Victorian Current Acts Victorian Current ActsSCHEDULE B
(Warranties—Clause 1.1, Clause 7)
The Treasurer has full power and authority to enter into and, subject to the satisfaction of the conditions set out in clause 5.1(a) of this Agreement, perform his obligations under this Agreement and can do so (except where this Agreement specifically requires or contemplates such consent) without the consent of any other person.
2.1 Each member of the SBV Group has conducted its business and affairs in accordance with its memorandum and articles of association and any other constituent documents.
2.2 Each member of the SBV Group has obtained all authorisations, licences, permits and registrations required under any legislation by that member to conduct its business and to own and use its assets.
2.3 The re is nothing that might materially prejudice the continuance, renewal, issue or extension of the authorisations, licences, permits and registrations required by any member of the SBV Group to conduct its business and to own and use its assets in favour of CBA or a subsidiary of CBA.
3.1 All material information given by or on behalf of the Treasurer or any member of the SBV Group to CBA in respect of any member of the SBV Group is accurate and not misleading.
3.2 Any copy of any document provided by the Treasurer or any member of the SBV Group to CBA in the course of the due diligence review conducted by CBA is a complete and accurate copy of the original document of which it purports to be a copy.
4.1 The 1990 Accounts have been prepared in accordance with the same accounting principles (so far as applicable) as were applied in 1989 to the respective annual accounts of the members of the SBV Group .
4.2 Save for the provisions for bad and doubtful debts and any capitalised computer software and development costs, the 1990 Accounts present fairly the financial position and the assets and liabilities of the SBV Group at the Accounts Date and the income, expenses and results of the operations of the SBV Group for the financial period ended on the Accounts Date.
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Between 30 June 1990 and the date of this Agreement:
(a) the business of each member of the SBV Group has been carried on in its ordinary course of business;
(b) no member of the SBV Group has disposed of or become party to any option in respect of the disposition of any assets except in its ordinary course of business;
(c) no member of the SBV Group has acquired or become party to any option in respect of the acquisition of any asset except in its ordinary course of business;
(d) no member of the SBV Group has incurred any liability (including any contingent liability) except in its ordinary course of business;
(e) no member of the SBV Group has created, acquired or revalued any brand names, copyright, franchises, intellectual property, licences, mastheads, patents or trademarks;
(f) no member of the SBV Group has acquired or incorporated or disposed of any subsidiary;
(g) no member of the SBV Group has issued any shares or securities convertible to shares or incurred any obligation to do so;
(h) except as known by or disclosed to CBA prior to the date of this Agreement, no member of the SBV Group has amended or waived any rights under, or agreed to amend or waive any rights under, the Assumption Agreement, the Reimbursement Agreement, the SBV Deed, the Trico Deed or the deeds and agreements referred to in Warranty 21.2; and
(i) the Bank has not paid or incurred a liability to pay any amount under section 38(1)(d) of the State Bank Act 1988 nor paid, made or declared any dividend or other distribution of profits or capital.
6.1 All industrial and intellectual property, premises, sites and dwellings, fixtures and fittings, computers, motor cars and furniture used in the business of a member of the SBV Group are owned by that member of the SBV Group or used by that member of the SBV Group pursuant to a lawful, valid, binding and enforceable right to do so.
6.2 All premises, sites and dwellings, fixtures and fittings, computers, motor cars and furniture the value of which is included in the Final Accounts as fixed assets will be owned by a member of the SBV Group at the Completion Date free from any mortgage, charge, pledge, lien (excluding liens arising by operation of law) or similar security.
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No use of any business names or industrial or intellectual property right owned by or used in the business of a member of the SBV Group breaches or infringes against any industrial or intellectual or other property right of any other person.
8.1 Each member of the SBV Group holds all easements, rights, interests and privileges in respect of each site, dwelling or premises in or on which it conducts business which are necessary to the conduct of that business as presently conducted.
8.2 No member of the SBV Group has prior to the date of this Agreement received notice from any Governmental Agency or from any third party in respect of any site, dwelling or premises owned by or used in the business of a member of the SBV Group under which the person receiving the notice is obliged to undertake work or make expenditure on or in respect of such site, dwelling or premises .
8.3 All works carried out by or on behalf of any member of the SBV Group in relation to any site, dwelling or premises owned by or used in the business of that member of the SBV Group have been carried out in accordance with that member's legal obligations to all relevant Government Agencies and, where applicable, any landlord or tenant.
9.1 Each Lending Agreement, Guarantee or Encumbrance (or document which purports to be a Lending Agreement, Guarantee or Encumbrance) which is in favour of or for the benefit of any member of the SBV Group (including, without limitation, Lending Agreements, Guarantees or Encumbrances to which a member of the SBV Group may succeed by subrogation) is a binding obligation of each party thereto valid and, subject to discretions applying in respect of equitable remedies, enforceable according to its terms.
9.2 The grantor of each Encumbrance referred to in Warranty 9.1 had good title to all property (including, without limitation, real property) to which the Encumbrance relates at the time of granting that Encumbrance.
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10.1 All Material Contracts have been disclosed to CBA prior to the date of this Agreement.
10.2 No member of the SBV Group is subject to any agreement which restricts its freedom to engage in the normal course of its business.
10.3 No agreement to which any member of the SBV Group is a party is liable to be rescinded or terminated by any other party to the agreement by reason of the breach or default of a member of the SBV Group.
10.4 No payment made to or for the benefit of any member of the SBV Group before the Completion Date is liable to be returned or refunded after the Completion Date under any law relating to preferences, void or voidable dispositions or transactions or similar laws relating to insolvency or bankruptcy in any jurisdiction.
10.5 No member of the SBV Group is a party to, or derives any benefit under, any Material Contract (including, without limitation, any Material Contract that is a Borrowing Agreement, Lending Agreement, Guarantee or Encumbrance) not disclosed to CBA under which any third party is entitled as a result of the transactions contemplated by this Agreement (including, without limitation, the universal succession of CBA to the assets, liabilities and commitments of the Bank):
(a) to terminate, vary or modify the agreement; or
(b) to require the payment or repayment of any Financial Indebtedness or of any amount that would not have been payable in the absence of such transactions;
or which requires the giving of any notice or the receipt of any consent in respect of such transactions in order to avoid any breach or default thereunder.
No member of the SBV Group is liable to pay to, on behalf of or in respect of any person who immediately prior to the Completion Date was an ex-Employee any retirement gratuity or similar benefit or any damages or compensation for loss of office or employment or unfair or wrongful dismissal not provided for in the Final Accounts.
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12.1 There is no scheme to which a member of the SBV Group contributes or is liable to contribute which provides the Employees or their dependents with pensions, annuities or lump sum payments other than a Superannuation Fund.
12.2 Each of the SBV Staff Superannuation Fund and Australian Bank Superannuation Fund is and has at all relevant times:
(a) complied with all applicable laws; and
(b) been a "complying superannuation fund" (within the meaning of the Income Tax Assessment Act) and receives the maximum concessional tax treatment under that Act.
13.1 No member of the SBV Group is a party to any agreement with a union or industrial organisation in respect of the Employees outside the guidelines of the Australian Industrial Relations Commission other than as known by or disclosed to CBA prior to the date of this Agreement .
13.2 No industrial awards or agreements apply to any Employee other than as known by or disclosed to CBA prior to the date of this Agreement.
13.3 Each member of the SBV Group has complied with its obligations under any agreement, statute or industrial award in respect of the Employees up to the Completion Date.
Other than as known by or disclosed to CBA, no member of the SBV Group has granted or created, or agreed to grant or create, any mortgage, charge, pledge, lien (excluding liens arising by operation of law) or similar security over any of its assets or declared any trust of any such asset.
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15.1 No member of the SBV Group has gone into liquidation or passed a winding-up resolution or received a notice under section 459 of the Companies Code.
15.2 No petition or other process for winding-up has been presented or threatened against any member of the SBV Group and there are no circumstances justifying such a petition or other process.
15.3 No writ of execution has issued against any member of the SBV Group or any property of such a member and there are no circumstances justifying such a writ.
15.4 No receiver or receiver and manager of any part of the undertaking or assets of any member of the SBV Group has been appointed or is threatened or expected to be appointed and there are no circumstances justifying such an appointment.
In respect of the accounts, books, ledgers and financial and other records of each member of the SBV Group, the Bank has complied with section 45(1) of the State Bank Act 1988 .
17.1 Any Tax (other than federal debits tax) which is due and payable by a member of the SBV Group on or before the Completion Date or which has accrued prior to the Completion Date has been paid or fully provided for in the Final Accounts and any federal debits tax which is due and payable by a member of the SBV Group on or before the Completion Date or which has accrued prior to the Completion Date has been paid.
17.2 All Tax which although due and
payable by another person should in accordance with applicable legal
requirements have been withheld or collected by any member of the SBV Group
has been duly withheld or collected.
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17.3 Australian Bank Limited has not had a taxable income in any of the years ending 30 June 1988, 30 June 1989 or 30 June 1990.
17.4 The after tax yield to any member of the SBV Group pursuant to any Finance provided by that member of the SBV Group to or for the benefit of the party referred to in the letter dated 8 November 1990 from the legal advisers to CBA to the legal adviser to the Treasurer will not be less than the after tax yield assumed at the time such Finance was provided as a result of:
(a) the Tax assumptions upon which the Finance was structured being incorrect or not in accordance with relevant Tax law or the practice of any relevant Governmental Agency at that time; or
(b) the relevant structure not being in accordance with the structure set out in any ruling or opinion from any relevant Governmental Agency obtained by a member of the SBV Group in connection with the Finance.
No member of the SBV Group is in any way liable or responsible for, or has any obligations (including, without limitation, pursuant to any Guarantee) in respect of, the National Safety Council of Australia (Victorian Division) (in liquidation) or any of its Financial Indebtedness or activities or operations.
19.1 Subject to the parties entering into the facility agreement referred to in clause 4.3 and except in relation to the facilities to be described in the Schedule to the Deed of Acknowledgement referred to in clause 7.4(b)(iv), at the Completion Date there will be no agreements, arrangements or understandings still in force to which any member of the SBV Group is a party pursuant to which:
(a) any member of the SBV Group has assumed or agreed to assume any obligations of or for the benefit of any member of the Trico Group (whether actual or contingent) or any member of the Trico Group has given a similar undertaking in respect of a member of the SBV Group;
(b) any member of the SBV Group is or may become Financially Indebted or owes or may owe any obligation to any member of the Trico Group or any member of the Trico Group is or may become Financially Indebted or owes or may owe any obligation to any member of the SBV Group;
(c) monies have been or may be paid
or assets have been or may be transferred to any member of the SBV Group by
any member of the Trico Group, or to any member of the Trico Group by any
member of the SBV Group; or
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(d) a member of the SBV Group has given or agreed to give a Guarantee for the benefit of or in respect of any member of the Trico Group.
19.2 As at the Completion Date, the Reimbursement Agreement will have been lawfully terminated and no member of the SBV Group has or will have any outstanding liability, responsibility or obligation under the Reimbursement Agreement or any other agreement, arrangement or understanding collateral or ancillary to the Reimbursement Agreement.
19.3 Scrip which, along with other assets, at the date of this Agreement has been pledged as security to members of the Trico Group and the Bank in connection with the provision of Finance by members of the Trico Group and the Bank pursuant to the facilities referred to in the letter dated 8 November 1990 from the legal advisers to CBA to the legal adviser to the Treasurer will, if realised, realise not less than $20 000 000 and 64% of the amount realised will be available to secure repayment to CBA, as successor of the Bank, of Financial Indebtedness under such facilities.
20.1 Save for the Past Interest Notice of Claim contemplated by clause 4.9, there have been no notices of claim under clause 2.1 of the SBV Deed nor any assignments or declarations of trust under or in respect of clause 3.3 of the SBV Deed.
20.2 No agreements have been reached between the Treasurer and the Bank in relation to the matters referred to in clause 3.7 of the SBV Deed.
20.3 There have been no notifications given by the Treasurer to the Bank, and no transfers of any assets to the Bank nor any payments made by the Bank to any Trico Group Member (as defined in the SBV Deed), under or in respect of clause 3.8 of the SBV Deed.
20.4 No obligations of the Bank have been assumed under clause 3.9 of the SBV Deed.
20.5 The SBV Deed is a legal and binding obligation of the Crown in right of the State of Victoria and is valid and, subject to discretions applying in respect of equitable remedies, enforceable according to its terms.
20.6 The Deed of Release to be
entered into on or prior to the Completion Date by the Treasurer and the Bank
in the form of the draft deed marked as Exhibit "H" and initialled by the
parties for identification or such other form as may be agreed between the
parties will be a legal and binding obligation of the Crown in right of the
State of Victoria and will be valid and, subject to discretions applying in
respect of equitable remedies, enforceable according to its terms.
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21.1 The Farrow Deed is a legal and binding obligation of the Crown in the right of the State of Victoria and is valid and, subject to discretions applying in respect of equitable remedies, enforceable according to its terms.
21.2 Other than the Farrow Deed and the agreements, arrangements and understandings arising out of or contemplated by the Farrow Deed, the Deed of Agreement dated 3 August 1990 between Pyramid Building Society, Geelong Building Society, Countrywide Building Society, the Treasurer and the Bank and the Heads of Agreement dated 21 August 1990 between the Administrator of Pyramid Building Society, Geelong Building Society and Countrywide Building Society, various creditors of those Building Societies (including the Bank) and the State of Victoria relating to a secured creditors' moratorium, there is no agreement, arrangement or understanding to which any member of the SBV Group is a party under which that member is or might become under any obligation in respect of the Pyramid Building Society, Geelong Building Society, Countrywide Building Society or Farrow Corporation Pty. Ltd. or any of their depositors or investors other than in its ordinary course of business.
21.3 No moneys or other property (whether real or personal) have been tendered to or accepted by the Bank from the Treasurer nor has any notice in writing been given by the Treasurer, in either case pursuant to clause 3.7 of the Farrow Deed.
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Each Guarantee granted by the Treasurer or any entity representing the Crown in right of the State of Victoria or any member of the Trico Group in favour of any member of the SBV Group is a legal and binding obligation of the Treasurer or the entity representing the Crown or the member of the Trico Group (as the case may be) and is valid and, subject to discretions applying in respect of equitable remedies, enforceable according to its terms.
No member of the SBV Group is in any way liable or responsible for, or has any obligations (including, without limitation, pursuant to any Guarantee) in respect of, Stateguard or any of its Financial Indebtedness or activities or operations.
All capitalised or accrued but unpaid interest owing to the Bank or any member of the SBV Group at the Completion Date which is included in the Final Accounts which is not or has not been paid to CBA as the successor of the Bank or the relevant member of the SBV Group will be paid when due.
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SCHEDULE 2
PART A
Debt instruments issued by the State Bank
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|
Issue Amount |
Description of Amount |
Maturity Date |
|---|---|---|
|
USD 250 million |
Guaranteed Undated Variable Rate Capital Notes |
— |
|
USD 125 million |
Guaranteed Ten Year |
June 1999 |
|
AUD 300 million |
Extendible Floating Rate Stock |
22 December 2004 |
|
USD 100 million |
9 1 / 4 % Guaranteed Notes |
26 July 1993 |
|
AUD 75 million |
15 1 / 4 % Guaranteed Notes |
14 February 1991 |
|
AUD 50 million |
15 1 / 2 % Guaranteed Notes |
13 July 1994 |
|
JPY 10 billion |
5 3 / 8 % Guaranteed Notes |
18 October 1991 |
|
AUD 350 million |
12% SBV Bonds |
15 March 1993 |
|
GBP 20 million |
11·35% Note |
14 April 1994 |
|
AUD 75 million |
12 1 / 2 % SBV Bonds |
15 February 1995 |
|
JPY 10 billion |
7% Guaranteed Bear Notes |
21 November 1992 |
|
GBP 75 million |
11 1 / 2 % Guaranteed Notes |
21 August 1994 |
|
CAD 75 million |
11% Guaranteed Notes |
26 May 1992 |
|
USD 20 million |
Loan Agreement dated 24/11/88 |
25 November 1993 |
|
AUD 100 million |
12 1 / 2 % SBV Bonds issued 12/7/90 |
15 October 1996 |
|
AUD 252 560 164 |
Zero Coupon Inscribed Stock issued 29/12/89 |
30 April 1992 |
|
AUD 22 572 816 |
Zero Coupon Inscribed Stock issued 29/12/89 |
30 April 1991 |
|
AUD 200 million |
12 month deposit facility issued 5/8/90 |
2 August 1991 |
|
AUD 15 million |
12 1 / 2 % Term Deposit issued 8/12/88 |
1 June 1997 |
|
AUD 3·675 million |
Zero Coupon Deposit issued 27/12/89 |
14 March 1995 |
|
AUD 3 million |
Fixed Deposits issued 1/12/89 |
AUD 1 million 3 December 1990 AUD 2 million 2 December 1991 |
|
USD 250 million |
Loan Agreement dated 8/4/86 with S.B. Victoria Funding Inc., Delaware |
Various |
|
USD 250 million |
Multi-currency Euro |
Various |
|
USD 250 million |
Multi-currency London |
Various |
|
AUD 500 million |
Euro Commercial Paper |
Various |
Swap agreements
1. Interest Rate Exchange Agreement dated 24 November 1988
between State Bank of Victoria and The Long-Term Credit Bank of Japan,
Limited.
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2. Interest Rate and Currency Exchange Agreement dated 25 July 1988 between the Commissioners of the State Bank of Victoria and The Fuji Bank, Limited, Tokyo.
3. Interest Rate and Currency Exchange Agreement dated 13 April 1989 between State Bank of Victoria and Baring Brothers & Co., Limited.
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PART B
|
Issue Amount |
Description of Amount |
Maturity Date |
|---|---|---|
|
USD 125 million |
Guaranteed Undated Capital Notes |
— |
|
USD 125 million |
8 1 / 2 % Guaranteed Notes |
18 June 1993 |
|
USD 300 million |
Guaranteed Floating Rate Notes |
23 July 1996 |
|
JPY 5 billion |
Loan Agreement dated 24/6/86 |
27 June 1991 |
|
JPY 3·3 billion |
Loan Agreement dated 14/7/86 |
24 July 1991 |
|
JPY 3 billion |
Loan Agreement dated 30/7/87 |
31 July 1992 |
|
JPY 4 billion |
Loan Agreement dated 28/9/87 |
29 September 1997 |
|
JPY 4 billion |
Loan Agreement dated 28/9/87 |
30 September 1997 |
|
USD 68 704 913 |
8% Guaranteed Rainbow Notes |
27 July 1992 |
|
JPY 15 billion |
7% Guaranteed Bear Notes |
10 May 1992 |
|
JPY 20 billion |
Guaranteed Stepped-up |
10 December 1991 |
|
JPY 10 billion |
5% Guaranteed Notes |
12 March 1992 |
|
JPY 30 billion |
4·75% Guaranteed Notes |
7 July 1992 |
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PART C
1. Deed of Agreement dated 29 September 1986 between the
Treasurer and State Bank in respect of the Subscription Agreement entered into
with Merrill Lynch International & Co. and other banks or financial
institutions referred to therein dated 22 September 1986 for the issue of
US$125 000 000 principal amount of guaranteed undated capital notes
in bearer form with interest coupons attached.
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2. Deed of Agreement dated 19 June 1989 between the Treasurer and State Bank in relation to the issue of US$250 000 000 principal amount of guaranteed undated variable rate capital notes on the conditions described therein.
3. Deed of Agreement dated 19 June 1989 between the Treasurer and State Bank in relation to the issue of US$125 000 000 principal amount of guaranteed extendible floating rate notes on the conditions described therein.
4. Deed of Agreement dated 29 December 1989 between the Treasurer and State Bank in relation to the proposed issue of A$50 000 000 principal amount of extendible floating rate stock (tranche B).
5. Deed of Agreement dated 29 December 1989 between the
Treasurer and State Bank in relation to the proposed issue of
A$200 000 000 principal amount of extendible floating rate stock
(tranche A).
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6. Deed of Agreement dated 29 December 1989 between the Treasurer and State Bank in relation to the proposed issue of A$50 000 000 principal amount of extendible floating rate stock (tranche C).
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