Loans (Qantas Airways Limited) Act (No. 2) 1971 (Cth)
This compilation was prepared on 24 October 2000
taking into account amendments up to Act No. 107 of 1994
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting,
Attorney‑General’s Department, Canberra
Contents
This Act may be cited as the
Loans (Qantas Airways Limited) Act (No. 2) 1971 .
This Act shall come into operation on the day on which it receives the Royal Assent.
In this Part:
Qantas means Qantas Airways Limited.
the agreement means an agreement in accordance with the form set out in the First Schedule to this Act between the Commonwealth, The Boeing Company and the Export‑Import Bank of the United States.
The execution by the Commonwealth of the agreement and the borrowing by the Commonwealth, in accordance with the agreement, of moneys in the currency of the United States of America are approved.
The execution on behalf of the Commonwealth, and the delivery, of promissory notes in accordance with the agreement are approved.
(1) For the purposes of, and for purposes in connexion with, the acquisition by Qantas of aircraft, being Boeing 747 aircraft not exceeding two in number, the Commonwealth may, on such terms and conditions as the Minister for Finance determines:
(a) make available to Qantas, by way of loan or other credit arrangements, amounts not exceeding in the aggregate an amount equivalent to the moneys borrowed under the agreement; and
(b) make available to Qantas, by way of loan, in addition to the amounts referred to in the last preceding paragraph, amounts in Australian currency not exceeding in the aggregate Thirteen million one hundred and fifty thousand dollars.
(2) Moneys required for the purposes of the last preceding subsection are payable out of the Loan Fund, which is appropriated accordingly.
The expenses of borrowing under the agreement, and any commitment fee, interest or other moneys payable under the agreement, shall be paid out of the Consolidated Revenue Fund.
Moneys borrowed under the agreement shall be repaid, in accordance with the provisions of the agreement, out of the Consolidated Revenue Fund.
The Consolidated Revenue Fund is appropriated as necessary for the purposes of the last two preceding sections.
For the purposes of this Part, 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.
(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, the principal of, and interest on, the notes referred to in Section 4 of the agreement shall be free of all taxes as mentioned in that Section.
(2) Nothing in the last preceding subsection excludes or limits the application of Section 6B of the
Loans Securities Act 1919‑1968 .
(1) The
Loan (Qantas Airways Limited) Act 1968 is in this Part referred to as the Principal Act.(2) The Principal Act, as amended by this Part, may be cited as the
Loan (Qantas Airways Limited) Act 1968‑1971 .
Section 4
PROPOSED AGREEMENT BETWEEN THE COMMONWEALTH, THE BOEING COMPANY AND THE EXPORT‑IMPORT BANK OF THE UNITED STATES
THIS AGREEMENT, dated as of , between the Commonwealth of Australia (the “Commonwealth”), The Boeing Company, a corporation organized and existing under the laws of the State of Delaware (“Boeing”), and the Export‑Import Bank of the United States, an agency of the United States of America (“Eximbank”).
WHEREAS, the Commonwealth has requested Eximbank and Boeing (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 the purchase of one Boeing 747 aircraft (the “Aircraft”), spare parts, and related 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, the purchase price of all the Equipment to be financed in whole or in part hereunder is approximately U.S.$28,276,000; and
WHEREAS, Qantas has arranged, or, prior to the initial disbursement by the Lenders under this Agreement, will make available or arrange, financing to the extent of U.S.$5,655,200; and
WHEREAS, the Commonwealth has arranged, or, prior to the initial disbursement by the Lenders under this Agreement, will make available or arrange, additional financing for Qantas to the extent of U.S.$11,310,400 of which not less than U.S.$7,069,000 shall be from funds raised outside the United States; 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 exports 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.
(a)
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provided always, however, that the aggregate amount of the disbursements of the Lenders shall in no event exceed 40% of the aggregate purchase price of all Equipment to be financed hereunder. Each loan to be made by Eximbank pursuant to this Section (“Eximbank Loans”) will be evidenced by a promissory note of the Commonwealth (“Eximbank Note”) substantially in the form of Exhibit A hereto and shall be payable in seven successive semiannual installments the first of which shall be due and payable November 15, 1979. The first installment shall be in an amount equal to 2.1/26.1 of the Eximbank Loan which it evidences. The remaining six installments of each of the Eximbank Notes shall each be in an amount equal to 4/26.1 of the Eximbank Loan which it evidences. Each Eximbank Note will bear interest on any and all amounts remaining unpaid thereon from time to time from the date thereof until paid at the rate of 6% per annum. Each loan to be made by Boeing pursuant to its A Commitment under this Section (“Boeing A Loan”) will be evidenced by a promissory note of the Commonwealth (“Boeing A Note”) substantially in the form of Exhibit B hereto and shall be payable in three successive semiannual installments the first of which shall be due and payable May 15, 1978. The first two installments of each Boeing A Note shall each be in an amount equal to 4/10.99 of the principal amount of the note, with the final installment in an amount equal to 2.99/10.99 of the principal amount of the note. Each loan to be made by Boeing pursuant to its B Commitment under this Section (“Boeing B Loan”) will be evidenced by a promissory note of the Commonwealth (“Boeing B Note”) substantially in the form of Exhibit C hereto and shall be payable in two successive semiannual installments the first of which shall be due and payable May 15, 1979. The first installment of each Boeing B Note shall be in an amount equal to 1.01/2.91 of the principal amount of the note with the final installment in an amount equal to 1.9/21.91 of the principal amount of the note. Each Boeing A Note will bear interest on any and all amounts remaining unpaid thereon from time to time from the date thereof until paid at the rate of 61/2% per annum, and each Boeing B Note will bear interest on any and all amounts remaining unpaid thereon from time to time from the date thereof until paid at the rate of 6% per annum. The Eximbank Loans, the Boeing A Loans and the Boeing B Loans are hereinafter collectively referred to as the “Loans” and the Eximbank Notes, the Boeing A Notes and the Boeing B Notes and any Note issued in Exchange therefor pursuant to Section 1 (h) of this Agreement, as the “Notes”. The Notes shall be dated the date of the Loans which they evidence and shall be printed or lithographed on one side of one sheet of bank note or safety paper. The Commonwealth will pay interest on the Notes in Dollars on May 15 and November 15 of each year.
(b)
(c)
(d)
(e)
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.
(f)
(g)
(h)
SECTION 2.
SECTION 3.
(a) Payments and prepayments of principal and payments of interest on the Notes will be made at a commercial bank in the United States designated by the Commonwealth and approved by the Lenders in Dollars in Federal Reserve Bank of New York funds for the account of Eximbank. All payments of commitment fee pursuant to this Agreement will be made at the above address in Dollars in Federal Reserve Bank of New York funds for the account of Eximbank.
(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 Director, Commonwealth Sub‑Treasury 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.
(c) Each payment made in accordance with the provisions of paragraph (a) of this Section shall, to the extent of such payment, discharge the obligation of the Borrower to the Lenders, and to transferees from either of the Lenders pursuant to Section 11 hereof, in the proportions of their respective participations in the Notes.
SECTION 4.
SECTION 5.
(a) Each Lender shall have received a Note to such Lender in the amount of the Loan by such Lender and in form satisfactory to the Lender;
(b) Each Lender shall have received on such date a certificate, in form satisfactory to the Lender, 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 had 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 loan.
(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.
SECTION 6.
SECTION 7.
(a) Neither the Commonwealth nor Qantas will (i) create, incur or permit to exist any mortgage, lien, charge or encumbrance on 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 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 contracts of All‑Risk Hull insurance and War Risks insurance satisfactory to the Lenders 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 contain breach of warranty and loss payable endorsements in favor of the Lenders and 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 the 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 the 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 so much of the proceeds of the Insurance as may be necessary to prepay outstanding Notes in accordance with section 1 (f) 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 7 (b) and Section 7 (a) shall apply to any aircraft purchased to replace the Aircraft in the event of a total loss or constructive total loss to the same extent as to the Aircraft.
(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 either of the Lenders, the Commonwealth will promptly deliver to that Lender copies of all reports and other documents filed by the Commonwealth after the date hereof with the United States Securities and Exchange Commission.
(e) 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 Director, Commonwealth Sub‑Treasury 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 or the Notes.
(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 claim which it or Qantas 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 counterclaim against, or deduction or setoff from, the payment of the indebtedness of the Commonwealth under this Agreement and the Notes.
SECTION 8.
If any of the foregoing events (an “Event of Default”) shall occur and be continuing, then and in each and every case, Eximbank may, by written notice to the Commonwealth, suspend all further 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) Eximbank shall have notified the Commonwealth in writing on behalf of the Lenders that the suspension has been removed.
SECTION 9.
SECTION 10.
SECTION 11.
SECTION 12.
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or at any other address of which it shall have notified in writing the person giving such notice, or at the address of any subsequent holder thereof if notice of such transfer shall have been delivered in writing to the Commonwealth.
SECTION 13.
SECTION 14.
SECTION 15.
SECTION 16.
SECTION 17.
SECTION 18.
EXHIBIT “A”
EXIMBANK NOTE
New York, N.Y.
U.S.$.................................................................. , 19............
FOR VALUE RECEIVED, Commonwealth of Australia (the “Commonwealth”) promises to pay to the order of the Export‑Import Bank of the United States at the office of ................... the principal sum of Dollars ($ ), in lawful currency of the United States of America, in seven installments as follows:
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together with interest on any and all amounts remaining unpaid hereon from time to time from the date hereof until paid, payable semiannually on the fifteenth day of each May and November during the period hereof and at final maturity at the rate of six percent (6%) per annum.
This Note is one of the Notes referred to in the Loan Agreement dated as of between the Commonwealth 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......................................................
Title...................................................
Countersigned:
.....................................
EXHIBIT “B”
BOEING A NOTE
New York, N.Y.
U.S.$.................................................................. , 19............
FOR VALUE RECEIVED, Commonwealth of Australia (the “Commonwealth”) promises to pay to the order of The Boeing Company at the office of................................... , the principal sum of Dollars ($ ), in lawful currency of the United States of America, in three installments as follows:
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together with interest on any and all amounts remaining unpaid hereon from time to time from the date hereof until paid, payable semiannually on the fifteenth day of each May and November during the period hereof and at final maturity at the rate of six and one‑half percent (61/2%) per annum.
This Note is one of the Boeing A Notes referred to in the Loan Agreement dated as of between the Commonwealth 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.................................................
Title..............................................
Countersigned:
.....................................
EXHIBIT “C”
New York, N.Y.
BOEING B NOTE
U.S.$............................................................. , 19............
FOR VALUE RECEIVED, Commonwealth of Australia (the “Commonwealth”) promises to pay to the order of The Boeing Company at the office of ............................................................... , the principal sum of....................................... ....................................................................... Dollars ($ ),in lawful currency of the United States of America, in two installments as follows:
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together with interest on any and all amounts remaining unpaid hereon from time to time from the date hereof until paid, payable semiannually on the fifteenth day of each May and November during the period hereof and at final maturity at the rate of six percent (6%) per annum.
This Note is one of the Boeing B Notes referred to in the Loan Agreement dated as of between the Commonwealth 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.................................................
Title..............................................
Countersigned:
.....................................
Section 17
The
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
94, 1971 | 12 Nov 1971 | 12 Nov 1971 | ||
216, 1973 | 19 Dec 1973 | 31 Dec 1973 | Ss. 9(1) and 10 | |
36, 1978 | 12 June 1978 | 12 June 1978 | S. 8 | |
107, 1994 | 5 July 1994 | — |
(a) 2 This Act commences immediately after theFinancial Agreement Act 1994 commences.The
Financial Agreement Act 1994 commenced on 1 July 1995 (see Gazette 1995, No. S218).
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Provision affected | How affected |
S. 3......................................... | rep. No. 216, 1973 |
S. 7......................................... | am. No. 36, 1978 |
S. 11....................................... | rep. No. 107, 1994 |
S. 13....................................... | am. No. 216, 1973 |
Sections 15‑17 and the Second Schedule—The
amendments made by sections 15‑17 and the Second Schedule were
amendments to the
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