Romania - Second Turceni Thermal Power Project : Loan 1652 - Loan Agreement - Conformed

CONFORMED COPY LOAN NUMBER 1652 RO Loan Agreement (Second Turceni Thermal Power Project) between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT and BANCA DE INVESTITII Dated February 26, 1979 LOAN NUMBER 1652 RO LOAN AGREEMENT AGREEMENT, dated February 26, 1979, between INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT (hereinafter called the Bank) and BANCA DE INVESTITII (hereinafter called the Borrower). ARTICLE I General Conditions; Definitions Section 1.01. The parties to this Agreement accept all the provisions of the General Con4itions Applicable to Loan and Guarantee 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 have the respective meanings therein set forth and the following additional terms hap,e the following meanings: (a) "Romania" and "Guarantor" both mean The Socialist Republic of Romania; (b) "Foreign Trade Bank" means the Romanian Bank for Foreign Trade, established by Law No. 16/1968 of Romania; (c) "Charter" means the Charter of the Borrower as approved by Decree No. 314/1971 of the Council of State of Romania, and Decree No. 125/1970 concerning the organization and operations of the Borrower, ratified by Law No. 22/1970 of Romania, as amended by Decree No. 314/1971 of the Council of State of Romania, as amended from time to time; (d) "Turceni Enterprise" means the Power Enterprise at Turceni, established by Decision No. 1050/1973 of the Council of Ministers of Romania; (e) "ISPE" means the Design Institute for Power Studies and Projects, established by Decision No. 547/1970 of the Council of Ministers of Romania; - 2 - (f) "ROMENERGO" means the Foreign Trade Enterprise for Power Equipment, established by Decision No. 28/1971 of the Council of Ministers of Romania; and (g) "Prior Loan" means the loan made by the Bank to the Borrower for the Turceni Thermal Power Project on July 10, 1974. 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 referred to, an amount in various currencies equivalent to seventy million dollars ($70,000,000). Section 2.02. (a) 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 Bank and the Borrower, for expenditures 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 described in Schedule 2 to this Agreement which the Bank and the Borrower have agreed are to be financed out of the proceeds of the Loan. (b) The Foreign Trade Bank is designated as representative of the Borrower for the purpose of taking any action required or permitted to be taken under the provisions of paragraph (a) of this Section and Article V of the General Conditions. Section 2.03. Except as the Bank and the Borrower shall otherwise agree, contracts for the purchase of goods and services for the Project and to be financed out of the proceeds of the Loan shall be awarded in accordance with the provisions of Schedule 4 to this Agreement. Section 2.04. The Closing Date shall be December 31, 1982 or such other date as shall be agreed between the Bank and the Borrower. 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. -3- Section 2.06. The Borrower shall pay interest at the rate of seven and thirty-five hundredths per cent (7.35%) per annum on the principal amount of the Loan withdrawn and outstanding from time to time. Section 2.07. Interest and other charges shall be payable semiannually on June 15 and December 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. ARTICLE III Execution of the Project Section 3.01. The Borrower shall cause the Project to be carried out with due diligence and efficiency and in conformity with appropriate engineering, financial, ecological, environ- mental and administrative practices as follows: (a) the Borrower shall supervise the execution of the Project, including the procurement of the goods and services required therefor; (b) ISPE shall provide the general engineering services required for the Project; (c) ROMENERGO shall in accordance with the technical advice received from ISPE procure the goods and services required for the Project and to be financed out of the proceeds of the Loan and awarded in accordance with the provisions of Schedule 4 to this Agreement; and (d) the Turceni Enterprise shall: (i) prepare and, thereafter, periodically update such a detailed schedule for the implementation of the Project as shall be in form and substance satis- factory to the Bank and the Borrower; (ii) make timely arrangements, in form and substance satisfactory to the Bank and the Borrower, with ISPE for the supply of the general engineering services required for the Project, and with the -4- appropriate construction enterprises of Romania as required for the civil works and erection included in the Project; (iii) in accordance with the technical assistance received from ISPE procure the goods and services required for the Project other than those referred to in the foregoing paragraph (c); and (iv) have responsibility for the overall coordination of the implementation of the Project and Project- related activities. Section 3.02. (a) The Borrower shall cause adequate provision to be made for the insurance of the imported goods to be financed out of the proceeds of the Loan against hazards incident to the acquisition, transportation and delivery thereof to the place of importation into the territory of Romania, and for such insurance any indemnity shall be payable in a currency freely usable by the Borrower to replace or repair such goods. (b) Except as the Bank and the Borrower shall otherwise agree, all goods and services financed out of the proceeds of the Loan shall be used exclusively for the Project. ARTICLE IV Other Covenants Section 4.01. The Bank and the Borrower agree that, in order to realize the purposes of the Project, it shall be necessary for the Turceni Enterprise: (a) to operate the facilities established under the Project with due regard to ecological, environmental and safety factors, and, to that end, to treat effectively the ecologically harmful discharges of said facilities; (b) to be granted all such rights and interests in land and all such other rights and powers as are necessary in the management or operation of the assets managed or operated by it; (c) at all times to operate and maintain the installations, equipment and other property managed or operated by it, and, as -5- and when required, make all necessary repairs and renewals thereof, all in accordance with appropriate administrative and engineering practices; (d) except as the Bank and the Borrower shall otherwise agree, not to transfer or otherwise dispose of any of the assets managed or operated by it, except in the normal course of its business; (e) to maintain records adequate to reflect in accordance with consistently maintained appropriate accounting practices its operations, resources and expenditures; (f) to submit its accounts and financial statements (balance sheets, statements of income and expenses and related statements) for each fiscal year to an independent audit conducted, in accor- dance with appropriate auditing principles consistently applied, by the Ministry of Finance of Romania; (g) at all times to manage its affairs, plan its future expansion and carry on its operations, all in accordance with appropriate engineering, financial and administrative practices and under experienced and competent management, assisted by qualified staff in adequate numbers; and (h) to ensure that in any year after 1981 the sum of the annual benefits of the Turceni Enterprise and its annual provision for depreciation shall be at least sufficient to cover the sum of the equivalent in Lei of the aggregate payments of the principal of, and interest and other charges on, the Loan and the Prior Loan which the Borrower is required to make to the Bank that same year; for the purposes of this paragraph (h) the term "Lei" means Lei in currency of Romania, and the term "annual benefits" means the difference between gross revenues and operating and administrative expenses (including adequate provision for maintenance and depreciation) accountable to any one fiscal year. The Borrower shall, to the extent that it is authorized under the laws of Romania, ensure that the requirements set forth in this Section will be met. -6- ARTICLE V Management and Operations of the Borrower; Financial Covenants Section 5.01. The Borrower shall manage and conduct its operations and affairs in accordance with appropriate administra- tive and financial standards and practices and in accordance with the Charter. Section 5.02. The Borrower shall maintain records adequate to reflect in accordance with consistently maintained appropriate accounting practices its operations in respect of the Turceni Enterprise. Section 5.03. (a) It is not the practice of the Borrower to create liens as security for debt. Accordingly, the Borrower represents that at the date of this Agreement no lien exists on any of its assets as security for any debt. (b) For the event that, notwithstanding the foregoing, a lien shall be created on any of the Borrower's assets as security for any debt, the Borrower undertakes that, except as the Bank shall otherwise agree, (i) if the Borrower shall create the lien, such lien will equally and ratably secure the payment of the principal of, and interest and other charges on, the Loan, and in the creation of such lien express provision will be made to that effect, at no cost to the Bank; and (ii) if the lien shall be created by law, the Borrower shall grant, at no cost to the Bank, an equivalent lien satisfactory to the Bank to secure the payment of the principal of, and interest and other charges on, the Loan. Section 5.04. The Bank and the Borrower agree that in carrying out the provisions of this Agreement the Borrower shall take such measures as shall be necessary according to the State Plan of Romania and the applicable laws in order to achieve the purposes of the Project. ARTICLE VI Cooperation and Information; Financial Data Section 6.01. The Bank and the Borrower shall cooperate fully to assure that the purposes of the Loan will be accomplished. To that end: -7- (a) the Bank and the Borrower shall from time to time at the request of either party exchange views through their representa- tives with regard to the progress of the Project, the benefits derived from the Project, the performance of their respective obligations under the Loan Agreement, the compliance by the Turceni Enterprise with the requirements set forth in Section 4.01 of this Agreement and other matters relating to the purposes of the Loan, the compliance by ROMENERGO with the requirements of Schedule 4 to this Agreement, and the Borrower shall enable the Bank's representatives to exchange views with representatives of the Turceni Enterprise with regard to the Project, the benefits derived from the Project, the resources and expenditures of the Turceni Enterprise and the compliance by the Turceni Enterprise with the requirements set forth in Section 4.01 of this Agreement and with representatives of the relevant agencies with regard to the economic benefits of the Project and the position of the Turceni Enterprise in the Romanian power sector; (b) the Borrower shall obtain from the Turceni Enterprise and the other agencies of Romania concerned with the Project, and furnish to the Bank, upon their preparation, the plans, specifi- cations, reports, contract documents and construction and procure- ment schedules for the Project, and the material modifications thereof or additions thereto, in such detail as the Bank and the Borrower shall agree; (c) the Borrower: (i) shall maintain or cause to be main- tained records adequate to record the progress of the Project (including the cost thereof) and to identify the goods and services financed out of the proceees of the Loan, and to disclose th; use thereof in the Project; and (ii) shall furnish to the Bank within forty-five calendar days after each calendar quarter a report, of such scope and in such detail as the Bank and the Borrower shall agree, on the progress of the Project during such quarter; (d) the Borrower shall enable the Bank's representatives to visit and examine the goods financed out of the pro eeds of the Loan, the plants, installations, sites, works, buildings and equipment of the Turceni Enterprise, the factories, installations, sites and works in Romania where goods required for the Project are manufactured insofar as the Project is concerned, the other Project-related facilities and their construction sites and the records and documents of the Turceni Enterprise insofar as they concern the Project and the other records and documents relating to the Project; -8- (e) the Borrower shall for each fiscal year of the Turceni Enterprise: (i) obtain from the Turceni Enterprise and furnish to the Bank not later than six months after the end of such year, (A) certified copies of the financial statements (balance sheets, statements of income and expenses and related statements) of the Turceni Enterprise for such year audited in accordance with the provisions of Section 4.01 (f) of this Agreement, and (B) the report of such audit by the auditors referred to in said Section 4.01 (f) of such scope and in such detail as the Bank and the Guarantor shall agree; and (ii) furnish to the Bank such other information concerning the beforementioned financial statements of the Turceni Enterprise and the audit thereof as the Bank shall reasonably request; (f) the Borrower shall: (i) furnish to the Bank not later than six months after the end of each of its fiscal years, (A) certified copies of its financial statements (balance sheets, statements of income and expenses and related statements, as agreed between the Bank and the Borrower) for such fiscal year submitted to an independent audit conducted, in accordance with appropriate auditing principles consistently applied, by the Ministry of Finance of Romania, and (B) the report of such audit by said auditor of such scope and in such detail as the Bank and the Guarantor shall agree; and (ii) furnish to the Bank such other information concerning the beforementioned financial statements of the Borrower and the audit thereof as the Bank shall reasonably request; (g) the Bank and the Borrower shall from time to time furnish to each other such other information as the other party shall reasonably request with regard to the progress of the Project, the expenditure of the proceeds of the Loan, the goods and services financed out of such proceeds, the operations, resources and expenditures of the Turceni Enterprise, the power sector indicators, the economic benefits derived from the Project, the position of the Turceni Enterprise in the Romanian power sector, and the general status of the Loan; and (h) promptly after completion of the Project, but in any event not later than June 30, 1983, or such later date as may be agreed for this purpose between the Bank and the Borrower, the Borrower shall prepare and furnish to the Bank a report, of such scope and in such detail as the Bank and the Borrower shall reasonably agree, on the execution and initial operation of the Project, its cost and the benefits derived and to be derived from - 9- it, the performance by the Bank and the Borrower of their respec- tive obligations under the Loan Agreement and the accomplishment of the purposes of the Loan. Section 6.02. The Bank and the Borrower shall promptly inform each other of any condition which interferes with, or threatens to interfere with, the progress of the Project, the accomplishment of the purposes of the Loan, the maintenance of the service thereof or the performance by either party of its obliga- tions under the Loan Agreement. ARTICLE VII Effective Date; Termination Section 7.01. The following event is specified as an addi- tional condition to the effectiveness within the meaning of Section 12.01 (c) of the General Conditions, namely, the technical and economic indicators required for the implementation of the Project shall have been duly approved by Decree of Romania and shall have become effective. Section 7.02. The date May 29, 1979, is hereby specified for the purpose of Section 12.04 of the General Conditions. ARTICLE VIII Addresses Section 8.01. "..e following addresses are specified for the purposes of Section 11.01 of the General Conditions: 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 (lTT) Washington, D.C. 248423 (RCA) 64145 (WUI) - 10 - For the Borrower: Telex: Banca de Investitii 011238 BINVR Str. Doamnei No. 4 011239 BINVR Bucharest 011188 BINVR Romania IN WITNESS WHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Agreement 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. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT By /s/ Munir P. Benjenk Regional Vice President Europe, Middle East and North Africa BANCA DE INVESTITII By Is/ Nicolae Ionescu Authorized Representative - 11 - 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 expenditures 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) Three steam turbine 61,100,000 72% of foreign generator sets expenditures and 72% of local expenditures ex-factory (2) Other equipment for 8,900,000 100% of foreign thermal power sta- expenditures tion TOTAL 70,000,000 2. For the purposes of this Schedule: (a) the term "foreign expenditures" means expenditures for goods or services supplied from the territory and in the currency of any country other than Romania; and (b) the term "local expenditures" means expenditures in the currency of Romania and for goods or services supplied from the territory of Romania. 3. The disbursement percentages have been calculated in compliance 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, Romania on goods or services, or on the importation, manufacture, procurement or supply thereof; to that end, if any event occurs which shall affect the amount of any such taxes included in the cost of any item to be financed out of - 12 - the proceeds of the Loan, the Bank may, by notice to the Borrower, correspondingly adjust the disbursement percentage then applicable to such item. 4. Notwithstanding the provisions of paragraph 1 above, no withdrawals shall be made in respect of payments made for expendi- tures prior to the date of this Agreement. 5. Notwithstanding the allocation of an amount of the Loan or the disbursement percentages set forth in the table ix. paragraph 1 above, if the Bank has reasonably esti,,ated that the amount of the Loan then allocated to any Category Vill be insufficient to finance the agreed percentage of all expenditures in that Cate- gory, 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 applicable to such expenditures in order that further withdrawals under such Category may continue until all expenditures thereunder shall have been made. 6. If the Bank shall have reasonably determined that the procurement of any item in any Category is inconsistent with the procedures set forth or referred to in this Agreement, no expenditures for such item shall be financed out of the proceeds of the Loan and the Bank may, without in any way restricting or limiting 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. - 13 - SCHEDULE 2 Description of the Project The Project consists of the following: Part A: Construction of a thermal power station at Turceni in the Gorg District, with four 330-MW lignite-fired units designed to protect adequately the station's environment from potentially harmful effects of the operation of the station and to deliver 7,920 GWh/a to the interconnected system at a plant factor of 74% as an extension to the four 330-MW lignite-fired units included in the project financed out of the proceeds of the Prior Loan. Part B: Construction of about 288 km of 400-kV transmission lines connecting Turceni with Cluj via Rovinari. The Project is expected to be completed by June 30, 1982. - 14 - SCHEDULE 3 Amortization Schedule Payment of Principal Date Payment Due (expressed in dollars)* On each June 15 and December 15 beginning June 15, 1982 through June 15, 1993 2,915,000 On December 15, 1993 2,955,000 * 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. - 15 - Premiums on Prepayment The following percentages are specified as the premiums payable 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 1.45% More than three years but not more than six years before maturity 2.95% More than six years but not more than eleven years before maturity 5.40% More than eleven years but not more than thirteen years before maturity 6.35% More than thirteen years before maturity 7.35% - 16 - SCHEDULE 4 Procurement A. International Competitive Bidding 1. Goods and services shall be procured in accordance with procedures consistent with those set forth in the "Guidelines for Procurement under World Bank Loans and IDA Credits" published by the Bank in March 1977 (hereinafter called the Guidelines), on the basis of international competitive bidding as described in Part A of the Guidelines. 2. For goods to be procured on the basis of international competitive bidding, in addition to the requirements of paragraph 1.2 of the Guidelines, the Borrower shall prepare and forward to the Bank as soon as possible, and in any event not later than 60 days prior to the date of availability to the public of the first tender or prequalification documents relating thereto, as the case may be, a general procurement notice, in such form and detail and containing such information as the Bank shall reasonably request; the Bank will arrange for the publication of such notice in order to provide timely notification to prospective bidders of the opportunity to bid for the goods in question. The Borrower shall provide the necessary information to update such notice annually so long as any goods remain to be procured on the basis of inter- national competitive bidding. 3. Identical or similar items to be procured for the Project shall be grouped together, wherever practicable, for the purpose of bidding and procurement, and such grouping of items shall be subject to agreement between the Bank and the Borrower. B. Evaluation and Comparison of Bids for Goods; Preference for Domestic Manufacturers 1. For the purpose of evaluation and comparison of bids for the supply of goods: (i) bidders shall be required to state in their bid the c.i.f. (port of entry) price for imported goods, or the ex-factory price for domestically manufactured goods; (ii) customs duties and other import taxes on imported goods shall be excluded; and (iii) the cost of inland freight and other expendi- tures incidental to the delivery of goods to the place of their use or installation shall be included. - 17 - 2. Goods manufactured in Romania will be granted a margin of preference in accordance with, and subject to, the following provisions: (a) All bidding documents for the procurement of goods shall clearly indicate any preference which will be granted, the information required to establish the eligibility of a bid for such preference and the following methods and stages that will be followed in the evaluation and comparison of bids. (b) After evaluation, responsive bids will be classified in one of the following three groups: (1) Group A: bids offering goods manufactured in Romania if the bidder shall have established to the satisfaction of the Borrower and the Bank that the manufacturing cost of such goods includes a value added in Romania equal to at least 20% of the ex-factory bid price of such goods. (2) Group B: all other bids offering goods manufactured in Romania. (3) Group C: bids offering goods manufactured outside Romania. (c) All evaluated bids in each group shall be first compared among themselves, excluding any customs duties and other import taxes on goods to be imported and any sales or similar taxes on goods to be supplied domestically, to determine the lowest evaluated bid of each group. Such lowest evaluated bids shall then be compared with each other, and if, as a result of this compar- ison, a bid from group A or group B is the lowest, it shall be selected for the award. (d) If, as a result of the comparison under paragraph (c) above, the lowest bid is a bid from group C, all group C bids shall be further compared with the lowest evaluated bid from group A after adding to the c.i.f. bid price of the imported goods offered in each group C bid, for the purpose of this further comparison only, an amount equal to: (i) the amount of customs duties and other import taxes which a non-exempt importer would have to pay for the importation of the goods offered in such group C bid; or (ii) 15% of the c.i.f. bid price of such goods if said customs duties and taxes exceed 15% of such price. If - 18 - the group A bid in such further comparison is the lowest, it shall be selected for the award; if not, the lowest evaluated bid from group C shall be selected. C. Review of Procurement Decisions by the Bank 1. With respect to all contracts estimated to cost the equiva- lent of $250,000 or more: (a) Before bids are invited, ROMENERGO shall furnish to the Bank, for its comments, the text of the invitations to bid and the specifications and other bidding documents and shall make such modifications in the said documents or procedures as the Bank shall reasonably request. Any further modification to the bidding documents shall require the Bank's concurrence before it is issued to the prospective bidders. (b) Promptly after the bids have been opened, ROMENERGO shall inform the Bank of the names of the bidders and the respec- tive amounts of the bids. (c) After bids have been evaluated, ROMENERGO shall, before a final decision on the award is made, inform the Bank of the name of the bidder to which the contract is intended to be awarded and shall furnish to the Bank, in sufficient time for its review, a detailed report, on the evaluation and comparison of the bids received, together with the recommendations for award and such other information as the Bank shall reasonably request. The Bank shall, if it determines that the intended award would be incon- sistent with the Guidelines or this Schedule, promptly inform ROMENERGO and state the reasons for such determination. (d) The terms and conditions of the contract shall not, without the Bank's concurrence, materially differ from those on which bids were asked. (e) Two conformed copies of the contract shall be furnished to the Bank promptly after its execution and prior to the submis- sion to the Bank of the first application for withdrawal of funds from the Loan Account in respect of such contract. 2. With respect to each contract not governed by the preceding paragraph and to be financed out of the proceeds of the Loan, ROMENERGO shall furnish to the Bank, promptly after its execution and prior to the submission to the Bank of the first application - 19 - for withdrawal of funds from the Loan Account in respect of such contract, two conformed copies of such contract, together with a list of the parties invited to bid or to submit quotations, the analysis of the respective bids, recommendations for award or, if a single offer is solicited, the reasons why a single offer was solicited and such other information as the Bank shall reasonably request. The Bank shall, if it determines that the award of the contract was not consistent with the Guidelines or this Schedule, promptly inform ROMENERGO and state the reasons for such deter- mination.