Ministry of the economy, of finance and of PLAN Decree No. 2015-803 dated June 18, 2015 Decree No. 2015-803 dated June 18, 2015, granting a guarantee to the company SENERGY 2 under the power contract of purchase with the Senelec S.A.
Ordained: Article 1. -It is given to company Senergy 2, limited liability company from Senegalese capital of 10,000,000 CFAF law, warranty forms and terms are defined in the Convention, as of May 7, 2015, annexed to this Decree and binding the State of Senegal, Senelec and Senergy 2 s. 2. - the Minister of economy, finance and the Plan and the Minister of energy and the development of renewable Energies are responsible, each in relation to the implementation of this Decree which shall be published in the Official Journal.
Made in Dakar, June 18, 2015.
By the President of the Republic: Prime Minister Mahammed Boun Abdallah DIONNE CONVENTION of warranty data by the Republic or SENEGAL with the agreement of SENELEC in favour of SENERGY 2 CONVENTION of guarantee given by the Republic of Senegal (hereinafter the 'State' or the 'Senegal') represented by the Government of the Republic of Senegal, itself represented for the purposes of the present by Amadou BA Minister of economy, finance and the Plan.
WITH the agreement of SENELEC, a Senegalese limited company incorporated pursuant to Act No. 98-06 of January 28, 1998, whose head office is located 28 rue Vincens Dakar, (hereinafter referred to as "Senelec", represented for the purposes of the present by Papa Alle Ding its Director general.
IN favor of SENERGY 2, a limited company of Senegalese law, whose registered office is sis neighborhood DIAMAGUÈNE N ° 58 Rufisque (Senegal) registered in the RCCM under number SN - DK - 84 B 30 NINEA SN-DKR-2012-B-5806 (hereinafter the «company») represented by Mr. EL Hadji Songho Assane FALL, Manager specially authorized for the purposes hereof. the State, Senelec and the society are hereafter together by the term "Parties" and individually and without distinction by the term 'Part' preamble A. Senelec is a limited company owned and controlled by the State, and is liable under the concession contract signed with the State on 31 March 1999, the overall management of production, transport, distribution and sale of electric energy in Senegal B. By letter dated December 6, 2012 from Department of the energy and Mines, the company received the approval of its proposed operation of a solar power (hereinafter the 'central photovoltaics"or"Central") under no. 03127 in accordance with article 19 of Act No. 2010-21 dated as of December 20, 2010, to negotiate with Senelec signed a contract of purchase of the energy that will be generated as a result of the implementation of the project approved.
C. under a power purchase agreement signed between Senelec and the company dated 31 December 2013 and amended by amendment dated March 19, 2015 (hereinafter referred to as the "contract"), the company will ensure the development, design, financing, construction, operation and maintenance of the Central and the company sell exclusively Senelec all the power and energy provided by the Central.
D. pursuant to the contract, the company will be responsible to gather the necessary funding for the construction of the plant, which funding should come from international banks and other financial institutions.
E. taking into account the strategic importance of the electrical energy for the economic and social development of Senegal, and to encourage the company to proceed with the development and commissioning of the plant and to encourage banks and other international financial Institutions to give the company the necessary funding for the plant in addition to its own funds the State intends to assist in the development of the Central concluding with society the present warranty Convention in which he subscribed a commitment of solidarity, irrevocable and unconditional guarantee.
G. Senelec has been associated with the warranty agreement with the unique intention to confirm its acceptance of its obligation to pay to the State all amounts that could be paid to the company by the State in respect of the warranty agreement.
IN virtue whereof, consideration of the preamble above, the parties hereby as follows: ARTICLE 1 completion guarantee the State undertakes to guarantee quality of collateral security, in a manner irrevocable and unconditional compliance by Senelec of its contractual obligations under the contract linking it to the company and as such the State undertakes to implement all necessary means to ensure the regulation by all its contractual debts to the company Senelec. In addition, the State undertakes to take no action that would prevent or gener execution by Senelec one any of its obligations under the contract.
The State ratify the contract (which shall remain annexed to the present warranty Convention) hereby and confirms the right and power of the society for design development, financing, construction, operation, maintenance, supervision, insurance and control of the plant under the terms of the contract.
For the duration of the contract, the State will support and will do its best to expedite the approval, issuance and/or renewal, if all permits (as defined in the contract).
SECTION 2 payment guarantee in the event of failure of Senelec and non-payment of the amounts due to the company within the contractual deadlines, the State guarantees the payment as a collateral security, unconditionally and irrevocably and undertakes to pay all contractual debts unpaid, certain, liquid and payable by Senelec especially as the energy payment and/or termination allowance directly to the company (as defined in the contract) in the event of early achievement , at the first request of the company.
This Convention of warranty will be a permanent bond and therefore apply at any time to cover the debit balance of Senelec to the company under the contract. No application from the company hereunder shall restrict or prejudice to the right of the company to make additional applications or new applications.
Unless provided otherwise, this Convention of warranty will come in addition to and shall not constitute a substitute for or a derogation to, any other security that may, at anytime, avail Corporation in respect of the obligations of Senelec under contract. the company may enforce this warranty agreement although it may also avail themselves of any other safety warranty or lien on or relating to the obligations of Senelec under the contract, or dispose of any other remedy provided by law.
Under this Convention of warranty, obligations and formal commitments of the State are for unconditional obligations for the respect which the State pledges all his good faith and credibility.
Senelec shall on demand repay directly to the State all direct payments in favour of the company by the State (including interest).
ARTICLE 3 duration the Convention of warranty will have full effect from the date hereof and until the end of the duration of the contract (the "contract term" is defined in paragraph 14.1.1 of the contract) or until the termination of the contract for the duration of the contract pursuant to the provisions of the latter, and subsequently also long remain unpaid amounts related to the term or at the end or termination of the contract during the term and due to the company by the State or by Senelec under this Convention of warranty or contract or in connection therewith.
ARTICLE 4. implementation of the warranty request preliminary well that this warranty is unconditional, the Company undertakes, having to implement the guarantee laid down in article 2 and payment to the State, first sent a formal notice to pay Senelec (with a copy to the State). After fifteen (15) days counted from the date of receipt of the formal notice to Senelec, the company may notify the State in writing, the date that Senelec had to make the payment is expired and claim payment by the State of the corresponding amounts, in accordance with the warranty agreement implementation. In this case, the State will conduct regulation within a period of sixty (60) days from the day of notification that the State received from the company.
Any payment made in respect of the present but with delay shall bear interest at the rate prescribed for late payments under the contract.
In accordance with the provisions of article 2 Senelec shall reimburse to the State all such interests.
It is understood and agreed that the State undertakes to ensure that Senelec fulfils its obligations under the contract as provided for in article 1 during the first fifteen (15) day period provided for in article 4 and that at the expiry of said period of fifteen (15) days, the State will pay to the company in full, any amount due and remaining under the contract or the present of such payments to be made at the end of the period of sixty (60) days mentioned above.
Hereby, the State admits that it will not be in law of, and shall not, in case the company would require Senelec the payment of sums due under the contract, dispute the amount required by the company or challenge any other item related to the request issued by the Corporation, ensuring that non-contesting by Senelec under the conditions laid down in the contract visit the society permanently and irrevocably payable receivable by the State in fulfilment of the warranty agreement.
Except as provided by this section 4, the company will be not obligated before taking measures to enforce the Convention of warranty, of any other remedies that may be available within the framework of the or in connection with the contract or to bring an action in court or to obtain judicial decision against Senelec.
ARTICLE 5 taxes and fees in the case where a tax, law, tax or levy, of any nature whatsoever, would be due to the State or any of its dismemberments or a public authority, as part of a payment made by the State in respect of the implementation of the Convention of warranty, the amount owed to the company, to the title hereunder will be increased by an amount required to be equal the net amount received by the company the amount that she should receive Senelec to under the contract.
ARTICLE 6 assignment and successors this agreement of warranty binding on the State, Senelec and society their respective successors and assigns permitted by each, and will benefit them.
the State undertakes firm and irrevocably to also grant its guarantee to any person in which the company will be allowed to transfer the contract.
The State may assign or transfer all or part of its rights or obligations under hereunder, without the prior written permission of the company. The company shall not assign or transfer all or part of its rights or obligations hereunder without 1' written consent of Senelec and the State under; However, the company may at any time, without such an agreement, after notice to the State and Senelec, give as security and assign or pledge guarantee as its rights and obligations under the present Convention guarantee for the benefit of any person to which the Corporation is authorized to transfer the contract, in accordance with the provisions of the latter including including the funding bodies (as defined in the contract) or any successor of the company under the contract, as provided for in paragraph 15. 1 2 of the contract.
Subject to the provisions of the preceding paragraph, the State undertakes to sign and issue, following an assignment or a pledge made by the company in accordance with the foregoing provisions, any consent or recognition of the pledge or assignment that may be reasonably requested by the assignee or secured creditor.
ARTICLE 7 CLAUSES special the obIigations of Parties will be maintained for the duration of this Convention's warranty set out in section 3 above and will not be changed or reduced in any case whatsoever and in particular in the following cases: (a) the granting of additional for any payment deadlines or fulfilment of all contractual obligations, terms or commitments of Senelec stipulated in the contract;
(b) extensions, or extensions, waivers, any amendments, additions or amendments to the contract, subject to their approval by the State in cases where these extensions, or extensions, disclaimers, amendments, additions or changes lead to an aggravation of the obligations of the State in the context of the present, any refusal or delay in approval to be duly motivated;
(c) the delay or failure, or any other failure of society in the claim, the application or the realization of any right, power, or remedy that he holds in respect of or under the terms of the contract or the Convention's guarantee, provided that the debt is still due;
(d) the dissolution, cessation of payments implementation regulation judicial liquidation or judicial property of Senelec or the company, or the occurrence of any other similar financial difficulty;
(e) the addition or the partial or total removal of any guarantor or another person or company responsible for primary or secondary title for the performance of any contractual obligation term or commitment stipulated in the contract or by all extensions, amendments or any other circumstances which might unload a guarantor or permit him to oppose its obligations;
(f) breach by Senelec to respect for the provisions of any law, regulation or order;
(g) any privatisation, reorganisation, merger or dissolution or any change of the legal form of Senelec or the distribution of the capital of Senelec.
(h) any pledge or assignment made in accordance with paragraph 15.1.2 contract; or (i) any nullity of the contract or of any of its provisions not attributable to the company.
ARTICLE 8 NULLITY if one or more of the provisions of the warranty agreement are void, illegal or unenforceable in any account whatsoever, shall be given effect to these provisions to the extent permitted by law and the invalidity, illegality or unenforceability of one any provisions will affect not the validity of the other provisions of this Convention of warranty , and also within the limits permitted by law.
The State undertakes to indemnify the company for any loss suffered or incurred by the latter due to the invalidity, illegality, unenforceability or the inapplicability of the Convention of warranty or contract, unless it is clearly negligence or a breach of own the company and the amount of such loss shall be deemed to be the amount that the company would have been entitled to recover to the title of this document whether such inadmissibility, illegality or unenforceability had taken place.
It is understood between the State and society, that the payments provided for in the present Article 9 constitute an obligation independent and direct State with respect to the company.
ARTICLE 9 P.ex legal and authorizations the State declares that: (i) it has full power, authority and capacity to enter into, sign, issue, execute and observe the terms and provisions of the Convention of warranty, which is a legal and valid obligation binding the State and which is enforceable;
(ii) the warranty agreement constitutes a valid and commitment mandatory State which can be implemented against the latter in accordance with its terms and conditions;
(iii) in application of the laws and regulations of the Republic of Senegal, all the necessary actions have been taken and all the permissions required to do approve presents warranty agreement by the competent authorities so that it was duly and legally applicable; and (iv) the provisions of Article 11 submitting to arbitration disputes arising from the warranty agreement are legal applicable and valid and are opposable to the State.
ARTICLE 10 arbitration and APPLICABLE law whenever a question, a dispute or a dispute of any nature whatsoever, born under this Convention of warranty (including with respect to the existence, validity, termination, interpretation, enforcement or breach of any provision of this Convention of warranty) the more diligent party addressing the representative of the other Parties a Notification in accordance with the provisions of article 12.
Absence of a satisfactory response (as sovereign appreciated by the party having made the Notification) or solution made (and accepted by the party having made the Notification) within a period of seven calendar days between the date of receipt of the Notification, the party having made the Notification may (although this is an obligation) refer the matter to an ad hoc Committee whose composition will be as follows : 1. the Minister in charge of energy and the Minister in charge of finance;
2. the Director-general of Senelec.
3 the Director general of Senergy 2 the ad hoc Committee will meet within 7 calendar days of the application therefor.
The ad hoc Committee will attempt to propose a solution within a period of fifteen (15) days from its first meeting. This solution does not bind the Parties, or the arbitral tribunal that would come to be seized where appropriate.
Absence of referral or constitution of the ad hoc Committee, in the absence of a proposal within the period referred to above, or in the absence of agreement of the parties on the solution proposed by the ad hoc Committee within a period of 7 calendar days from the proposal of solution formulated by the ad hoc Committee, the issue, the dispute, or the dispute must be settled definitively in accordance with the rules of arbitration of the International Chamber of Commerce ("ICC") Paris (France) by three arbitrators appointed in accordance with this regulation.
The arbitration will take place in Paris (France) and will have the quality of international arbitration on the basis of the 1958 New York Convention.
The arbitrators will take decisions on all issues, litigation or disputes arising out of the warranty agreement based on the terms of the warranty agreement and the laws of Senegal.
Arbitrable awards shall be final and binding for the State and society and cannot be subjected to any form of appeal.
The State, as Senelec, irrevocably agrees hereby to not to take any action before a Court of justice, except to enforce an arbitration decision made pursuant to this Article or in the case of legal impossibility to submit a dispute to said arbitration proceedings.
Each party irrevocably admits the jurisdiction of Court of the Senegalese courts and any other court of competent jurisdiction of another country for any action or proceeding by the other party (i) to enforce a judgment rendered by a competent Senegalese court giving effect to a decision by arbitrators or experts duly appointed under this Convention of warranty to resolve disputes between the parties (ii) to execute any decision by arbitrators or experts duly appointed under this Convention of warranty to resolve conflicts between the parties, and (iii) of any point or problem that it is impossible to solve because an arbitrator refuses to comment or feels no competence in the matter.
ARTICLE 11 form of applications for payment all stakeholders payments under the warranty agreement must be denominated in Francs CFA and carried out according to the instructions of society in accordance with legislation and regulations in force in Senegal, what questions are the terms of payment set out in the contract.
Any request for payment formilee in accordance with the terms of the warranty agreement must be made in writing and delivered by mail with acknowledgement of receipt to the address of the State specified in clause 13 below and will be accompanied by a statement signed by representative duly authorised by the company and worded as follows: "We certify by the present, that (1) SENERGY 2 SARL ("the society") addressed to the Republic of Senegal (the ' State') this application for payment of the. sum of... CFA francs, in accordance with Article 2 of the guarantee agreement dated (A complete) agreement between the State, Senelec and society, (2) the above sum is due by and payable of Senelec under the contract of the purchase of energy concluded on 31 December 2013 between the company and Senelec and amended March 19, 2015 (3) a written request was made for the Senelec regulations; (4) a period of at least fifteen (15) days has elapsed since the expiry date of the payment and that the wording with Senelec by society; "and (5) to date, this amount remains unpaid by Senelec.
SECTION 12 miscellaneous no waiver zero failure or delay by the company in exercising any of its rights or remedies under this warranty Agreement constitute a waiver of this right or this remedy. No single or partial of a right or remedy exercise cannot exclude another exercise of the same or any other right or remedy. No waiver by the company cannot be effective if it is formulated by rewritten.
Cumulative remedies the rights and remedies of the company under the warranty agreement are cumulative and without prejudice to any right or remedy which it would benefit under the laws and applicable regulations.
Address of delivery of all subsequent notifications and other communications (referred to as all the "Notifications") to be handed over or carried out under this Convention of warranty will be performed in writing, addressed to the attention of the person below and delivered either by hand, or shipped emergency by a renowned international express mail is sent by postal mail recommended or in recommended with acknowledgement of receipt, or by fax.
All Notifications will be considered as discounts (a) when they will be delivered by hand by the notifying party at the address indicated below, (b) where they have been transmitted by fax sent to the fax number for the recipient party indicated below or (c) where they will be handed over by hand-delivery to the address below (or, where applicable, any other address or fax number that said part will be previously specified and notified to the party notifying to his address or) number of fax listed below) a day or where appropriate, the working day following the delivery or transmission of the Notification.
Any notice sent by fax shall be confirmed by a letter delivered by hand or sent by mail recommended or recommended with acknowledgement of receipt but do not confirm a Notification cannot make it void or invalid if it was actually received by the party to whom it was sent. Any party having received a fax containing a request for confirmation of receipt shall be acknowledged by return fax. Address of each party and the respective fax numbers for the reception of Notifications will be: the State: to the attention of: the judiciary of the State Agent.
Address: Rue René Ndiaye angle av chard, BP 4017, Dakar, Sénégal fax: (221) 33 822 41 95 for the company to the attention of: Mr director general address: District DIAMAGUÈNE N 58 Rufisque (Senegal) fax: (221) 33 836 04 17 for the Senelec has the attention of: Mr director general address: District 28, rue Vincens BP. 93 Dakar (Senegal) fax: (221) 33 823 82 46 or any other address or fax number that any one party has notified the other party in accordance with the present Article 12.