Austria - YBBS-Persenbeug Project : Loan 0149 - Loan Agreement - Conformed

LOAN NUMBER 149 AUA Loan Agreement (Ybbs-Persenbeug Project) BETWEEN INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT AND OSTERREICHISCHE ELEKTRIZITATSWIRTSCHAFTS- AKTIENGESELLSCHAFT (VERBUNDGESELLSCHAFT) AND OSTERREICHISCHE DONAUKRAFTWERKE AKTIENGESELLSCHAFT DATED SEPTEMBER 21, 1956 LOAN NUMBER 149 AUA Loan Agreement (Ybbs-Persenbeug Project) BETWEEN INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT AND OSTERREICHISCHE ELEKTRIZITATSWIRTSCHAFTS- AKTIENGESELLSCHAFT (VERBUNDGESELLSCHAFT) AND OSTERREICHISCHE DONAUKRAFTWERKE AKTIENGESELLSCHAFT DATED SEPTEMBER 21, 1956 IEnan Argrement AGREEMENT, dated September 21, 1956, between INTER- NATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT, party of the first part (hereinafter called the Bank), and OSTERREICHISCHE ELEKTRIZITXTSWIRTSCHAFTS-AKTIENGESELL- SCHAFT (VERBUNDGESELLSCHAFT) and OSTERREICHISCHEDONAU- KRAFTWERKE AKTIENGESELLSCHAFT, parties of the second part (hereinafter collectively called the Borrowers). ARTICLE I Loan Regulations; Special Definitions SECTION 1.01. The parties to this Loan Agreement ac- cept all the provisions of Loan Regulations No. 4 of the Bank dated February 15, 1955, subject, however, to the modifications thereof set forth in Schedule 3 to this Agree- ment (said Loan Regulations No. 4 as so modified being hereinafter called the Loan Regulations), with the same force and effect as if they were fully set forth herein. SECTION 1.02. Except where the context otherwise re- quires, the following terms have the following meanings wherever used in this Agreement or any Schedule to this Agreement: (a) The term "Verbundgesellschaft" means Osterreich- iscbe Elekt rizitiitswirtschafts -Akti enge sells chaf t (Verbundgesellsehaft), a company organized and existing under Federal Law of the Guarantor of March 26, 1947, No. 81 (2. Verstaatlichungsgesetz). (b) The term "Donaukraftwerke" means Osterreichische Donaukra ftworke Aktiengesellschaft, a company or- ganized and existing under the corporation laws of the Guarantor and such Federal Law No. 81. (c) The term "affiliated company" means any of the "Sondergesellsebaften" organized and existing or to be organized under the corporation laws of the Guar- 4 antor and such Federal Law No. 81 and any other company directly or indirectly controlled by the Ver- bundgesellschaft. (d) The term "Program" means the program of the Verbundge sellschaft for the expansion of electric power production during the period 1956-1960 as set forth in the Verbundgesellschaft's memorandum, dated May 8, 1956. ARTICLE II The Loan SECTION 2.01. The Bank agrees to lend to the Borrowers, on the terms and conditions in this Agreement set forth or referred to, an amount in various currencies equivalent to twenty-one million dollars ($21,000,000). SECTION 2.02. The Bank shall open a Loan Account on its books in the name of the Borrowers and shall credit to such Account the amount of the Loan. The amount of the Loan may be withdrawn from the Loan Account as pro- vided in, and subject to the rights of cancellation and suspension set forth in, Section 2.08 of this Article and the Loan Regulations. SECTION 2.03. The Borrowers shall pay to the Bank a commitment charge at the rate of three-fourths of one per cent (% of 1%) per anium on the principal amount of the Loan not so withdrawn from time to time. SECTION 2.04. The Borrowers shall pay interest at the rate of five per cent (5%X ) per- aunum on the principal amount of the Loan so withdrawn and outstanding from time to time. SECTION 2.05. Except as the Bank and the Borrowers shall otherwise agree, the charge payable for special com- 5 mitments entered into by the Bank at the request of the Borrowers pursuant to Section 4.02 of the Loan Regulations shall be at the rate of one-half of one per cent (1/2 of 1%) per annum on the principal amount of any such special commitments outstanding from time to time. SECTION 2.06. Interest and other charges shall be pay- able semi-annually on January 15 and July 15 in each year. SECTION 2.07. The Borrowers shall repay the principal of the Loan in accordance with the amortization schedule set forth in Schedule 1 to this Agreement. SECTION 2.08. In the event the capital market of any country other than Austria wishes to participate in the financing of the Project, and the Borrowers or either of them obtain any such complementary financing by means of a sale of bonds or other obligations in any such market before December 31, 1956, the Bank may, at its option, cancel an amount of the Loan not in excess of an amount equivalent in dollars to the aggregate amount so raised by the Bor- rowers or either of them. ARTICLE III Use of Proceeds of the Loan SECTION 3.01. The Borrowers shall apply the proceeds of the Loan exclusively to financing the cost of goods re- quired to carry out the Project described in Schedule 2 to this agreement. The specific goods to be financed out of the proceeds of the Loan shall be determined by agreement between the Bank and the Donaukraftwerke, subject to modification by further agreement between them. SECTION 3.02. The Borrowers shall cause all goods financed out of the proceeds of the Loan to be used ex- clusively in the carrying out of the Project. 6 ARTICLE IV Bonds SECTION 4.01. The Borrowers shall execute and deliver Bonds representing the principal amount of the Loan as provided in the Loan Regulations. SECTION 4.02. Any two members of the managing board (Vorstand) of the Verbundgesellsehaft signing jointly on behalf of the Ve-hundgesellschaft and any two members of the managing board (Vorstand) of the Donaukraftwerke signing jointly on behalf of the Donaukraftwerke are designated as authorized representatives of the Borrowers for the purposes of Section 6.12 (a) of the Loan Regulations. ARTICLE V Particular Covenants SECTION 5.01. (a) The Borrowers shall carry out the Project with due diligence and efficiency and in conformity with sound engineering and financial practices. (b) The Borrowers shall furnish to the Bank, promptly upon their preparation, the plans and specifications for the Project and any material modifications subsequently made therein, in such detail as the Bank shall from time to time request. (c) The Borrowers shall maintain records adequate to identify the goods financed in whole or in part out of the proceeds of the Loan, to disclose the use thereof in the Project, to record the progress of the Project and the Program (including the cost thereof) and to reflect in ac- cordance with consistently maintained sound accounting practices the financial condition and operations of the Bor- rowers; shall enable the Bank's representatives to inspect the Project, the Program (with the exception of the plant of the Donaukraftwerk-Jochenstein Aktiencgesellschaft), the goods and any relevant records and documents; and shall 7 furnish to the Bank all such information as the Bank shall reasonably request concerning the expenditure of the pro- ceeds of the Loan, the Project, the Program, the goods, and the financial condition and operations of the Borrowers. SECTION 5.02. (a) The Bank and the Borrowers shall cooperate fully to assure that the purposes of the Loan will be accomplished. To that end, each of the parties here- to shall furnish to any other such party all such information as such other party shall reasonably request with regard to the general status of the Loan. (b) The Bank and the Borrowers shall from time to time exchange views through their representatives with regard to matters relating to the purposes of the Loan and the maintenance of the service thereof. The Borrowers shall promptly inform the Bank of any condition which interferes with, or threatens to interfere with, the accomplishment of the purposes of the Loan or the maintenance of the service thereof. SECTION 5.03. Each of the Borrowers undertakes that, except as the Bank shall otherwise agree, if any lien shall be created on any assets of such Borrower as security for any debt, such lien will ipso facto equally and ratably secure the payment of the principal of, and interest and other charges on, the Loan and the Bonds, and that in the creation of any such lien express provision will be made to that effect; provided, however, that the foregoing provisions of this Section shall not apply to: (i) any lien created on property, at the time of purchase thereof, solely as security for the payment of the purchase price of such property; (ii) any lien on commercial goods to secure a debt maturing not more than one year after the date on which it is origi- nally incurred and to be paid out of the proceeds of sale of such commercial goods; or (iii) any lien arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after its date. 8 SECTION 5.04. The Borrowers shall pay or cause to be paid all taxes or fees, if any, imposed under the laws of the Guarantor or laws in effect in the territories of the Guaran- tor on or in connection with the execution, issue, delivery or registration of this Agreement, the Guarantee Agree- ment or the Bonds, or the payment of principal, interest or other charges thereunder; provided, however, that the pro- visions of this Section shall not apply to taxation of, or fees upon, payments under any Bond to a holder thereof other than the Bank when such Bond is beneficially owned by an individual or corporate resident of the Guarantor. SECTION 5.05. The Borrowers shall pay or cause to be paid all taxes and fees, if any, imposed under the laws of the country or countries in whose currency the Loan and the Bonds are payable or laws in effect in the territories of such country or countries on or in connection with the execution, issue, delivery or registration of this Agreement, the Guarantee Agreement or the Bonds. SECTION 5.06. Except as shall be otherwise agreed be- tween the Baik and the Borrowers, the Borrowers shall insure or cause to be insured the goods financed with the proceeds of the Loan against risks incident to their pur- chase and importation into the territories of the Guarantor. Suci insurance shall be consistent with sound commercial piractice and shall be payable in dollars or in the currency in which the cost of the goods insured thereunder shall be payable. SECTION 5.07. (a) Each of the Borrowers shall at all times maintain its existence and right to carry on operations and shall, except as the Bank shall otherwise agree, take all steps necessary to maintain and renew all rights, powers, privileges and franchises which are necessary or useful in the conduct of its business. (b) Each of the Borrowers shall operate and maintain its plants, equipment and pioperty, and from time to time make all necessary renewals and repairs thereof, all in ac- 9 cordance with sound engineering standards; and shall at all times operate its plants and equipment and maintain its financial position in accordance with sound business and public utility practices. SECTION 5.08. During the period of the Program of which the Project is a part, the Verbundgesellschaft shall consult with the Bank on any major construction not already included in the Program and requiring for its completion substantial capital investment. The Verbundgesellschaft shall undertake, and shall permit any affiliated company to undertake, such construction only after the Bank, the Guar- antor and the Verbundgesellschaft have mutually agreed that the financing thereof is reasonably assured and that the Program will not be impaired thereby. ARTICLE VI Remedies of the Bank SECTION 6.01. (i) If any event specified in paragraph (a), paragraph (b), paragraph (e) or paragraph (f) of Section 5.02 of the Loan Regulations shall occur and shall continue for a period of thir- days, or (ii) if any event specified in paragraph (c) of Section 5.02 of the Loan Regu- lations shall occur and shall continue for a period of sixty days after notice theroof shall have been given by the Bank to the Borrowers, then at any subsequent time during the continuance thereof, the Bank, at its option, may declare the principal of the Loan and of all the Bonds then outstand- ing to be due and payable inmediately, and upon any sveh declaration such principal shall become due and payable immediately, anything in this Agreement or in the Bonds to the contraryi notwithstanding. ARTICLE VII Miscellaneous SECTION 7.01. The Closing Date shall be December 31, 1959. 10 SECTION 7.02. November 30, 1956 is hereby specified for the purposes of Section 9.04 of the Loan Regulations. SECTION 7.03. The following addresses are specified for the purposes of Section 8.01 of the Loan Regulations: For the Verbundgesellsehaft: Osterreichische Elektrizitiitswirtschafts- Aktiengesellschaft (Verbundgesellschaft) Wien 1 Am Hof 6 Austria For the Donaukraf twerke: Osterreichische Donaukraftwerke Aktiengesellschaft Wien 1 Hohenstaufengasse 6 Austria For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington 25, D. C. United States of America SECTION 7.04. All. obligations, of the Borrowers under this Agreement and the Bonds, unless such obligations shall have been expressly undertaken by only one of the Bor- rowers expressly named herein, shall be joint and several, and the obligation of either of them to comply with any provision of this Agreement is not subject to any prior notice to, demand upon or action against, the other. No extension of time or forbearance given to either of the Borrowers in respect of the performance of any of its ob- ligations under this Agreement or the Bonds, and no failure 11 of the Bank or of any holder of the Bonds to give any notice or to make any demaid or protest whatsoever to either of the Borrowers, or strictly to assert any right or pursue any remedy against either of them in respect of this Agreement or the Bonds, and no failure by either of the Borrowers to comply with any requirement of any law, regulation or order, shall in any way affect or inpair any obligation of the other Borrower under this Agreement or the Bonds. IN WITNESS WTHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Loan Agreement to be signed in their respective names and delivered 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/ W. A. B. ILIFF Vice President OSTERREICHISCHE ELEKTRIZITXTSWIRTSCRAFTS- AKTIENGESELLSCHAFT (VERBUNDGESELLSCHAFT) By /s/ GRUBER Authorized Representative OSTERREICISCHE DONAUKRAFTWERKE AKTIENGESELLSCHAFT By /s/ GRUBER Authorized Representative 12 SCHEDULE 1 Amortization Schedule Principal Payment of Amount Outstanding Principal After Each Payment Date (expressed in (expressed in Payment Due dollars) * dollars) * July 15, 1959 - $21,000,000 January 15, 1960 $267,000 20,733,000 July 15, 1960 274,000 20,459,000 January 15, 1961 281,000 20,178,000 July 15, 1961 288,000 19,890,000 January 15, 1962 295,000 19,595,000 July 15, 1962 302,000 19,293,000 January 15, 1963 310,000 18,983,000 July 15, 1963 318,000 18,665,000 January 15, 1964 326,000 18,339,000 July 15, 1964 334,000 18,005,000 January 15, 1965 342,000 17,663,000 July 15, 1965 351,000 17,312,000 January 15, 1966 359,000 16,953,000 July 15, _j36 368,000 16,585,000 January 15, 1967 378,000 16,207,000 July 15, 1967 387,000 15,820,000 January 15, 1968 397,000 15,423,000 July 15, 1968 408.000 15,015,000 January 15, 1969 417,000 14,598,000 July 15, 1969 427,000 14,171,000 January 15, 1970 438,000 13,733,000 July 15, 1970 449,000 13,284,000 January 15, 1971 460,000 12,824,000 July 15, 1971 472,000 12,352,000 January 15, 1972 483,000 11,869,000 July 15, 1972 496,000 11,373,000 January 15, 1973 508,000 10,865,000 July 15, 1973 521,000 10,344,000 January 15, 1974 534,000 9,810,000 July 15, 1974 547,000 9,263,000 January 15, 1975 561,000 8,702,000 July 15, 1975 575,000 8,127,000 January 15, 1976 589,000 7,538,000 July 15, 1976 604,000 6,934,000 January 15, 1977 619,000 6,315,000 July 15, 1977 634,000 5,681,000 January 15, 1978 650,000 5,031,000 July 15, 1978 667,000 4,364,000 January 15, 1979 683,000 3,681,000 July 15, 1979 700,000 2,981,000 January 15, 1980 718,000 2,263,000 July 15, 1980 736,000 1,527,000 JanL' .ry 15, 1981 754,000 773,000 July 15, 1981 773,000 - * To the extent that any part of the Loan is repayable in a currency other than dollars (see Loan Regulations, Section 3.02), the figures in these columns represent dollar equivalents determined as for purposes of withdrawal. 13 Premiums on Prepayment and Redemption The following percentages are specified as the premiums payable on repayment in advance of maturity of any part of the principal amount of the Loan pursuant to Section 2.05 (b) of the Loan Regulations or on the redemption of any Bond prior to its maturiy pursuant to Section 6.16 of the Loan Regulations: Time of Prepayment or Redemption Premium Not more than 3 years before maturity . . More than 3 years but not more than 6 years before maturity .............. . More than 6 years but not more than 11 years before maturity ......... % More than 11 years but not more than 16 years before maturity -...... ...... 2 More than 16 years but not more than 21 years before maturity . . ........ .. .. 3% More than 21 years but not more than 23 years before maturity 4% More than 23 years before maturity. . . . 5% 14 SCHEDULE 2 Description of the Project The Project consists of the construction of the Ybbs- Persenbeug hydroelectric plant more fully described below, as part of the Program. The hydroelectric plant will be constructed on the Danube about 130 km by river above Vienna in which six 3-phase 50 cycle generating units each having a capacity of 45,000 kva (36,000 kw at 8/10 power factor) and conventional auxiliaries will be installed in two powerhouses. Each unit will be provided with a transformer having a capacity of 45,000 kva to step up the voltage from 10.5 to 220 kilovolts. The two powerhouses will form an integral part of the dam. The weir section of the dam will be equipped with movable gates. The dam with the gates closed will provide a maxi- mum head on the turbines of about 14 meters at average low water. Two navigation locks, each 24 meters wide and 230 meters long inside, will be constructed on the left bank of the river. A road 9.8 meters wide will cross the river on top of the dam and powerhouses. Two gantry cranes, each with a capacity of 135 tons, will operate on top of the dam and powerhouses parallel to the road. Three of the gener- ating units are scheduled to be in operation during the first quarter of 1958 with a partial head, and all six units are scheduled to be in operation with full head by the end of 1959. 15 SCHEDULE 3 Modifications of Loan Regulations No. 4 For the purposes of this Agreement the provisions of Loan Regulations No. 4 of the Bank, dated February 15, 1955, shall be deemed to be modified as follows: (a) The term "Borrower" shall mean the Borrowers; except that ac used in Sections 5.02 (b), (c), (d), (e), (f), 7.01 and 7.02 such term shall mean the Borrowers or either of them. (b) The first two sentences of Section 3.01 shall read as follows: "The Donaukraftwerke shall use reasonable efforts to purchase goods with the currencies of the countries from which such goods are acquired. The proceeds of the Loan shall, to the extent that the Bank shall so elect, be withdrawn from the Loan Account in the several currencies in which goods are paid for; except that with respect to goods paid for in the currency of the Guarantor or acquired from sources within the territories of the Guarantor such withdrawals may, to the extent that the Bank shall so elect, be made in any currenicy selected by the Bank." (c) The following paragraph shall be added to Section 3.05: "If a withdrawal is applied for on account of ex- penditures in the currency of the Guarantor, the value of the currency of the Guarantor in terms of the currency or currencies to be withdrawn shall be as reasonably determined by the Bank." (d) Section 4.01 shall read as follows: "Withdrawal from the Loan Account. The Borrowers shall be entitled, subject to the provisions of these Regulations, to withdraw from the Loan Account: (a) (i) Such amounts as shall be required by the Borrowers to reimburse them for the reason- able cost of goods that have neither been 16 paid for in the currency of the Guarantor nor been acquired from sources within the territories of the Guarantor; (ii) if the Bank shall so agree, such amounts as shall be required by the Borrowers to meet the reasonable cost of such goods; and (b) Such amounts as shall be required by the Bor- rowers to reimburse them for such portions as the Bank may from time to time agree to of the reasonable cost of goods that have been paid for in the currency of the Guarantor or acquired from sources within the territories of the Guar- antor. Except as shall be otherwise agreed between the Bank and the Borrowers, no withdrawals shall be made on account of (a) expenditures before January 1, 1956 or (b) expenditures in the territories of any country which is not a member of the Bank or for goods produced in (including services supplied from) such territories.* " (e) Section 5.04 shall read as follows: "Application of Cancellation or Suspension to Amounts Subject to Special Commitment. Notwithstanding the provisions of Section 2.08 of the Loan Agreement and of Sections 5.01, 5.02 and 5.03, no cancellation or suspension pursuant to this A.rticle shall apply to amounts subject to any special com- mitment entered into by the Bank pursuant to Section 4.02 except as expressly provided in such commit- ment." * On May 10, 1956, the Executive Directors decided that in view of the special relationship established between the Bank and Switzerland by the Agreement of June 29, 1951, the Bank should agree, if so requested by borrowers, to permit loan proceeds to be used to finance expenditures in the territories of Switzerland or for goods produced in (including serv- ices supplied from) such territories. 17 (f) Section 5.05 shall read as follows: "Application of Cancellation to Maturities of the Loan. Except as otherwise agreed between the Bank and the Borrowers, any cancellation pursuant to this Article or Section 2.08 of the Loan Agreement shall be applied pro rato to the several maturities of the principal amount of the Loan as set forth in the amor- tization schedule to the Loan Agreement, except that no such cancellation shall be applied to Bonds there- tofore delivered or requested pursuant to Article VI, or to portions of the Loan theretofore sold by the Bank." (g) The following sentence shall be added to Section 6.07: "All Bonds shall contain appropriate provisions to the effect that the obligations of the Borrowers are joint and several as provided in Section 7.04 of the Loan Agreement." (h) Paragraph (a) of Section 7.04 shall read as follows: "Any controversy between the Bank and the Bor- rowers or either of them or between the Guarantor and the Bank and any claim by any such party against any other such party arising under the Loan Agreement, the Guarantee Agreement or the Bonds which shall not be determined by agreement of the parties shall be submitted to arbitration by an Arbi- tral Tribunal as hereinafter provided."