Соглашение между Российской Федерацией и Европейским банком реконструкции и развития о займе на цели ликвидации последствий аварии на нефтепроводе Харьяга — Усинск в Республике Коми (operation NUMBER 312) [англ.]

(Вместе с <Декларациями Европейского банка реконструкции и развития>)

(Заключено в г. Москве 05.05.1995)

(Декларации приняты 13.05.1996, 24.03.1998)

LOAN AGREEMENT

(KOMI EMERGENCY OIL SPILL RECOVERY PROJECT) BETWEEN THE RUSSIAN FEDERATION AND EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT

(Moscow, 5.V.1995)

Agreement, dated 5 May 1995, between the Russian Federation (the «Borrower») and the European Bank for Reconstruction and Development (the «Bank»).

Preamble

Whereas the Bank has been established to provide financing for specific projects to foster the transition towards open market-oriented economies and to promote private and entrepreneurial initiative in the Central and Eastern European countries committed to and applying the principles of multiparty democracy, pluralism and market economics;

Whereas the Borrower intends by on-lending to OTJSC Komineft the open joint stock company registered according to the law of the Russian Federation («Komineft») to assist Komineft in implementing the project described in Schedule 1 to this Agreement (the «Project»), which will, among others include (i) the stabilising and containment of the oil spill area in the Komi Republic along the Kharyaga-Usinsk pipeline prior to the spring thaw in 1995 and minimising, to the extent possible, the amount of oil released during runoff of the Kharyaga-Usinsk pipeline and future ecological damage in the Pechora river basin and others impacted areas, (ii) supporting safe pipeline operations in the near term and evaluate the need for a replacement pipeline investment project for the longer term, and (iii) identifying and implementing other measures to mitigate against future oil spills;

Whereas the Project will be carried out by Komineft, with the Borrower's assistance and, as part of such assistance, the Borrower will make available to Komineft the proceeds of the loan as provided in this Agreement and the Subsidiary Loan Agreement;

Whereas the Borrower has requested assistance from the Rank in the financing of part of the Project;

Whereas the Borrower intends to contract from the International Bank for Reconstruction and Development (the «IBRD») a loan in an amount equivalent to ninety nine million dollars (USD 99,000,000) for further on-lending to Komineft (the «IBRD Loan») on the terms and conditions set forth in an agreement (the «IBRD Loan Agreement») to be entered into between the Borrower and the IBRD;

Whereas Komi Republic has declared its commitment to the objectives of the Project and confirmed the undertaking to take and cause to be taken all measures necessary on its behalf, including, but not limited to issuance of permit, licences and approvals to facilitate the timely and efficient carrying out of the Project; and

Whereas the Bank has agreed on the basis, inter alia, of the foregoing, to extend a loan to the Borrower in the amount of twenty five million dollars (USD 25,000,000) (the «Loan») upon the terms and conditions set forth in this Agreement («EBRD Loan Agreement»).

Now, therefore, the parties hereby agree as follows:

Article I. STANDARD TERMS AND CONDITIONS; DEFINITIONS; HEADINGS

Incorporation of Standard Terms and Conditions

All the provisions of the Standard Terms and Conditions dated September 1994 are hereby incorporated into and made applicable to the Loan Agreement with the same force and effect as if they were fully set forth herein.

Definitions

Wherever used in the Loan Agreement or the Schedules hereto, except where stated otherwise, the terms defined in the Preamble have the respective meanings ascribed therein, the terms defined in the Standard Terms and Conditions have the respective meanings ascribed therein, and the following terms have the following meanings:

"Agreement Establishing   means the Agreement Establishing the
the Bank"                 European bank for Reconstruction and

                      Development, dated 29 May 1990;

"Borrower's Authorised    means the Minister of Finance or the
Representative"           Deputy Minister of Finance, except as

                      specified in Section 2.04 of the Loan
                      Agreement;

«Dollar» or «USD» means the lawful currency of the United States of America;

«FY» means the Borrower's fiscal year commencing on 1 January of each year;

«Komineft Statutes» means the statutes of Komineft registered on 6 May 1993, as amended to the date of this Agreement;

«Loan Currency» means the currency or currencies in which the Loan is denominated, initially Dollars;

«PIU» means the Project Implementation Unit established and operating as part of the Borrower in accordance with Section 2.04 of the Project Agreement;

«Project Entity» means Komineft, or any successor thereto;

"Subsidiary Loan          means the agreement to be entered into
Agreement"                between the Borrower and Komineft

                      pursuant to Section 3.01(a) of the Loan
                      Agreement, as the same may be amended
                      from time to time;

«Telerate Page 3750» means the display page of London interbank offered rates (commonly known as «LIBOR») of major banks for deposits in the Loan Currency, designated as page 3750 on the Telerate Service (or such other page as may replace the Telerate Page 3750) for the purpose of displaying such LIBOR rates for deposits in the Loan Currency;

The headings of Articles and Sections, as well as the Table of Contents, are inserted for convenience of reference only and shall not be used to interpret the Loan Agreement.

Article II. PRINCIPAL TERMS OF THE LOAN

Loan Amount and Loan Currency

The Bank agrees to lend to the Borrower, on the terms and conditions set forth or referred to in the Loan Agreement, an amount of twenty five million Dollars (USD 25,000,000).

(a) Minimum Drawdown Amount

(see Standard Terms and Conditions, Section 3.01(b))

The Minimum Drawdown Amount shall be the equivalent of fifty thousand Dollars (USD 50,000).

(b) Minimum Prepayment Amount

(see Standard Terms and Conditions, Section 3.07(d))

The Minimum Prepayment Amount shall be the equivalent of five million Dollars (USD 5,000,000).

(c) Minimum Cancellation Amount

(see Standard Terms and Conditions, Section 3.08(a))

The Minimum Cancellation Amount shall be the equivalent of five million Dollars (5,000,000).

(d) Interest Payment Dates and Loan Repayment Dates

The Interest Payment Dates, as well as the Loan Repayment Dates, shall be 1 May and 1 November. The Borrower shall repay the Loan in accordance with the amortisation schedule set forth below:

(e) Last Availability Date

(see Standard Terms and Conditions, Section 3.01(a))

The Last Availability Date shall be March 31, 1998. If the Available Amount, or any part thereof, is subject to a Fixed Interest Rate, any postponement of the last Availability Date may incur Unwinding Costs which shall be immediately payable by the Borrower or the Bank, as the case may be.

(f) Commitment Charge

(see Standard Terms and Conditions, Section 3.05(a))

The rate of the commitment charge shall be one half of one percent (0.5%) for Variable Interest Rate loans per annum.

(g) Interest Rate

The Loan is subject to a Variable Interest Rate. For purposes of Section 3.04(b) of the Standard Terms and Conditions, the Relevant Market Interest Rate shall be the offered rate that appears on Telerate Page 3750 as of 11.00 a.m., London time, on the relevant Interest Determination Date for the period which is closest to the duration of the relevant Interest Period (or, if two periods are equally close to the duration of the relevant Interest Period, the average of the two periods); provided that:

(i) if, for any reason, the Relevant Market Interest Rate cannot be determined at such time by reference to Telerate Page 3750, the Relevant Market Interest Rate shall be the rate which the Bank determines to be the arithmetic mean (rounded upward, if necessary, to nearest 1/16%) of the offered rates for deposits in the Loan Currency in an amount comparable to the portion of the Loan scheduled to be outstanding during the relevant Interest Period for a period equal to such Interest Period which are advised to the Bank by the major banks active in the London interbank market selected by the Bank; and

(ii) if the Bank determines the deposits in the Loan Currency are not being offered in the London interbank market in such amounts for such period, the Relevant Market Interest Rate shall be the cost to the Bank of funding the portion of the Loan scheduled to be outstanding during the relevant Interest Period from whatever sources it selects.

(h) Unwinding Costs

In the event of cancellation by the Bank pursuant to Section 7.02 of the Standard Terms and Conditions, any Unwinding Costs incurred by the Bank in connection with such cancellation, as assessed by the Bank and notified to the Borrower, shall be immediately payable by the Borrower or the Bank as the case may be.

Drawdowns

(a) The Available Amount may be drawn down from time to time in accordance with the provisions of Schedule 2 to the Loan Agreement for expenditures made (or if the Bank shall so agree, to be made) in respect of

(i) the reasonable cost of goods, works and services required for the Project and to be financed out of the proceeds of the Loan, and

(ii) the front-end commission.

(b) The Borrower authorises the Bank to draw down an amount equal to the front-end commission and pay to itself the front-end commission on behalf of the Borrower.

The Managing Director of Komineft is designated as the Borrower's Authorised Representative for the purpose of taking any action required or permitted to be taken under the provisions of Section 2.03(a) of the Loan Agreement and Sections 3.01 and 3.02 of the Standard Terms and Conditions.

Article III. EXECUTION OF THE PROJECT; FINANCIAL AND OPERATIONAL MATTERS

In addition to the general undertakings set forth in Articles IV and V of the Standard Terms and Conditions, the Borrower shall, unless the Bank shall otherwise agree:

(a) relend the proceeds of the Loan to Komineft under a Subsidiary Loan Agreement, on terms «and conditions which shall have been approved by the Bank and which shall include the following:»

(i) fourteen years maturity with three years grace period;

(ii) an interest rate as determined in Section 2.02(g) of this Agreement plus an on-lending premium payable to the Russian Federation of 0.75 (three quarters) of one percent per annum;

(iii) the foreign exchange risk to be borne by Komineft;

(iv) Komineft's maintenance of a 1.5 debt service ratio as stipulated in Section 3.03(a) of the Project Agreement;

(v) Komineft engaged or causes to engage consultants as stipulated in Section 2.05 of the Project Agreement;

(vi) production of final Project implementation report on the Project completion date describing among others environmental situation in the oil spill area of the Project; and

(vii) Komineft's undertaking to refrain from entering into any agreements including but not limited to the security agreements envisaging obligations which may be superior to the Subsidiary Agreement.

(b) exercise its rights under the Subsidiary Loan Agreement in such manner as to protect the interests of the Borrower and the Bank, to comply with the provisions of the Loan Agreement, and to accomplish the purposes of the Loan; and, except as the Bank shall otherwise agree, the Borrower shall not assign, amend, abrogate or the Subsidiary Loan Agreement or any provision thereof;

(c) cause Komineft to perform in accordance with the provisions of the Project Agreement all the obligations of Komineft therein set forth, including without limitation the obligations relating to:

(i) procurement of goods, works and services for the Project, as referred to in Section 2.03 of the Project Agreement;

(ii) establishment and operation of the Project Implementation Unit, as referred to in Section 2.04 of the Project Agreement;

(iii) employment and use of consultants to assist in the implementation of the Project, as referred to in Section 2.05 of the Project Agreement;

(iv) preparation and submission of reports on matters relating to the Project and to the Borrower's operations, as referred to in Section 2.06 of the Project Agreement;

(v) maintenance of procedures, records and accounts, preparation of financial statements, auditing of the same and submission of them as audited to the Bank, and furnishing the Bank with any other relevant information relating to the Project or Komineft's operations, as referred to in Section 3.01 of the Project Agreement;

(vi) compliance with all covenants regarding financial and operational aspects of the Project and Komineft, as referred to in Sections 3.02, 3.03, 3.04, and 3.05 of the Project Agreement;

(d) The Bank and the Borrower hereby agree that the obligations set out in Section 4.02 of the Standard Terms and Conditions including, but not limited to insurance, use of goods and services, plans and schedules, records and reports, maintenance and acquisition of land, respectively shall be carried out by Komineft.

Article IV. SUSPENSION; ACCELERATION OF MATURITY; CANCELLATION

Suspension

The following are specified as additional events for suspension of the right of the Borrower to make drawdowns under the Loan, for the purposes of Section 7.01(a)(xiii) of the Standard Terms and Conditions:

(a) the Statutes of Komineft shall have been amended, suspended, abrogated, repealed, or waived, or control of Komineft shall have been transferred to parties other than the Borrower in such a way as to affect materially and adversely the operations or its ability to carry out the Project or to perform any of its obligations under the Project Agreement;

(b) Komineft shall have failed to perform any of its obligations under the Subsidiary Loan Agreement;

(c) the right of the Borrower to withdraw proceeds under IBRD Loan Agreement shall have either

(i) failed to become effective by 30 June, 1995 or such later date as the Bank may agree, or

(ii) been suspended, cancelled or terminated in whole or in part, pursuant to the terms of IBRD Loan Agreement, or

(iii) IBRD Loan shall have become due and payable prior to the agreed maturity thereof; provided, however, that the provisions of this paragraph shall not apply if the Borrower establishes to the satisfaction of the Bank that 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 the Loan Agreement.

The following are specified as additional events for acceleration of maturity for the purposes of Section 7.06(f) of the Standard Terms and Conditions:

(a) any event specified in Section 4.01(a) or 4.01(b) shall have occurred and shall have continued for Fifteen (15) days from the date of such event;

(b) any event specified under section 4.01(c) shall have occurred.

Article V. EFFECTIVENESS

The following are specified as additional conditions to the effectiveness of the Loan Agreement for the purposes of Section 9.02(c) of the Standard Terms and Conditions:

(a) the Subsidiary Loan Agreement, in form and substance satisfactory to the Bank, has been executed and delivered on behalf of the Borrower and Komineft and is legally binding upon both parties and enforceable in accordance with its terms, subject only to the effectiveness of the Loan Agreement;

(b) the IBRD Loan Agreement has been executed and delivered and all conditions precedent to its effectiveness or to the right of the Borrower to make withdrawals thereunder, except only to the effectiveness of the Loan Agreement, have been fulfilled;

(c) Komineft is legally established and existing in accordance with all applicable laws and regulations and is authorised and has received all necessary licenses, consents or approvals, including environmental and land and subsoil use, to conduct its operations and to perform its obligations under the Project Agreement and the Subsidiary Loan Agreement.

(a) For the purposes of Section 9.03(a) of the Standard Terms and Conditions, the opinion or opinions of counsel shall be given on behalf of the Borrower by the Minister of Justice or any other authorized Deputy Minister of Justice, and the following are specified as an additional matters to be included in the opinion or opinions to be furnished to the Bank:

(i) that the Subsidiary Loan Agreement has been duly authorised or ratified by, and delivered on behalf of, the Borrower and is legally binding upon the Borrower and enforceable in accordance with its terms, subject only to the effectiveness of the Loan Agreement; and

(b) For the purposes of Section 9.03(c) of the Standard Terms and Conditions, the opinion or opinions of counsel shall be given on behalf of Komineft by a senior legal officer of Komineft, and the following are specified as an additional matters to be included in the opinion or opinions to be furnished to the Bank:

(i) that the Subsidiary Loan Agreement has been duly authorised or ratified by, and delivered on behalf of, Komineft and is legally binding upon Komineft and enforceable in accordance with its terms, subject only to the effectiveness of the Loan Agreement.

A date 90 days after the date of this Loan Agreement is specified for the effectiveness of the Loan Agreement for purposes of Section 9.04 of the Standard Terms and Conditions.

Article VI. MISCELLANEOUS

Notices

The following addresses are specified for the purposes of Section 10.01 of the Standard Terms and Conditions:

For the Borrower:

Attention: Minister of Finance

Ministry of Finance of the Russian Federation

10 30 97 Moscow

ul. Ilyinka 9

Russian Federation

Telephone: 00 7 095 925 24 66

    Telefax:   00 7 095 925 08 89
    Telex:     112008

For the Bank:

European Bank for Reconstruction and Development

Attention: Operation Administration Unit

One Exchange Square

London EC2A 2EH

England

Telephone: (44-171) 338 6000

    Telefax:   (44-171) 338 6100
    Telex:     881 2161

The Borrower shall bear any professional, banking, transfer or exchange fees and costs incurred in the preparation, execution and registration of the Loan Agreement, Project Agreement, the Guarantee Agreement, if any, and any related document.

In witness whereof the parties hereto, acting through their duly authorised representatives, have caused the Loan Agreement to be signed in four copies and delivered at London, England as of the day and year first above written.

SCHEDULE 1

DESCRIPTION OF THE PROJECT

1. The purpose of the Project is to assist in stabilising the oil spill area along the Kharyaga-Usinsk pipeline prior to spring thaw to minimise the amount of oil released during runoff and future ecological damage in the Pechora river basin continue the clean up in an environmentally appropriate way and minimise, to the extent possible, damage to the impacted areas, support safe pipeline operations in the near term and evaluate the need for a replacement pipeline investment project for the longer term, and identify and implement other measures to mitigate against future oil spills.

2. The Project consists of the following Parts, subject to such modifications thereof as the Bank and the Borrower may agree upon from time to time:

1. Oil containment works, including site assessment, construction of access roads, reinforcement of existing dikes and construction of new dikes and other structures for oil containment, recovery and processing of oil where possible and presaging of equipment for recovery of oil that will be released during spring flooding.

2. Oil removal works, with the primary focus on removing as much potentially mobile oil as possible at the existing oil spill site followed by site restoration and remediation measures.

3. Establishment of an emergency response capability for oil releases on downstream rivers, including monitoring for and collection of floating oil slicks, protection of water intakes threatened by oil slicks, removal of stranded oil along the river banks, mitigation of impacts resulting from oil contamination in the affected communities.

4. Establishment of an environmental monitoring and management program for the oil spill containment and clean-up activities.

5. Implementation of social assistance sub-projects to carry out, emergency mitigation measures necessitated by the oil spills in affected communities, as identified with state farms and communities in the area, including emergency relief for public health, water supply interventions and provision of forage for livestock and such other activities as approved by the Bank.

1. Complete the construction of 67.9 km of partially constructed pipeline in respect of replacement of the southern and middle sections of the Kharyaga-Usinsk pipeline.

2. Carrying out of an integrity assessment and technical inspection of the Kharyaga-Usinsk pipeline, and repair or replacement of pipeline segments as required.

3. Completion of water removal separation facilities to remove corrosive bring from produced oil and installation of other facilities along the Kharyaga-Usinsk pipeline to improve operations efficiency and reduce the risk of failures.

4. Establishment of a pipeline maintenance and emergency response plan and provision of equipment and materials needed for its implementation.

1. Carrying out of studies to review the pipeline operating practices of Komineft to establish guidelines for safe and efficient pipeline operation, and to undertake feasibility studies and strategic evaluation of options for future pipeline investments.

2. Training of Komineft personnel in oil spill counter measures, emergency response, oil field and pipeline rehabilitation.

3. Preparation and execution of an environmental and social monitoring program and strengthening of the institutional and environmental management capacity of Komineft to mitigate the effects of oil spills.

4. Provision of monitoring services to assist in the supervision of works under Parts A.1 through A.3 and B.1 of the Project.

The Project is expected to be completed by September 30, 1997.

SCHEDULE 2

CATEGORIES AND DRAWDOWNS

1. For the purposes of this Schedule the following terms shall have the following meanings:

(a) «foreign expenditures» means expenditures in the currency of any country other than that of the member for goods, works, or services; and

(b) «local expenditures» means expenditures in the currency of the member for goods, works, or services supplied from the territory of the member; provided, however, that if the currency of the member is also that of another country from the territory of which goods, works, or services are supplied, expenditures in such currency for such goods, works or services shall be deemed to be «foreign expenditures».

2. The table attached here 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.

3. The IBRD and the Bank will jointly finance, in the ratio of 80/20 the following Categories of the Project:

(i) Parts A.1 to A.3 and A.5 of the Project (Attachment to Schedule 2, Category (1) (3));

(ii) Part B.1 (Attachment to Schedule 2, Category 2)); and

(iii) Contingency relating to the Parts A.1 to A.3 and A.5 and B.1 of the Project (Attachment to Schedule 2, Category 5)).

4. The Bank will finance on a parallel basis the pipeline studies (Part C.1 of the Project) and IBRD will finance on a parallel basis the remaining parts of the Project which are the Parts A.4, B.2, B.3, B.4, C.2, C.3 and C.4 whereby each the Bank and IBRD shall finance 100% of foreign expenditures of contracts allocated to such parallel basis financing.

5. Each disbursement jointly financed by IBRD and the Bank pursuant to this Schedule shall be effected pari passu from the proceeds of the IBRD Loan and IBRD Loan in an approximate proportion of 4:1 respectively.

Attachment to Schedule 2

EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT

Russian Federation

Russian Federation

Dear Sirs, Subject: Komi Emergency Oil Spill Recovery Project Operation No. 312 Notice of Reallocation

1. Please refer to the Loan Agreement (the «Agreement») dated 5 May 1995 between yourself (the «Borrower») and the European Bank for Reconstruction and Development (the «Bank»).

2. Expressions defined in the Agreement bear the same meanings herein.

3. Section 3.03(a) of the Standard Terms and Conditions states that, if the Bank estimates that the amount of the Loan allocated to any drawdown category set forth in the Loan Agreement will be insufficient to finance the agreed percentage of expenditures in that category, the Bank may, by notice to the Borrower, reallocate to such category, to the extent required to meet the estimated shortfall, proceeds of the Loan which prior to such reallocation had been allocated to another category and which in the opinion of the Bank are not needed to meet other expenditures.

4. This reallocation was necessary to accommodate the disbursement applications to be made under Category (1) of the Loan, for the financing of the Management of containment activities under Parts A.1 through A.3 of the Project. The Bank has decided to reallocate the amounts of the Loan Categories specified in Schedule 2 as follows:

Yours sincerely,

EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT

Russian Federation

Russian Federation

Dear Sirs, Subject: Komi Emergency Oil Spill Recovery Project Operation No. 312

1. Please refer to the Loan Agreement (the «Agreement») dated 5 May 1995 between yourself (the «Borrower») and the European Bank for Reconstruction and Development (the «Bank»).

2. Expressions defined in the Agreement bear the same meanings herein.

3. The Bank hereby confirms that in accordance with section 3.01 of the Standard Terms and Conditions as incorporated into the Loan Agreement, the Last Availability Date, as defined in section 2.01(e) of the Loan Agreement, has been extended to 1 September 1999.

4. The contents of this letter shall not impair any right, power or remedy of the Bank with respect to any other covenant or condition under the Loan Agreement, nor be construed as a waiver thereof or an acquiescence therein.

Yours sincerely,