Senegal - Dakar Fishing Port Project : Loan 1405 - Loan Agreement - Conformed

CONFORMED COPY LOAN NUMBER 1405 T-SE LOAN AGREEMENT (Dakar Fishing Port -Project) between REPUBLIC OF SENEGAL and INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT Dated June 7, 1977 LOAN AGREEMENT AGREEMENT, dated June 7, 1977, between REPUBLIC OF SENEGAL (hereinafter called the Borrower) and INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT (hereinafter called the Bank). WHEREAS (A) by an agreement (hereinafter called the BADEA Loan Agreement) to be entered into between BADEA and the Port Autonome de Dakar (hereinafter called PAD) BADEA intends to assist PAD in financing Part I of the Project described in Schedule 2 to this Agreement by making to PAD a loan (hereinafter called the BADEA Loan) in an amount equivalent to seven million two hundred thousand dollars ($7,200,000). (B) by an agreement (hereinafter called the Caisse Centrale Loan Agreement) to be entered into between Caisse Centrale and PAD, Caisse Centrale intends to assist PAD in financing Part I of the Project by making to PAD a loan (hereinafter called the Caisse Centrale Loan) in an amount of thirty million french francs (FF30,000,000); (C) the Borrower has also requested the Bank to assist in the financing of the Project by making this Loan (hereinafter called the Loan) as hereinafter provided; (D) the Bank has determined that the Borrower is eligible to receive this Loan as an intermediate term loan, as that term is defined in Resolution No. 75-111 of the Executive Directors of the Bank establishing an Interest Subsidy Fund for the Third Window (hereinafter called the Fund) and upon the terms and con- ditions set forth in such Resolution; - 2 - (E) the Administrator of the Fund (hereinafter called the Administrator), subject to the terms and conditions set forth in the Resolution referred to in (D) above, is obligated to pay to the Bank semi-annually from the resources of the Fund an amount equal to four per cent (4%) per annum of the outstanding amounts of principal on intermediate term loans, of which this Loan is one; (F) the Project, except Part III B thereof, will be carried out by PAD with the Borrower's assistance and, as part of such assistance, the Borrower will make available to PAD part of the proceeds of the Loan as hereinafter provided; and WHEREAS the Bank has agreed, on the basis inter alia of the foregoing, to make the Loan available to the Borrower upon the terms and conditions set forth hereinafter and in a project agree- ment of even date herewith between the Bank and PAD; NOW THEREFORE the parties hereto hereby agree as follows: - 3 - ARTICLE I General Conditions; Definitions Section 1.01. The parties to this Agreement accept all the provisions of the General Conditions Applicable to Loan and Guar- antee Agreements of the Bank, dated March 15, 1974, with the same force and effect as if they were fully set forth herein (said General Conditions Applicable to Loan and Guarantee Agreements of the Bank being hereinafter called the General Conditions). Section 1.02. Wherever used in this Agreement, unless the context otherwise requires, the several terms defined in the General Conditions and in the Preamble to this Agreement have the respective meanings therein set forth and the following addi- tional terms have the following meanings: (a) "Project Agreement" means the agreement between the Bank and PAD of even date herewith, as the same may be amended from time to time, and such term includes all schedules to the Project Agree- ment and all agreements supplemental to the Project Agreement; (b) "Subsidiary Loan Agreement" means the agreement to be entered into between the Borrower and PAD pursuant to the provi- sions of Section 3.01 (b) of this Agreement; (c) "Statutes" means the Borrower's Decree No. 67-146 of February 10, 1967 organizing PAD, as amended by Decree No. 67-1184 of October 31, 1967, Decree No. 70-460 of April 25, 1970, Decree No. 72-1493 of December 26, 1972, and Decree No. 74-136 of February 11, 1974; 4 (d) "Port Master Plan" means the comprehensive master plan for the development of the Port of Dakar set forth in the Borrower's Decree No. Th-619 of June 25, 1974; and (e) "CFAF" means CFA Francs, the currency of the Borrower. -5- ARTICLE II The Loan Section 2.01. The Bank agrees to lend to the Borrower, on the terms and conditions in the Loan Agreement set forth or re- ferred to, an amount in various currencies equivalent to six mil- lion dollars ($6,000,000). Section 2.02. The amount of the Loan may be withdrawn from the Loan Account in accordance with the provisions of Schedule 1 to this Agreement, as such Schedule may be amended from time to time by agreement between the Borrower and the Bank, for expendi- tures made (or, if the Bank shall so agree, to be made) in respect of the reasonable cost of goods and services required for the Project and to be financed out of the proceeds of the Loan. Section 2.03. Except as the Bank shall otherwise agree, contracts for the purchase of goods or for civil works to be financed out of the proceeds of the Loan, shall be procured in accordance with the provisions of Schedule 1 to the Project Agreement. Section 2.04. The Closing Date shall be June 30, 1981 or such later date as the Bank shall establish. The Bank shall promptly notify the Borrower of such later date. -6- Section 2.05. The Borrower shall pay to the Bank a commitment charge at the rate of three-fourths of one per cent (3/4 of 1%) per annum on the principal amount of the Loan not withdrawn from time to time. Section 2.06. The Borrower shall pay interest at the rate of four and two-tenths per cent (4.20%) per annum on the principal amount of the Loan withdrawn and outstanding from time to time; provided, however, that if the Administrator shall at any time determine that the resources of the Fund shall not be sufficient to pay to the Bank at the next succeeding semi-annual interest payment date of the Loan the amount scheduled to be paid by the Administrator at that interest payment date as specified in para- graph (E) of the Preamble to this Agreement, the Borrower shall, upon notification by the Administrator of such determination and the amount of the resulting shortfall, pay additional interest on such principal amount of the Loan equal to such shortfall. Section 2.07. Interest and other charges shall be payable semi-annually on January 15 and July 15 in each year. Section 2.08. The Borrower shall repay the principal amount of the Loan in accordance with the amortization schedule set forth in Schedule 3 to this Agreement. Section 2.09. Except as the Borrower and the Bank shall otherwise agree, if the Borrower shall repay in advance of maturity any part of its indebtedness under the BADEA Loan or the Caisse Centrale Loan, the Borrower shall simultaneously prepay a propor- tionate amount of the Loan then outstanding. Section 2.10. The Director of PAD is designated as represen- tative of the Borrower for the purposes of taking any action re- quired or permitted to be taken under the provisions of Section 2.02 of this Agreement or Article V of the General Conditions, except with respect to proceeds of the Loan allocated to Part III B of the Project. -8- ARTICLE III Execution of the Project Section 3.01. (a) The Borrower shall carry out Part III B of the Project, and shall cause PAD to carry out the other Parts of the Project, all with due diligence and efficiency and in confor- mity with appropriate administrative, financial and engineering practices, and shall provide, promptly as needed, the funds, faci- lities, services and other resources required for the purpose. (b) The Borrower shall relend to PAD the proceeds of the Loan, except such proceeds as shall be allocated to Part III B of the Project, under a Subsidiary Loan Agreement to be entered into between the Borrower and PAD under terms and conditions which shall have been approved by the Bank, and which shall, without li- mitation to PAD's other obligations under the Project Agreement, provide that PAD: (i) will pay to the Borrower a commitment charge at the rate of three-fourths of one per cent (3/4 of 1%) per annum on the principal amount so relent and not withdrawn by PAD from time to time; (ii) will pay to the Borrower interest at the rate of eight and two-tenths per cent (8.20%) per annum on the principal amount so relent and withdrawn by PAD and outstanding from time to time; and (iii) will repay to the Borrower the principal amount so relent over a period of 20 years from the date of this Agreement, including therein a period of grace of 4-1/2 years. (c) The Borrower shall exercise its rights under the Sub- sidiary Loan Agreement in such manner as to protect the interests of the Borrower and the Bank and to accomplish the purposes of the - 9 - Loan, and except as the Bank shall otherwise agree, the Borrower shall not assign, nor amend, abrogate or waive the Subsidiary Loan Agreement or any provision thereof. (d) Without any limitation or restriction upon any of its other obligations under the Loan Agreement, the Borrower shall cause PAD to perform in accordance with the provisions of the Project Agreement all the obligations therein set forth, shall take and cause to be taken all action, including the provision of funds, facilities, services and other resources, necessary or appropriate to enable PAD to perform such obligations, and shall not take or permit to be taken any action which would prevent or interfere with such performance. Section 3.02. In order to assist the Borrower in carrying out Part III B of the Project, the Borrower shall employ experts in fisheries whose qualifications, experience and terms and con- ditions of employment shall be satisfactory to the Bank. - 10 - ARTICLE IV Other Covenants Section 4.01. (a) It is the policy of the Bank, in making loans to, or with the guarantee of, its members not to seek, in normal circumstances, special security from the member concerned but to ensure that no other external debt shall have priority over its loans in the allocation, realization or distribution of for- eign exchange held under the control or for the benefit of such member. To that end, if any lien shall be created on any public assets (as hereinafter defined), as security for any external debt, which will or might result in a priority for the benefit of the creditor of such external debt in the allocation, realization or distribution of foreign exchange, such lien shall, unless the Bank shall otherwise agree, ipso facto and at no cost to the Bank, equally and ratably secure the principal of, and interest and other charges on, the Loan, and the Borrower, in creating or per- mitting the creation of such lien, shall make express provision to that effect; provided, however, that, if for any constitutional or other legal reason such provision cannot be made with respect to any lien created on assets of any of its administrative sub- divisions, the Borrower shall promptly and at no cost to the Bank secure the principal of, and interest and other charges on, the Loan by an equivalent lien on other public assets satisfactory to the Bank. (b) The foregoing undertaking shall not apply to: (i) any lien created on property, at the time of purchase thereof, solely as security for payment of the purchase price of such property; - 11 - and (ii) any lien arising in the ordinary course of banking trans- actions and securing a debt maturing not more than one year after its date. (c) As used in this Section, the term "public assets" means assets of the Borrower, of any political or administrative subdi- vision thereof and of any entity owned or controlled by, or oper- ating for the account or benefit of, the Borrower or any such subdivision, including gold and other foreign exchange assets held by any institution performing the functions of a central bank or exchange stabilization fund, or similar functions, for the Borrower. Section 4.02. The Borrower shall ensure that about 25% of PAD's surplus cash which PAD shall be required to deposit with the Borrower's treasury shall be converted into interest bearing treasury bonds to the benefit of PAD. Section 4.03. Without limitation or restriction on its obli- gations under Section 3.01 of this Agreement, the Borrower shall, promptly as required, take all action necessary on its part: (i) to ensure that PAD shall satisfy the requirements of Sections 3.05, 4.03, 4.o6, 4.07, 4.o8 and 4.09 of the Project Agreement; and (ii) to enable PAD to implement the tariff revisions referred to in Section 4.03 of the Project Agreement and the new tariff systems referred to under Section 4.04 of the Project Agreement. Section 4.04. The Borrower shall take all action required on its part to provide sufficient incentives to ensure the continuous growth and modernization of the industrial fishing fleet based at - 12 - Dakar. Such incentives shall be determined by agreement between the Borrower and the Bank. Section 4.05. The Borrower takes all necessary measures to fully implement, not later than June 30, 1977, or such other date as shall be agreed with the Bank, the Decree No. 73-779 of August 13, 1973, providing exceptions to applicable means of con- trol over PAD, as such Decree may be amended in a manner satisfac- tory to the Bank, in order to grant broader financial autonomy to PAD. Section 4.06. The Borrower shall take all necessary measures to maintain the existence of PAD and PAD's right to carry on its operations. - 13 - ARTICLE V Remedies of the Bank Section 5.01. For the purposes of Section 6.02 of the General Conditions, the following additional events are specified pursuant to paragraph (k) thereof: (a) PAD shall have failed to perform any covenant, agree- ment or obligation of PAD under the Project Agreement. (b) An extraordinary situation shall have arisen which shall make it improbable that PAD will be able to perform its obligations under the Project Agreement. (c) The Borrower's Ordonnance No. 60-09 of August 27, 1960, establishing PAD as an Etablissement public a caract're industriel et commercial, as amended by the Borrower's Ordonnance No. 60-34 of October 22, 1960, and the Statutes, or any provisions thereof, shall, without the consent of the Bank, have been amended, sus- pended or abrogated so as to materially and adversely affect the management or operation of PAD. (d) A default shall have occurred in the due and punctual payment of any amount payable by PAD under the Subsidiary Loan Agreement. (e) (i) Subject to subparagraph (ii) of this paragraph: (A) The right of the Borrower or PAD to withdraw the proceeds of the BADEA Loan or the Caisse Centrale Loan shall have been suspended, cancelled or terminated in whole or in part, pursuant to the terms of the BADEA Loan Agreement or the Caisse Centrale Loan Agreement, or (B) any such loan shall have become due and payable prior to the agreed maturity thereof. (ii) Subparagraph (i) of this paragraph shall not apply if the Borrower or PAD establishes to the satisfac- tion of the Bank that: (A) such suspension, cancel- lation, termination or prematuring is not caused by the failure of the Borrower or PAD to perform any of their obligations under such agreement, and (B) adequate funds for the Project are available to the Borrower or PAD from other sources on terms and conditions consistent with the obligations of the Borrower or PAD under this Agreement and the PAD Loan Agreement. Section 5.02. For the purposes of Section 7.01 of the General Conditions, the following events are specified pursuant to paragraph (h) thereof: (a) The event specified in paragraph (a) of Section 5.01 of this Agreement shall occur and shall continue for a period of 60 days after notice thereof shall have been given by the Bank to the Borrower and PAD. - 15 - (b) The event specified in paragraph (d) of Section 5.01 of this Agreement shall occur and shall continue for a period of 30 days. (c) Any event specified in paragraphs (c) and (e) (i) (B) of Section 5.01 of this Agreement shall occur. - 16 - ARTICLE VI Effective Date; Termination Section 6.01. The following events are specified as additional conditions to the effectiveness of the Loan Agreement within the meaning of Section 12.01 (c) of the General Conditions: (a) the execution of the Project Agreement on behalf of PAD has been duly authorized or ratified by all necessary cor- porate and governmental action; (b) BADEA and Caisse Centrale have notified the Bank in writing that all conditions precedent to initial disbursement, if any, under the BADEA Loan Agreement and the Caisse Centrale Loan Agreement, respectively, have been fulfilled, save only for the effectiveness of this Agreement; and (c) the execution of the Subsidiary Loan Agreement on behalf of the Borrower and PAD, respectively, has been duly authorized or ratified by all necessary corporate and govern- mental action. Section 6.02. The following are specified as additional matters, within the meaning of Section 12.02 (c) of the General Conditions, to be included in the opinion or opinions to be fur- nished to the Bank: - 17 - (a) that the Project Agreement has been duly authorized or ratified by, and executed and delivered on behalf of, PAD, and is legally binding upon PAD in accordance with its terms; and (b) that the Subsidiary Loan Agreement has been duly au- thorized or ratified by, and executed and delivered on behalf of, the Borrower and PAD, respectively, and is legally binding upon the Borrower and PAD in accordance with its terms. Section 6.03. The date October 5, 1977, is hereby specified for the purposes of Section 12.04 of the General Conditions. - 18 - ARTICLE VII Representative of the Borrower; Addresses Section 7.01. The Minister responsible for finances of the Borrower is designated as representative of the Borrower for the purposes of Section 11.03 of the General Conditions. Section 7.02. The following addresses are specified for the purposes of Section 11.01 of the General Conditions: For the Borrower: Minist re des Finances Rue Charles Laing B.P. 4017 Dakar, Senegal Cable address: Telex: MINIFINANCES SG 512 Dakar For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington, D.C. 20433 United States of America Cable address: Telex: INTBAFRAD 440098 (ITT) Washington, D.C. 248423 (RCA) or 64145 (wUI) - 19 - IN WITNESS WHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Agree- ment to be signed in their respective names in the District of Columbia, United States of America, as of the day and year first above written. REPUBLIC OF SENEGAL By /s/ Andre Coulbary Authorized Representative IETTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By /s/ Roger Chaufournier Regional Vice President Western Africa - 20 - SCHEDULE 1 Withdrawal of the Proceeds of the Loan 1. The table below sets forth the Categories of items to be financed out of the proceeds of the Loan, the allocation of the amounts of the Loan to each Category and the percentage of ex- penditures for items so to be financed in each Category: Amount of the Loan Allocated % of (Expressed in Expenditures Category Dollar Equivalent) to be Financed (1) Civil works 3,350,000 21% (2) Consultants' ser- 370,000 50% vices for the supervision of civil works (3) Consultants' or 480,000 50% experts' ser- vices for port management (4) Consultants' or 240,000 80% experts' services for Part III A of the Project (5) Consultants' or 400,000 80% experts' services for Part III B of the Project (6) Unallocated 1,160,000 TOTAL 6,000,000 - 21 - 2. The disbursement percentages have been calculated in compli- ance with the policy of the Bank that no proceeds of the Loan shall be disbursed on account of payments for taxes levied by, or in the territory of, the Borrower on goods or services, or on the importation, manufacture, procurement or supply thereof; to that end, if the amount of any such taxes levied on or in respect of any item to be financed out of the proceeds of the Loan decreases or increases, the Bank may, by notice to the Borrower, increase or decrease the disbursement percentage then applicable to such item as required to be consistent with the aforementioned policy of the Bank. 3. Notwithstanding the provisions of paragraph 1 above, no with- drawals shall be made in respect of payments made for expenditures prior to the date of this Agreement. 4. Notwithstanding the allocation of an amount of the Loan or the disbursement percentages set forth in the table in paragraph 1 above, if the Bank has reasonably estimated that the amount of the Loan then allocated to any Category will be insufficient to finance the agreed percentage of all expenditures in that Category, the Bank may, by notice to the Borrower: (i) reallocate to such Category, to the extent required to meet the estimated shortfall, proceeds of the Loan which are then allocated to another Category and which in the opinion of the Bank are not needed to meet other expenditures; and (ii) if such reallocation cannot fully meet the estimated shortfall, reduce the disbursement percentage then appli- cable to such expenditures in order that further withdrawals under such Category may continue until all expenditures thereunder shall have been made. - 22 - 5. If the Bank shall have reasonably determined that the pro- curement of any item in any Category is inconsistent with the procedi,-zes set forth or referred to in this Agreement, no expen- ditures for such item shall be financed out of the proceeds of the Loan and the Bank may, without in any way restricting or lim- iting any other right, power or remedy of the Bank under the Loan Agreement, by notice to the Borrower, cancel such amount of the Loan as, in the Bank's reasonable opinion, represents the amount of such expenditures which would otherwise have been eligible for financing out of the proceeds of the Loan. - 23 - SCHEDULE 2 Description of the Project The Project is for the expansion of the Dakar fishing port substantially in accordance with the Port Master Plan and consists of the following parts: I. Civil Works A. (i) The construction of about 385 m of berth face on concrete blocks with an alongside depth of not less than 10 m; (ii) the construction of about 1,110 m of berth face with an alongside depth of not less than 7 m to be constructed on concrete blocks; (iii) the construction of a covered channel to permit tidal water circulation; and (iv) the reconstruction of a section of the existing storm water drainage canal No. 5. B. The reclaiming of about 10.5 ha of land by the provision and placing of about 750,000 m3 of selected filling material. C. (i) The paving and surfacing of the reclaimed area under Part B above; and - 214- (ii) the installation thereon of the services necessary for the operation of the port including, inter alia, the provision of water, gas-oil and electricity, the installation of telephone lines and the provision of drainage services. D. (i) The demolition of the existing slipway of Ateliers et Chantiers de Dakar and associated buildings; and (ii) the filling of the area under (i) above and the construction of about 50 m of berth face to link together the two sections of existing fishing berths. E. The construction of a new main access roadway to the fishing port, such roadway to cover the storm water drainage canal No. 5. II. Port Management A. The formation and staffing of an organizational unit within PAD to control and develop the industrial fishing sector and for fishing port management, opera- tions and planning. B. (i) The introduction of analytical accounting and the establishment of a cost-based tariff structure; and (ii) the introduction of an ad valorem tariff structure for fishing traffic. - 25 - III. Studies A. The carrying out of a study of the growth of container traffic in Dakar and of the needs of PAD vith respect to the provision and exploitation of container handling facilities. B. Studies for the establishment of a plan for the medium- and long-term development of fisheries in Senegal. The Project is expected to be completed by December 31, 1980. - 26 - SCHEDULE 3 Amortization Schedule Payment of Principal Date Payment Due (expressed in dollars)* January 15, 1983 110,000 July 15, 1983 110,000 January 15, 1984 115,000 July 15, 1984 115,000 January 15, 1985 120,000 July 15, 1985 120,000 January 15, 1986 125,000 July 15, 1986 125,000 January 15, 1987 130,000 July 15, 1987 130,000 January 15, 1988 135,000 July 15, 1988 135,000 January 15, 1989 140,000 July 15, 1989 145,000 January 15, 1990 145,000 July 15, 1990 150,000 January 15, 1991 150,000 July 15, 1991 155,000 January 15, 1992 160,000 July 15, 1992 160,000 January 15, 1993 165,000 July 15, 1993 170,000 January 15, 1994 170,000 July 15, 1994 175,000 January 15, 1995 180,000 July 15, 1995 185,000 January 15, 1996 185,000 July 15, 1996 190,000 January 15, 1997 195,000 July 15, 1997 200,000 January 15, 1998 205,000 July 15, 1998 205,000 January 15, 1999 210,000 July 15, 1999 215,000 January 15, 2000 220,000 July 15, 2000 225,000 January 15, 2001 230,000 * To the extent that any portion of the Loan is repayable in a currency other than dollars (see General Conditions, Section 4.02), the figures in this column represent dollar equivalents determined as for purposes of withdrawal. - 27 - Premiums on Prepayment The following percentages are specified as the premiums pay- able on repayment in advance of maturity of any portion of the principal amount of the Loan pursuant to Section 3.05 (b) of the General Conditions: Time of Prepayment Premium* Not more than three years before maturity 1.00% More than three years but not more than six years before maturity 2.05% More than six years but not more than eleven years before maturity 3.75% More than eleven years but not more than sixteen years before maturity 5.45% More than sixteen years but not more than twenty years before maturity 6.85% More than twenty years but not more than twenty-two years before maturity 7.50% More than twenty-two years before maturity 8.20% * Given as an indication only and based on an assumed standard Bank interest rate of 8.20% per annum. The final table will reflect the standard interest rate approved for the Loan by the Executive Directors of the Bank.