Haiti - Port Development Project : Credit 1121 - Credit Agreement - Conformed

OFFICIA DOCUMENTS CREDIT NUMBER 1121 HA Development Credit Agreement (Port Development Project) between REPUBLIC OF HAITI and INTERNATIONAL DEVELOPMENT ASSOCIATION Dated /3 , 1981 CREDIT NUMBER 1121 HA DEVELOPMENT CREDIT AGREEMENT AGREEMENT, dated 6 c 3e /3 , 1981, between the REPUBLIC OF HAITI (hereinafter called the Borrower) and the INTERNATIONAL DEVELOPMENT ASSOCIATION (hereinafter called the Association.) WHEREAS (A) the Borrower has requested the Association to assist in the financing of the foreign exchange cost of the Project described in Schedule 2 to this Agreement by extending the Credit as hereinafter provided; (B) the Borrower expects to receive from the Kreditanstalt fUr Wiederaufbau (hereinafter called KfW) a grant (hereinafter called the KfW grant) in an amount of DM 9,700,000 to assist in financing part of the Project on the terms and conditions set forth in an agreement to be entered into between the Borrower and KfW; (C) the Project will be carried out by the Borrower's National Port Authority with the Borrower's assistance and, as part of such assistance, the Borrower will make available to the National Port Authority the proceeds of the Credit as hereinafter provided; and WHEREAS the Association has agreed, on the basis inter alia of the foregoing, to extend the Credit to the Borrower upon the terms and conditions hereinafter set forth and in the Project Agreement of even date herewith between the Association and the National Port Authority; NOW THEREFORE the parties hereto hereby agree as follows: ARTICLE I General Conditions; Definitions Section 1.01. The parties to this Agreement accept all the.provisions of the General Conditions Applicable to Development Credit Agreements of the Association, dated June 30, 1980, with the same force and effect as if they were fully set forth herein (said General Conditions Applicable to Development Credit Agree- ments of the Association being hereinafter called the General Conditions). -2- 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 additional terms have the following meanings: (a) "APN" means the Borrower's National Port Authority (Autoritg Portuaire Nationale), a public agency of the Borrower established under Law dated June 18, 1973, as modified by Decree dated January 21, 1974 published in the Moniteur of January 24, 1974 and Decree dated April 7, 1978 published in the Moniteur of April 27, 1978, and any successor thereto; (b) "Project Agreement" means the agreement between the Association and the APN of even date herewith, as the same may be amended from time to time, and such term includes all schedules to the Project Agreement and all agreements supplemental to the Project Agreement; (c) "Subsidiary Loan Agreement" means the agreement to be entered into between the Borrower and the APN pursuant to Section 3.01 (b) of this Agreement, as the same may be amended from time to time, and such term includes all schedules to the Subsidiary Loan Agreement; and (d) "TPTC" means the Secr6tairerie d'Etat des Travaux Publics, Transports et Communications, a Department of the Borrower; ARTICLE II The Credit Section 2.01. The Association agrees to lend to the Borrower, on the terms and conditions in the Development Credit Agreement set forth or referred to, an amount in various currencies equiva- lent to eight million seven hundred thousand Special Drawing Rights (SDR 8,700,000). Section 2.02. The amount of the Credit may be withdrawn from the Credit 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 Associa- tion, for expenditures made (or, if the Association shall so agree, to be made) in respect of the reasonable cost of goods and -3- services required for the Project and to be financed out of the proceeds of the Credit. Section 2.03. Except as the Association shall otherwise agree, procurement of the goods and civil works to be financed out of the proceeds of the Credit, shall be governed by the provisions set forth or referred to in Section 2.03 of the Project Agreement. Section 2.04. The Closing Date shall be June 30, 1984 or such later date as the Association shall establish. The Associa- tion shall promptly notify the Borrower of such later date. Section 2.05. The Borrower shall pay to the Association a service charge at the rate of three-fourths of one per cent (3/4 of 1%) per annum on the principal amount of the Credit withdrawn and outstanding from time to time. Section 2.06. Service charges shall be payable semiannually on June 15 and December 15 in each year. Section 2.07. The Borrower shall repay the principal amount of the Credit in semiannual installments payable on each June 15 and December 15 commencing June 15, 1991, and ending December 15, 2030, each installment to and including the installment payable on December 15, 2000, to be one-half of one per cent (1/2 of 1%) of such principal amount, and each installment thereafter to be one and one-half per cent (1-1/2%) of such principal amount. Section 2.08. The currency of the United States of America is hereby specified for the purposes of Section 4.02 of the General Conditions. Section 2.09. The APN is designated as representative of the Borrower for the purposes of taking any action required or per- mitted to be taken under the provisions of Section 2.02 of this Agreement and Article V of the General Conditions. ARTICLE III Execution of the Project Section 3.01. (a) Without any limitation or restriction upon any of its other obligations under the Development Credit Agreement, the Borrower shall cause the APN to perform in accor- dance with the provisions of the Project Agreement and the Sub- sidiary Loan Agreement all the obligations therein set forth, shall take and cause to be taken all action, including the pro- vision of funds, facilities, services and other resources, neces- sary or appropriate to enable the APN to perform such obligations, and shall not take or permit to be taken any action which would prevent or interfere with such performance. (b) The Borrower shall relend the proceeds of the Credit to the APN under a subsidiary loan agreement to be entered into between the Borrower and the APN providing for a term of 25 years including six years of grace and for interest at the rates of 1% per annum for the first five year and 2% per annum thereafter, and containing such other terms and conditions as shall have been approved by the Association. (c) The Borrower shall exercise its rights under the Subsidiary Loan Agreement in such manner as to protect the interests of the Borrower and the Association and to accomplish the purposes of the Credit, and except as the Association shall otherwise agree, the Borrower shall not assign, amend, abrogate or waive the Subsidiary Loan Agreement or any provision thereof. Section 3.02. (a) To support and stimulate the development of its maritime industry, the Borrower shall: (i) by October 1, 1981 establish and put into operation under the TPTC a national maritime agency with the functions and responsibilities set forth in Sche- dule 3 to this Agreement; (ii) furnish to the Association prior to June 30, 1981 for its comments drafts of any legislation proposed for the purpose of such establishment; (iii) cause such agency to cooperate with the Borrower's Navy and with other departments and agencies of the Borrower in implementing a phased program satisfactory to the Association for the development of the maritime industry. (b) The Borrower shall by June 30, 1982 take such steps as shall be necessary to complete, modernize and codify its rules and regulations governing the maritime sector and shall furnish to the -5- Association by March 31, 1982 for its comments drafts of appro- priate legislation proposed for the purpose. Section 3.03. (a) The Borrower shall take such action as may be necessary on its part to enable the APN to comply with its obligations under Sections 4.04, 4.06 and 4.08 of the Project Agreement. (b) The Borrower shall ensure that the APN continue to levy charges on cargo handled at private terminals. Section 3.04. (a) In order to permit the carrying out of Pa7t B of the Project, the Borrower shall by September 30, 1981 construct a gravel-surfaced access road between the proposed terminal site for the coastal shipping port at Baraderes and the existing road system within that town. (b) The Borrower shall include the upgrading of existing roads between the proposed coastal shipping port at Anse d'Hainault and the towns of Dame Marie and Les Irois in its program of road upgrading for 1981-1982. ARTICLE IV Remedies of the Association Section 4.01. For the purposes of Section 6.02 of the General Conditions the following additional events are specified pursuant to paragraph (h) thereof: (a) The APN shall have failed to carry out any obligation under the Project Agreement or the Subsidiary Loan Agreement; (b) The Borrower or any other authority having jurisdiction shall have taken any action for the dissolution or disestablish- ment of the APN or for the suspension of any substantial part of its operations; and (c) (i) Subject to subparagraph (ii) of this Paragraph: (A) The right of the Borrower to withdraw the proceeds of any grant or loan made to the Borrower or to the APN for the financing of the Project shall have been suspended, cancelled or terminated in whole or in part, pursuant to the terms of the agreement providing therefor, or (3) 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: (A) such suspension, cancellation, termination or prematuring is not caused by the failure of the Borrower or the APN to perform any of its obligations under such agreement, and (B) adequate funds for the Project are available to the Borrower from other sources on terms and conditions consistent with the obligations of the Borrower under this Agreement and of the APN under the Project Agreement. Section 4.02. For the purposes of Section 7.01 of the General Conditions, the following additional event is specified pursuant to paragraph (d) thereof: (a) The event specified in paragraph (a) of Section 4.01 shall occur and shall continue for a period of thirty days after notice thereof shall have been given by the Association to the Borrower and to the APN; and (b) any event specified in paragraph (b) or (c) (i) (B) of Section 4.01 of this Agreement shall occur. ARTICLE V Effective Date; Termination Section 5.01. The following event is specified as an addi- tional condition to the effectiveness of the Development Credit Agreement within the meaning of Section 12.01 (b) of the General Condition, namely, that the Subsidiary Loan Agreement has been executed on behalf of the Borrower and the APN. Section 5.02. The following are specified as additional matters, within the meaning of Section 12.02 (b) of the General -7- Conditions, to be included in the opinion or opinions to be furnished to the Association: (a) that the Project Agreement has been duly authorized or ratified by the APN, and is legally binding upon the APN in accordance with its terms; and (b) that the Subsidiary Loan Agreement has been duly authorized or ratified by the Borrower and the APN and is legally binding upon the Borrower and the 2PN in accordance with its terms. Section 5.03. The date 132 I98' , is hereby specified for the purposes of Section 12.04 of the General Condi- tions. Section 5.04. The obligations of the Borrower under Sections 3.02 and 3.03 of this Agreement shall cease on the date on which the Development Credit Agreement shall terminate or on a date twenty-five years after the date of this Agreement, whichever shall be the earlier. ARTICLE VI Representative of the Borrower; Addres3es Section 6.01. Except as provided in Section 2.09 of this Agreement, the Secretary of State for Finance and Economic Affairs of the Borrower is designated as representative of the Borrower for the purposes of Section 11.03 of the General Conditions. Section 6.02. The following addresses are specified for the purpose of Section 11.01 of the General Conditions: For the Borrower: Secretairerie d'Etat des Finances et des Affaires Economiques Palais des Finances Port-au-Prince Haiti -8- Cable address: Telex: SECRETAIRERIE D'ETAT DES 2030347 FINANCES ET DES AFFAIRES FINANCE ECONOMIQUES Port-au-Prince Haiti For the Association: International Development Association 1818 H Street, N.W. Washington, D.C. 20433 United States of America Cable address: Telex: INDEVAS 440098 (ITT) Washington, D.C. 248423 (RCA) or 64145 (WUI) 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. REPUBLIC OF HAITI By Authorized Representative INTERNATIONAL DEVELOPMENT ASSOCIATION By By4ce. Regional Vice President LatiPAmerica and the Caribbean - 9 - SCHEDULE 1 Withdrawal of the Proceeds of the Credit 1. The table below sets forth the Categories of items to be financed out of the proceeds of the Credit, the allocation of the amounts of the Credit to each Category and the percentage of expenditures for items so to be financed in each Category: Amount of the Credit Allocated % of (Expressed in Expenditures Category SDR Equivalent) to be Financed (1) Civil works: (a) Cap Haitien 3,140,000 32% (b) Coastal ports 1,410,000 70% (c) Jeremie 240,000 70% (2) Engineering, Parts 1,100,000 80% A, B and C of the Project (3) Consultants' services 1,490,000 80% (4) Unallocated 1,320,000 TOTAL 8,700,000 2. The disbursement percentages have been calculated in com- pliance with the policy of the Association that no proceeds of the Credit 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 Credit decreases or increases, the Association may, by notice to the Borrower, increase or decrease the disburs-ment percentage then applicable to such item as required to be consistent with the aforementioned policy of the Association. - 10 - 3. Notwithstanding the provisions of paragraph 1 above, no withdrawals shall be made in respect of: (a) payments made for expenditures prior to the date of this Agreement, except that withdrawals, in an aggregate amount not exceeding the equivalent of $1,120,000 may be made in respect of Categories 1 (c), 2 and 3 on account of payments made for such expenditures before that date but after January 1, 1980; (b) Part A of the Project until: (i) the assets of the Port of Cap Haitien have been verified, valued, and brought into the accounts of the APN; and (ii) the Association has been notified by the KfW that all conditions precedent to disbursements of its grant for the Project have been fulfilled, except for the effec- tiveness of this Agreement; (c) Part B of the Project until the road to be constructed under Section 3.04 (b) has been completed; or (d) Part D.2 of the Project until the adoption by the APN of a general land-use plan for the port of Port-au-Prince. 4. Notwithstanding the allocation of an amount of the Credit or the disbursement percentages set forth in the table in para- graph 1 above, if the Association has reasonably estimated that the amount of the Credit then allocated to any Category will be insufficient to finance the agreed percentage of all expenditures in that Category, the Association may, by notice to the Borrower: (i) reallocate to such Category, to the extent required to meet the estimated shortfall, proceeds of the Credit which are then allocated to another Category and which in the opinion of the Association 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. 5. If the Association 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 Credit and the Association may, without in any way restric- ting or limiting any other right, power or remedy of the Associa- tion under the Development Credit Agreement, by notice to the - 11 - Borrower, cancel such amount of the Credit as, in the Associa- tion' s reasonable opinion, represents the amount of such expendi- tures which would otherwise have been eligible for financing out of the proceeds of the Credit. - 12 - SCHEDULE 2 Description of the Project The Project comprises both physical and institutional development in the sector of marine transport and includes specifically the following: Part A. Cap Haitien 1. Construction of a new 115 m wharf for passenger vessels with ancillary facilities, including an access road. 2. Construction of about 250 m of multipurpose wharf with facilities for handling containers. 3. Reconstruction of the coastal shipping dock and provision of ancillary facilities for cargo operations and small-craft mooring, access roads, parking and utilities. Part B. Coastal Ports 1. Anse ' Galet, Baraderes, Corail, Anse d'Hainault and Port-a-Piment: Construction of new terminal facilities to provide berthing for two vessels of up to 200 DWT. 2. Gonalves and Les Cayes: Dredging, improvements in naviga- tional aids and rehabilitation of docks. Part C. Jeremie Construction for shore protection. Part D. Port-au-Prince 1. Preparation of a general plan for development of the port. 2. Carrying out of feasibility studies and preparation of designs for the next phase of development of terminal facilities for international traffic. Part E. Sector and institutional development 1* Development and operation of a national maritime agency including training of staff. - 13 - 2. Establishing standards and procedures for inspection and licensing of vessels in coastal trade. 3. Studies in port development planning, including analyses of coastal shipping operations, definition of future requirements and preinvestment studies. 4. Improvements in periodic maintenance, including definitions of procedures, specification of equipment and training of per- sonnel. 5. Establishment of a uniform accc.unting system including cost-accounting and training of accounting staff. 6. Conducting tariff and market studies and establishing tariff structures based thereon for cruise ships and for coastal ship- ping. The Project is expected to be completed by December 31, 1983. INTERNATIONAL DEVELOPMENT ASSOCIATION CERTIFICATE I hereby certify that the foregoing is a true copy of the original in the archives of the Interna- tional Development Association. In witness whereof I have signed this Certifi- cate and affixed the Seal of the Association thereunto the day of I 198 1 FOR SECRETARY