| C2004C05193 | LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968 [Note: This Act is "repealed" by Act No. 61 of 1981]
(#DATE 19:12:1973)
Compilation Information
- Reprinted as at 19 December 1973
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - TABLE OF PROVISIONS
TABLE
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973
TABLE OF PROVISIONS
Section
1. Short title
2. Commencement
3. Definitions
4. Approval of agreements
5. Approval of borrowings
6. Approval of notes
7. Application of moneys
8. Expenses and charges
9. Repayment of loan moneys
10. Appropriation of Consolidated Revenue Fund
11. National Debt Sinking Fund Act not to apply
12. Application of sub-section 31 (5) of Australian National Airlines
Act
13. Moneys to be paid, and documents to be, free of taxes, &c.
14. Application of Act to disbursements under United States Agreement
not paid to the Commonwealth
15. Insurance
16. Reports
17. Approval of application of Swiss law and election of domicile
THE SCHEDULES
FIRST SCHEDULE
Swiss Agreement
SECOND SCHEDULE
United States Agreement
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 1.
Short title.
SECT
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973
An Act to approve certain Borrowings by the Commonwealth of Moneys in the
Currency of Switzerland and Moneys in the Currency of the United States of
America to be made available to the Australian National Airlines Commission,
and for purposes connected therewith.
Short title amended, No. 32, 1918, s. 2.
1. This Act may be cited as the Loans (Australian National Airlines
Commission) Act 1968-1973.*
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 2.
Commencement.
SECT
2. This Act shall come into operation on the day on which it receives the
Royal Assent.*
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 3.
Definitions.
SECT
3. In this Act-
''the agreements'' means the Swiss Agreement and the United States
Agreement;
''the Commission'' means the Australian National Airlines Commission;
''the Swiss Agreement'' means the agreement constituted by the Swiss Loan
Agreement and the Swiss Letter;
''the Swiss Loan Agreement'' means the agreement a copy of which is set out
in Part I of the First Schedule to this Act;
''the Swiss Letter'' means the letter a copy of which is set out in Part II
of the First Schedule to this Act;
''the United States Agreement'' means the agreement a copy of which is set
out in the Second Schedule to this Act.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 4.
Approval of agreements.
SECT
4. (1) The Swiss Loan Agreement and the United States Agreement are
approved.
(2) The confirmation on behalf of the Commonwealth of the Swiss Letter is
approved.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 5.
Approval of borrowings.
SECT
5. (1) The borrowing by the Commonwealth, in accordance with the Swiss
Agreement, of moneys in the currency of Switzerland not exceeding in the whole
Nine million nine hundred thousand francs is approved.
(2) The borrowing by the Commonwealth, in accordance with the United States
Agreement, of moneys in the currency of the United States of America not
exceeding in the whole Two million four hundred and ninety thousand and forty
dollars is approved.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 6.
Approval of notes.
SECT
6. The execution on behalf of the Commonwealth, and the delivery to
Export-Import Bank of the United States, of promissory notes referred to in
the United States Agreement are approved.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 7.
Application of moneys.
SECT
7. (1) For the purposes of, and purposes in connexion with, the purchase by
the Commission of the aircraft referred to in the United States Agreement, the
Commonwealth may, on such terms and conditions as the Treasurer determines,
make available to the Commission, by way of loan or other credit arrangements,
amounts equivalent to the moneys borrowed under the agreements.
(2) Moneys required for the purposes of the last preceding sub- section are
payable out of the Loan Fund, which is to the necessary extent appropriated
accordingly.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 8.
Expenses and charges.
SECT
8. The expenses of borrowing under the agreements and any commitment fee,
interest or other charge payable under the agreements, shall be paid out of
the Consolidated Revenue Fund.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 9.
Repayment of loan moneys.
SECT
9. (1) Moneys borrowed under the Swiss Agreement shall be repaid out of the
Consolidated Revenue Fund in accordance with the provisions of that
agreement.
(2) Moneys borrowed under the United States Agreement shall be repaid out of
the Consolidated Revenue Fund in accordance with the provisions of that
agreement.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 10.
Appropriation of Consolidated Revenue Fund.
SECT
10. The Consolidated Revenue Fund is appropriated to the extent necessary
for the purposes of the last two preceding sections.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 11.
National Debt Sinking Fund Act not to apply.
SECT
11. The National Debt Sinking Fund Act 1966-1967 does not apply in relation
to moneys borrowed under the agreements.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 12.
Application of sub-section 31 (5) of Australian National Airlines Act.
SECT
12. Amounts made available to the Commission by the Commonwealth under this
Act shall not be taken into account for the purposes of sub-section (5) of
section 31 of the Australian National Airlines Act 1945-1966.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 13.
Moneys to be paid, and documents to be, free of taxes, &c.
SECT
Sub-section (1) amended by No. 216, 1973, s. 3.
13. (1) Notwithstanding anything contained in any law of the Commonwealth or
of a State or Territory, whether passed or made before or after the
commencement of this Act, payments referred to in Article 4 of the Swiss Loan
Agreement shall be free of all taxes as agreed in that Article.
Amended by No. 216, 1973, s. 3.
(2) Notwithstanding anything contained in any law of the Commonwealth or of
a State or Territory, whether passed or made before or after the commencement
of this Act-
(a) the execution, issue and delivery of the United States Agreement or of
any note issued under that agreement; and
(b) the payment of moneys referred to in Article XV of that agreement,
shall be exempt from all taxes, duties, fees, restrictions and other charges
as agreed in that Article.
(3) Nothing in the last preceding sub-section excludes or limits the
application of section 6B of the Loans Securities Act 1919-1968.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 14.
Application of Act to disbursements under United States Agreement not paid to
the Commonwealth.
SECT
14. Where the doing of any act or thing is, for the purposes of the United
States Agreement, a disbursement by the Export-Import Bank of the United
States or by The Boeing Company but the act or thing is not, and does not
entail, the payment of moneys by the Export-Import Bank of the United States
or by The Boeing Company to the Commonwealth, the doing of that act or thing
shall, for the purposes of this Act, be deemed to constitute the borrowing by
the Treasurer, on behalf of the Commonwealth, in accordance with that
agreement, of the amount of the disbursement.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 15.
Insurance.
SECT
15. Where, under Article VIII of the United States Agreement, the
Commonwealth is required to cause the Commission to do an act or thing, the
Treasurer may require the Commission to do that act or thing and the
Commission shall comply with that requirement.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 16.
Reports.
SECT
16. The Treasurer may at any time require the Commission to furnish to him
such reports and information as are necessary to enable the Commonwealth to
carry out the obligations of the Commonwealth under Article IX of the United
States Agreement and the Commission shall comply with any such requirement.
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECT. 17.
Approval of application of Swiss law and election of domicile.
SECT
17. To the extent necessary to give to Article 7 of the Swiss Loan Agreement
its full operation according to Swiss law the provisions of that Article have
force and effect by virtue of this Act.
-----------
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - FIRST
SCHEDULE
SCH
THE SCHEDULES
FIRST SCHEDULE
Section
3
SWISS AGREEMENT
PART I
LOAN AGREEMENT
BETWEEN: Union Bank of Switzerland
Bahnhofstrasse 45
8001/Zurich ON THE ONE HAND AND:
Commonwealth of Australia ON THE OTHER HAND
THE FOLLOWING IS AGREED:
1.
Union Bank of Switzerland, Zurich, Switzerland (the ''Bank'') hereby agrees
to lend funds to the Commonwealth of Australia (the ''Commonwealth'') on the
terms and provisions stated below:
AMOUNT: Swiss Francs 9,900,000 (Nine Million Nine Hundred Thousand) to be made
available to the Commonwealth on the Take-Down Date.
TAKE-DOWN DATE: The Take-Down Date shall be a date designated by the
Commonwealth by means of written notice to the Bank at least 30 days prior to
such date. The Take-Down Date shall not be later than November 14, 1969.
RATE OF INTEREST: The rate of interest shall be 6 1/2% net per annum, interest
payable annually on the anniversary of the Take-Down Date, on the principal
amount of the loan then outstanding. The first interest payment shall be made
on the anniversary of the Take-Down Date one year from such date.
COMMITMENT FEE: The Commonwealth agrees to pay to the Bank on the Take-Down
Date an amount equal to 1/2% per annum, computed from September 19, 1968 to
the Take-Down Date, of the principal amount of the loan. The commitment fee
shall be computed on the basis of a 360-day year of twelve 30-day months.
REPAYMENT OF LOAN: Except as otherwise provided, the loan shall be repaid in
the amounts and at the times shown below:
On the anniversary of the Take-Down
Date Three years from such date SF1,980,000
On the anniversary of the Take-Down
Date Four years from such date SF1,980,000
On the anniversary of the Take-Down
Date Five years from such date SF1,980,000
On the anniversary of the Take-Down
Date Six years from such date SF1,980,000
On the anniversary of the Take-Down
Date Seven years from such date SF1,980,000
PAYMENTS: The payments of interest and premium, if any, and the repayments of
principal will be made to the Bank in Zurich, in Swiss Francs or in such other
lawful currency of the Confederation of Switzerland then pertaining. All such
payments to the Bank shall correspondingly absolve the Commonwealth of its
obligations hereunder regardless of whether or not the claim against the
Commonwealth has been assigned by the Bank in whole or in part.
2.
The Commonwealth is entitled to prepay the total principal amount of the
loan or any part thereof on or after the anniversary of the Take-Down Date
three years from such date, upon the giving of at least 60 days' notice to the
Bank. If the Commonwealth avails itself of this right, it shall pay the
following respective percentages of principal amount retired: If such
prepayment occurs on or after the anniversary of the Take-Down Date three
years from such date, but before the anniversary of the Take-Down Date four
years from such date, 1003/4%, if such prepayment occurs on or after the
anniversary of the Take-Down Date four years from such date, but before the
anniversary of the Take-Down Date five years from such date, 1001/2%, if such
prepayment occurs on or after the anniversary of the Take-Down Date five years
from such date, but before the anniversary of the Take-Down Date six years
from such date, 1001/4%, and if such prepayment occurs on or after the
anniversary of the Take-Down Date six years from such date, 100%.
3.
In case of any prepayment the Commonwealth is obligated to pay accrued
interest to the date thereof on the principal amount prepaid. Such accrued
interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
4.
The payments of interest and premium, if any, and the repayments of
principal, and the commitment fee, will be free of all present or future taxes
imposed by the Commonwealth or by any taxing authority thereof or therein,
except to the extent that the right to receive payment 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.
5.
The Bank will hold the Commonwealth harmless from all taxes or duties which
may become due in connection with the execution of this Loan Agreement, the
granting of the loan on the Take-Down Date, or any assignment or reassignment
of the claims against the Commonwealth evidenced hereby, except for such taxes
or duties imposed by the Commonwealth or by the Territory of Papua or by the
Territory of New Guinea or by any of their instrumentalities.
6.
The Bank has the right to assign the claim against the Commonwealth in whole
or in part to third parties, any partial assignment not to be in amount of
less than SF 100,000. Any such assignment can also be effected for the purpose
of further assignment by any assignee to third parties.
It is understood and agreed that any such assignment, in whole or in part,
will be made by the Bank only to persons who are not citizens or residents of
Australia or the Territory of Papua or the Territory of New Guinea. The Bank
will impose this condition on all assignees and will obtain corresponding
covenants from them.
7.
All legal relationships arising from this loan and the terms hereof shall be
subject to Swiss Law. Any dispute arising between the Bank or any assignees,
on the one hand, and the Commonwealth, on the other hand, regarding this loan
and the terms hereof shall be subject to Swiss Law. For the purpose of any
such dispute and for the purpose of the execution of any judgment rendered by
a Swiss Court, and only for such purposes, the Commonwealth elects legal
domicile at Staehelin & Giezendanner, 39 Alfred Escher-Strasse, 8027 Zurich,
Switzerland.
8.
This Agreement shall not become effective until approved by the Parliament
of the Commonwealth.
ZURICH, September 19, 1968
COMMONWEALTH OF AUSTRALIA
WILLIAM McMAHON
Rt. Hon. William McMahon
Treasurer
UNION BANK OF SWITZERLAND
N. SENN SUTZ
PART II
LETTER FROM UNION BANK OF SWITZERLAND TO THE COMMONWEALTH
UNION BANK OF SWITZERLAND
Commonwealth of Australia September 19,
1968
Dear Sirs,
We are prepared to grant to you a loan of Swiss Francs 9.900.000.-on the terms
and conditions set forth in the Loan Agreement, dated September 19, 1968,
between you and ourselves.
The drawdown of the loan shall be on the Take Down Date designated by you
pursuant to Article 1 of the Loan Agreement.
We will receive, for our services rendered in connection with the granting of
this loan, a commission of 1 1/2% (one and one-half percent) of the principal
amount of the loan. This commission will be due for payment on the Take Down
Date of the loan, together with the amount of the commitment fee to be paid
pursuant to Article1 of the Loan Agreement.
We have taken note that you will make these payments to us separately at the
appropriate times.
If you are in agreement with the above, please confirm this letter in the
space provided below.
Very truly yours,
UNION BANK OF SWITZERLAND
SUTZ W. FRANK
Confirmed September 19, 1968
COMMONWEALTH OF AUSTRALIA
William McMahon
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - SECOND
SCHEDULE
SCH
SECOND SCHEDULE
Section
3
UNITED STATES AGREEMENT
THIS AGREEMENT, made and entered into as of the 2nd day of October, 1968, by
and between the Commonwealth of Australia (hereinafter called ''Borrower''),
The Boeing Company (hereinafter called ''Exporter''), and Export-Import Bank
of the United States (hereinafter called ''Eximbank'');
WITNESSETH:
WHEREAS, the Exporter is a corporation organized and existing under the laws
of Delaware, United States of America, and is engaged in the manufacture of
aircraft and Eximbank is an agency of the United States of America; and
WHEREAS, the Australian National Airlines Commission, trading as
Trans-Australia Airlines (hereinafter called ''Commission''), a statutory
corporation established by the Australian National Airlines Act 1945-1966, by
an agreement with the Exporter dated June 3, 1968, and designated Purchase
Agreement No. 354 agreed to purchase from the Exporter one model 727-76 jet
aircraft (hereinafter called ''Aircraft'') and related spare parts, equipment,
and services, and the Commission has made or may make arrangements for the
purchase from other United States suppliers of additional related spare parts,
equipment, and services (the Aircraft and all of said parts, equipment, and
services are hereinafter called ''Equipment''); and
WHEREAS, the aggregate purchase price of the Equipment is anticipated to be
approximately Five Million Nine Hundred Eighty Seven Thousand Five Hundred
Fifty United States Dollars (US$5,987,550) and the Commission is prepared to
make cash payments with respect to each item of the Equipment, not later than
the delivery thereof, of not less than twenty per cent (20%) of the purchase
price of such item, leaving the balance of the aggregate purchase price, that
is to say, up to eighty percent (80%) of the purchase price or approximately
Four Million Seven Hundred Ninety Thousand Forty United States Dollars
(US$4,790,040) as the portion of the purchase price to be financed
(hereinafter called ''Financed Portion''); and
WHEREAS, the Exporter is prepared to participate in the financing to the
extent of five and twenty one hundredths percent (5.20%) of the Financed
Portion, namely, Two Hundred Forty Nine Thousand Four United States Dollars
(US$249,004); and
WHEREAS, Union Bank of Switzerland is prepared to participate in the
financing to the extent of Nine Million Nine Hundred Thousand Swiss Francs
(SwF9,900,000) which is approximately Two Million Three Hundred Thousand
United States Dollars (US$2,300,000) or forty eight and two one hundredths
percent (48.02%) of the Financed Portion; and
WHEREAS, the Borrower and the Exporter have requested Eximbank to assist in
financing the transaction to the extent of forty six and seventy eight one
hundredths percent (46.78%) of the Financed Portion or Two Million Two Hundred
Forty One Thousand Thirty Six United States Dollars (US$2,241,036), whichever
is the lesser; and
WHEREAS, the extension of credit for the aforesaid purpose will facilitate
exports and imports and the exchange of commodities between the United States
of America and Australia;
NOW, THEREFORE, In consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
Establishment of Credit
Eximbank and the Exporter hereby establish in favor of the Borrower a line
of credit (hereinafter called ''Credit'') upon the terms and conditions
contained herein, in the amount of Two Million Four Hundred Ninety Thousand
Forty United States Dollars (US$2,490,040) for the purpose of assisting the
Borrower in financing the purchase by the Commission in the United States and
exportation therefrom of the Equipment. Each disbursement under the Credit
shall be made in the manner hereinafter set forth by Eximbank to the extent of
ninety percent (90%) of such disbursement and by the Exporter to the extent of
ten percent (10%) thereof. Disbursements by Eximbank under the Credit shall
not exceed Two Million Two Hundred Forty One Thousand Thirty Six United States
Dollars (US$2,241,036) and disbursements by the Exporter under the Credit
shall not exceed Two Hundred Forty Nine Thousand Four United States Dollars
(US$249,004).
ARTICLE II
Terms of Repayment and Prepayment
A. Repayment. The Borrower covenants and agrees to repay the aggregate of
disbursements under the Credit in not more than fourteen (14) approximately
equal successive semiannual installments beginning May 25, 1970, and, subject
to the provisions of Article XIV hereof, to pay interest at the rate of six
percent (6%) per annum computed on the basis of actual number of days using a
365-day factor on the unpaid principal balance thereof from time to time
outstanding, such interest to be due and payable on May 25 and November 25 of
each year, beginning with the first of such dates following the first
disbursement under the Credit. Unless and until the Borrower shall exercise
the option provided in paragraph B of Article III hereof with respect to the
submission of a definitive promissory note, the aggregate of disbursements
under the Credit shall be repaid in successive semiannual installments
beginning May 25, 1970, each in the amount of One Hundred Seventy Seven
Thousand Eight Hundred Sixty United States Dollars (US$177,860), except that
the last installment may be in such lesser amount as may be necessary to
complete the repayment of such aggregate of disbursements. It is understood
that if any repayments of principal fall due prior to the final date for
making disbursements hereunder as set forth in Article VII hereof or as
extended in the manner provided therein, such repayments shall be made in the
amounts and at the times specified in this paragraph notwithstanding the fact
that the full amount of the Credit may not yet have been disbursed. In the
event that the Borrower shall exercise its option as provided in paragraph B
of Article III hereof, the unpaid principal balance of disbursements under the
Credit shall be repaid in approximately equal semiannual installments, the
last of which shall be due and payable not later than November 25, 1976.
B. Prepayments. Prepayments on the indebtedness of the Borrower under the
Credit and on any note or notes evidencing such indebtedness may be made at
the Borrower's option at any time but must be accompanied by payment of
interest on the amount of the prepayment to the date of prepayment and will be
credited to the payment of installments in the inverse order of their
maturity. Prepayments made under Article VIII relating to hull insurance on
the Aircraft shall be credited to the payment of installments of any notes
issued hereunder in the inverse order of their maturity.
ARTICLE III
Promissory Notes
A. Initial Promissory Note. The Borrower's obligation to Eximbank and the
Exporter resulting from disbursements under the Credit shall be further
evidenced by the Borrower's promissory note (hereinafter called ''Initial
Promissory Note'') in the amount of Two Million Four Hundred Ninety Thousand
Forty United States Dollars US$2,490,040), payable to the order of Eximbank,
which shall be delivered to Eximbank as a condition precedent to disbursement
hereunder. It is understood and agreed that the Initial Promissory Note shall
be valid and enforceable only to the extent of disbursements made against it
and interest on such disbursements. Although the Initial Promissory Note shall
be dated as of its date of issue and shall provide for interest from its date,
appropriate adjustments will be made so that interest accrued and computed
only from the dates of the respective disbursements made against it shall be
payable. The Initial Promissory Note shall be payable in lawful money of the
United States of America at a commercial bank in the United States
satisfactory to Eximbank in accordance with the terms set forth hereinabove.
The Initial Promissory Note shall be printed or lithographed in the English
language on one side of a single sheet of safety paper and shall be
satisfactory to Eximbank in form and text which shall be substantially that of
Exhibit ''A'' attached hereto.
B. Definitive Promissory Note. If, on the final date for making
disbursements hereunder as provided in Article VII hereof, the aggregate of
disbursements hereunder is less than the principal amount of the Initial
Promissory Note, an exchange of notes will be made at the request of the
Borrower or Eximbank communicated to the other party not less than thirty (30)
days prior to the first principal maturity date. Upon such request, the
Borrower shall issue and deliver to Eximbank a new note in exchange for the
Initial Promissory Note in a principal amount equal to the aggregate of
disbursements made against the Initial Promissory Note. Such new note shall be
dated as of the date to which interest shall have been paid on the Initial
Promissory Note surrendered by Eximbank and shall otherwise conform to the
requirements of paragraph A of this Article. If a timely request for an
exchange of notes is not made, the excess principal amount of the Initial
Promissory Note shall be credited to the payment of installments thereon in
the inverse order of their maturity.
C. Further Exchange of Notes. Upon the request of Eximbank made at any time
or from time to time more than thirty days after the final date for making
disbursements under the Credit as provided in Article VII hereof, the Borrower
shall issue and deliver to Eximbank, in exchange for a promissory note or
notes theretofore issued to Eximbank pursuant to this Article, its new
promissory note or notes, in such denominations as Eximbank may specify and
dated the date or respective dates to which interest shall have been paid on
the note or notes surrendered. The aggregate principal amount of the new note
or notes shall be equal to the aggregate of disbursements made against, less
the aggregate of any repayments of principal made upon, the note or notes
surrendered in exchange therefor. Each new note issued pursuant hereto shall
be substantially in the form of Exhibit ''A'' attached hereto, except for such
modifications as may be necessary or appropriate to give effect to any of the
provisions of this paragraph C.
ARTICLE IV
Commitment Fee
The Borrower covenants and agrees to pay to Eximbank in United States
dollars on May 25 and November 25 of each year, commencing on the first of
such dates next succeeding the date of this Agreement, a commitment fee
accruing from September 15, 1968, computed at the rate of one-half of one
percent (1/2 of 1%) per annum on the basis of actual number of days using a
365-day factor, on that portion of the Credit to be advanced by Eximbank as
from time to time shall be undisbursed, uncancelled or unexpired. With respect
to disbursements made under paragraph C of Article VI hereof, the accrual of
the commitment fee shall terminate as of the date of payment by the commercial
bank to the beneficiary of a letter of credit of funds reimbursable under the
Credit to the Commercial bank by Eximbank.
ARTICLE V
Conditions Precedent to Utilization of Credit
A. Borrower's Documents for Eximbank. As a condition precedent to the first
utilization of the Credit, the Borrower shall submit or cause to be submitted
to Eximbank, in form and substance satisfactory to it, the following:
1. Note. The Initial Promissory Note required under paragraph A of Article
III hereof; and
2. Equipment List. A summary, or list broken down by principal categories,
of the items of the Equipment which the Commission intends to purchase. Such
summary or list, upon approval by Eximbank, shall constitute the Commission's
purchase program for items to be financed under the Credit and no substantial
changes shall be made therein without the consent of Eximbank and the
Exporter.
B. Documents for Eximbank and Exporter. As a condition precedent to the
first utilization of the Credit, the Borrower shall submit or cause to be
submitted to Eximbank and the Exporter, in form and substance satisfactory to
both, the following:
1. Authority of Representatives. Evidence of the authority, together with a
certified specimen signature of each of the persons:
a. who has signed this Agreement on behalf of the Borrower;
b. who, on behalf of the Borrower, has signed the Initial Promissory Note
delivered to Eximbank; and
c. who will, until replaced by other persons duly authorized for the
purpose, act as the representative of the Borrower for the purpose of signing
documents and otherwise operating the Credit.
2. Legal Opinion. An opinion or opinions of counsel satisfactory to Eximbank
and the Exporter which shall refer to all pertinent laws, decrees and
documents and shall demonstrate to the satisfaction of both that:
a. this Agreement as signed on behalf of the Borrower is legally binding
upon the Borrower in accordance with its terms; and
b. the Initial Promissory Note delivered to Eximbank has been validly
executed and will, to the extent of disbursements made under the Credit and
the interest thereon, constitute the valid and binding obligation of the
Borrower in accordance with its terms.
C. Exporter's Documents for Eximbank. As a condition precedent to the first
utilization of the Credit, the Exporter shall submit to Eximbank, in form and
substance satisfactory to it, the following:
1. Authority of Representatives. Evidence of the authority, together with a
certified specimen signature of each of the persons:
a. who has signed this Agreement on behalf of the Exporter; and
b. who will, until replaced by other persons duly authorized for the
purpose, act as the representative of the Exporter for the purpose of signing
documents and otherwise operating the Credit.
2. Legal Opinion. An opinion of counsel demonstrating to the satisfaction of
Eximbank that this Agreement, as signed on behalf of the Exporter, is legally
binding on the Exporter in accordance with its terms.
3. Borrower's Documents. A certification by the General Counsel of the
Exporter that documents required to be submitted by the Borrower to the
Exporter under paragraph B of this Article have been received, reviewed, and
have been found to be satisfactory in form and substance to the Exporter.
ARTICLE VI
Disbursement Procedures
A. Conditions Precedent. When all conditions precedent to the first
utilization of the Credit, as provided in Article V hereof, have been
fulfilled, the Credit may be utilized in accordance with any of the procedures
set forth in this Article. These procedures, and the documents required in
connection therewith, shall be more fully described in a procedure letter or
letters (hereinafter collectively called ''Procedure Letter'') to be sent to
the Borrower by Eximbank.
B. Reimbursement. Subject to the provisions of paragraph A of this Article,
disbursements will, upon the request of the Borrower, be made under the Credit
from time to time to the account of the Borrower at a commercial bank in the
United States designated by the Borrower and acceptable to Eximbank and the
Exporter of amounts up to forty one and fifty nine one hundredths percent
(41.59%) of the expenditures made by the Commission for the purchase of the
items of Equipment. Disbursements to the extent of ninety percent (90%) of the
amount of each such request of the Borrower for an advance to enable it to
reimburse the Commission shall be made by Eximbank, and disbursements to the
extent of ten percent (10%) thereof shall be made or deemed to have been made
by the Exporter as provided below. Eximbank shall make disbursements as
aforesaid upon the receipt in form and substance satisfactory to it (in
addition to the documents required by paragraph F of this Article and the
Procedure Letter) of evidence that the Exporter has issued its irrevocable
instructions to said commercial bank to debit the Exporter's account and
credit the Borrower's account at such bank in the amount of ten percent (10%)
of the requested disbursement, or evidence of the extension of credit by the
Exporter to the Borrower of an amount equivalent to ten percent (10%) of the
requested disbursement. Each such extension of credit shall constitute a
disbursement under the Credit and shall bear interest from the date thereof.
C. Letters of Credit. The Borrower may use the Credit from time to time by
requesting a commercial bank in the United States designated by the Borrower
and acceptable to Eximbank and the Exporter to open or confirm letters of
credit for the purpose of financing not more than forty one and fifty nine one
hundredths percent (41.59%) of the expenditures to be made by the Commission
for the purchase of items of Equipment furnished or to be furnished by
suppliers other than the Exporter, and thirty seven and forty three one
hundredths percent (37.43%) of the expenditures to be made by the Commission
for the purchase of items of Equipment furnished or to be furnished by the
Exporter. Eximbank will issue its undertaking to reimburse each such
commercial bank to the extent of ninety percent (90%) of disbursements made by
the latter to the beneficiary of each such letter of credit if the beneficiary
is other than the Exporter, and to the extent of one hundred percent (100%) of
said disbursements if the beneficiary is the Exporter. If the beneficiary is
other than the Exporter, the Exporter will issue its undertaking with respect
to any such letter of credit to reimburse each such commercial bank to the
extent of ten percent (10%) of disbursements made by the latter to the
beneficiary of each such letter of credit or the Exporter will issue its
irrevocable instructions to the commercial bank to debit the Exporter's
account at such bank, to reimburse such bank in amounts to equal ten percent
(10%) of said disbursements made by such bank in accordance with the terms of
the letter of credit. If the beneficiary of the letter of credit is the
Exporter, the Exporter and the Borrower agree that simultaneously with each
disbursement under said letter of credit a disbursement equal to one-ninth
(1/9th) of the amount of the disbursement under said letter of credit shall be
deemed to have been made under the Credit by the Exporter and the Exporter
agrees that an amount equal to the amount of the disbursement deemed to have
been made under the Credit shall be credited as a payment received by it from
the Commission. Each such letter of credit shall expire by its terms not later
than thirty (30) days prior to the final date for making disbursements under
the Credit as provided in Article VII. In cases where an obligation rests upon
the Exporter to issue its undertaking or irrevocable instructions as
aforesaid, the obligation of Eximbank to issue its undertaking as aforesaid
shall be deferred until it receives, in form and substance satisfactory to it
(in addition to the documents required by paragraph F of this Article and the
Procedure Letter), evidence that the Exporter has issued its undertaking or
irrevocable instructions as aforesaid. It is agreed that so long as any
undertaking by Eximbank and the Exporter as aforesaid remains in force it
shall constitute a pre-emptive commitment of funds under the Credit in an
amount equal to the principal amount of the letter of credit; that payments
made by Eximbank and the Exporter to commercial banks to reimburse such banks
for disbursements made under letters of credit as aforesaid shall constitute
disbursements under the Credit and shall bear interest from the dates on which
such banks make disbursements to each beneficiary of a letter of credit; and,
that Eximbank and the Exporter shall assume no liability for the acts or
omissions of the commercial banks in opening or confirming such letters of
credit or in making disbursements or payments thereunder or with respect
thereto.
D. Payments to the Exporter. With respect to items of Equipment supplied or
to be supplied by the Exporter, or by another supplier through the Exporter,
the Borrower may use the Credit from time to time by requesting disbursements
under the Credit to be made by Eximbank and the Exporter in an amount not
exceeding forty one and fifty nine one hundredths percent (41.59%) of the
purchase price of each such item of Equipment. Ninety percent (90%) of each
such disbursement shall be made by Eximbank by a deposit on behalf of the
Borrower to an account of the Exporter at a commercial bank in the United
States satisfactory to the Borrower, Eximbank and the Exporter, and upon each
such deposit by Eximbank, the Exporter shall extend credit to the Borrower to
the extent of ten percent (10%) of such disbursement. Each such extension of
credit shall constitute a disbursement under the Credit and shall bear
interest from the date thereof. The total amount of each such disbursement
shall be applied by the Exporter in payment of amounts due by the Commission
in relation to items of Equipment supplied by the Exporter or by another
supplier through the Exporter.
E. Pre-Delivery Payments. If pre-delivery payments to be made to the
Exporter with respect to the Aircraft exceed twenty percent (20%) of the
purchase price thereof, the Borrower may use the Credit, to the extent that
the pre-delivery payments exceed twenty percent (20%) of the purchase price or
to the extent of ten percent (10%) of the purchase price, whichever is the
lesser, either to obtain funds to reimburse the Commission for part of the
pre-delivery payments made by the Commission to the Exporter or to require
disbursement to the account of the Exporter in the manner described in
paragraph D of this Article VI. The sum of such pre-delivery payments financed
under the Credit and all other payments under the Credit shall not, in the
aggregate, exceed forty one and fifty nine one hundredths percent (41.59%) of
the purchase price of the items of Equipment. Under this procedure for making
disbursements under this paragraph E, evidence shall be submitted that the
Commission has made, prior to each disbursement by Eximbank and the Exporter
under this paragraph E, a cash payment of not less than twenty percent (20%)
of the aggregate purchase price of the Aircraft.
F. General. Under any procedure for making disbursements under this Article,
except the procedure described in paragraph E of this Article, evidence shall
be submitted that the Commission has made, or is prepared to make, prior to,
or concurrently with, each disbursement by Eximbank and the Exporter under
this Article, or by a commercial bank under a letter of credit as described in
paragraph C of this Article, a cash payment of not less than fifty eight and
forty one one hundredths percent (58.41%) of the amount then due with respect
to the purchase of the item or items of Equipment in question. In addition to
the documents required by the Procedure Letter and the foregoing provisions of
this Article, the Borrower shall submit or cause to be submitted under any
procedure for making disbursements under this Article such other documents and
information as Eximbank may from time to time reasonably request. All
documents and information submitted under this Article shall be satisfactory
in form and substance to Eximbank.
ARTICLE VII
Availability, Cancellation and Suspension
A. Availability. Except to the extent that Eximbank and the Exporter may
otherwise consent in writing, disbursements under the Credit shall not be made
subsequent to February 28, 1970, and any part of the Credit which shall not
have been disbursed on or before said date may be cancelled by Eximbank
without the requirement of notice to the Borrower.
B. Cancellation by Borrower. The Borrower may at any time by written notice
to Eximbank and the Exporter cancel all or any part of the Credit which shall
not have been disbursed.
C. Suspension by Eximbank. If an Event of Default, as defined in Article XI
hereof, shall occur and be continuing, then and in each and every such case,
Eximbank and the Exporter shall consult with respect thereto and the
obligations of Eximbank and the Exporter to make disbursements or extend
credit hereunder shall be suspended upon written notice from Eximbank to the
Borrower. Thereafter, Eximbank and the Exporter shall not be obligated to make
further disbursements until they shall have received evidence that the cause
or causes of the suspension have been eliminated or corrected in a manner
satisfactory to Eximbank, and Eximbank shall have notified the Borrower in
writing that the suspension has been removed.
D. Continuation of Rights and Obligations. Notwithstanding any cancellation
or suspension pursuant to this Article, all the provisions of this Agreement
and any note evidencing the Borrower's indebtedness and the rights and
obligations of any party with respect to disbursements made prior to such
cancellation or suspension, shall continue in full force and effect. The
Borrower shall continue to have the right, subject to the terms and conditions
of this Agreement, to receive disbursements under the Credit with respect to
payments falling due at any time prior to the final date for making
disbursements as provided in paragraph A of this Article under purchase orders
that were binding on the Commission before receipt by the Borrower of written
notice of intention to suspend the unused portion of the Credit and such
suspension shall be without prejudice to the validity of outstanding
undertakings issued pursuant to the provisions of paragraph C of Article VI
hereof with respect to bank letters of credit.
ARTICLE VIII
Aircraft Hull Insurance
The Borrower covenants and agrees that so long as the Borrower's
indebtedness under the Credit or any note evidencing such indebtedness remains
outstanding and unpaid, and except to the extent that Eximbank and the
Exporter may otherwise jointly agree in writing:
1. All-Risk Aircraft Hull Insurance. The Borrower shall cause the
Commission to maintain insurance upon the Aircraft under a contract of
All-Risk Aircraft Hull Insurance, satisfactory to Eximbank and the Exporter.
Such insurance shall be payable in United States currency in the United States
and the amount of insurance and the terms and conditions of the insurance
contract, including deductible clauses, shall be in accordance with normal
practices in the airline industry, but in no event shall the amount of
insurance be less than the lesser of the insurable value of the Aircraft or
the outstanding indebtedness of the Borrower hereunder to Eximbank and the
Exporter.
2. Damage of Aircraft. In the event of damage to the Aircraft, except total
loss or constructive total loss, which damage is compensable under the
insurance referred to in subparagraph 1 of this Article, the Borrower shall
promptly cause the Commission, upon the receipt of the proceeds of such
insurance, to apply such proceeds to the repair of the Aircraft.
3. Loss of Aircraft. In the event of total loss or constructive total loss
of the Aircraft, which total loss or constructive total loss is compensable
under the insurance referred to in subparagraph 1 of this Article, the
Borrower shall promptly cause the Commission, upon receipt of the proceeds of
the insurance, at the Commission's option either (a) to apply the proceeds to
the replacement of the Aircraft with a new aircraft of similar type
manufactured in the United States by the Exporter, or (b) to apply the
proceeds, or so much of the proceeds as may be necessary, to prepay, as
provided in paragraph B of Article II hereof, the outstanding amount of the
Borrower's indebtedness under the Credit. Within sixty (60) days after such
loss or constructive total loss, the Borrower shall advise Eximbank and the
Exporter in writing which of the foregoing options the Commission has
elected.
ARTICLE IX
Reports
Within one hundred fifty (150) days following the close of each fiscal year
of the Commission until the indebtedness of the Borrower under the Credit
shall have been paid in full, the Borrower shall submit or cause to be
submitted, to Eximbank and the Exporter copies of the Commission's annual
financial report, in form satisfactory to Eximbank, relating to the preceding
fiscal year, including balance sheets, income statements, and a description of
operations during the year. Such annual report shall be certified by an
independent auditor. Within sixty (60) days following the mid-point of each
fiscal year, the Borrower shall submit or cause to be submitted, to Eximbank
and the Exporter a summary of the monthly reports with respect to the
preceding six (6) months of the Commission's fiscal year, which shall be
signed by a responsible officer of the Commission but need not be certified by
an independent auditor. The Borrower shall also cause to be furnished to
Eximbank or the Exporter such additional reports and information as Eximbank
or the Exporter may reasonably request.
ARTICLE X
Representations, Warranties and Covenants
A. Other Financing. The Borrower represents and warrants that Union Bank of
Switzerland has authorized and established a loan in favor of the Borrower in
an amount of Nine Million Nine Hundred Thousand Swiss Francs (SwF9,900,000)
which is approximately Two Million Three Hundred Thousand United States
Dollars (US$2,300,000), or approximately thirty eight and forty one one
hundredths percent (38.41%) of the purchase price of the Equipment, to assist
the Borrower in making the required cash payments not later than the time of
delivery of the Equipment and that such loan is repayable in five (5)
approximately equal successive annual installments beginning not later than
three years after the date of initial drawing under the loan.
B. Commission Funds. The Borrower represents and warrants that, not later
than the time of delivery of each item of equipment, the Commission has made
or will make for or towards the purchase price of each item of Equipment to be
financed under the Credit, a cash payment of twenty percent (20%) derived from
its own funds.
C. Use of Aircraft. The Borrower represents and warrants that the Aircraft
will be used by the Commission principally on routes of the Borrower between
termini in Australia and that all other items of Equipment will be used by the
Commission principally in Australia.
D. Authority. The Borrower represents and warrants that it has full power,
authority and legal right to incur the indebtedness and other obligations
provided for in this Agreement and the Initial Promissory Note, to execute and
deliver this Agreement and the Initial Promissory Note, and this Agreement
does, and the Initial Promissory Note when issued hereunder will, constitute
valid and binding obligations of the Borrower in accordance with the
respective terms hereof and thereof.
E. Legal Action. The Borrower represents and warrants that it has taken all
action required under the laws and regulations of the Borrower, or of any
political subdivision, department or agency thereof, to authorize the
execution and delivery of this Agreement and the Initial Promissory Note.
F. Full Faith and Credit. The Borrower represents and warrants that all
covenants of the Borrower contained in this Agreement constitute, and the
Initial Promissory Note when issued hereunder, and any note or notes exchanged
therefore, will constitute, unconditional direct obligations of the Borrower
for the payment and performance of which the Borrower pledges its full faith
and credit.
G. Past Employment. The Borrower represents and warrants that no director,
officer, employee, agent, attorney or consultant of the Borrower or the
Commission who performed services in connection with the establishment by
Eximbank of its credit hereunder was a director, officer or employee of
Eximbank at any time during the period of one year prior to August 15, 1968,
the date on which the establishment of its credit was authorized by Eximbank.
H. Future Employment. The Borrower covenants that during the period of two
years after August 15, 1968, it will not employ or enter into any
understanding to employ any person: (1) who was a director, officer or
employee of Eximbank at any time during the period of one year prior to said
date; or (2) 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.
I. Payments. The Borrower 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
Borrower's regular full-time officers and employees to the extent of their
regular remuneration, any commission, fee or other payment in connection with
the establishment or operation of Eximbank's credit hereunder, except
reasonable compensation satisfactory to Eximbank for bona fide professional,
technical or other comparable services incident to presenting the merits of
the Borrower's application for Eximbank's credit hereunder or to the operation
of such credit.
ARTICLE XI
Events of Default
If one or more of the following events (hereinafter called ''Events of
Default'') shall have occurred and be continuing, that is to say:
1. Failure to Pay. A default shall have occurred in the payment of any
amounts required under this Agreement, any note issued hereunder, or any other
agreement between Eximbank and the Borrower; or
2. Failure to Perform. A default shall have occurred in the performance of
any other covenant or agreement on the part of the Borrower under this
Agreement, any note issued hereunder, or any other agreement between Eximbank
and the Borrower, and such default remains unremedied for a period of thirty
(30) days after written notice thereof shall have been given to the Borrower
by Eximbank; or
3. Representations and Warranties. Any representation or warranty made by
the Borrower under this Agreement, any note issued hereunder, or any other
agreement between Eximbank and the Borrower proves to be incorrect in any
material respect and has not been corrected within thirty (30) days after
written notice thereof shall have been given to the Borrower by Eximbank;
then, and in each and every such case, Eximbank may, upon written notice to
the Borrower, make immediately due and payable the entire principal amount of
the credit at the time outstanding, or any notes evidencing such amount,
together in each case with accrued interest thereon to the date of payment and
any security which may exist with respect to such Credit or notes shall then
become enforceable.
ARTICLE XII
Eximbank and Exporter Participations
A. Allocation of Disbursements. The respective disbursements and extensions
of credit by Eximbank and the Exporter pursuant to Article VI hereof shall
constitute disbursements under the Credit and be charged against their
respective portions of the Credit as set forth in Article I hereof.
B. Payments. Eximbank and the Exporter shall participate in the Borrower's
indebtedness resulting from disbursements under the Credit, and in any notes
evidencing such indebtedness, in proportion to the aggregate disbursements
charged against their respective portions of the Credit as set forth in
Article I hereof, and Eximbank shall promptly remit to the account of the
Exporter at a commercial bank in the United States designated by the Exporter
and acceptable to Eximbank the Exporter's proportionate share of the principal
of and interest on the Borrower's indebtedness received by Eximbank as
provided in Article II hereof.
C. Equality. Subject to the provisions of Article XIV hereof, the
participations of Eximbank and the Exporter as aforesaid shall be equal in all
respects and neither shall enter into nor accept any arrangement: (1) varying
the terms of the Borrower's indebtedness under the Credit or any note
evidencing such indebtedness; (2) resulting in payment to either Eximbank or
to the Exporter without ratable payment or transfer to the other; or (3)
securing either Eximbank or the Exporter without ratably securing the other.
D. Expenses. Any expenses incurred by Eximbank or the Exporter in the
enforcement of the Borrower's indebtedness under the Credit, if not reimbursed
by the Borrower, shall be borne by Eximbank and the Exporter in the proportion
of their respective participations.
E. Participation Certificate. Promptly after receipt of the written request
of the Exporter made at any time after the final date for making disbursements
under the Credit as provided in Article VII hereof, or the cancellation of the
undisbursed balance of the Credit pursuant to Article VII hereof, or the date
on which the Credit shall have been fully disbursed, whichever occurs first,
Eximbank shall issue and deliver to the Exporter a duly executed certificate
to evidence the Exporter's participation.
ARTICLE XIII
Marine Transportation and Insurance
A. Marine Transportation. All items of Equipment, the purchase of which is
to be financed in whole or in part under the Credit and which have been or
shall be exported from the United States by ocean vessel, must have been or
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. In the event that 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
hereunder.
B. Insurance Premiums. Premiums for insurance against marine and transit
hazards on any items of Equipment financed under the Credit will be eligible
to be financed under this Credit only with respect to those policies of
insurance which are payable in United States dollars and are placed in the
United States market.
ARTICLE XIV
Disposition of Indebtedness
It is understood and agreed that at any time Eximbank or the Exporter may
sell, transfer, negotiate, grant participations in, including participations
constituting interests in an Eximbank investment portfolio, or otherwise
dispose of all or any portion of their respective interests in either the
indebtedness of the Borrower resulting from disbursements under the Credit or
in any note evidencing such indebtedness; provided, that the Borrower shall,
from time to time at the request of the party making such disposition, execute
and deliver to Eximbank or the Exporter, as the case may be, or to such party
or parties as Eximbank or the Exporter may designate, any and all further
instruments as may be necessary or advisable to give full force and effect to
such disposition, including therein, but not limited to, the new note or notes
of the Borrower to be issued in exchange for any note or notes theretofore
issued by the Borrower hereunder. In the event of a disposition by Eximbank or
the Exporter, as aforesaid, including the sale by Eximbank of participations
constituting beneficial interests in an Eximbank investment portfolio which
includes all or any portion of Eximbank's portion of the indebtedness of the
Borrower outstanding hereunder or in any note or notes evidencing such
indebtedness, the Borrower shall be obligated to pay interest at such rate not
exceeding seven per cent (7%) per annum on that portion so disposed of, as in
Eximbank's judgment, is necessary to effect such disposition; provided, that
any such disposition by the Exporter at a rate of interest in excess of six
per cent (6%) per annum shall require the prior written consent of Eximbank.
Prior to any disposition by Eximbank or the Exporter, as aforesaid, the party
intending to make such disposition will give written notice to the other and
to the Borrower, except that notice by Eximbank shall not be required with
respect to the sale of participations constituting beneficial interests in an
Eximbank investment portfolio which includes all or any portion of Eximbank's
portion of the indebtedness of the Borrower outstanding hereunder or under any
note or notes evidencing such indebtedness and such participations are
guaranteed by Eximbank; provided, that the rights of the Borrower to
adjustment of interest and the limitation of its liability under Articles II
and III hereof and this Article XIV are not prejudiced in any way.
ARTICLE XV
Taxes
The Borrower covenants and agrees that the execution, issuance and delivery
of this Agreement and any note issued hereunder, and, except to the extent
that the right to receive payment of the principal amount of or interest on
any outstanding disbursements under the Credit, or any notes issued hereunder,
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, the payment of principal and interest under this Agreement and any
notes issued hereunder, shall be exempt from all present and future taxes,
duties, fees, restrictions, and other charges of whatsoever nature now or
hereafter levied or imposed under the laws of the Borrower or laws in effect
in its territories or by the Borrower or by any political subdivision, taxing
authority, department, or agency thereof.
ARTICLE XVI
Expenses
All statements, reports, certificates, opinions and other documents or
information furnished to Eximbank under this Agreement shall be supplied by
the Borrower or the Commission without cost to Eximbank. Further, the Borrower
hereby agrees to reimburse Eximbank and the Exporter on demand for all
out-of-pocket costs and expenses incurred by Eximbank or the Exporter in
connection with the enforcement, protection or preservation of any right or
claim of Eximbank or the Exporter in connection with this Agreement or any
notes issued hereunder.
ARTICLE XVII
Waiver
No failure or delay on the part of Eximbank or the Exporter to exercise any
right, power, or privilege under this Agreement or any notes issued hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power, or privilege under this Agreement or any notes issued
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power, or privilege.
ARTICLE XVIII
Notices
All notices and other communications hereunder shall be given in writing and
shall be addressed to the appropriate party at the address set forth below, or
at such other place as may be designated in writing by the respective parties
hereto:
Commonwealth of Australia The Boeing Company
The Secretary Post Office Box 3707
Department of the Treasury Seattle, Washington 98124
Canberra, A.C.T. 2600, Australia Attention: Treasurer
Export-Import Bank of the United States 811 Vermont Avenue, N.W. Washington,
D.C. 20571
ARTICLE XIX
Effectiveness of Agreement
This Agreement shall not become effective until there shall have come into
operation legislation of the Parliament of the Borrower approving this
Agreement and authorizing the expenditure of disbursements under the Credit in
accordance with this Agreement and approving the agreement with the Union Bank
of Switzerland for the loan referred to in paragraph A of Article X hereof.
However, the first utilization of the Credit is subject to compliance by the
Borrower with the requirements of Article V hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, in triplicate, at Washington, District of Columbia, United States of
America, as of the date first above written.
COMMONWEALTH OF AUSTRALIA
By WILLIAM McMAHON
Title Treasurer of Commonwealth of Australia
THE BOEING COMPANY
By E. W. NORRIS
Title Asst Sec'ty
EXPORT-IMPORT BANK OF THE UNITED STATES
By WALTER C. SAUER
Title First Vice President
ATTEST FOR
EXPORT-IMPORT BANK OF THE UNITED STATES:
JOSEPH H. REGAN
L.S.
Secretary
EXHIBIT
''A''
PROMISSORY NOTE
COMMONWEALTH OF AUSTRALIA
Washington,
D.C.
US$2,490,040 ..............................,
19........
FOR VALUE RECEIVED, the Commonwealth of Australia, by this promissory note,
hereby unconditionally promises to pay to the order of the Export-Import Bank
of the United States, an agency of the United States of America, the principal
sum of Two Million Four Hundred Ninety Thousand Forty United States Dollars
(US$2,490,040), in installments as hereinafter provided and to pay interest in
like currency on the unpaid principal balance hereof from time to time
outstanding on May 25 and November 25 of each year commencing on the first of
such dates next succeeding the date hereof, at the rate of six percent (6%)
per annum from date until the principal of this note is paid in full.
The principal of this note shall be payable in fourteen (14) installments,
each of which shall be in the sum of One Hundred Seventy Seven Thousand Eight
Hundred Sixty United States Dollars (US$177,860). The first such installment
shall be due and payable on May 25, 1970, and the remaining installments shall
be due and payable successively semiannually thereafter.
Payment of the principal of and interest on this note shall be made at the
principal office of (Name of United States commercial bank), in the City
of....,
State
of .............................., United States of America.
Both principal of and interest on this note shall be paid without deduction
for or on account of, and shall be exempt from, all present and future taxes,
duties, fees, restrictions or other charges of whatsoever nature now or any
time hereafter levied or imposed under the laws of the Commonwealth of
Australia or laws in effect in its territories or by the Commonwealth of
Australia or by any political subdivision, taxing authority, department or
agency thereof, except to the extent that 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.
The Commonwealth of Australia hereby reserves the right to prepay at any
time and from time to time, without penalty or premium, all or any part of the
principal of this note by payment of the principal amount so prepaid with
interest thereon to the date of prepayment. Each such prepayment shall be
applied to the remaining installments of principal on this note in the inverse
order of their maturity.
This note is issued pursuant to the provisions of the Credit Agreement,
dated .............................., 1968, between the Commonwealth of
Australia, The Boeing Company, and Export-Import Bank of the United States.
Upon default in the prompt and full payment of any installment of principal or
interest on this note or upon the occurrence of any of the other Events of
Default set forth in said Credit Agreement, the entire principal of this note
and interest thereon to the date of payment shall immediately become due and
payable at the option and upon the demand of the holder hereof.
Except as provided in the immediately preceding paragraph hereof, the
Commonwealth of Australia hereby waives diligence, presentment, demand,
protest, notice of non-payment or dishonor, and/or any notice of any kind
whatsoever with respect to this note.
This note and the covenants herein contained constitute unconditional direct
obligations of the Commonwealth of Australia for the payment and performance
of which the Commonwealth of Australia pledges its full faith and credit.
The non-exercise by the holder hereof of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
COMMONWEALTH OF AUSTRALIA
By
.............................................................................
Title
..........................................................................
--------------------------------------------------------------------------------
LOANS (AUSTRALIAN NATIONAL AIRLINES COMMISSION) ACT 1968-1973 - NOTE
NOTE
1. The Loans (Australian National Airlines Commission) Act 1968-1973
comprises the Loans (Australian National Airlines Commission) Act 1968 as
amended by the other Act specified in the following table:
----------------------------------------------------------------------------
Number Date of
Act and year Date of
Assent commencement
----------------------------------------------------------------------------
Loans (Australian
National Airlines
Commission) Act 1968 No. 153, 1968 10 Dec 1968 10 Dec 1968
Statute Law Revision Act
1973 No. 216, 1973 19 Dec 1973 31 Dec 1973
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