AMENDMENT AGREEMENTRELATING TO LOAN AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SERBIA AS BORROWER AND THE GOVERNMENT OF THE REPUBLIC OF AZERBAIJAN AS LENDER FOR THE FINANCING OF CONSTRUCTION OF THE SECTIONS LJIG-BOLJKOVCI, BOLJKOVCI-TAKOVO AND TAKOVO-PRELJINA OF E-763 HIGHWAY IN THE REPUBLIC OF SERBIA DATED 2 FEBRUARY 2012("Off. Herald of RS - Treaties", No. 9/2016) |
DATED 22 September 2016
THIS AMENDMENT AGREEMENT (the "Agreement") is dated September 22, 2016, will become effective on the Amendment Effective Date (as defined in Clause 1.1 (Definitions)) and is entered into between:
(1) THE GOVERNMENT OF THE REPUBLIC OF SERBIA, as a representative of the Republic of Serbia (the "Borrower"); and
(2) THE GOVERNMENT OF THE REPUBLIC OF AZERBAIJAN, acting through its Ministry of Economy (the "Lender")
WHERAS,
A The Borrower and the Lender have entered into a EUR 300,000,000 loan agreement for financing of the construction of the sections Ljig - Boljkovci, Boljkovci - Takovo and Takovo - Preljina of the E-763 highway in the Republic of Serbia, dated 2 February 2012 (the "Loan Agreement") that was at the time of execution duly envisaged in Article 3.B.V.1 of the Law on Budget of the Republic of Serbia for 2012 ("Official Gazette of the Republic of Serbia", nos. 101/2011 and 93/2012) and the Borrower keeps appropriate budget allocation in each fiscal year for repayment of the Loan Agreement;
B The Availability Period under the Loan Agreement expired on May 4, 2016. By the letters dated 21 April, 2016 05 No: 48-3672/2016, 5 May, 2016 and 24 May, 2016 No: 401-458-1/2016-001 it has been requested by the Republic of Serbia that the Lender extends the Availability Period under the Loan Agreement until May 4, 2017 in order to bring the Project to its completion and to continue full compliance and adherence to the contractual obligations set under the Construction Contract;
C The Parties have agreed to extend the availability period under the Loan Agreement as set out in this Agreement
NOW IT IS HEREBY AGREED AS FOLLOWS:
1 Definitions and interpretation
Words and expressions defined in the Loan Agreement, as in effect on the date of this Agreement, shall have the same meanings in this Agreement. In addition, in this Agreement:
Amendment Effective Date means the date of the Lender’s confirmations given pursuant to paragraph 2 of Clause 2.
The principles of interpretation set out in clause 1.2 (Interpretation) of the Loan Agreement shall apply to this Agreement, insofar as they are relevant to it, as they apply to the Loan Agreement.
The provisions of clause 1.3 (Third party rights) of the Loan Agreement shall apply to this Agreement as they apply to the Loan Agreement.
The Borrower will procure that the Lender receives each of the documents related to the conditions precedent listed in Schedule 1 (Conditions precedent).
Provided that no Event of Default has occurred and is continuing, as soon as reasonably practical following satisfactory (both in form and substance) receipt of the items listed in Schedule 1 (Conditions precedent) and occurrence of an event listed in paragraph 2 of Schedule 1 (Conditions precedent) the Lender shall confirm such receipt and occurrence to the Borrower.
Each Party:
(a) agrees that with effect from the Amendment Effective Date, the Loan Agreement shall be amended as set out in Schedule 2 (Amendment to the Loan Agreement);
(b) consents and agrees to the amendments referred to in Clause 3(а).
The Borrower confirms that, with effect from the Amendment Effective Date, the Loan Agreement as amended by this Agreement, and other Finance Documents remain in full force and effect.
This Agreement is a Finance Document.
5 Representations and warranties
5.1.1 The Borrower confirms to the Lender that on the date hereof and on the Amendment Effective Date the representations and warranties which are deemed to be repeated pursuant to clause 10.2 of the Loan Agreement:
(a) are true and accurate in all respects;
(b) would also be true if references to the Loan Agreement are construed as references to the Loan Agreement as amended by this Agreement
in each case, when applied to the circumstances existing at the date hereof and on the Amendment Effective Date.
5.1.2 The Borrower represents and warrants to and for the benefit of the Lender that as the date hereof and on the Amendment Effective Date:
(a) the Borrower has full legal power and authority to execute, deliver and perform this Agreement and all other documents required or permitted to be executed and delivered by it in connection with this Agreement and has obtained from the relevant Authorities all necessary Authorisations for the above purpose;
(b) all acts, conditions and things required to be done, fulfilled and performed in order (i) to enable it lawfully to enter into, exercise its rights under and perform and comply with the obligations expressed to be assumed by it in this Agreement, (ii) to ensure that the obligations expressed to be assumed by it in the this Agreement are legal, valid, binding and enforceable have been done, fulfilled and performed;
(c) the obligations expressed to be assumed by the Borrower in this Agreement are legal and valid obligations binding on it and enforceable in accordance with their respective terms;
(d) the entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with:
(i) the Constitution of the Republic of Serbia;
(ii) any other law, statute, rule or regulation applicable to it;
(iii) any judgment, decree, tribunal decision, order or permit applicable to the Borrower or to which the Borrower is subject; or
(iv) any agreement or treaty to which it is a party or any other instrument binding upon it or any of its assets.
(e) no provision in this Agreement is contrary to public policy in the Republic of Serbia;
(f) the execution of this Agreement and the exercise of the Borrower’s rights and performance of its obligations under this Agreement will not result in the existence of nor oblige the Borrower to create any encumbrance over all or any of its present or future revenues or assets and will not conflict with any agreement; arrangement or instrument binding upon it or any of its present or future revenues or assets;
(g) each of the officers executing this Agreement on behalf of the Borrower is at the time of such execution duly and properly in office and fully authorised to execute this Agreement, and any other document required or issued in connection with the Agreement has been executed by duly and properly in office and fully authorised officers thereof;
(h) the choice of English law as the governing law of this Agreement will be valid, binding and recognized and enforced in the Republic of Serbia;
(i) submission to arbitration as provided in Clause 20 (Arbitration and Applicable Law) of the Loan Agreement in relation to this Agreement will be recognised and enforced in the Republic of Serbia;
(j) any arbitral award in an arbitral proceeding as provided in Clause 20 (Arbitration and Applicable Law) of the Loan Agreement in relation to this Agreement will be recognized and enforced in the Republic of Serbia without re-examination of its merits;
(k) this Agreement constitutes an amendment to the "international agreement" (međunarodni ugovor) under the Constitution of the Republic of Serbia and relevant Serbian laws (including, inter alia, the Law on the Conclusion and Execution of International Agreements ("Official Gazette of the Republic of Serbia", no. 32/2013)) and as such it is entered into by the Republic of Serbia pursuant to the authority granted thereto by (inter alia) Article 94 and Article 97 of the Constitution of the Republic of Serbia;
(l) the Borrower is subject to civil law with respect to its obligations under this Agreement and is not entitled to claim immunity in connection therewith for itself or any of its assets.
(m) under the law of the Republic of Serbia it is not necessary that this Agreement be filed, recorded or enrolled with any court or other Authority in that jurisdiction or that any stamp, registration or similar Tax be paid on or in relation to this Agreement or the transactions contemplated by this Agreement, except for (i) inscription of the relevant data on this Agreement in the public debt records kept by the Public Debt Administration of the Ministry of Finance of the Republic of Serbia and (ii) reporting this Agreement (and amendments/termination thereof and realisations thereunder) with the National Bank of Serbia;
(n) no Potential Event of Default and no Event of Default has occurred or is continuing or will result from the execution of, or the performance of any transaction contemplated by, this Agreement;
(o) any factual information provided by the Borrower to the Lender in connection with this Agreement in writing prior to the date hereof was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated, does not omit material facts and all reasonable inquiries have been made by the Borrower to verify the facts contained therein;
(p) nothing has occurred or been omitted from the information provided to the Lender in connection with this Agreement and no information has been given or withheld that results in the information provided to the Lender in writing prior to the date hereof being untrue or misleading in any material respect;
(q) no litigation, arbitration or administrative proceedings or investigations of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect or question the legality, validity or binding effect of this Agreement, have been started or threatened against it or any of its political subdivisions or agencies;
(r) the entry into this Agreement by the Borrower will not violate any Sanctions; and
(s) the Borrower has duly waived any immunity from jurisdiction, execution or enforcement which it enjoys at present or may enjoy and in any proceedings taken in relation to this Agreement, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process, except for the assets of the Borrower designated for diplomatic purposes.
5.1.3 The Borrower acknowledges that the Lender entered into this Agreement in reliance on the representations and warranties made by the Borrower in Clauses 5.1.1 and 5.1.2.
The provisions of clauses 15 (Notices), 18.9 (Counterparts), 20 (Arbitration and Applicable Law) of the Loan Agreement shall apply to this Agreement as they apply to the Loan Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
CONDITIONS PRECEDENT
1. The Lender has received each of the documents indicated below, each satisfactory to it in terms of both form and substance:
1.1 three (3) originals of this Agreement, duly signed by the authorised representatives of all parties to this Agreement;
1.2 a Certified Copy of a decision of the Government of the Republic of Serbia and/or any other instrument duly executed by the relevant Authority of the Republic of Serbia that expressly authorises the Minister of Finance of the Republic of Serbia or any other person on behalf of the Republic of Serbia, to execute this Agreement;
1.3 evidence of the enactment by the National Assembly of the Republic of Serbia of the law approving and ratifying this Agreement as amendment to "international agreement" (međunarodni ugovor) (together with evidence of such law being proclaimed by the President of the Republic of Serbia) and published in the Official Gazette of the Republic of Serbia;
1.4 a Certified Copy of evidence of the reporting of the Agreement with the National Bank of Serbia;
1.5 a Certified Copy of evidence of inscription of the relevant data on this Agreement in the public debt records kept by the Public Debt Administration of the Ministry of Finance of the Republic of Serbia;
1.6 the legal opinion in English, addressed to the Lender, from the Ministry of Justice of the Republic of Serbia regarding this Agreement, in the form and substance acceptable to the Lender;
1.7 the legal opinion of Ortačko advokatsko društvo Moravčević, Vojnović & Partneri Beograd, Serbian counsel to the Lender, as to maters of Serbian law in relation to this Agreement, in substance and form satisfactory to the Lender;
1.8 Certified Copies of all Authorisations issued and required by the relevant Authorities in the Republic of Serbia in connection with the execution, delivery, performance, validity or enforceability of the Agreement or any document to be delivered under or in relation to the Agreement;
1.9 any other Authorisation or other document, opinion or assurance which the Lender reasonably considers to be necessary or desirable in connection with the entry into this Agreement or for the validity and enforceability of the Agreement;
2. Receipt of the last notification by which the Parties inform each other that their respective internal procedures necessary for its entry into force of the Agreement have been completed.
AMENDMENT TO THE LOAN AGREEMENT
1. In clause 1.1 (Definitions) the following definition shall be amended as follows:
"Availability Period" means, a period not exceeding 72 months from the Effective Date of the Loan Agreement.
Execution page
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For the Government of the |
For the Government of the |
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By: Name: Dušan Vujović Title: Minister of the Finance |
By: Name: Shahin Mustafayev Title: Minister of the Economy |