d)                                 the relevant BrandStandards 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*) willthen form part of the Trade Mark Brands.

 

## **6.8**                           Registration ofApproved Future Trade Marks

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

 

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

 

(b)                                 if the Licensor doesnot wish to register that Approved Future Trade Mark, the Licensee may apply inthe Licensor’s name for registration of that Approved Future Trade Mark, andthe Licensee will comply with all the Licensor’s reasonable directions in thatregard,

 

and the Licensor or Licensee (as the case may be) will provide allassistance reasonably required by the other in registering such Approved FutureTrade Marks.

 

## **6.9**                           Changes to QualityStandards or Brand Standards

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

 

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(a)                           the specific change orchanges proposed;

 

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

 

(c)                           the grounds upon which theLicensee believes that such change or changes will not result in any overallmaterial lessening of the Quality Standards or Brand Standards establishedunder this Agreement.

 

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

 

# **7**                                    NOENCUMBRANCES

# ** **

Unless the Licensor has given its prior written consent, the Licenseemust not create, or permit to subsist, any Encumbrance whatsoever over thisAgreement 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 businessassets of the Licensee or which arises solely by operation of law or in theordinary course of, and for the purposes of carrying on, the Licensee’sordinary business.

 

# **8**                                    BLACK HORSE BRANDS

# ** **

## **8.1**                           Vested Exclusively inLicensor

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

 

# **9**                                    LLOYDSTSB COPYRIGHTS

# ** **

## **9.1**                           Owned by Licensor

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

 

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by the Licensor and that none of the Licensee, any other member of theLicensee Group, any of their agents or contractors (or their respectivepersonnel), or any person controlled by the Licensee or any other member of theLicensee Group for which the Licensee or any other member of the Licensee Groupis responsible, will at any time own any of the Lloyds TSB Copyrights or haveany rights to use the Lloyds TSB Copyrights except as expressly provided inthis Agreement.

 

## **9.2**                           Contracts with Creators

If any works are produced by or for the Licensee (or any other memberof the Licensee Group) which form part of or reproduce any of the Lloyds TSBCopyrights, the Licensee must ensure that every person involved in thecreation, 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 theLicensor that:

 

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

 

(b)                                 assigns all thatperson’s right, title and interest in and to any Lloyds TSB Copyrights to theLicensor (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 executionall waivers or assignments executed in accordance with *clause 9.2*.

 

## **9.4**                           Assignment of Copyrightsby Licensee

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

 

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

 

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

 

# **10**                              FURTHER ASSIGNMENTS OF LLOYDS TSB COPYRIGHTS/TRADE MARKS

# ** **

To the extent that:

 

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

 

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

 

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

 

the Licensee will promptly, on request of the Licensor, and at the costof the Licensor, do all things and execute all documents necessary to assignall that right, title and interest to the Licensor to the extent possible atlaw and will procure that any person controlled by the Licensee, or for whichthe Licensee is responsible, or that is a member of the Licensee Group, or isreferred to in *clause 9.2*,also does so provided that the Licensor confirms that nothing in this clauseobliges the Licensee or any member of the Licensee Group to account to theLicensor for any value of the goodwill in the Trade Marks.

 

# **11**                              RESERVEDRIGHTS

# ** **

## **11.1**                     Other Use

The Licensee acknowledges and agrees that the Licensor or any othermember 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 anytime in New Zealand;

 

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

 

(c)                       any Trade Mark, or any trademark which is confusingly or deceptively similar to any Trade Mark, in NewZealand at any time for any purpose except during the Term and (except inrelation to the Colour Green Trade Mark) during the Cleansing Term.

 

## **11.2**                     Sponsorship

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

 

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

 

(b)                                 continuing anySponsorship or agreement it is party to immediately prior to the CommencementDate.

 

# **12**                              MAINTENANCE OF TRADE MARK REGISTRATIONS

# ** **

## **12.1**                     No Obligation to Maintain

Subject to the provisions of *clauses2.14(b), 2.14(c), 6.8*and* 13*, the Licensor has no obligation:

 

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

 

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

 

(c)                                  to defend, enforce orprotect the Trade Marks,

 

provided that if the Licensor does not pay the New Zealand renewalfee for the renewal of the registration of any Trade Mark during the relevantTerm, the Licensee may do so but subject, without limitation, to the provisionsof *clauses 8 and 10*.  In this case the Licensor will promptlyreimburse the Licensee for the amount of the renewal fee.

 

## **12.2**                     Licensee to ProvideAssistance

The Licensee will (and will procure that any other member of theLicensee Group will) promptly on request of the Licensor do all thingsreasonably required by the Licensor (at the reasonable expense of theLicensor), to register in New Zealand in the name of the Licensor (or itsnominee) any applications for registration of any of the Trade Marks and of anytrade 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 registrationof the Colour Green Trade Marks (*ColourGreen Applications*) (or not do so) as it sees fit, provided that ifthe Licensee requests the Licensor to do so, the Licensor will at thereasonable cost of the Licensee take reasonable steps to try to register theColour Green Applications (but the Licensor has no obligation to do so if theprospects of successfully registering the Colour Green Applications for areasonable cost are considered by the Licensor on reasonable grounds to beunlikely).

 

# **13**                              INFRINGEMENT

# ** **

## **13.1**                     Notification of Infringements

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

 

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

 

(b)                                 any actual, suspectedor threatened challenge to any Trade Mark or any goodwill associated with theTrade Mark (including by the Commissioner of Trade Marks or another thirdparty);

 

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

 

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

 

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

 

The provisions of the *Sixth**Schedule *willapply to all instances of Infringement.

 

## **13.2**                     Black Horse Brands

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

 

# **14**                              TERMINATION

# ** **

## **14.1**                     Termination By Licensor forCause

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

 

(a)                                  the Licensee makes anassignment for the benefit of or makes any arrangement or composition with itscreditors (or threatens any of these things) other than for purposes of asolvent reconstruction, amalgamation, merger or consolidation exclusivelywithin the Licensee Group;

 

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

 

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

 

(d)                                 a receiver, officialadministrator, custodian, statutory manager or other similar officer isappointed to the Licensee or in relation to all or any material part of itsassets;

 

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

 

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amalgamation, merger or consolidationexclusively within the Licensee Group;

 

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

 

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

 

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

 

(i)                               not capable of remedy;or

 

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

 

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

 

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

 

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

 

## **14.2**                     Termination By Licensorfor Non-Use

The Licensor may terminate this Agreement in respect of a Trade Markimmediately on written notice to the Licensee if for any continuous period of36 months, the Licensee does not make genuine use of that Trade Mark.

 

## **14.3**                     Termination of AMember of Licensee Group

Without limiting the provisions of *clause14.*1, if any of the events (specified in *clauses 14.1(a), (b), (c), (d) or (e)* occur in respect of amember of the Licensee Group other than the Licensee, the Licensor mayimmediately on written notice of the Licensee and that Licensee Group memberterminate any rights or benefits conferred on that member of the Licensee Groupunder this Agreement and the Licensee shall procure that that member ceases useof the Trade Marks.

 

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## **14.4**                     Termination By Licensee

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

 

# **15**                              EFFECTOF TERMINATION/EXPIRY

# ** **

## **15.1**                     Cessation of Use etc

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

 

(a)                                  the Licensee mustimmediately cease to use, reproduce or exploit the Trade Marks (or any trademark or representation identical to, confusingly similar to, or a colourableimitation of, the Trade Marks) and Lloyds TSB Copyrights in any way;

 

(b)                                 the Licensee must notrepresent that it has any association with the Licensor or do anything (or omitto do anything) which is likely to lead any person to consider that theLicensee is permitted to use the Black Horse Brands or is in any way connectedwith the Licensor or any other member of the Lloyds TSB Group;

 

(c)                                  the Licensee mustpromptly execute all documents and do all things necessary to remove or cancelany 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 NewZealand Trade Marks Act 2002) of the Trade Marks (and will procure any othermember of the Licensee Group to do so);

 

(d)                          the Licensee must promptly:

 

(i)                         disclose to the Licensor alldomain names; and

 

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

 

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

 

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(e)                                 the Licensee must notuse 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 theLicensee, or for which the Licensee is responsible, or that is a member of theLicensee Group, also does so.

 

## **15.2**                     Specific Trade Marks

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

 

# **16**                              INDEMNITY

# ** **

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

 

(a)                        arising because or by reason ofthe entry into or termination or expiry of this Agreement, or the grant orterms or conditions of the licence contained in this Agreement (and in the caseof any term or condition whether as expressed in this Agreement or as adjustedor reconstructed (or deemed adjusted or reconstructed) by any taxation or othercompetent authority or court for any purpose and whether as part of, or for thepurposes of, an adjustment or reconstruction (deemed or otherwise) of the termsor conditions of any other agreement), or the performance by the Licensor ofthis Agreement; or

 

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

 

(c)                        resulting from any and allliability claims arising from products or services upon which, or in connectionwith which, the Trade Marks have been used; or

 

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

 

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

 

(e)                        arising from any proceedingstaken by the Licensee (including proceedings to which the Licensor is joined atthe 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 theother party concerning any matter or thing related to this Agreement shall bein writing.  Notices to a party shall bedelivered to the designated address of the party to which the notice is to be givenor shall be sent by facsimile message to the relevant party at thataddress.  Any such notice orcommunication shall be deemed to have been given:

 

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

 

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

 

(c)                           on the day of despatch, where afacsimile 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 isdespatched after the end of business hours in the city to where the message issent or on a day that is not aBusiness Day.

 

## **17.2**                     Designated Addresses

Adesignated address forthe purpose of this Agreement shall be that specifically designatedin the *Seventh Schedule *orsuch other address as shall be specifically designated by a party by noticegiven to the other party in substitution therefore.

 

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## **17.3**                     Waiver

It is agreed that:

 

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

 

(b)                          any waiverhereunder shall be effectiveonly in the specific instance and for the purpose of the waiver; and

 

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

 

## **17.4**                     Governing Law

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

 

## **17.5**                     Other Disputes

Where a dispute arises in relation to this Agreement other than aDispute for the purposes of *clause 6.4,*the parties will consider on reasonable grounds whether an agreed form ofalternative dispute resolution would be a better way to resolve or mediate thatdispute, before taking the dispute for adjudication before the New ZealandCourts (but subject always to the right to obtain urgent interlocutory relieffrom 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 maybe brought in the New Zealand Courts, which shall have non-exclusivejurisdiction to settle any disputes arising out of or in connection with thisAgreement.  The parties herebyirrevocably and unconditionally consent to submit to the non-exclusivejurisdiction of the Courts of New Zealand for any Proceeding arising out of orrelating to this Agreement and the transactions contemplated hereby.  The parties further irrevocably andunconditionally waive any objection to the laying of venue of any Proceedingarising out of or relating to this Agreement or the transactions contemplatedhereby, in the Courts of New Zealand, and hereby further irrevocably andunconditionally waive and agree not to plead or claim to any such Court thatsuch Proceeding is brought in an inconvenient forum.  The parties further irrevocably agree that a judgment in anyProceeding may be enforced in the Courts of any other jurisdiction.  The foregoing submission to the 

 

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

 

## **17.7**                     Process Agent

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

 

## **17.8**                     Severability

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

 

## **17.9**                     Amendments

Anyamendments to thisAgreement shall be executed by each party in the same manner and with thesame formality as this Agreement is executed.

 

## **17.10**               Execution and Delivery

ThisAgreement shall not be binding on either party until it has been executed anddelivered by each of the parties. An executed copy of this Agreement which isdelivered by a party by facsimile shall be binding on the other party as if itwas an original.

 

## **17.11**               Counterparts

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

 

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## **17.12**               Further Assurances

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

 

## **17.13**               Confidentiality

No party shall for any purpose other than those provided for oranticipated by this Agreement use or disclose to any other person (who is notthe other party or a related company of another party) the terms of thisAgreement or any information identified as confidential and disclosed to theother under this Agreement except:

 

(a)                           with the prior writtenconsent of the other party;

 

(b)                          where disclosure is requiredby law or is made in compliance with the order of any Court of competentjurisdiction or any regulatory authority;

 

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

 

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

 

(e)                           disclosure to an independentfinancial, legal or accounting consultant to the disclosing party or a RelatedCompany of the disclosing party where such consultant needs to know suchinformation for the purposes of providing advice to the disclosing party or toa related company of the disclosing party and the relevant consultant is undera duty or obligation to maintain the confidentiality of the information beingdisclosed.

 

## **17.14**               Assignment/Sub-licence

(a)                           The Licensee must notwithout the prior written consent of the Licensor sub-licence, sub-contract,transfer, assign or otherwise dispose of any of its rights or obligations underthis Agreement or in and to the Trade Marks except that the Licensee maysub-licence all or any of its rights under this Agreement or in and to one ormore of the Trade Marks to one or more members of the Licensee Group withoutthe prior consent of the Licensor;

 

(b)                          Either a change in control:

 

(i)                               of the voting rights ofthe Licensee; or

 

(ii)                            of the effective managementor control of the Licensee,

 

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

 

(aa)                  *thevoting 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 whollyowned subsidiary immediately following Closing, (y) to shares of any othercompany in respect of which at that time the Licensee is a wholly ownedsubsidiary, and (z) to shares in the Licensee (determined as necessary on alook through basis); provided that to the extent a change in control is causedsolely as a consequence of shares issued pursuant to a rights issue or an offerof shares to the public at large, there shall be deemed to be no change incontrol; and

 

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

 

(cc)                  except as expressly permitted in thisAgreement a change in control, with reference to the effective management orcontrol of the Licensee, means a change in who may appoint or remove (whetherpursuant to voting rights or by contract) the majority of directors to acompany described in *paragraph (aa)*.

 

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

 

## **17.15**               NoPartnership/Agency/Joint Venture

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

 

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

 

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

 

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## **17.16**               Time is of the Essence

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

 

## **17.17**               Contracts (Privity) Act

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

 

## **17.18**               Other Rights

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

 

## **17.19**               Entire Agreement

This Agreement constitutes the entire agreement between the partieswith respect to the matters dealt with herein and replaces all earliernegotiations, representations, warranties, undertakings and agreements whetheroral or written between the parties relating to the matters dealt with herein.

 

## **17.20**               Rights of Lloyds TSBGroup and the Licensee Group

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

 

(a)                        the Licensee acknowledges thatany provision of this Agreement by which the Licensee confers a benefit on theLicensor is intended to confer a benefit on each other member of the Lloyds TSBGroup (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 beenforceable by any member of the Lloyds TSB Group; and

 

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

 

(i)                          to the extent that such Lossarises 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 thesame loss by any other member of the Licensee Group.

 

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However this Agreement may beamended (in accordance with its terms) by the parties without the need toobtain the consent of any member of the Lloyds TSB Group other than theLicensor or any member of the Licensee Group other than the Licensee.

 

## **17.21**               Survival of Provisions

This clause and the following clauses andschedules will continue in effect after termination, cancellation or expiry ofthis 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                                                                        |

 

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# **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

 

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# **SECOND SCHEDULE**Thoroughbred Trade Mark

(*Clause2.9*)

 

•                      TheThoroughbred Among Banks

 

•                      ThoroughbredCard

 

•                      ThoroughbredGold Card

 

•                      ThoroughbredOne *

 

•                      ThoroughbredSelect *

 

•                      ThoroughbredHome Loan

 

•                      ThoroughbredFlexible Home Loan

 

•                      ThoroughbredEducation Fund

 

•                      ThoroughbredSaver

 

•                      ThoroughbredGoal Saver *

 

•                      ThoroughbredCash Fund

 

•                      ThoroughbredUnit Trust

 

•                      ThoroughbredInvestor *

 

•                      ThoroughbredSuperannuation Scheme

 

•                      ThoroughbredBalanced Trust

 

•                      ThoroughbredNZ Equity Growth Trust

 

•                      ThoroughbredAustralian Equity Growth Trust

 

•                      ThoroughbredTrans Tasman Growth Trust

 

•                      ThoroughbredConservative Trust

 

•                      ThoroughbredCorporate Bond Trust

 

•                      ThoroughbredInternational Equity Growth Trust

 

•                      ThoroughbredGrowth Trust

 

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•                      ThoroughbredCashback*

 

•                      ThoroughbredInternational Bond Trust

 

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# **THIRD SCHEDULE**Quality Standards

(*Clause6.4)*

 

The Licensee must:

 

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

 

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

 

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

 

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

 

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# **FOURTH SCHEDULE**Quality Control Requirements

(*Clause6.4*)

 

**AnnualReport**

1                                    The Licensee shallprovide the Licensor no later than 30 November each year during theTerm (other than in 2003) with a Quality Control Report certified by a seniorexecutive of the Licensee (being of a similar position as and with similarauthority to the Lloyds TSB Brand Manager) as being true and correct in respectof the immediately preceding twelve month period (each such period, an *annual reporting period*).

 

**Inspection**

2                                    At such reasonableintervals as the Licensor may determine (but unless the Licensor considers onreasonable grounds that the Licensee has committed a material breach of theQuality Standards, the Brand Standards or this Agreement, not more than once inany year), upon request by the Licensor, the Licensee shall permit the Licensorto inspect:

 

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

 

(b)                          copies of printedadvertising, point of sales materials, and other promotional materials on whichany of the Trade Marks is or has been used;

 

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

 

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

 

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

 

(f)                             any business premises usedby the Licensee in producing goods or providing services in connection with theTrade Marks;

 

(g)                          other information andmaterials relevant to determining whether the Licensee has met the qualitystandards specified in the *ThirdSchedule *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 Licenseehas materially complied with the Quality Standards in the period to which therelevant report relates;

 

(i)                              confirming that use ofthe Trade Marks by the Licensee has materially complied with the relevant BrandStandards; and

 

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

 

**Noticeof Non-Compliance**

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

 

(a)                           the Licensee has notmaterially complied with Quality Standards in the period to which the relevantreport relates;

 

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

 

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

 

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

 

**RectificationPlan**

4                                    The Licensee mustthen submit a rectification plan to the Licensor within 45 days of receiptof a Compliance Notice from the Licensor (*RectificationPlan*).  The RectificationPlan may be submitted in conjunction with a proposed change to the applicableQuality Standards submitted or the applicable Brand Standards in accordancewith *paragraph 9* of this *Fourth Schedule *and the RectificationPlan must include a period of time during which the relevant matters will berectified.

 

**Meeting**

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

 

**Implementationof Rectification Plan**

6                                    If the Licensee andthe Licensor reach agreement on an appropriate Rectification Plan (havingregard to any change which may be agreed to any applicable Quality Standards orthe applicable Brand Standards) within 30 days of submission of the proposedRectification Plan, the Licensee shall rectify its performance in accordancewith the requirements of the Rectification Plan.

 

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**NoAgreement on Rectification Plan**

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

 

**QualityControl Event**

8                                    If:

 

(a)                           the Licensee fails to submita Rectification Plan to the Licensor within the 45 day period provided forin *paragraph 4*of this *Fourth Schedule*; or

 

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

 

(ii)                            a Rectification Plan hasnot been agreed within 30 days of submission of the proposed Rectification Planto the Licensor and the Licensee fails to restore its performance to a levelsatisfying the applicable Quality Standards (or any agreed modified QualityStandards or any agreed modified Brand Standards), the relevant Brand Standardor the relevant provisions of this Agreement, as the case may be, as soon asreasonably practicable and in any event no later than the annual reportingperiod after the period in which meeting held in accordance with *paragraph [5]*of this *Fourth Schedule *occurs; or

 

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

 

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

 

**General**

9                                    All obligations ofthe Licensor under this *FourthSchedule *shall be complied with in a professional manner.

 

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# **FIFTH SCHEDULE**Quality Control Report

(*FourthSchedule*)

 

**Introduction**

1                                    The purpose of theQuality Control Report is to confirm whether or not the Licensee has compliedwith:

 

(a)                           the Quality Standards; and

 

(a)                           the Brand Standards

 

in relation to the use of the Trade Marks.

 

2                                    To achieve thispurpose, each Quality Control Report required pursuant to *paragraph 1*of the *Fourth Schedule *shall include twoparts.  This Schedule provides anoutline of the required content of each part.

 

**PartA: Compliance of Products and Services with Quality Standards**

3                                    The Quality ControlReport must confirm the compliance by the Licensee in meeting the QualityStandards.

 

4                                    The Quality ControlReport must also report in detail on any failure to comply in a materialrespect with any applicable Quality Standard and shall provide an assessment ofthe seriousness and potential impact of any failure identified.

 

**PartB: Brand Use**

5                                    The Quality ControlReport must confirm the compliance by the Licensee with any applicable BrandStandards in relation to use of the Trade Marks.

 

6                                    The report willsummarise any new uses of the Trade Marks since the date of the last QualityReport (or, in the case of the Quality Report due by30 November 2004, since the Commencement Date).

 

7                                    The Quality ControlReport must also identify any material misuses of the Trade Marks as well asproviding an assessment of the seriousness and potential impact of any misusesidentified.

 

8                                    Without limitationto *clause 6.2*of thisAgreement, the Quality Control Report must identify if for any continuousperiod of 30 months the Licensee or other member of the Licensee Group has notmade genuine use of a Trade Mark.

 

**Further Information**

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

 

44

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(a)                           relevant to assessing itscompliance with the Quality Standards and Brand Standards in the period towhich the Quality Report relates; or

 

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

 

on the reasonable request of the Licensor.

 

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# **SIXTH SCHEDULE**Infringement

(*Clause 13*)

 

### ***Selection of Lead Party***

1                                    Within 10 days ofreceipt 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 thisSchedule.  For the avoidance of doubt, areference to “pursue” or “pursuing the Infringement” includes references to thedefence or protection of a Trade Mark from challenge by a third party or actiontaken by the New Zealand Trade Mark Commissioner.  Nothing in this *paragraph 1*shall prevent a partytaking urgent interlocutory action if the circumstances of the Infringementjustify those steps.

 

2                                    The party wishingto Lead will Lead unless both parties wish to Lead, in which case the Licensorwill Lead*.*

 

### ***Lead Party Rights andObligations***

3                                    The Lead party:

 

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

 

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

 

### ***Reserve Party Obligations***

4                                    Each Reserve partywill co-operate fully, including taking in its own name any proceedings, orjoining with the Lead party in any proceedings, for Infringement or otherrelevant proceedings if called upon by the Lead party to do so. The Lead partywill reimburse the reasonable costs incurred by the Reserve party in complyingwith this *paragraph 4*.

 

### ***Swapping the Lead and otherDisputed Issues***

5                                    If:

 

5.1                            a Reserve party believesthat:

 

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

 

(b)                         pursuit of the Infringement isnot justified due to the low chances of obtaining a successful outcome (whetherby 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 othertrade marks of Lloyds TSB Group in New Zealand or elsewhere (or Lloyds TSBGroup’s rights in or to them); or

 

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

 

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

 

6                                    The Expert willdetermine the dispute in a manner which the Expert considers appropriate actingfairly, impartially and in good faith having due regard to the merits of eachparty’s position, and will:

 

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

 

6.2                            determine his or her ownprocedure;

 

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

 

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

 

7                                    If the Expertdetermines that:

 

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

 

(b)                         pursuit of the Infringement isnot justified due to the low chances of obtaining a successful outcome (whetherby 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, othertrade marks 

 

47

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

 

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

 

8                                    The parties willcomply with the reasonable directions of the Expert and the Expert’sdetermination of the dispute will be final and binding on the parties.

 

### ***Allocating any Proceeds***

9                                    Notwithstanding anyjudgement or settlement, as between the parties any award, damages, account ofprofits  or monies recovered orresulting from any action or proceeding referred to in thisSchedule (including by way of settlement) (*Payment*) will be payable tothe Lead party and any Payment received by the Reserve party must, promptlyfollowing its receipt, be paid to the Lead party without deduction or set offof any kind.

 

10                              The Payment will beapplied by the Lead party as follows:

 

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

 

**Second: **Direct damagessuffered by the Lead party to the extent established in court or if nojudgement is obtained, then as reasonably provable by the Lead party as beingcaused by the Infringement;

 

**Third: **Payment to theReserve party for amounts claimable by the Reserve party under the twocategories above as if references to the Lead party were references to the Reserveparty;

 

**Fourth:** Payment of anyamount reasonably identifiable as being an account of profits made by theperpetrator of the Infringement in respect of an Infringement directly relatingto the Lead party;

 

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

 

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# **SEVENTH SCHEDULE**Party Directory

(*Clause17.2*)

 
| **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): |

 

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# **EIGHTH SCHEDULE**Dispute Resolution

(*Clause6.4*)

 

1                                A party to thisAgreement may not commence any court proceedings relating to any Dispute unlessit has complied with the following paragraphs of this Schedule exceptwhere the party seeks urgent interlocutory relief.

 

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

 

3                                On receipt of theNotice by the other party, both parties to this Agreement must endeavour ingood faith to resolve the Dispute expeditiously using informal disputeresolution techniques such as mediation, expert evaluation or determination orsimilar techniques agreed by them.

 

4                                If the parties do notagree within seven (21) days of receipt of the Notice (or such period as agreedin writing by them) as to:

 

(a)                        the dispute resolutiontechnique and procedures to be adopted;

 

(b)                       the timetable for all steps inthose procedures; and

 

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

 

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

 

5                                The conduct of amediation process in accordance with this clause shall be without prejudice toeach party’s ability, pursuant to *paragraph1* of this Schedule, to commence court proceedings upon completion ofsuch mediation process or after 30 days of the Notice being received, if abinding agreement has not been reached as a result of that mediation process.

 

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# **NINTH SCHEDULE**Deed of Covenant

(*Clause2.15*)

 

*Date:*                                                                     2003

 

**PARTIES**

 

**ING Investment Services Limited**

 

**ING (NZ) Limited**

 

##### **BACKGROUND**

##### ** **

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

 

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

 

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

 

##### **AGREEMENT**

##### ** **

By this Deed the parties agree as follows:

 

# **1**                               DEFINITIONS

# ** **

1.1                                 In this Deed, unlessthe context requires otherwise:

 

(a)                       *ING*means each of ING (NZ) Limited and ING InvestmentServices Limited;

 

(b)                      *ING Joint Venture Arrangements* means thearrangement contemplated by the terms of the joint venture between Australiaand 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 appearingin this deed are defined in the manner set out in this Deed or in the TradeMark Licence.

 

51

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# **2**                               COVENANT

 

2.1                                 With effect from thedate of this Deed, ING covenants with and for the benefit of the Licensor thatING 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 areto be observed and performed by the Licensee, to the extent that those termshave application to the use of the Trade Marks by ING and subject to the extentthat the covenants, terms and conditions in the Trade Mark Licence are modifiedby this Deed.

 

2.2                                 ING confirms that ithas 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 covenantsof the Trade Mark Licence.

 

# **4**                               SCOPE OF LICENCE

# ** **

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

 

(a)                        for the purposes of performingthe activities contemplated by, and in accordance with the terms of, the INGJoint Venture Arrangements; and

 

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

 

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

 

provided that none of the brands or trademarks of ING (or of any of its Related Companies) or any other person (exceptfor the Licensee Group as expressly permitted by Trade Mark Licence) are usedon or in relation to those products or services.

 

# **5**                               EXPIRY AND TERMINATION

# ** **

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

 

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# **6**                               ASSIGNMENT OR SUB-LICENCES

# ** **

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

 

# **7**                               PRESERVATION OF RIGHTS

# ** **

Theexercise by the Licensor of any express right set out in this Deed or the TradeMark Licence (“the Express Rights”) will be without prejudice to any otherrights, powers or remedies available to the Licensor under this Deed or theTrade Mark Licence, at law or in equity including any rights, powers orremedies which would be available to the Licensor if the Express Rights werenot set out in this deed.

 

# **8**                               FURTHER ASSURANCES

# ** **

ING and the Licensor will at its cost executeand deliver any documents and do all things as may reasonably be required bythe 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 INGInvestment Services Limited under this Deed and the Trade Mark Licence shall bejoint and several.

 
| **EXECUTED** as a deed                          |
|-------------------------------------------------|
|                                            |
| **ING (NZ) Limited**  by its attorney**[name]** |
|                                            |
|                                            |   |
|                                            |
| in the presence of:                             |
|                                            |
|                                            |   |
|                                            |
| Name:                                           |
|                                            |
| Occupation:                                     |
|                                            |
| Address:                                        |

 

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| **ING Investment Services Limited** |
|-------------------------------------|
| by its attorney **[name]**          |
|                                |
|                                |   |
|                                |
| in the presence of:                 |
|                                |
|                                |   |
|                                |
| Name:                               |
|                                |
| Occupation:                         |
|                                |
| Address:                            |

 

54

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# **TENTH SCHEDULE**ANZ Logo*(Clause 1.1)*

# ** **

 

 

55

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**IN WITNESS WHEREOF**thisAgreement 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

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**CERTIFICATE OF NON-REVOCATION**

 

**OF POWER OF ATTORNEY**

 

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

 
| 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 DELEGATIONOF POWER OF ATTORNEY**

 

**I,STEVEN MONTGOMERY FYFE** Executive Director and ChiefFinancial Officer of Wellington in New Zealand formerly known as GeneralManager Corporate Banking Division **HEREBYCERTIFY** that:

 

1.             ByDeed dated 17 November 1992 deposited in Land Information New Zealand asDealing Number 5467839.1 (the “Power of Attorney”), The National Bank of NewZealand Limited (the “Bank”) did constitute and appoint that person for thetime being and from time to time appointed by the Bank to act as the ChiefExecutive of the Bank (the “Attorney”) to be the attorney or agent of the Bank torepresent and act for, and in the name of, the Bank for all objects andpurposes, and with the powers and authorities, set out in the Schedule to thePower of Attorney.

 

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

 

3.             Byinstrument dated 19 November 1992 deposited in the Land Registry Officessituated 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 thepowers and authorities given to him under the provisions of paragraph 12 of theSchedule to the Power of Attorney to me (among others).

 

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

 

**DATED**at Wellington this 25th day of November 2003

 

 
|   | /s/ Steven  Montgomery Fyfe |   |
|--------|-----------------------------|--------|

 

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