India - Second Calcutta Port Project : Loan 0294 - Loan Agreement - Conformed

LOAN NUMBER 294 IN Loan Agreement (Second Calcutta Port Project) BETWEEN INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT AND THE COMMISSIONERS FOR THE PORT OF CALCUTTA DATED AUGUST 17, 1961 LOAN NUMBER 294 IN Loan Agreement (Second Calcutta Port Project) BETWEEN INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT AND THE COMMISSIONERS FOR THE PORT OF CALCUTTA DATED AUGUST 17, 1961 Evan Agrerment AGREEMENT, dated August 17, 1961, between INTER- NATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT (hereinafter called the Bank) and THE COMMISSIONERS FOR THE PORT OF CALCUTTA (hereinafter called the Borrower). ARTICLE I Loan Regulations; Special Definition SECTION 1.01. The parties to this Loan Agreement accept all the provisions of Loan Regulations No. 4 of the Bank dated February 15, 1961, subject, however, to the modifi- cations thereof set forth in Schedule 3 to this Agreement (said Loan Regulations No. 4 as so modified being herein- after called the Loan Regulations), with the same force and effect as if they were fully set forth herein. SECTION 1.02. Wherever used in this Agreement, unless the context otherwise requires, the term "First Loan Agree- ment" means the loan agreement dated June 25, 1958, between the Bank and the Borrower. ARTICLE II The Loan SECTION 2.01. The Bank agrees to lend to the Borrower, 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 Borrower and shall credit to 4 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 The amount of the Loan may be withdrawn from the Loan Account as pro- vided in, and subject to the rights of cancellation and suspension set forth herein, and in the Loan Regulations. SECTION 2.03. 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charge at the rate of three-fourths of one per cent (3/4 of 1%) per annum on the principal amount of the Loan not so withdrawn from time to time. Such commit- ment charge shall accrue from a date sixty days after the date of this Agreement to the respective dates on which amounts shall be withdrawn by the Borrower from the Loan Account as provided in Article IV of the Loan Regulations or shall be cancelled pursuant to Article V of the Loan Regulations. SECTION 2.04. The Borrower shall pay interest at the rate of five and three-fourths per cent (53/4%) per annum on the principal amount of the Loan so withdrawn and outstanding from time to time. SECTION 2.05. Except as the Bank and the Borrower shall otherwise agree, the charge payable for special com- mitments entered into by the Bank at the request of the Borrower pursuant to Section 4.02 of the Loan Regulations shall be at the rate of one-half of one per cent (1/2 of 1o) 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 May 15 and November 15 in each year. SECTION 2.07. The Borrower shall repay the principal of the Loan in accordance with the amortization schedule set forth in Schedule 1 to this Agreement. 5 ARTICLE III Use of Proceeds of the Loan SECTION 3.01. The Borrower shall apply the proceeds of the Loan exclusively to financing the cost of goods required 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 and the methods and procedures for procurement of such goods shall be determined by agree- ment between the Bank and the Borrower, subject to modi- fication by further agreement between them. SECTION 3.02. Except as shall be otherwise agreed be- tween the Bank and the Borrower, the Borrower shall cause all goods financed out of the proceeds of the Loan to be imported into the territories of the Guarantor and there to be used exclusively in the carrying out of the Project. ARTICLE IV Bonds SECTION 4.01. The Borrower shall execute and deliver Bonds representing the principal amount of the Loan as provided in the Loan Regulations. SECTION 4.02. The Chairman and two other Commission- ers of the Borrower are designated as authorized repre- sentatives of the Borrower for the purposes of Section 6.12 (a) of the Loan Regulations. ARTICLE V Particular Covenants SECTION 5.01. (a) The Borrower shall carry out the Project and conduct its operations with due diligence and efficiency and in conformity with sound engineering, finan- cial and business practices. 6 (b) Upon request from time to time by the Bank, the Borrower shall furnish to the Bank the plans and specifi- cations and the construction schedule for the Project and any material modifications subsequently made therein, in such detail as the Bank shall request. (c) The Borrower shall maintain records adequate to identify the goods financed out of the proceeds of the Loan, to disclose the use thereof in the Project, to record the progress of the Project (including the cost thereof) and to reflect in accordance with consistently maintained sound accounting practices the operations and financial condition of the Borrower; shall enable the Bank's representatives to inspect its properties and operations including the sites, works and construction included in the Project, the goods and any relevant records and documents; and shall furnish to the Bank all such information as the Bank shall reason- ably request concerning the expenditure of the proceeds of the Loan, the Project, the goods, and the operations and financial condition of the Borrower. SECTION 5.02. (a) The Bank and the Borrower shall cooperate fully to assure that the purposes of the Loan will be accomplished. To that end, each of them shall furnish to the other all such information as it shall reasonably request with regard to the general status of the Loan. (b) The Bank and the Borrower 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 Borrower 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. (a) The Loan and the Bonds shall be a first charge on the property now vested, or which hereafter 7 may become vested, in the Borrower and on the tolls, dues, rates, rents and charges leviable by the Borrower under the Calcutta Port Act, 1890 (Bengal Act III of 1890) to the same extent as, but not to any greater extent than, if the Loan and the Bonds were debentures issued or to be issued pursuant to said Act and without preference, priority or distinction of any part of the Loan or any Bond or any such debenture over any other part of The Loan or any Bond or any other such debenture by reason of maturity, date of issue or otherwise; (b) the Bank and the holders of the Bonds other than the Bank shall be deemed to be debenture-holders for the purposes of sections 26 and 27 of such Act; and (c) no debenture-holder of the Borrower and no holder of any other obligation of the Borrower shall have or be deemed to have any prior or greater right, preference or distinction than the charge hereby created by reason of priority in the date, issue, sale or negotiation of the Borrower's debentures or obligations or otherwise. SECTION 5.04. The Borrower undertakes that, except as the Bank shall otherwise agree, if any lien shall be created on any assets of the 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, except to the extent that such equal and ratable security shall be validly consti- tuted by operation of law, 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 originally 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 8 banking transactions and securing a debt maturing not more than one year after its date. SECTION 5.05. The Borrower shall pay or cause to be paid all taxes (including duties, fees or impositions), if any, imposed under the laws of the Guarantor or laws in effect in the territories of the Guarantor on or in connection with the execution, issue, delivery or registration of this Agree- ment, the Guarantee Agreement or the Bonds, or the pay- ment of principal, interest or other charges thereunder; provided, however, that the provisions of this Section shall not apply to taxes (including duties, fees or impositions) on payments under any Bond to a holder thereof other than the Bank when such Bond is beneficially owned by an indi- vidual or corporate resident of the Guarantor. SECTION 5.06. The Borrower shall pay or cause to be paid all taxes (including duties, fees and impositions), 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 regis- tration of this Agreement, the Guarantee Agreement or the Bonds. 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 Sec- tion 5.02 of the Loan Regulations shall occur and shall continue for a period of thirty days, or (ii) if any event specified in paragraph (c) of Section 5.02 of the Loan Regulations shall occur and shall continue for a period of sixty days after notice thereof shall have been given by the Bank to the Borrower, then at any subsequent time during the continuance thereof, the Bank, at its option, 9 may declare the principal of the Loan and of all the Bonds then outstanding to be due and payable immediately, and upon any such declaration such principal shall become due and payable immediately, anything in this Agreement or in the Bonds to the contrary notwithstanding. ARTICLE VII Modification of First Loan Agreement SECTION 7.01. For the purposes of the First Loan Agree- ment, paragraph (c) of Section 5.02 of Loan Regulations No. 4 of the Bank, dated June 15, 1956, is hereby amended to read as follows: " (c) A default shall have occurred in the perform- ance of any other covenant or agreement on the part of the Borrower or the Guarantor under the Loan Agree- ment, the Guarantee Agreement or the Bonds or under the loan agreement dated August 17, 1961, the guar- antee agreement of even date therewith, or the bonds therein provided for"; and the term "Loan Regulations" as used for the purposes of the First Loan Agreement shall mean Loan Regulations No. 4 of the Bank, dated June 15, 1956, as hereby amended. ARTICLE VIII Effective Date; Termination SECTION 8.01. The following is specified as an additional matter, within the meaning of Section 9.02 (e) of the Loan Regulations, to be included in the opinion or opinions to be furnished to the Bank: that the Borrower has full power and authority to construct and operate the Project and that, except as stated in such opinion, all acts, consents, sanctions and approvals necessary therefor, have been duly and validly performed or given. 10 SECTION 8.02. A date ninety days after the date of this Agreement is hereby specified for the purposes of See- tior. 9.04 of the Loan Regulations. ARTICLE IX Miscellaneous SECTION 9.01. The Closing Date shall be September 30, 1965, or such other date as shall be agreed by the Bank and the Borrower as the Closing Date. SECTION 9.02. The following addresses are specified for the purposes of Section 8.01 of the Loan Regulations: For the Borrower: The Commissioners for the Port of Calcutta Calcutta India Alternative address for cablegrams and radiograms: Port Commissioners Calcutta For the Bank: International Bank for Reconstruction and Development 1818 H Street, N.W. Washington 25, D. C. United States of America Alternative address for cablegrams and radiograms: Intbafrad Washington, D. C. IN WITNESS WHEREOF, the parties hereto, acting through their representatives thereunto duly authorized, have 11 caused this Loan Agreement to be executed in their respect- ive names, and to be 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 W. A. B. ILIFF Vice President THE COMMISSIONERS FOR THE PORT OF CALCUTTA By K. MITTER Chairman NEPAL BHATTACHARYA Commissioner M. A. RANGASWAMY Commissioner Se0 12 SCHEDULE 1 Amortization Schedule Payment of Principal Date Payment Due (expressed in dollars)* May 15, 1966 $275,000 Nov. 15, 1966 283,000 May 15, 1967 291,000 Nov. 15, 1967 299,000 May 15, 1968 308,000 Nov. 15, 1968 317,000 May 15, 1969 326,000 Nov. 15, 1969 335,000 May 15, 1970 345,000 Nov. 15, 1970 355,000 May 15, 1971 365,000 Nov. 15, 1971 375,000 May 15, 1972 386,000 Nov. 15, 1972 397,000 May 15, 1973 409,000 Nov. 15, 1973 420,000 May 15, 1974 433,000 Nov. 15, 1974 445,000 May 15, 1975 458,000 Nov. 15, 1975 471,000 May 15, 1976 484,000 Nov. 15, 1976 498,000 May 15, 1977 513,000 Nov. 15, 1977 528,000 May 15, 1978 543,000 Nov. 15, 1978 558,000 May 15, 1979 574,000 Nov. 15, 1979 591,000 May 15, 1980 608,000 Nov. 15, 1980 625,000 May 15, 1981 643,000 Nov. 15, 1981 662,000 May 15, 1982 681,000 Nov. 15, 1982 700,000 May 15, 1983 720,000 Nov. 15, 1983 741,000 May 15, 1984 762,000 Nov. 15, 1984 785,000 May 15, 1985 807,000 Nov. 15, 1985 830,000 May 15, 1986 854,000 * To the extent that any part of the Loan is repayable in a currency other than dollars (see Loan Regulations, Section 3.03), the figures in this column 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 Sec- tion 2.05 (b) of the Loan Regulations or on the redemption of any Bond prior to its maturity pursuant to Section 6.16 of the Loan Regulations: Time of Prepayment or Redemption Premium Not more than three years before maturity.. 1/2 of 1% More than three years but not more than six years before maturity................ ..1% More than six years but not more than eleven years before maturity............. 134% More than eleven years but not more than sixteen years before maturity............ 21/2% More than sixteen years but not m, e than twenty-one years before maturity ........ 31/2% More than twenty-one years but not more than twenty-three years before maturity. . 43/4% More than twenty-three years before maturity ........................ 53/4% 14 SCHEDULE 2 Description of the Project The Project consists of a program of improvement of the Port of Calcutta designe' to maintain access to the port, and improve the operations thereof. It is estimated to involve total expenditures in Indian currency and foreign exchange, after April 1, 1961, amounting to the equivalent of about $31 million and comprises the following main items: A. Floating Craft Floating equipment will be provided, including two suction hopper dredgers, two pilot vessels, and other auxiliary craft. B. Roads and Bridges The No. 2 swing bridge across the Kidderpore Docks will be replaced by a new structure in order to relieve the congestion on one of the main roads in the dock area. C. Port Equipment In order to ameliorate the conditions brought about by increased siltation in the River Hooghly, a dock water recirculation scheme will be constructed at the entrance to Kidderpore Docks which will reduce the amount of silt laden water required to be pumped into the docks for impounding purposes. In order to modernize and improve the efficiency of the workshops and shipyards, additional plant and machinery will be provided. Mechanical appliances will also be pro- vided, including mobile cranes, fork-lift trucks, trac- tors and trailers. 15 D. Docks and Berths The Western Arm of King George's Dock will be extended to provide: holding space at moorings for four ships which can handle cargo overside, berthing facilities for four additional ships undergoing repairs, and aditional sheltered area in the port so as to afford increased operational flexibility to the working of King George's Dock. E. Hydraulic Studies of River Hooghly Up-to-date scientific studies of the hydraulic regime of the River Hooghly in its upper and estuarial reaches will be carried out. In addition to the com- prehensive study of the river, the hydraulic conditions at a satellite port site will be thoroughly investigated. The hydraulic studies will provide such additional information as may lead to improvements of present dredging techniques, indicate beneficial river training works, and determine the feasibility of maintaining deep water alongside the satellite port site and of improving deep water access thereto and to the exist- ing Port of Calcutta. 16 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, 1961, shall be deemed to be modified as follows: (a) Paragraph (c) of Section 5.02 is amended to read as follows: " (c) A default shall have occurred in the per- formance of any other covenant or agreement on the part of the Borrower or the Guarantor under the Loan Agreement, the Guarantee Agreement or the Bonds or under the loan agreement dated June 25, 1958, the guarantee agreement (Calcutta Port Project) of even date therewith, or the bonds therein provided for." (b) Paragraph 6 of Section 10.01 is amended to read as follows: "6. The term 'Borrower' means the party to the Loan Agreement to which the Loan is made; and the term 'Guarantor' means India, acting by its President."