Cash backed loan standard terms and conditions

Transcription

1 Cash backed loan standard terms and conditions The Borrower acknowledges receipt of a copy of these Terms and Conditions. Signature Borrower name Date Issue number 1 Version date 3 September 2013 Issuer National Australia Bank Limited, Hong Kong Branch ABN Registered office Level 27, One Pacific Place 88 Queensway, Hong Kong Client enquiries

2 National Australia Bank Limited cash backed loan standard terms and conditions 1. Application These Terms and Conditions form part of the Agreement. In the event of any inconsistency between these Terms and Conditions and the Offer, the Offer shall prevail. Capitalised words used in these Terms and Conditions are defined in Clause 28; references to Clauses are references to Clauses of these Terms and Conditions. 2. Facility Subject to the Agreement, the Lender shall provide the Borrower with a loan facility under which the Borrower may draw a single advance or, where the Offer divides the Facility into more than one tranche, a single advance for each tranche in an amount not exceeding the Facility Amount (or, if the Offer expressly so provides and/or the Facility is a revolving loan facility, and subject to the Lender s overriding right to suspend the right to draw advances at any time, multiple advances in an aggregate at any time outstanding not exceeding the Facility Amount) in such currency (ies) as specified in the Offer. 3. Conditions precedent The obligations of the Lender to make any Advance is subject to the condition precedent that the Lender receives the following in form and substance satisfactory to it: (a) (b) (c) (d) (e) (f) (Security): the Security; (financial information): such financial information concerning the Borrower and any other Security Provider as the Lender may require; (bank documents): the account opening documentation specified by the Lender, duly completed and signed by the Borrower; (legal opinion): such confirmations and opinions of legal counsel in any relevant jurisdiction as the Lender may require including, if required by the Lender, a report on title in form and substance satisfactory to it; (facsimile authority): the facsimile letter of authority required by the Lender, duly completed and signed by the Borrower; (corporate documents): if the Borrower or any other Security Provider is a company, copies certified by its director or company secretary, of its certificate of incorporation and memorandum and articles of association (or other constituent documents) and (unless the Borrower or other Security Provider is an Australian incorporated company) of resolutions of its board of directors (or other governing body) approving entry into, execution and performance of the Security Documents to which it is a party; and (g) (direct debit authorisation) (if applicable) a direct debit authorisation and other relevant documents duly completed and signed for the purpose of effecting a direct debit arrangement as required under Clause The Lender will not be responsible for any loss or damage suffered by the Borrower as a result of the Lender refusing to make any Advance as a result of any condition precedent listed in Clause 3 being unmet due to delay in receipt or loss of any document or for any other reason. 4. Drawdown The Borrower may draw, and the Lender shall make, the Advance (or, if the Offer states that more than one Advance may be drawn, any Advance) on any business day during the Availability Period subject to: (a) due satisfaction of the conditions precedent set out in Clause 3; (b) the Lender having received from the Borrower at least five business days irrevocable written notice specifying the intended Drawdown Date, the amount to be drawn, the currency in which the Advance is to be drawn (which must comply with Clause 5), and the Borrower s instructions for disposal of the proceeds; (c) payment of the fees specified in Clause 9; and (d) no event having occurred, and no information having been received by the Lender, which in the Lender s opinion would render it inadvisable or undesirable in the interests of the Lender for the Advance to be made. 5. Currency 5.1 Subject to Clauses 5.2 to 5.5, the Lender may (but is not obliged to) permit any Advance to be drawn in such currency(ies) as specified in the Offer or in other currency(ies) approved by the Lender from time to time. 5.2 Any conversion of currencies upon a drawing in a currency other than Hong Kong dollars or a switching of currencies shall be effected at the appropriate exchange rate as conclusively determined by the Lender. 5.3 The Borrower shall pay a fee of Australian Dollars 200 or the equivalent in such currency(ies) specified in the Offer to the Lender for each conversion or switching of currencies pursuant to this Clause 5 except for the first such conversion or switching. 5.4 Where the Offer specifies an interest rate in respect of one currency only (the Specified Currency ), the Borrower is not entitled to draw any Advance in a currency other than the Specified Currency, or to switch the Specified Currency to another currency after an Advance has been drawn. 2

3 5.5 All Advances or, where the Facility is divided into tranches of different currencies, all Advances made in respect of a particular tranche (if the Offer states that more than one Advance may be drawn) must at all times be denominated in the one currency. 6. Repayment 6.1 Notwithstanding anything else in the Agreement (including the Offer) or any other communication, document or statement from or by the Lender, or any officer or employee of the Lender, the Principal Outstanding is repayable on demand by the Lender, together with all accrued interest and other amounts then payable under the Agreement and unpaid. 6.2 Unless and until a demand for repayment is made, the Borrower shall repay the Principal Outstanding either in one lump sum on the Termination Date or by paying instalments of interest and/or principal on each Payment Date, in accordance with the Offer. 7. Prepayment 7.1 The Borrower may, on giving the Lender at least five business days irrevocable written notice specifying the date of prepayment (which must be a Payment Date) and the amount to be prepaid, prepay the whole or any part of the Principal Outstanding. Unless the Lender otherwise agrees, a partial prepayment must be an integral multiple of Australian Dollars 10,000 or the equivalent in such currency(ies) specified in the Offer. 7.2 For term loans and bridging loans, prepayments shall be applied against repayment instalments in inverse order of maturity. 8. Interest 8.1 The Borrower shall pay interest on the Principal Outstanding in arrears on each Payment Date with a final payment on the Termination Date. Interest shall be payable at the Interest Rate applicable to the currency in which the Advance is from time to time denominated, calculated on daily balances of the Principal Outstanding. 8.2 All interest payable under the Agreement shall be computed on the actual number of days elapsed and a year of 365 days (if the Principal Outstanding is denominated in Hong Kong dollars or Pounds Sterling) or 360 days (if the Principal Outstanding is denominated in any applicable currency other than Hong Kong dollars or Pounds Sterling). 9. Fees 9.1 The Borrower shall pay to the Lender the Fees. 9.2 The Lender may pay commission, fees or rebates to third parties who are associated with this transaction. The Lender may also receive commission, fees or rebates from its associates or other parties for whom the Lender may act as agent. 10. Payments 10.1 The Borrower shall make all payments under the Agreement and any other Security Document in the currency in which the Advance is then denominated in immediately available funds which must be received by the Lender no later than 11:00 am (Hong Kong time) on the due date for such payment. Any payments by telegraphic transfer shall be made in accordance with the following: (a) payments in Australian dollars by telegraphic transfer must be made in favour of the Lender to its account at National Australia Bank Limited, Head Office, 500 Bourke Street, Melbourne, Victoria 3000, Australia, account number HONG 197 with the Borrower named as favouree and the loan reference number quoted; (b) payments in New Zealand dollars by telegraphic transfer must be made in favour of the Lender to its account at Bank of New Zealand, 1 Willis Street, Wellington, New Zealand, account number with the Borrower named as favouree and the loan reference number quoted; (c) payments in United States dollars by telegraphic transfer must be made in favour of the Lender to its account at Citibank N.A., 111 Wall Street, New York, USA account number with the Borrower named as favouree and the loan reference number quoted; (d) payments in Pounds Sterling by telegraphic transfer must be made in favour of the Lender to its account at The Royal Bank of Scotland Plc, Financial Markets Operations, 10th Floor Drapers Gardens, 12 Throgmorton Avenue, London, account number with the Borrower named as the favouree and the loan reference number quoted; (e) payment in Euro by telegraphic transfer must be made in favour of the Lender to its account at Deutsche Bank AG, Taunusanlage 12-21, Frankfurt Am Main, Germany (account number ) with the Borrower named as favouree and the loan reference number quoted. 3

4 All sums payable by the Borrower under the Agreement and any Security Document in Hong Kong Dollars shall, unless the Lender otherwise requires, be made through a direct debit arrangement to the Lender s account bearing account number maintained with The Hongkong and Shanghai Banking Corporation Limited. For such purpose, the Borrower shall, prior to the drawdown of the any Advance mentioned in the Offer, sign and return to the Lender a direct debit authorisation and other relevant documents mentioned in Clause 3(g) and pay such handling charges in connection therewith. When payments in currencies other than Hong Kong dollars are made by cheque or banker s draft, the relevant cheque or draft must be received by the Lender no later than seven business days before the due date for the relevant payment If, at the option of the Lender, any payment of any instalment of or including interest is made by any method other than an autopay, direct debit or standing instruction arrangement approved by the Lender, the Borrower shall pay the Lender such handling charges as the Lender may conclusively determine The Borrower shall make all payments required under the Agreement and any other Security Document without set-off or counterclaim and without deduction, whether on account of Taxes (except to the extent that the Borrower is obliged to deduct Taxes, but without prejudice to Clause 11) or otherwise When any payment received by the Lender on the due date for such payment is less than the amount due as a result of deductions made by remitting and/or correspondent banks or exchange rate variations, if payment is made in a currency other than the currency in which the Advance is then denominated with instructions to the Lender to convert same to the currency of the Advance, the Lender shall have the right to add such amount due but unpaid to the next payment due, which will be payable on the next due date for payment. Interest will accrue from day to day from the due date up to the date of actual payment at the rate of interest specified in Clause 14 of these Terms and Conditions. 11. Taxation 11.1 Whenever the Borrower is obliged to make a deduction in respect of Tax from any payment to be made under the Agreement or any Security Document, then it shall (a) promptly pay the amount deducted to the appropriate governmental agency, (b) within thirty days of the end of the month in which the deduction is made, deliver to the Lender official receipts or other documentation acceptable to the Lender against such Tax, and pay the Lender such additional amounts as the Lender may determine to be necessary to ensure that the Lender receives when due a net amount (after payment of any Taxes in respect of such additional amounts) in the relevant currency equal to the full amount which it would have received had a deduction not been made. The obligations of the Borrower under this Clause shall survive the repayment of the Advance and the termination of the Agreement It is the Borrower s responsibility to seek professional advice on taxation and residency matters. The Borrower acknowledges that the Lender does not claim expertise in taxation matters and the Borrower does not rely upon the Lender for guidance on such matters. The Borrower has obtained, or does not wish to obtain, professional taxation advice from other sources. The Borrower also acknowledges that the Lender does not have any duty to advise the Borrower about adverse taxation burdens which might result as a consequence of the Advance or possible taxation benefits which might be available if funds were raised elsewhere or in another manner. Should the Borrower change residency status repayment may be required. 12. Representations and warranties The Borrower represents and warrants that: (a) (b) (corporate power and authorisation): (if the Borrower is a company) the Borrower has the power to enter into and perform the Agreement and any other Security Document to which it is a party and has taken all corporate and other action necessary to authorise the acceptance of the Offer, the execution of any other Security Documents and the performance of the Agreement and any other Security and the utilisation of the borrowings to be provided under the Agreement; (no consents): no consent, licence, permit or other authorisation or approval, governmental or otherwise (other than those delivered to the Lender prior to the Drawdown Date) is required in connection with the execution and performance of the Agreement or the Security Documents by the Borrower or any Security Provider; 4

5 (c) (d) (e) (document binding): the Agreement and each other Security Document is a valid and binding obligation of each party thereto (other than the Lender) enforceable in accordance with its terms and, in the case of any security interest, is a valid security ranking ahead of all other security interests (except as expressly agreed in writing by the Lender); (financial statements): each financial statement and all other information given by any Borrower or Security Provider or on its behalf to the Lender in relation to the Agreement is true and correct in every particular and except as notified to the Lender in writing there has been no material adverse change in the financial condition of any Borrower or Security Provider or the results of its operations since the date to which the relevant information relates; and (no litigation): except as notified to the Lender in writing there is no litigation, tax claim, dispute or administrative proceeding current or, to the Borrower s knowledge, threatened, which is likely to have a material adverse effect upon any Borrower or Security Provider or upon the ability of any of them to perform their obligations under the Agreement or any other Security Document. The representations and warranties set out above shall survive the acceptance of the Offer and the provision of accommodation under the Agreement and shall be deemed repeated on the Drawdown Date and each Payment Date. 13. Undertakings The Borrower undertakes as follows: (a) (b) (c) (Information): The Borrower and/or the Security Provider shall promptly supply to the Lender such information as to the financial condition of any Borrower and/or Security Provider as the Lender may request from time to time; (Other securities): The Borrower shall not and shall not purport to, and shall procure that each Security Provider shall not and shall not purport to, create, extend or permit to subsist without the prior written consent of the Lender any mortgage, charge, lien, pledge, encumbrance or other security interest of any kind on or over the whole or any part of the Property or any other property mortgaged or charged under any Security Document; and (Material adverse events): The Borrower shall promptly advise the Lender on becoming aware that any event has occurred which (whether with or without the lapse of time or giving of notice or fulfilment of any other condition) may have a material adverse effect on the ability of any Borrower or Security Provider to perform its obligations under the Agreement or any other Security Document. 14. Interest on overdue amounts The Borrower shall on demand from time to time pay interest on all amounts due and payable by it under or in relation to the Agreement or any other security and unpaid (including interest payable under this Clause) in the currency of the relevant amount. Such interest shall accrue from day to day from the due date up to the date of actual payment, before and (as a separate and independent obligation) after judgement at a rate determined by the Lender to be the aggregate of 3% per annum above the Lender s Cost of Funds for the relevant currency and if not paid on demand by the Lender such interest shall compound. 15. Indemnity The Borrower shall indemnify the Lender on demand against any loss, cost or expense the Lender may sustain or incur as a consequence of: (a) the Borrower failing to draw the Advance in accordance with any notice given by the Borrower pursuant to Clause 4(b) for any reason (including, without limitation, failure to fulfil any condition precedent but excluding any default by the Lender); or (b) the Lender receiving any payment due under the Agreement or any other Security Document other than on the due date for such payment for any reason. Without limitation such indemnity shall cover the amount determined by the Lender as being incurred by reason of the liquidation or re-employment of deposits or other funds acquired or contracted for by the Lender to fund or maintain any such amount (including loss of margin). 16. Currency indemnity Whenever any amount payable by any Borrower or Security Provider under or in respect of the Agreement or any other Security Document is received or recovered by the Lender in a currency (the Payment Currency ) other than the currency under which the relevant amount was payable under the Transaction Document (the Agreed Currency ) for any reason (including without limitation as a result of any judgement or order or the liquidation of the Borrower and/or the Security Provider or any proof or claim in connection with the liquidation) and the amount actually received by the Lender in accordance with its normal practice by converting the Payment Currency into the Agreed Currency is less than the relevant amount of the Agreed Currency, then the Borrower and/or the Security Provider shall as an independent obligation indemnify the Lender on demand against the deficiency. 5

6 17. Increased costs Whenever the Lender determines that it is affected by any change in, any making of, or any change in the interpretation or application by any governmental agency of, or compliance with, any law, official directive or request (including, without limitation, with respect to Taxation or reserve, liquidity, capital adequacy, special deposit or similar requirements) and that as a result: (a) the effective cost to the Lender of making, funding or maintaining any Advance or the commitment is in any way increased; (b) any amount paid or payable to or received or receivable by the Lender or the effective return to the Lender under or in respect of the Agreement or any other Security Document is in any way reduced; (c) the return of the Lender on the capital which is or becomes directly or indirectly allocated by it to the Advance is in any way reduced; or (d) in any way, in so far as that law, official directive or request relates to or affects the Advance or the Agreement and any other Security Documents, the overall return on capital of the Lender is reduced, (including, without limitation, by reason of the Lender being restricted in its capacity to enter other transactions, or being required to make a payment or foregoing or earning reduced interest or other return on any capital or on any amount calculated by reference in any way to, or allocating capital to, the Advance or to any other amount paid or payable or received or receivable under the Agreement or any other Security Document) then on demand from time to time the Borrower shall pay the Lender the amount certified by an authorised officer of the Lender which shall compensate the Lender for such increased cost or such reduction. This Clause applies with respect to official directives or requests whether or not having the force of law and, if not having the force of law, the observance of which is in accordance with the practice of responsible bankers or financial institutions in the country concerned. It shall not be a defence to a claim by the Lender under this Clause that any cost, reduction or payment referred to in this Clause could have been avoided. 18. Control accounts The accounts kept by the Lender shall constitute conclusive evidence in the absence of manifest error of the amount at any time due from the Borrower under the Agreement or any other Security Document. 19. Expenses The Borrower shall on demand reimburse the Lender for its respective costs and expenses (including, without limitation, legal fees on a full indemnity basis) incurred in connection with (a) the preparation, execution and completion of the Agreement and any other Security Document, and any subsequent consent, approval, waiver, amendment, and (b) the enforcement of, or the preservation of any rights under, the Agreement and any other Security Document including, without limitation, any expenses incurred in retaining consultants to evaluate matters of material concern to the Lender. The Borrower authorises the Lender to pay any commission, levy, stamp duties, charge or other expenses necessary if the Borrower fails to do so on the due date provided that the Lender has first given the Borrower 5 business days notice of its intent to pay that premium or charge. The Borrower authorises the Lender to debit any account of the Borrower with an amount equal to any such amounts paid. 20. Stamp duties The Borrower shall pay all stamp, transaction, registration and similar Taxes (including fines and penalties) which may be payable or determined to be payable in connection with the execution, delivery, performance or enforcement of the Agreement or any other Security Document or any payment or receipt or any other transaction contemplated thereby. Such Taxes shall include any financial institution s duty, debits tax or other Taxes payable by return and any such Taxes passed on to the Lender by any bank or financial institution. The Borrower shall indemnify the Lender on demand against any liabilities resulting from delay or omission to pay such Taxes. 21. Authorisations 21.1 The Borrower authorises the Lender (but without obligation on the part of the Lender) to debit any credit balance in any currency (whether or not matured) in any of its accounts with any branch of the Lender in or towards satisfaction of any sum at any time due and payable by it to the Lender under or in relation to the Agreement or any other Security Document. The Lender may effect such currency exchanges as are appropriate to implement any such debiting The Borrower authorises the Lender to microfilm and subsequently to destroy cheques and other original documents relating to its accounts and agrees to accept such microfilmed records (or any prints made from such records) as conclusive evidence of the transactions to which they relate. 6

7 21.3 The Borrower agrees that the Lender may use, store, disclose, transfer (whether within or outside Hong Kong), and/or exchange personal and other data of the Borrower or information relating to the Borrower and other dealings between the Borrower and the Lender to or with such persons as the Lender may consider necessary for the purpose of and in connection with this Agreement and/or the Security Document, and/or in connection with matching for whatever purpose (whether or not with a view to taking any adverse action against the Borrower), and/or for the purpose of promoting, improving and furthering the provision of other services by the Lender and any other NAB Group Member to the Borrower generally, and/or any other purposes in accordance with the Lender s general policies on handling personal data as set out in statements, circulars or notices made available by the Lender to the Borrower from time to time Without prejudice to the generality of Clause 21.3, the Borrower irrevocably authorises the Lender to make disclosure to the following persons when the Lender is required to do so or when the Lender regards such disclosure as necessary or expedient:- (a) any other NAB Group Member or any branch of the Lender or of any other NAB Group Member; (b) any auditors and/or other professional advisers of the Lender or of any other NAB Group Member; (c) any vendors, installers, maintainers or service providers of the Lender s computer systems; (d) any applicable regulator, authority, government agency, clearing house or market participant in Hong Kong or elsewhere; (e) any person who is entitled to demand or request the Lender to make disclosure; and (f) any person with whom the Lender contracts or proposes to contract with regard to the sale or transfer or sharing of any of its rights, obligations and/or risks under the Agreement and/or the Security Document The Borrower further agrees that to enable the Lender to centralise its data processing operations, data and information relating to the Borrower and other dealings between the Borrower and the Lender may be transferred to and processed by any NAB Group Members and/or any other persons engaged by the Lender for such purpose (whether within or outside Hong Kong). 22. Waivers and remedies: invalidity 22.1 No failure to exercise and no delay in exercising any right, power or remedy under the Agreement or any other Security Document by the Lender shall operate as a waiver, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy. The rights, powers and remedies provided to the Lender in the Agreement and any other Security Documents are cumulative and not exclusive of any rights, powers or remedies provided by law Any provision of the Agreement or any other Security Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability but that shall not invalidate the remaining provisions of that document or affect such provision in any other jurisdiction. 23. Assignment 23.1 The Lender may at any time and from time to time assign or transfer all or any of its rights under the Agreement or any other Security Document to any other person The Lender may at any time change the office through which it advances funds or through which the facility made available under the Agreement is booked References in the Offer and these Terms and Conditions to the Lender shall be deemed to include references to its successors and assigns to the intent that all functions to be performed by the Lender and (when the Lender is no longer a party to the Agreement) all matters relating to the Lender shall be deemed to be functions and matters relating to its successors and assigns The Lender may disclose to a proposed assignee, transferee or sub-participant any information it may have relating to any Borrower or Security Provider or the facility made available under the Agreement or furnished in connection with the Agreement or any other Security Document If the Lender changes its office pursuant to Clause 23.2 or an assignee of the Agreement is resident outside Hong Kong the Lender or the assignee (as the case may be) may at its option by notice to the Borrower vary all, some or any references in the Agreement to Hong Kong to the jurisdiction in which the Lender or the assignee is resident (as appropriate) provided that such variation is made without additional cost to the Borrower. 7

8 24. Notices All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to the Agreement shall be in writing addressed to the address of the recipient shown in the Offer or to such other address as it may have notified the sender, and in the case of any communication to the Lender shall be deemed to be given only upon actual receipt, and in the case of any communication to the Borrower shall be deemed to be duly given or made (in the case of delivery in person) when delivered to such address, (in the case of delivery by post) 2 business days (for local mail) or 5 business days (for international mail) after posting, (in the case of delivery by facsimile) on receipt by the sender of an OK transmission code at the end of transmission, or (in the case of delivery by telex) on receipt by the sender of the answerback code of the recipient at the end of transmission, provided that if delivery or receipt in any case is later than 4 p.m. (local time) on a day on which business is generally carried on in the place to which such communication is sent, it shall be deemed to have been duly given or made at the commencement of business on the next such day in that place. 25. Authorised officers If any Borrower is a company, that Borrower irrevocably authorises the Lender to rely on a certificate by any person purporting to be a director or secretary of that Borrower as to the identity and signatures of its authorised officers and warrants that those persons have been authorised to give notices and communications under and in connection with the Agreement and any other Security Documents. 26. Law and jurisdiction 26.1 The Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People s Republic of China, and the Borrower irrevocably submits to the nonexclusive jurisdiction of the courts of the Hong Kong Special Administrative Region of the People s Republic of China The Borrower hereby irrevocably appoints any person specified in the Offer as a process agent as the Borrower s agent to accept service of all legal process in Hong Kong and the Borrower agrees that any writ, judgement order or other notice of legal process shall be sufficiently served on the Borrower if delivered to that agent at its address for the time being in Hong Kong. The Borrower shall upon demand by the Lender nominate a new or replacement process agent resident in Hong Kong and acceptable to the Lender and shall furnish the Lender with evidence satisfactory to the Lender of any such agent s acceptance to the Lender and shall furnish the Lender with evidence satisfactory to the Lender of any such agent s acceptance of its appointment. 27. Trust matters If the Borrower or any Security Provider is the trustee (in each case, in this Clause 27, the Trustee ) of any trust (in each case, in this Clause 27, the Trust ) then: (a) (b) (c) (d) the obligation of the Lender to make any Advance shall be subject to the condition precedent, in addition to those set out in Clause 3, that the Lender receives in form and substance satisfactory to it a copy, certified by a director or company secretary of the Trustee, of the documents constituting the Trust (the Trust Deed ); the Trustee enters into the Agreement and any other Security Documents to which it is expressed to be a party both in its capacity as trustee of the Trust and in its own right; the Trustee represents and warrants (and shall be deemed to repeat such representations and warranties on the first day of each Interest Period) that: (i) it is empowered by the Trust Deed to enter into and perform its obligations under the Agreement and any other Security Documents to which it is expressed to be a party and to own the property and assets of the Trust in its capacity as trustee of the Trust and that there is no restriction or condition upon such activity by it; (ii) all necessary resolutions have been passed and all consents, approvals and other procedural matters have been obtained or attended to as required by the Trust Deed; (iii) it is the sole trustee of the Trust; (iv) no property of the Trust has been re-settled or set aside or transferred to any other trust or trusts; (v) the Trust has not been terminated, nor has the date or any event for the vesting of the assets of the Trust occurred; and (vi) its right of indemnity out of, and lien over, the assets of the Trust have not been limited in any way; and the Trustee undertakes as follows, except to the extent that the Lender otherwise consents. (i) It will ensure that the Trust Deed is not amended or revoked. (ii) It will ensure that there is no resettlement, setting aside or transfer to any other trust or person of any of the property of the Trust other than in accordance with the Trust Deed. (iii) It will duly and punctually comply with its obligations and duties under the Trust Deed and at law. 8

9 (iv) It will ensure that no other person is appointed trustee of the Trust. (v) It will not do anything which could cause or enable its removal, nor will it retire, as trustee of the Trust. (vi) It will ensure that the vesting date is not determined, and it will not otherwise alter, shorten or fix the vesting date under the Trust Deed. (vii) It will ensure that there is no restriction or limitation on or derogation from its right of subrogation or indemnity (whether or not arising under the Trust Deed) and that its lien over the property of the Trust has priority over the rights of the beneficiaries of the Trust. If the Trustee has not provided a copy of the Trust Deed to the Lender on or prior to the Drawdown Date, then the Borrower shall be deemed to have represented and warranted on the date the Offer is accepted (and such representation and warranty shall be deemed repeated on the Drawdown Date and each Payment Date) that it is not the trustee of any trust. 28. Definitions and interpretation 28.1 In the Offer and these Terms and Conditions unless the context otherwise requires: Advance means an advance made or to be made pursuant to the Agreement in an amount (or, if the Offer states that multiple advances may be drawn, in an aggregate amount outstanding at any time) not exceeding the Facility Amount. Agreement means the agreement constituted by the Offer and the Borrower s acceptance thereof. Availability Period means the period specified as such in the Offer or, if none is specified, the period of three months commencing on the date of the Offer. Borrower means the borrower named in the Offer or, if none is named, any person to whom the Lender makes any advance under the Agreement. Drawdown Date means the date on which the Advance is made to the Borrower. Facility Amount means the amount specified as such in the Offer or, if none is specified, such amount as the Lender in its discretion may determine. Fee means the fees specified in the Offer. Interest Period means such successive period of the length specified in the Offer or, if none is specified, six months, the first period commencing on the Drawdown Date and each subsequent period commencing on the last day of the preceding period, provided that (a) if any Interest Period would otherwise end on a day which is not a business day it shall instead end on the following business day in the same calendar month or, if none, the preceding business day, and (b) if any Interest Period of a number of months commences on a day for which there is no numerically corresponding day in the month in which it is due to end it shall end on the last business day of that month. Interest Rate means the rate of interest per cent per annum specified in the Offer. Lender means National Australia Bank Limited. Lender s Cost of Funds means the interest rate in respect of any currency conclusively nominated by the Lender from time to time as its cost of funds for that currency. NAB Group Member means a subsidiary of the Lender (whether direct or indirect, wholly owed or otherwise), and NAB Group Members will be construed accordingly. Offer means the offer from the Lender to which these Terms and Conditions are attached or in which these Terms and Conditions are incorporated by reference. Payment Date means each date which is the last day of an Interest Period. Principal Outstanding means the aggregate principal amount of the Advance for the time being outstanding. Security means the security specified in the Offer or, if none is specified, such security as the Lender may in its discretion require as a condition precedent to the making of the Advance. Security Document means the Agreement, the documents constituting the Security and any further documents which may be entered into as security for any money due or to become due from the Borrower to the Lender under the Agreement. Security Provider means any party to a Security Document (other than the Lender). Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding which is levied or imposed by any government or any governmental, semi-governmental or judicial entity or authority, together with any interest, penalty, charge, fee or other amount imposed or made on or with respect to any of the foregoing. Taxation shall be construed accordingly. Termination Date means the final Payment Date. 9

10 28.2 In the Offer and these Terms and Conditions unless the context otherwise requires words denoting the singular include the plural and vice versa; words denoting individuals include corporations and vice versa; words denoting any gender include all genders; references to any document or agreement (including the Agreement) include references to such document or agreement as amended, novated, supplemented or replaced from time to time. Headings in the Offer and these Terms and Conditions are for convenience only and shall not affect interpretation If more than one person is named in the Offer as Borrower or is the recipient of any Advance then: (a) each of them and every two or more of them shall be jointly and severally liable in respect of all the obligations of the Borrower under the Agreement; (b) any one of them may exercise any rights expressed to be conferred upon the Borrower, and the Lender shall be entitled to treat the exercise of any right by any one of them as an exercise of such right by the Borrower; (c) any representation or warranty made or deemed to be made by the Borrower shall be deemed to be made by each of them severally and by each of them and any reference in a representation or warranty to the Borrower shall be read as each Borrower ; and (d) notices to the Borrower may be given to any of them. If the persons comprising the Borrower are a partnership then the liability of the Borrower shall not be terminated or affected by any failure to name all partners in the Offer or of all partners to sign the Offer or by any change in the partners, and any persons subsequently becoming partners of the partnership shall be bound by the Agreement as the Borrower thereunder. The Agreement shall bind each person signing as Borrower notwithstanding that the execution by any other signatory is or may become void or voidable. 29. Counterparts The Offer may be signed in any number at counterparts, all of which taken together shall be deemed to constitute the one instrument. 10

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12 For more information call National Australia Bank Limited, Hong Kong Branch am - 6pm, Monday to Friday or visit nabasia.com