| C2004C05164 | LOAN (QANTAS AIRWAYS LIMITED) ACT 1968 [Note: This Act is "repealed" by Act No. 61 of 1981]
(#DATE 12:11:1971)
Compilation Information
- Reprinted as at 12 November 1971
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - TABLE OF PROVISIONS
TABLE LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 TABLE OF PROVISIONS Section 1. Short title 2. Commencement 3. Interpretation 4. Approval of agreements and borrowing 5. Approval of notes 6. Application of moneys 7. Expenses and charges 8. Repayment of loan moneys 9. Appropriation of Consolidated Revenue Fund 10. National Debt Sinking Fund Act not to apply 11. Application of Act to amounts deemed to be disbursed THE SCHEDULES FIRST SCHEDULE Loan Agreement SECOND SCHEDULE Amendment ----------------- LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 1.
Short title.
SECT
the United States of America to be made available to Qantas Airways Limited,
and for purposes connected therewith.
Short title amended; No. 32, 1918, s. 2.
1. This Act may be cited as the Loan (Qantas Airways Limited) Act
1968-1971.*
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 2.
Commencement.
SECT
2. This Act shall come into operation on the day on which it receives the
Royal Assent.*
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 3.
Interpretation.
SECT
Substituted by No. 94, 1971, s. 15.
3. (1) In this Act-
''Qantas'' means Qantas Airways Limited;
''the Amending Agreement'' means an agreement in accordance with the form
set out in the Second Schedule to this Act between the parties to the Loan
Agreement;
''the Loan Agreement'' means the agreement set out in the First Schedule to
this Act.
(2) A reference in this Act to the Agreement shall be read-
(a) before the day on which the Amending Agreement becomes effective, as a
reference to the Loan Agreement; and
(b) on and after that day, as a reference to the Loan Agreement as amended
by the Amending Agreement.
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 4.
Approval of agreements and borrowing.
SECT Substituted by No. 94, 1971, s. 15. 4. (1) The Loan Agreement is approved. (2) The execution by the Commonwealth of the Amending Agreement is approved. (3) The borrowing by the Commonwealth in accordance with the Agreement of moneys in the currency of the United States of America is approved. LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 5.
Approval of notes.
SECT 5. The execution on behalf of the Commonwealth, and the delivery, of promissory notes in accordance with the Agreement are approved. LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 6.
Application of moneys.
SECT
6. (1) For the purposes of, and purposes in connexion with, the acquisition
by Qantas of the aircraft referred to in the Agreement, the Commonwealth may,
on such terms and conditions as the Treasurer determines, make available to
Qantas, by way of loan or other credit arrangements, amounts equivalent to the
moneys borrowed under the Agreement.
(2) Moneys required for the purposes of the last preceding subsection are
payable out of the Loan Fund, which is to the necessary extent appropriated
accordingly.
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 7.
Expenses and charges.
SECT 7. The expenses of borrowing under the Agreement, and any commitment fee, interest or other charge payable under the Agreement, shall be paid out of the Consolidated Revenue Fund. LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 8.
Repayment of loan moneys.
SECT
8. Moneys borrowed under the Agreement shall be repaid out of the
Consolidated Revenue Fund in accordance with the provisions of the Agreement.
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 9.
Appropriation of Consolidated Revenue Fund.
SECT
9. The Consolidated Revenue Fund is appropriated to the extent necessary for
the purposes of the last two preceding sections.
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 10.
National Debt Sinking Fund Act not to apply.
SECT
10. The National Debt Sinking Fund Act 1966-1967 does not apply in relation
to moneys borrowed under the Agreement.
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECT. 11.
Application of Act to amounts deemed to be disbursed.
SECT
11. For the purposes of this Act, where, under the Agreement, The Boeing
Company is in any circumstances to be deemed to have disbursed an amount by
way of loan to the Commonwealth, the Commonwealth shall, in those
circumstances, be deemed to have borrowed that amount in accordance with the
Agreement.
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LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - FIRST SCHEDULE
SCH
Heading substituted by No. 94, 1971, s. 16.
THE SCHEDULES
FIRST SCHEDULE
Section
3
LOAN AGREEMENT
LOAN AGREEMENT dated as of June 1, 1968, among the COMMONWEALTH OF
AUSTRALIA (the ''Commonwealth''), EXPORT-IMPORT BANK OF THE UNITED
STATES, an agency of the United States of America (''Eximbank''), THE BOEING
COMPANY, a corporation organized and existing under the laws of the State of
Delaware (''Boeing''), the commercial banks named in Section 1 hereof (the
''Banks'') and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a corporation
organized and existing under the laws of the State of New York, as Agent (the
''Agent'').
WHEREAS, the Commonwealth has requested Eximbank, Boeing and the Banks (the
''Lenders'') to make loans to it in the lawful money of the United States of
America (''Dollars'' or ''U.S.$''), for the purpose of enabling the
Commonwealth to make available to Qantas Airways Limited (''Qantas'') amounts
in Dollars required by Qantas to assist in financing (i) the pre-delivery
payments required in connection with the acquisition of four Boeing 747
aircraft (the ''Aircraft'') and (ii) the acquisition of certain related spare
parts, auxiliary equipment and services, all to be purchased from Boeing and
certain other manufacturers in the United States of America (the
''Manufacturers'') and to be of United States manufacture or origin (such
parts, equipment and services, together with the Aircraft, being herein called
the ''Equipment''); and
WHEREAS, that portion of the purchase price of all the Equipment to be
financed in whole or in part hereunder is approximately U.S.$66,250,000; and
WHEREAS, the Lenders are willing to enter into this Loan Agreement and to
make the loans so requested on the terms and conditions hereinafter set forth;
and
WHEREAS, the establishment of loans by the Lenders for the aforesaid purpose
will facilitate export and imports and the exchange of commodities between the
United States of America and the Commonwealth;
NOW, THEREFORE, the parties hereto, in consideration of the premises and
their respective obligations, undertakings and commitments hereinafter set
forth, covenant and agree as follows:
SECTION 1. The Interim Loans.
(a) The Interim Loans; the Interim Notes. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make loans in
Dollars in Federal Reserve Bank of New York funds to the Commonwealth as
hereinafter provided in an aggregate amount not to exceed the amount set forth
below opposite its name (its ''Commitment''):
Maximum
Name Amount
Export-Import Bank of the United States U.S.$23,850,000
The Boeing Company 2,650,000
Morgan Guaranty Trust Company of New York 12,500,000
Bankers Trust Company 5,000,000
The Chase Manhattan Bank (National
Association) 5,000,000
Continental Illinois National Bank and
Trust Company of Chicago 2,000,000
The Northern Trust Company 2,000,000
---------------
U.S.$53,000,000
''provided always, however, that the aggregate amount of the disbursements of
the Lenders shall in no event exceed 80% of the aggregate purchase price of
all the Equipment to be financed hereunder. The loans to be made by the
Lenders pursuant to this Section (the ''Interim Loans'') will be evidenced by
promissory notes of the Commonwealth (the ''Interim Notes''), each of which
shall be printed or lithographed on one side of one sheet of bank note or
safety paper in substantially the form of Exhibit A hereto (appropriately
completed in accordance with this Section) and shall mature on December 31,
1971. Each Interim Note will be dated the date of the Interim Loan which it
evidences and will bear interest on the unpaid principal amount thereof from
its date to the date of payment at a rate equal, with respect to Interim Loans
made by Eximbank and Boeing, to 6% per annum (subject to Section 15 hereof)
and, with respect to Interim Loans made by the Banks, to 1/2 of 1% per annum
over the minimum commercial lending rate from time to time charged by Morgan
Guaranty Trust Company of New York for loans in New York (such interest rate
to be adjusted simultaneously with each change in such minimum rate); provided
that such interest rate with respect to the Interim Loans made by the Banks
shall not be more than 7% per annum nor less than 51/2% per annum. The
Commonwealth will pay interest on the Interim Notes in Dollars on the last day
of June and December in each year.
(b) Notice of Interim Loans. The Commonwealth will give to the Agent at
least ten business days written or telegraphic notice of the date of each
proposed Interim Loan and the amount thereof. The Agent will give each Lender
at least five business days written or telegraphic notice of the date of each
proposed Interim Loan by such Lender and the amount thereof. Until such time
as Qantas shall have made cash payments for Equipment out of its own funds for
which no reimbursement has been or will be sought hereunder equal to 20% of
the aggregate purchase price of all Equipment to be financed hereunder, each
notification given by the Commonwealth pursuant to this paragraph (b) shall be
accompanied by a written certification of the Commonwealth that as of the date
of the requested Interim Loan Qantas will have made cash payments for
Equipment out of its own funds for which no reimbursement has been or will be
sought hereunder equal to not less than 25% of the requested Interim Loan plus
25% of all Interim Loans theretofore made, setting forth the name and address
of the Manufacturer or Manufacturers to which, and a description of the
Equipment for which, such payments have been made and the date or dates
thereof.
(c) Use of Proceeds. The proceeds of each Interim Loan made hereunder shall
be deposited by the Commonwealth in a Special Account of Qantas with the Agent
from which the Agent, upon the request of duly authorized representatives of
Qantas, shall either make payment to Manufacturers for Equipment in accordance
with invoices attached to such request or make payment to Qantas in
reimbursement for previous payments (not theretofore reimbursed hereunder nor
used to satisfy the cash payment requirements set forth in paragraph (b) of
this Section) to Manufacturers for Equipment in accordance with copies
attached to such request of invoices stamped or otherwise marked to indicate
such payment. Each such request for withdrawal shall be accompanied by a
certificate or certificates as to United States origin with respect to the
Equipment covered by such invoices. The Commonwealth shall also furnish, or
cause to be furnished by Qantas, the Manufactures or others, such additional
documents and information relative to the foregoing and to the United States
Interest Equalization Tax Act, as amended, as the Agent may from time to time
reasonably request. All documents, material and statements submitted to the
Agent pursuant to this paragraph shall be (i) satisfactory in form and
substance to the Agent and (ii) retained by the Agent on behalf of the Lenders
until all indebtedness of the Commonwealth under this Agreement and the Notes
shall have been paid in full.
(d) Proportionate Take-Down. The amount of each Interim Loan to be made by
each of the Lenders shall be in the same proportion to the total amount then
to be borrowed by the Commonwealth hereunder as the then unused portion of the
amount which such Lender is committed to lend under this Agreement is to the
then unused portion of the aggregate amount which the Lenders are committed to
lend under this Agreement. On or prior to the date of borrowing each Lender
shall make available to the Agent the amount of the Interim Loan to be made by
it in Federal Reserve Bank of New York funds except that if any part of the
amount to be disbursed by the Lenders is to be paid over to Boeing by Qantas
for or toward the purchase of Equipment, the Agent shall so inform Boeing in
the notice given pursuant to paragraph (b) of this Section, and, in lieu of
Boeing's providing Dollars, Boeing's pro rata portion of such amount shall be
deemed to have been disbursed by Boeing under Boeing's Commitment as of the
date of the actual disbursement of funds to the Commonwealth and an amount
equal to Boeing's pro rata portion deemed to have been disbursed shall be
credited as a payment received by it from Qantas.
(e) Take-Down Schedule. Within the limits and subject to the conditions set
forth herein, each of the Lenders will make Interim Loans to the Commonwealth
at any time and from time to time on or before November 30, 1971. The first
borrowing hereunder shall be in an aggregate amount equal to U.S.$1,000,000 or
a greater multiple of U.S.$250,000 and each subsequent borrowing (except the
last, which may be in any amount) shall be in an aggregate amount equal to
U.S.$500,000 or a greater multiple of U.S.$250,000.
SECTION 2. The Term Loans
(a) The Term Loans; the Term Notes. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make loans (the ''Term
Loans'') in Dollars to the Commonwealth, and the Commonwealth agrees to accept
the Term Loans, on December 31, 1971, in an amount equal to the aggregate
amount of the Interm Loans made by such Lender. The Term Loans will be
evidenced by promissory notes of the Commonwealth (the ''Term Notes'', the
Interim Notes and the Term Notes being herein sometimes called the ''Notes''),
of which those delivered to Eximbank shall be substantially in the form of
Exhibit B hereto, those delivered to Boeing shall be substantially in the form
of Exhibit C hereto and those delivered to the Banks shall be substantially in
the form of Exhibit D hereto, in each case printed or lithographed on one side
of one sheet of bank note or safety paper and appropriately completed in
accordance with this Section. The Term Notes will be dated December 31, 1971
and will bear interest on the unpaid principal amount thereof from their date
to the respective dates of payment at rates determined as provided in Exhibits
B, C and D hereto. The Commonwealth will pay interest on the Term Notes in
Dollars semi-annually on the last day of June and December in each year. Each
Term Note will be payable in Dollars in seven approximately equal installments
as provided in Exhibits B, C and D hereto. On or prior to December 15, 1971,
each Lender will make available to the Agent the Interim Notes then held by
such Lender. The Interim Notes so made available to the Agent by each Lender
shall, on December 31, 1971, upon payment of all interest accrued thereon, be
surrendered by the Agent to the Commonwealth, for cancellation, in exchange
for an equal principal amount of Term Notes evidencing the Term Loan to be
made by such Lender on that date.
(b) Prepayment. The Commonwealth shall have the right, upon payment of all
accrued charges for interest, commitment fee and other amounts due and payable
under this Agreement and the Notes, to prepay at any time, without premium or
penalty, all or any of the Notes; provided that none of the Notes evidencing
Interim or Term Loans made by the Banks shall be prepaid from the proceeds of
other United States bank borrowings (although Interim or Term Loans made by
the other Lenders may be so prepaid); and provided, further, that any such
prepayment shall be pro rata as among the Notes then subject to prepayment
and, with respect to the Term Notes, shall be applied to outstanding
installments of principal thereof in the inverse order of their maturity
except as provided in Section 8(b) hereof.
(c) Cancellation of Term Notes. When and as the principal amount of any Term
Note shall be paid in full, the holder of such Term Note shall deliver the
same to the Agent for surrender to the Commonwealth for cancellation.
(d) Exchange of Term Notes. Upon the request of the holder of a Note or
Notes made at any time or from time to time, the Commonwealth shall issue and
deliver to such holder, in exchange for any Note or Notes theretofore issued
hereunder, its new Note or Notes in such denominations as such holder may
specify, dated the date to which interest shall have been paid on the
surrendered Note or Notes, and in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Note or Notes less the aggregate
of any repayments of principal made upon the surrendered Note or Notes, and,
if such holder so requests (i) some or all of the Notes shall be issued in
serial form to evidence all or part of separate installments of principal of
the surrendered Note or Notes or (ii) the installments of principal and
installments of interest of the surrendered Note or Notes shall be severally
evidenced by separate Notes issued in either serial or installment form. The
new Notes issued pursuant to this paragraph shall conform to the requirements
of paragraph (a) of this Section and shall be substantially in the form of
Exhibit B, C or D hereto, as appropriate, except for such modifications as the
aforesaid holder may specify to give effect to any of the provisions of this
paragraph.
SECTION 3. Commitment Fee. The Commonwealth will pay to the Agent, in
Dollars, a commitment fee for distribution to Eximbank and the Banks in
respect of the period from May 19, 1968, with respect to Eximbank, and January
15, 1968, with respect to the Banks, to November 30, 1971, on the daily unused
amounts of the Commitments of Eximbank and the Banks as set forth in Section 1
hereof, which fee shall be computed at the rate of one half of 1% per annum.
The accrued portion of such commitment fee will be paid on the last day of
June and December in each year, except that, notwithstanding the foregoing,
the portion of such commitment fee accrued on the date of the termination of
the Commitment hereunder, whether by borrowing or otherwise, shall be paid on
such date. The Commonwealth shall have the right at any time to terminate all
or any part of the unused Commitment of Eximbank hereunder in which event the
commitment fee accruable hereunder to Eximbank on and after the date of such
termination shall be appropriately reduced.
SECTION 4. Place of Payments; Execution of Notes
(a) Payments and prepayments of principal and payments of interest on the
Notes will be made to the Agent, at its office at 23 Wall Street, New York,
New York 10015, in Dollars in Federal Reserve Bank of New York funds for the
account of the holders of the Notes entitled thereto. All payments of
commitment fees pursuant to this Agreement will be made to the Agent at the
above address in Dollars in Federal Reserve Bank of New York funds for the
account of the Lenders entitled thereto.
(b) Each of the Notes will bear the manual or facsimile signature of the
person who is at the time the signature is inscribed the Treasurer of the
Commonwealth and the manual signature of the person who is at the time of
signing the Australian Consul-General at New York or the Acting Australian
Consul-General at New York or the Chief Finance Officer at the Australian
Consulate-General at New York or of such other person or persons as shall have
been appointed in writing by the person who is at the time of the appointment
the Treasurer of the Commonwealth.
SECTION 5. Freedom from Taxation. The Commonwealth represents, warrants and
agrees that the principal of and interest on the Notes will be free of all
present or future taxes imposed by the Commonwealth, or by any taxing
authority thereof or therein, except where any Note is or comes to be
beneficially owned by any person residing in or ordinarily a resident of
Australia or the Territory of Papua or the Territory of New Guinea.
SECTION 6. Conditions Precedent. The obligation of each Lender to make
Interim or Term Loans hereunder is subject to the performance by the
Commonwealth of all its obligations under this Agreement and to the
satisfaction on the date of such Interim or Term Loans of the following
further conditions:
(a) The Agent shall have received an Interim or Term Note to such Lender in
the amount of the Loan by such Lender and in form satisfactory to the Agent;
(b) The Agent shall have received on such date a certificate, in form
satisfactory to the Agent, to the effect that (i) no Event of Default and no
event which, with the giving of notice or lapse of time or both, would become
such an Event of Default has occurred, (ii) no default has occurred in the
payment of funds by the Commonwealth required under any other agreement
relating to external borrowings of the Commonwealth, and (iii) the
representations and warranties contained in this Agreement are true and
correct in all material respects on and as of the date of such Interim or Term
Loans;
(c) Before the first borrowing hereunder the Lenders shall have received a
certified copy of an opinion of the Secretary or Acting Secretary to the
Attorney-General's Department of the Commonwealth, in a form satisfactory to
counsel for the Lenders, to the effect that (i) the borrowings provided for in
this Agreement and the Notes have been duly authorized in accordance with the
laws of the Commonwealth and the Order or Orders in Council applicable
thereto; (ii) the Notes, when executed as provided herein and delivered in
accordance herewith, will constitute valid, binding, absolute and
unconditional obligations of the Commonwealth enforceable in accordance with
their terms, for the performance of which the full faith and credit of the
Commonwealth is pledged; and (iii) this Agreement has been duly authorized and
executed in accordance with the laws of the Commonwealth and the Order or
Orders in Council applicable hereto and is a valid and binding obligation of
the Commonwealth enforceable in accordance with its terms; and
(d) All legal matters relating to the Loans, the Interim Notes and the Term
Notes and this Agreement shall be satisfactory to the General Counsel of
Eximbank or counsel designated by him and to special counsel for the Lenders,
Messrs Davis Polk & Wardwell, and to such Australian counsel as they may
consult and on whose opinion they may rely as to all matters of Australian
law, and the Lenders shall have received an opinion from such special counsel
to the effect that (i) the issuance of the Notes and the making of the Interim
Loans and Term Loans are not subject to the Interest Equalization Tax Act, as
presently in force (26 U.S.C.##4911ff) and (ii) neither the Interim Loans nor
the Term Loans are includible in the category of foreign credits subject to a
''ceiling'' or similar limitation under the Guidelines for Banks promulgated
by the Board of Governors of the United States Federal Reserve System under
the President's Balance of Payments Program, as presently in force.
SECTION 7. Use of Proceeds. The Commonwealth represents and warrants that
the entire proceeds of the Interim Loans and Term Loans will be made available
to Qantas to assist it in financing a portion of the cost of the purchase of
four Boeing 747 jet aircraft manufactured in the United States and related
equipment, spares and services of United States manufacture or origin, and for
no other purpose, that such proceeds are to be used for the purchase of
property manufactured in the United States and payment for services rendered
by United States persons (as defined in the Interest Equalization Tax Act) and
that, were the Interim Loans and Term Loans not made (or other financing from
United States sources obtained), it is very unlikely that such purchase of
property manufactured in the United States would be made or that the services
of such United States persons would be employed.
SECTION 8. Covenants of the Commonwealth. The Commonwealth agrees that from
the date hereof until the payment in full of the Interim Notes and the Term
Notes:
(a) Neither the Commonwealth nor Qantas will (i) create, incur or permit to
exist any mortgage, lien, charge or encumberance on any of the Aircraft except
inchoate liens of carriers, mechanics and materialmen or other like liens for
sums not yet due incurred in the ordinary course of business and liens for
taxes, assessments or other governmental charges or levies not delinquent or
(ii) sell, lease or otherwise dispose of any of the Aircraft except for
short-term leases made with the prior written approval of Eximbank.
(b) The Commonwealth will either (i) cause Qantas to maintain insurance
upon the Aircraft under a contract of All-Risk Hull Insurance satisfactory to
the Agent or (ii) make such alternative financial arrangements as it may
consider to be appropriate; provided, however, that such insurance or such
financial arrangements (collectively, the ''Insurance'') shall be payable in
Dollars in the United States in an aggregate amount not less than the lesser
of the insurable value of the Aircraft or the outstanding amount of the Notes.
The terms of any such Insurance agreement, including deductible clauses, shall
be in accordance with normal practices in the airline industry. In the event
of damage to an Aircraft, except total loss or constructive total loss, which
damage is compensable under the Insurance, the Commonwealth will cause Qantas,
promptly upon receipt of the proceeds of the Insurance, to apply the proceeds
of the Insurance to the repair of the Aircraft. In the event of total loss or
constructive total loss of an Aircraft, which total loss or constructive total
loss is compensable under the Insurance, the Commonwealth will cause Qantas,
promptly upon receipt of the proceeds of the Insurance, at its option, either
(i) to apply the proceeds of the Insurance to the replacement of the Aircraft
with a new one of comparable type of United States manufacture and to be
purchased in the United States, or (ii) to apply, with respect to each
Aircraft so lost, so much of the proceeds of the Insurance (up to an amount
equal to the minimum amount of Insurance required by this Section 8(b) divided
by the number of Aircraft then subject to this Section) as may be necessary to
prepay outstanding Notes in accordance with Section 2(b) hereof; provided that
such prepayments will be ratable among the Notes and, as to any Note, ratable
among the installments thereof. The Commonwealth will cause Qantas to advise
the Lenders in writing, within sixty days after such total loss or
constructive total loss, which of the foregoing options it has elected. This
Section 8(b) and Section 8(a) shall apply to any aircraft purchased to replace
an Aircraft which is a total loss or constructive total loss to the same
extent as to the Aircraft replaced.
(c) If the Commonwealth sells, offers for public subscription or in any
manner disposes of any bonds or loans constituting external debt of the
Commonwealth secured by lien on any revenue or asset of the Commonwealth, the
Notes will be secured equally and ratably therewith and the Commonwealth will
make appropriate provision to that end, where necessary.
(d) From time to time, at the request of the Agent, the Commonwealth will
promptly deliver to the Agent copies of all reports and other documents filed
by the Commonwealth after the date hereof with the United States Securities
and Exchange Commission.
(e) The Agent and each of the Lenders may accept and rely upon requests for
advances, notices or other communications from the Commonwealth, relative to
the transactions hereby contemplated, if signed by any person at the time the
Australian Consul-General at New York or the Acting Australian Consul-General
at New York or the Chief Finance Officer at the Australian Consulate-General
at New York, or by such other person or persons as shall have been appointed
in writing for such purpose by the person who is at the time of the
appointment the Treasurer of the Commonwealth.
(f) The Commonwealth will pay or cause to be paid any and all stamp and
other taxes payable in connection with the execution and delivery of this
Agreement, the Interim Notes or the Term Notes. If any Lender or the Agent is
required to pay any Interest Equalization Tax by any law of the United States
of America by reason of any of the transactions referred to herein, the
Commonwealth will promptly, upon demand of the Agent, reimburse such Lender or
the Agent, as the case may be, for and save it harmless from any such tax so
paid.
(g) All items which are financed in whole or in part under this Agreement
and which are exported by ocean vessel to Australia shall be transported from
the United States in vessels of United States registry as required by Public
Resolution No. 17 of the 73rd Congress of the United States, except to the
extent that a waiver of such requirement is obtained from the United States
Maritime Administration. If a waiver is obtained, the cost of ocean freight
for shipments on vessels of other than United States registry shall not be
eligible for financing under this Agreement.
(h) Premiums for insurance against marine and transit hazards on any items
financed under this Agreement shall be eligible to be financed hereunder only
with respect to those policies of insurance which are payable in Dollars and
are placed in the United States market.
(i) The Commonwealth shall pursue any claims which it may now or hereafter
have against Boeing or any other person or entity in connection with the
purchase of the Equipment, or in connection with any other transaction for any
reason whatsoever, independently of the indebtedness of the Commonwealth under
this Agreement and the Notes; and the Commonwealth hereby agrees to forego the
utilization of such claims as the basis of any counter-claim against, or
deduction or setoff from, the payment of the indebtedness of the Commonwealth
under this Agreement and the Notes.
SECTION 9. Special Representations, Warranties and Covenants. The
Commonwealth:
(a) Past Employment. Represents and warrants that no official, employee,
agent, attorney or consultant of the Commonwealth who performed services in
connection with the establishment of the Eximbank Commitment hereunder was a
director, officer or employee of Eximbank at any time during the period of one
year prior to April 19, 1968 (the date on which the establishment of the
Eximbank Commitment was authorized by Eximbank).
(b) Future Employment. Covenants that during the period of two years after
the date specified in the preceding subparagraph, the Commonwealth will not
employ or enter into any understanding to employ any person (i) who was a
director, officer or employee of Eximbank at any time during the period of one
year prior to the date stated above, or (ii) who is a director, officer or
employee of Eximbank at the time of such employment or understanding to
employ, unless in either case such employment is approved in writing by
Eximbank after full disclosure to it of all facts in connection therewith
which it deems to be relevant.
(c) Payments. Represents and warrants that it has not paid, agreed to pay
or caused to be paid, and covenants that it will not pay, agree to pay or
cause to be paid, to any person or other entity (except the Commonwealth's
regular full-time officials and employees to the extent of their regular
remuneration), any commission, fee or other payment in connection with the
establishment or operation of the Eximbank Commitment.
(d) Proposed Use of Equipment. Represents and warrants that the Aircraft
and related Equipment have been or will be purchased by Qantas for use by it
principally on routes of Qantas between termini in Australia, Hong Kong,
Japan, New Zealand, the United Kingdom and the United States.
SECTION 10. Default. In the event that (a) any principal installment of or
interest on the Interim or Term Notes shall not be paid in full when due, or
(b) the Commonwealth shall fail to perform any other of its obligations
hereunder or under the Interim or Term Notes and such failure shall continue
for thirty days, or (c) in the event that any representation or warranty of
the Commonwealth herein contained shall prove to be incorrect, then, upon the
occurrence of any such event, the Agent, by written notice mailed to the
Commonwealth, shall, if requested in writing by the holders of at least 50% in
the aggregate principal amount of the Notes, declare the entire principal
amount of each Note, and accrued interest thereon, to be, and the same will
become, forthwith due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived.
Simultaneously with the giving of any such notice to the Commonwealth, the
Agent will notify all holders of the Notes thereof.
If any of the foregoing events (an ''Event of Default'') shall occur and be
continuing, then and in each and every case, the Agent, by written notice to
the Commonwealth, shall, if requested in writing by any one or more of the
Lenders, suspend all futher Loans under this Agreement; thereafter, the
Lenders shall not be obligated to make further disbursements under this
Agreement until the Lenders (i) shall have received evidence that the cause or
causes of the suspension shall have been eliminated or corrected in a manner
satisfactory to all of the Lenders and (ii) the Agent shall have notified the
Commonwealth in writing on behalf of the Lenders that the suspension has been
removed.
SECTION 11. Allocation of Payments. All payments made by the Commonwealth
under or with respect to the Notes in this Agreement shall be applied (a)
first to all indebtedness of the Commonwealth under this Agreement which is
not specified hereafter in this Section, (b) next to the pro rata payment to
each of the Banks and Eximbank, or its assignee or endorsee, of the accrued
commitment fee (as provided in Section 3 hereof) then due and payable, (c)
next to the pro rata payment to each Lender, or its assignee or endorsee, of
the interest then due and payable under the Notes, (d) next to the pro rata
payment to each Lender, or its assignee or endorsee of the principal then due
and payable under the Notes, and (e) last to the pro rata prepayment of the
Notes in accordance with Section 2 (b) hereof.
SECTION 12. Deposit of Payments and Transmittal of Notes and other
Documents. Upon the receipt by the Agent from the Commonwealth of any payments
due under the Notes or this Agreement, the Agent shall, on the same day such
payments are received
(a) transfer all payments to be made to Eximbank (i) by wire transfer
through the Federal Reserve Bank of New York for credit to Eximbank Account
No. 4984 with the Treasurer of the United States, Washington, D.C. and give
wire advice of such transfer to the Department of the Treasury, Washington,
D.C. and to Eximbank or (ii) as otherwise permitted or directed in writing by
the Treasurer or an Assistant Treasurer of Eximbank;
(b) deposit all payments to be made to Boeing (i) in the current account of
Boeing maintained on the books of the Agent or (ii) as otherwise permitted or
directed in writing by the Treasurer or an Assistant Treasurer of Boeing; and
(c) transfer or deposit in Federal Reserve Bank of New York funds all
payments to be made to each Bank as it shall be from time to time instructed
by such Bank.
Notwithstanding any provision to the contrary in any of the Notes or in this
Agreement, so long as any Note delivered hereunder shall be held by one of the
Lenders, all amounts payable to such Lender in respect of the principal of or
interest on such Note will be paid in the manner provided in this Section
without any presentment of such Note. In addition, the Agent shall promptly
forward to the Lenders when received by the Agent all Notes payable to such
Lenders as well as reports and other documents required or permitted under the
terms of this Agreement.
SECTION 13. Authorization of Agent. Each of the Lenders and each subsequent
holder of Notes by its acceptance thereof irrevocably authorizes the Agent to
receive all payments of principal of and interest on the Notes and all
commitment fees, and to take all other action delegated to it hereunder or
reasonably incidental thereto. Neither the Agent nor any of its directors,
officers or employees shall be liable for any action taken or omitted in the
absence of negligence or wilful misconduct. The Agent may treat the payee of
any Note as the holder thereof until written notice of transfer shall have
been filed with it. The Agent shall promptly notify the Commonwealth of any
such notice received by it.
SECTION 14. Expenses. All statements, reports, certificates, opinions and
other documents or information furnished by the Commonwealth to the Agent or
the Lenders under this Agreement shall be supplied without cost to the Agent
or the Lenders. Further, the Commonwealth hereby agrees to reimburse the Agent
and the Lenders, or their assignees or endorsees, on demand for all reasonable
out-of-pocket costs and expenses, including legal fees, incurred by the Agent
and the Lenders, or their assignees or endorsees, in connection with the
preparation, printing, execution, delivery and performance of this Agreement
and the Notes, and for all such costs and expenses, including legal fees,
incident to the enforcement, protection or preservation of any right or claim
of the Lenders, or their assignees or endorsees, under this Agreement or the
Notes.
SECTION 15. Disposition of Indebtedness. The Lenders may at any time sell,
assign, transfer, negotiate, grant participations in, or otherwise dispose of
all or any portion of the Notes; and the Commonwealth shall, from time to time
at the request of the Lender making such disposition, execute and deliver to
such Lender, or to such party or parties as such Lender may designate, any and
all further instruments as may be necessary or advisable to give full force
and effect to such disposition, including, but not limited to, the new Notes
of the Commonwealth to be issued in exchange for any Notes theretofore issued
by the Commonwealth hereunder; provided always, that upon any disposition as
aforesaid without recourse on the Lender making such disposition, the
disposing Lender shall give written notice thereof to the Agent and the
Commonwealth. In the event of a disposition by Eximbank or Boeing as aforesaid
(including the sale by Eximbank of participations constituting beneficial
interests in a pool of Eximbank loans, which pool includes all or any portion
of Eximbank's portion of the indebtedness of the Commonwealth outstanding
under any Notes) the Commonwealth shall be obligated to pay interest at such
rate not exceeding 7% per annum on that portion so disposed of as, in
Eximbank's judgment, is necessary to effect such disposition; provided,
however, that prior to any disposition by Eximbank or Boeing which will result
in an increase in the rate of interest as aforesaid, Eximbank or Boeing, as
the case may be, shall consult with the Commonwealth in connection with the
proposed disposition.
SECTION 16. Notices. All notices and other communications hereunder shall be
deemed to have been duly given when delivered or deposited in the mails or
delivered to the telegraph company, if permitted by law, addressed to any
party hereto at its address given below:
The Commonwealth The Commonwealth Treasury
Canberra, A.C.T. 2600
Australia
Eximbank Export-Import Bank of the United
States
Washington, D.C. 20571
Attention: Loan Officer
Eximbank Credit No. 2516
Australia
Boeing The Boeing Company
P.O. Box 3707
Seattle, Washington 98124
Attention: Treasurer
The Banks:
Morgan and Morgan as Agent Morgan Guaranty Trust Company of New
York
23 Wall Street
New York, N.Y. 10015
Bankers Bankers Trust Company
16 Wall Street
New York, N.Y. 10015
Chase The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, N.Y. 10015
Attention: International
Department-Far
East and Oceania Zone
Continental Illinois Continental Illinois National Bank
and
Trust
Company of Chicago
231 South La Salle Street
Chicago, Illinois 60090
Northern Trust The Northern Trust Company
50 South La Salle Street
Chicago, Illinois 60090
or at any other address of which it shall have notified the person giving such
notice in writing, or at the address of any subsequent holder thereof if
notice of such transfer shall have been delivered in writing to the Agent.
SECTION 17. Waiver. No failure or delay by the Agent or the Lenders or any
holder of the Note in exercising any right, power or privilege hereunder or
thereunder shall operate as a waiver thereof; nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
SECTION 18. Non-Business Days. In the event the date upon which any payment
of principal on any of the Notes is due as stated therein shall be in The City
of New York a day upon which banking institutions are authorized by law to
close, such principal payment may be made on either the next preceding or the
next succeeding day not in The City of New York a day on which banking
institutions are so authorized to close, together with accrued interest on the
amount of such principal payment to the date of payment. Interest shall not be
charged for the date on which any principal payment is made on the amount of
such principal payment and for this purpose the delivery of a Term Note in
exchange for an Interim Note shall be deemed to be a principal payment of an
amount equal to the principal amount of such Term Note.
SECTION 19. Computation of Interest and Fees. Interest and commitment fees
shall be computed on the actual number of calendar days, using a 365-day or
366-day factor, as the case may be.
SECTION 20. Governing Law. This Agreement shall be deemed to be a contract
made and delivered in the State of New York and shall be governed by, and
construed in all respects in accordance with, the laws of said State with
respect to all matters of construction validity, performance and discharge.
SECTION 21. Effectiveness. This Agreement shall not become effective until
it has been duly executed by all the parties hereto and there shall have come
into operation an Act of the Parliament of the Commonwealth authorizing the
Commonwealth to pay to Qantas moneys borrowed under this Loan Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
Commonwealth of Australia
By William McMahon
Treasurer
Export-Import Bank of the
United States
By Walter C. Sauer
The Boeing Company
By E. W. Norris
Morgan Guaranty Trust Company
of New York
By Sidney G. Butler
Bankers Trust Company
By Stuart E. Reider
The Chase Manhattan Bank
(National Association)
By M. R. Hansen
Continental Illinois National
Bank and Trust Company
of Chicago
By Alfred F. Miossi
The Northern Trust Company
By Kenneth P. Kinney
Morgan Guaranty Trust Company
of New York, as Agent
By M. Burnett
EXHIBIT A
U.S.$.........................................................................
..
New York,
N.Y.
On December 31, 1971, for value received, COMMONWEALTH OF AUSTRALIA (the
''Commonwealth'') hereby promises to pay to the order of...........at the
office of Morgan Guaranty Trust Company of New York (the ''Agent''), at 23
Wall Street, New York, N.Y. 10015 the principal sum of.........Dollars in
lawful money of the United States of America.
The Commonwealth also hereby promises to pay interest on so much of said
principal sum as is from time to time unpaid, from the date hereof, in like
money, at said office, semiannually on the last day of June and December in
each year, at a rate equal (to 6% per annum)* (to 1/2 of 1% per annum over the
minimum commercial lending rate from time to time charged by Morgan Guaranty
Trust Company of New York for loans in New York (such interest rate to be
adjusted simultaneously with each change in such minimum rate); provided that
such interest rate shall not be more than 7% per annum nor less than 5 1/2%
per annum.)**
This Note is one of the Interim Notes referred to in the Loan Agreement
dated as of June 1, 1968 among the Commonwealth, the Agent, and certain
lenders named therein and is entitled to the benefits therein provided. Upon
the terms provided in such Loan Agreement the principal hereof and accrued
interest hereon may become payable prior to stated maturity.
The principal hereof and interest hereon will be paid free of all taxes now
or at any time hereafter imposed by the Commonwealth, or by any taxing
authority thereof or therein, except where this Note is or comes to be
beneficially owned by any person residing in or ordinarily a resident of
Australia or the Territory of Papua or the Territory of New Guinea.
COMMONWEALTH OF AUSTRALIA
By............................................................................
..
By............................................................................
..
Countersigned:
U.S.$.........................................................................
..
* with respect to Interim Loans made by Eximbank and Boeing
** with respect to Interim Loans made by the Banks
EXHIBIT B
U.S.$.........................................................................
..
New York,
N.Y.
FOR VALUE RECEIVED, COMMONWEALTH OF AUSTRALIA (the ''Commonwealth'') hereby
promises to pay to the order of EXPORT-IMPORT BANK OF THE UNITED STATES at the
office of Morgan Guaranty Trust Company of New York (the ''Agent''), at 23
Wall Street, New York, N.Y. 10015, the principal sum of
.................Dollars in lawful money of the United States of America, in
six semi-annual installments of U.S.$.., the first of which shall be due on
December
31, 1975, and the remainder of which shall be due on each succeeding June 30
and December 31, and in a seventh and final installment of U.S.$..which shall
be due
on December
31, 1978.
The Commonwealth also hereby promises to pay interest on so much of said
principal sum as is from time to time unpaid, from the date hereof, in like
money, at said office semi-annually on the last day of June and December in
each year, at the rate of 6% per annum.
This Note is one of the Term Notes referred to in the Loan Agreement dated
as of June 1, 1968 among the Commonwealth, the Agent, and certain lenders
named therein and is entitled to the benefits therein provided. Upon the terms
provided in such Loan Agreement the principal hereof and accrued interest
hereon may become payable prior to stated maturity.
The principal hereof and interest hereon will be paid free of all taxes now
or at any time hereafter imposed by the Commonwealth, or by any taxing
authority thereof or therein, except where this Note is or comes to be
beneficially owned by any person residing in or ordinarily a resident of
Australia or the Territory of Papua or the Territory of New Guinea.
COMMONWEALTH OF AUSTRALIA
By............................................................................
..
By............................................................................
..
Countersigned:
U.S.$.........................................................................
..
EXHIBIT C
U.S.$.........................................................................
..
New York,
N.Y.
FOR VALUE RECEIVED, COMMONWEALTH OF AUSTRALIA (the ''Commonwealth'')
hereby promises to pay to the order of THE BOEING COMPANY at the office of
Morgan Guaranty Trust Company of New York (the ''Agent''), at 23 Wall Street,
New York, N.Y. 10015, the principal sum on..................Dollars in lawful
money of the United States of America, in six semi-annual installments of
U.S.$..the first of
which shall be due on December 31, 1975 and the remainder of which shall be
due on each succeeding June 30 and December 31, and in a seventh and final
installment of
U.S.$................................................................., which
shall be due on December 31, 1978.
The Commonwealth also hereby promises to pay interest on so much of said
principal sum as is from time to time unpaid, from the date hereof, in like
money, at said office, semi- annually on the last day of June and December in
each year, at the rate of 6% per annum.
This Note is one of the Term Notes referred to in the Loan Agreement dated
as of June 1, 1968 among the Commonwealth, the Agent, and certain lenders
named therein and is entitled to the benefits therein provided. Upon the terms
provided in such Loan Agreement the principal hereof and accrued interest
hereon may become payable prior to stated maturity.
The principal hereof and interest hereon will be paid free of all taxes now
or at any time hereafter imposed by the Commonwealth, or by any taxing
authority thereof or therein, except where this Note is or comes to be
beneficially owned by any person residing in or ordinarily a resident of
Australia or the Territory of Papua or the Territory of New Guinea.
COMMONWEALTH OF AUSTRALIA
By............................................................................
..
By............................................................................
..
Countersigned:
U.S.$.........................................................................
..
EXHIBIT D
U.S.$.........................................................................
..
New York,
N.Y.
FOR VALUE RECEIVED, COMMONWEALTH OF AUSTRALIA (the ''Commonwealth'')
hereby promises to pay to the order
of................................................. at the office of Morgan
Guaranty Trust Company of New York (the ''Agent''), at 23 Wall Street, New
York, N.Y. 10015, the principal sum of.....Dollars in lawful money of the
United States of America, in six semi-annual installments of U.S.$.
the first of which shall be due on June 30, 1972 and the remainder of which
shall be due on each succeeding June 30 and December 31, and in a seventh and
final installment of U.S.$.......................................which shall
be due on June 30, 1975.
The Commonwealth also hereby promises to pay interest on so much of said
principal sum as is from time to time unpaid, from the date hereof, in like
money, at said office, semi- annually on the last day of June and December in
each year, at a rate equal to 1/2 of 1% per annum over the minimum commercial
lending rate from time to time charged by Morgan Guaranty Trust Company of New
York for loans in New York (such interest rate to be adjusted simultaneously
with each change in such minimum rate); provided that such interest rate shall
not be more than 7% per annum nor less than 5 1/2% per annum.
This Note is one of the Term Notes referred to in the Loan Agreement dated
as of June 1, 1968 among the Commonwealth, the Agent, and certain lenders
named therein and is entitled to the benefits therein provided. Upon the terms
provided in such Loan Agreement the principal hereof and accrued interest
hereon may become payable prior to stated maturity.
The principal hereof and interest hereon will be paid free of all taxes now
or at any time hereafter imposed by the Commonwealth, or by any taxing
authority thereof or therein, except where this Note is or comes to be
beneficially owned by any person residing in or ordinarily a resident of
Australia or the Territory of Papua or the Territory of New Guinea.
COMMONWEALTH OF AUSTRALIA
By............................................................................
..
By............................................................................
..
Countersigned:
U.S...........................................................................
..
LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - SECOND SCHEDULE
SCH Added by No. 94, 1971, s. 17. SECOND SCHEDULE Section 3 AMENDMENT Amendment dated as of , 1971, among the COMMONWEALTH OF AUSTRALIA (the ''Commonwealth''), EXPORT-IMPORT BANK OF THE UNITED STATES, an agency of the United States of America (''Eximbank''), THE BOEING COMPANY, a corporation organized and existing under the laws of the State of Delaware (''Boeing''), the commercial banks named in Section 1 of the Loan Agreement hereinafter referred to (the ''Banks'') and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a corporation organized and existing under the laws of the State of New York, as agent (the ''Agent''), to the Loan Agreement dated as of June 1, 1968 among the Commonwealth, Eximbank, Boeing, the Banks and the Agent (the ''Loan Agreement'')m 1. The Loan Agreement is hereby amended in the following respects: (a) the date ''December 31, 1971'', wherever it occurs in Section 1(a) or Section 2(a) of the Loan Agreement or in Exhibit A, is amended to read ''March 31, 1972''; (b) the date ''November 30, 1971'', where it appears in Section 1(e) and Section 3 of the Loan Agreement, is amended to read ''February 28, 1972''; and (c) the date ''December 15, 1971'', where it appears in Section 2(a) of the Loan Agreement, is amended to read ''March 15, 1972''. 2. The maturity date for each of the Interim Loans and Interim Notes issued pursuant to Section 1(a) of the Loan Agreement is hereby extended to March 31, 1972. Interest on the Interim Notes and the Term Notes will continue to be payable on the last day of June and December in each year; however, in addition, notwithstanding anything else contained in the Loan Agreement or in the Interim Notes, interest then accrued on the unpaid principal amount of the interim Notes will be payable on March 31, 1972. 3. Except as specifically changed hereby, the Loan Agreement shall remain in full force and effect. 4. This Amendment shall become effective when counterparts hereof have been duly executed by all the parties named as signatory hereto. -------------------------------------------------------------------------------- LOAN (QANTAS AIRWAYS LIMITED) ACT 1968-1971 - NOTE
NOTE
1. The Loan (Qantas Airways Limited) Act 1968-1971 comprises the Loan (Qantas
Airways Limited) Act 1968 as amended by the other Act specified in the
following table:
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Number Date of Assent
Act and year and of commencement
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Loan (Qantas Airways Limited)
Act 1968 No. 132, 1968 9 Dec 1968
Loans (Qantas Airways
Limited) Act (No. 2) 1971 No. 94, 1971 12 Nov 1971
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