APEX LOAN FOR SMES AND OTHER PRIORITIES III/BFINANCE CONTRACT BETWEEN REPUBLIC OF SERBIA AND THE EUROPEAN INVESTMENT BANK AND THE NATIONAL BANK OF SERBIA("Off. Herald of RS - Treaties", No. 10/2016) |
FI N° 82.642 (RS)
SERAPIS N. 2013-0072
Belgrade, 13 June 2016
THIS CONTRACT IS MADE BETWEEN:
the Republic of Serbia, represented by the Ministry of Finance, Mr. Dušan Vujović, Ph.D., on behalf of the Government as representative of the Republic of Serbia,
hereinafter called: the "Borrower"
of the first part,
the European Investment Bank having its seat at 100 boulevard Konrad Adenauer, Luxembourg, L-2950 Luxembourg, represented by the Vice-President, Mr Dario Scannapieco,
hereinafter called: the "Bank"
of the second part, and
the National Bank of Serbia, having its seat in Belgrade, acting as agent of the Borrower, represented by the Governor Ms. Jorgovanka Tabaković
hereinafter called: the "Agent"
of the third part.
WHEREAS:
1) The Borrower has requested the Bank to establish in its favour a credit in a total amount equivalent to EUR 500,000,000.00 (five hundred million euro) (hereinafter referred to as the "Approved Credit") to be used for the financing in the Republic of Serbia of (i) small and medium sized projects ("SME and Mid-Cap Projects" including WB JfY Project as defined below) carried out by small and medium-sized enterprises ("SMEs") and mid-cap enterprises ("Mid-Caps"), and (ii) priority investments of limited scale promoted by final beneficiaries of any size in the fields of knowledge economy, energy, environmental protection, health and education ("Priorities Projects" and together the SME and Mid-Cap Projects, each a "Project" or a "SME and Priority Projects").
2) The eligibility criteria and allocation procedures for the SME and Priority Projects will be set out in side-letters issued by the Bank (hereinafter called the "Side-Letters" or individually a "Side-Letter") that can be modified at the Bank’s sole discretion from time to time subject to the notice period as set forth in the Side-Letters and provided that such modifications shall not apply to SME and Priority Projects that were already approved for allocation by the Bank. At least 70% (seventy per cent.) of the Credit (as defined below) shall be allocated to eligible SMEs and Mid-Caps out of which up to 30% (thirty per cent.) for Mid-Caps, and up to 30% (thirty per cent.) of the Credit shall be allocated to Priority Projects. The SME and Priority Projects are required to be eligible for financing by the Bank having regard to the Bank’s Statutes and to the provisions of Article 309 of the Treaty in the Functioning of the European Union and the provisions of this finance contract. Up to an amount of EUR 75,000,000.00 (seventy five million euros) shall be allocated to WB JfY Projects.
3) The provision of finance for each project is to be the subject of (i) a loan agreement between the Agent, on behalf of the Borrower, and the relevant Intermediary for the purpose of onlending funds disbursed hereunder (each hereinafter called an "Intermediary Agreement") and (ii) a loan agreement (each hereinafter called an "Onlending Agreement") between an Intermediary and each enterprise which is to carry out the project in question (each hereinafter called a "Final Beneficiary"), for the purpose of onlending to such enterprise funds disbursed under an Intermediary Agreement. The administration of the loan to be provided hereunder will be carried out for the Borrower by the Agent. Certain of the financial advantages provided by the Bank to the Borrower pursuant to this finance contract shall be passed on to the Final Beneficiaries, as detailed in this finance contract. The Intermediary Agreements and Оnlending Agreements have to respect provisions of this finance contract and of the Side-Letter(s).
4) The Bank, considering that the financing of the SME and Priority Projects falls within the scope of its functions, and having regard to the statements and facts cited in these Recitals, has decided to give effect to the Borrower’s request providing to it a second credit in an amount equivalent to EUR 150,000,000.00 (one hundred and fifty million euro) on the terms and conditions set out in this contract (the "Contract").
5) By Decision No. 466/2014/EU the European Parliament and the Council of the European Union have decided to grant a guarantee to the Bank against losses incurred by it under loans and loan guarantees granted from 2014 to 2020 in accordance with its own rules and procedures for projects carried out in certain countries outside the European Union listed in the said Decision;
6) On 11 May 2009 the Republic of Serbia (formerly Federal Republic of Yugoslavia) concluded with the Bank a Framework Agreement governing the Bank’s activities in the territory of the Republic of Serbia (hereinafter the "Framework Agreement");
7) The Government of the Republic of Serbia acknowledges that the loan financing to be provided hereunder falls within the scope of the Framework Agreement; the Borrower confirms the Bank’s preferred creditor status as an international financial institution;
8) By Article 3 of the Framework Agreement, the Republic of Serbia agreed that interest and all other payments due to the Bank and arising out of activities envisaged by the Framework Agreement, as well as the assets and revenues of the Bank connected with such activities, shall be exempt from tax;
9) By Article 4 of the Framework Agreement, the Republic of Serbia agreed that throughout the life of any financial operation concluded pursuant to the Framework Agreement it shall:
(a) ensure (i) that Final Beneficiaries may convert into any fully convertible currency, at the prevailing market exchange rate, the amounts in the national currency of the Republic of Serbia necessary for the timely payment of all sums due to the Bank in respect of loans and guarantees in connection with any project; and (ii) that such amounts shall be freely, immediately and effectively transferable outside the territory of the Republic of Serbia in accordance with the terms of the relevant contractual or other instrument;
(b) ensure (i) that the Bank may convert into any fully convertible currency, at the prevailing market exchange rate, the amounts in the national currency of the Republic of Serbia received by the Bank by way of payments arising in respect of loans and guarantees or any other activity and that the Bank may freely, immediately and effectively transfer the amounts so converted outside the territory of the Republic of Serbia to such bank accounts as the Bank may freely determine; or, at the Bank’s option, (ii) that it may freely dispose of such amounts within the territory of the Republic of Serbia; and (iii) that the Bank may convert into the national currency of the Republic of Serbia, at the prevailing market exchange rate, any amounts in any fully convertible currency;
10) The Bank has launched an initiative titled "Western Balkans Jobs for Youth" ("WB Jobs for Youth Initiative") to support the employment of young people by SMEs and Midcaps. The Bank has invited the Borrower to participate in the WB Jobs for Youth Initiative on the terms set out in this Contract and the Side-Letter. The Borrower has indicated that it wishes to participate in the WB Jobs for Youth Initiative and to target certain SMEs and Midcaps that promote Projects that satisfy the eligibility criteria of the WB Jobs for Youth Initiative, as further defined in the Side-Letter and this Contract (each such Project being referred to as a "WB JfY Project").
11) The Statute of the Bank provides that the Bank shall ensure that its funds are used as rationally as possible in the interests of the European Union; and, accordingly, the terms and conditions of the Bank’s loan operations must be consistent with relevant policies of the European Union.
12) The Bank considers that access to information plays an essential role in the reduction of environmental and social risks, including human rights violations, linked to the projects it finances and has therefore established its Transparency policy, the purpose of which is to enhance the accountability of the EIB Group towards its stakeholders and the citizens of the European Union in general.
13) The processing of personal data shall be carried out by the Bank in accordance with applicable European Union legislation on the protection of individuals with regard to the processing of personal data by the EC institutions and bodies and on the free movement of such data.
NOW THEREFORE it is hereby agreed as follows:
INTERPRETATION AND DEFINITIONS
(a) Interpretation
In this Contract:
(i) references to Articles, Recitals and Schedules are, save if explicitly stipulated otherwise, references respectively to articles of, and recitals, schedules and annexes to this Contract;
(ii) references to a provision of law are references to that provision as amended or re-enacted; and
(iii) references to any other agreement or instrument are references to that other agreement or instrument as amended, novated, supplemented, extended or restated.
(b) Definitions
In this Contract:
"Acceptance Deadline" for a notice means:
(a) 16h00 Luxembourg time on the day of delivery, if the notice is delivered by 14h00 Luxembourg time on a Business Day; or
(b) 11h00 Luxembourg time on the next following day which is a Business Day, if the notice is delivered after 14h00 Luxembourg time on any such day or is delivered on a day which is not a Business Day.
"Allocation" has the meaning given to it in Article 1.08B.
"Allocation Period" means the period between the date of the signature of this Contract and 15 March 2019.
"Allocation Request" has the meaning given to it in Article 1.08A.
"Authorisation" means an authorisation, permit, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Business Day" means a day (other than a Saturday or Sunday) on which the Bank and commercial banks are open for general business in Luxembourg and in Belgrade.
"Change-of-Law Event" has the meaning given to it in Article 4.03A(3).
"Contract" has the meaning given to it in Recital (4).
"Credit" has the meaning given to it in Article 1.01.
"Criminal offence" means any of the following criminal offences as applicable: fraud, corruption, coercion, collusion, obstruction, money laundering, financing of terrorism.
"Deferment Indemnity" means an indemnity calculated on the amount of disbursement deferred or suspended at the percentage rate (if higher than zero) by which:
- the interest rate that would have been applicable to such amount had it been disbursed to the Borrower on the Scheduled Disbursement Date
exceeds
- the Relevant Interbank Rate (one month rate) less 0.125% (12.5 basis points), unless this value is less than zero, in which case it will be set at zero.
Such indemnity shall accrue from the Scheduled Disbursement Date to the Disbursement Date or, as the case may be, until the date of cancellation of the Notified Tranche in accordance with this Contract.
"Disbursement Date" means the date on which actual disbursement of a Tranche is made by the Bank.
"Disbursement Notice" means a notice from the Bank to the Borrower pursuant to and in accordance with Article 1.02C.
"Disbursement Request" means a notice substantially in the form set out in Schedule C1.
"Disruption Event" means either or both of:
(a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Contract; or
(b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that party:
(i) from performing its payment obligations under this Contract; or
(ii) from communicating with other parties,
and which disruption (in either such case as per (a) or (b) above) is not caused by, and is beyond the control of, the party whose operations are disrupted.
"EIB Allocation Report" has the meaning given to it in Article 1.08F.
"EIB Decision" means 16 July 2013, the date on which the Management Committee of the EIB approved the transaction.
"Environment" means the following, in so far as they affect human health and social well-being:
(a) fauna and flora;
(b) soil, water, air, climate and the landscape; and
(c) cultural heritage and the built environment,
and includes, without limitation, occupational and community health and safety.
"Environmental Law" means:
(a) EU law, including principles and standards;
(b) laws and regulations of Republic of Serbia; and
(c) applicable international treaties
of which a principal objective is the preservation, protection or improvement of the Environment.
"Environmental or Social Approval" means any permit, licence, authorisation, consent or other approval required by an Environmental Law or a Social Law in connection with the construction or operation of a Project.
"Environmental or Social Claim" means any claim, proceeding, formal notice or investigation by any person in respect of the Environment or Social Matters affecting the Project including any breach or alleged breach of any Environmental and Social Standard.
"EU" means the European Union.
"EURIBOR" has the meaning given to it in Schedule B.
"EUR" or "euro" means the lawful currency of the Member States of the European Union which adopt or have adopted it as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union or their succeeding treaties.
"Event of Default" means any of the circumstances, events or occurrences specified in Article 10.
"Final Availability Date" means 15 June 2019 or a later date if approved in writing by the Bank upon formal request in writing of the Borrower.
"Final Beneficiaries" has the meaning given to it in Recital (3).
"Financing of Terrorism" means the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any of the offences within the meaning of Articles 1 to 4 of the EU Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism.
"Fixed Rate" means an annual interest rate determined by the Bank in accordance with the applicable principles from time to time laid down by the governing bodies of the Bank for loans made at a fixed rate of interest, denominated in the currency of the Tranche and bearing equivalent terms for the repayment of capital and the payment of interest.
"Fixed Rate Tranche" means a Tranche on which Fixed Rate is applied.
"Floating Rate" means a fixed-spread floating interest rate, that is to say an annual interest rate determined by the Bank for each successive Floating Rate Reference Period equal to the Relevant Interbank Rate plus the Spread.
"Floating Rate Reference Period" means each period from one Payment Date to the next relevant Payment Date and the first Floating Rate Reference Period shall commence on the date of disbursement of the Tranche.
"Floating Rate Tranche" means a Tranche on which Floating Rate is applied.
"GAAP" means generally accepted accounting principles in Republic of Serbia, including IFRS as provided for under the Serbian Law on Accounting (Official Gazette of the Republic of Serbia No 62/13).
"GBP" means the lawful currency of the United Kingdom.
"Guide to Procurement" means the Guide to Procurement published on EIB’s website1 that informs the promoters of projects financed in whole or in part by the EIB of the arrangements to be made for procuring works, goods and services required for the Project.
------------
1 http://www.eib.org/projects/publications/guide-to-procurement.htm.
Note it is the version of the Guide in force at the time of the project procurement that
it applicable
"IFRS" means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"ILO" means the International Labour Organisation.
"ILO Standards" means any treaty, convention or covenant of the ILO signed and ratified by or otherwise applicable and binding on the Republic of Serbia, and the Core Labour Standards (as defined in the ILO Declaration on Fundamental Principles and Rights at Work).
"Indemnifiable Prepayment Event" means a Prepayment Event other than those specified in Article 4.03A(2) and Article 4.03A(4).
"Interest Revision/Conversion" means the determination of new financial conditions relative to the interest rate, specifically the same interest rate basis ("revision") or a different interest rate basis ("conversion") which can be offered for the remaining term of a Tranche or until a next Interest Revision/Conversion Date, if any, for an amount which, at the proposed Interest Revision/Conversion Date, is not less than EUR 10,000,000.00 (ten million euros) or the equivalent thereof.
"Interest Revision/Conversion Date" means the date, which shall be a Payment Date, specified by the Bank pursuant to Article 1.02C in the Disbursement Notice or pursuant to Article 3 and Schedule D.
"Interest Revision/Conversion Proposal" means a proposal made by the Bank under Schedule D.
"Interest Revision/Conversion Request" means a written notice from the Borrower, delivered at least 75 (seventy-five) days before an Interest Revision/Conversion Date, requesting the Bank to submit to it an Interest Revision/Conversion Proposal. The Interest Revision/Conversion Request shall also specify:
(a) Payment Dates chosen in accordance with the provisions of Article 3.01;
(b) the preferred repayment schedule chosen in accordance with Article 4.01; and
(c) any further Interest Revision/Conversion Date chosen in accordance with Article 3.01.
"Intermediary" any bank or any financial institution in the Republic of Serbia which is selected by the Bank, and approved by the Borrower and the Agent, for onlending funds disbursed hereunder to final beneficiaries.
"Intermediary Agreement" has the meaning given to it in Recital 3.
"Letter of Allocation" has the meaning given to it in Article 1.08B.
"LIBOR" has the meaning given to it in Schedule B.
"Loan" means the aggregate amount of Tranches disbursed from time to time by the Bank under this Contract.
"Market Disruption Event" means any of the following circumstances:
(a) there are, in the reasonable opinion of the Bank, events or circumstances adversely affecting the Bank’s access to its sources of funding;
(b) in the opinion of the Bank, funds are not available from its ordinary sources of funding in order to adequately fund a Tranche in the relevant currency and/or for the relevant maturity and/or in relation to the reimbursement profile of such Tranche;
(c) in relation to a Tranche in respect of which interest is or would be payable at Floating Rate:
(A) the cost to the Bank of obtaining funds from its sources of funding, as determined by the Bank, for a period equal to the Floating Rate Reference Period of such Tranche (i.e. in the money market) would be in excess of the applicable Relevant Interbank Rate;
or
(B) the Bank determines that adequate and fair means do not exist for ascertaining the applicable Relevant Interbank Rate for the relevant currency of such Tranche or it is not possible to determine the Relevant Interbank Rate in accordance with the definition contained in Schedule B.
"Material Adverse Change" means, in relation to the Borrower or the Agent any event or change of condition, as compared with its condition at the date of this Contract, affecting the Borrower or the Agent or any of its subsidiaries, which, in the opinion of the Bank: (1) materially impairs the ability of the Borrower to perform its financial or any of its other obligations under this Contract; (2) materially impairs the ability of the Agent to perform its obligations under this Contract; (3) materially impairs the business, prospects or financial condition of the Borrower or the Agent; or (4) adversely affects any security provided by the Borrower or the Agent.
"Maturity Date" means the last or sole repayment date of a Tranche specified pursuant to Article 4.01A(b)(iv) or Article 4.01B.
"Money Laundering" means:
(i) the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action;
(ii) the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity;
(iii) the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participation in such activity; or
(iv) participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing points.
"Notified Tranche" means a Tranche in respect of which the Bank has issued a Disbursement Notice.
"Onlending Agreement" has the meaning given to it in Recital 3.
"Payment Date" means the annual, semi-annual or quarterly dates specified in the Disbursement Notice until the Interest Revision/Conversion Date, if any, or the Maturity Date, save that, in case any such date is not a Relevant Business Day, it means:
(a) for a Fixed Rate Tranche, the following Relevant Business Day, without adjustment to the interest due under Article 3.01 except for those cases where repayment is made in a single instalment according to Article 4.01B, when the preceding Relevant Business Day shall apply instead to this single instalment and to the final interest payment and only in this case, with adjustment to the interest due under Article 3.01; and
(b) for a Floating Rate Tranche, the next day, if any, of that calendar month that is a Relevant Business Day or, failing that, the nearest preceding day that is a Relevant Business Day, in all cases with corresponding adjustment to the interest due under Article 3.01.
"Prepayment Amount" means the amount of a Tranche to be prepaid by the Borrower in accordance with Article 4.02A.
"Prepayment Date" means the date, which shall be a Payment Date, on which the Borrower proposes to effect prepayment of a Prepayment Amount.
"Prepayment Event" means any of the events described in Article 4.03A.
"Prepayment Indemnity" means in respect of any principal amount to be prepaid or cancelled, the amount communicated by the Bank to the Borrower as the present value (as of the Prepayment Date) of the excess, if any, of:
(a) the interest that would accrue thereafter on the Prepayment Amount over the period from the Prepayment Date to the Interest Revision/Conversion Date, if any, or the Maturity Date, if it were not prepaid; over
(b) the interest that would so accrue over that period, if it were calculated at the Redeployment Rate, less 0.15% (fifteen basis points).
The said present value shall be calculated at a discount rate equal to the Redeployment Rate, applied as of each relevant Payment Date.
"Prepayment Notice" means a written notice from the Bank to the Borrower in accordance with Article 4.02C.
"Prepayment Request" means a written request from the Borrower to the Bank to prepay all or part of the Loan, in accordance with Article 4.02A.
"Prohibited Conduct" means any Financing of Terrorism, Money Laundering or Prohibited Practice.
"Prohibited Practice" means any:
(i) Coercive Practice, meaning the impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of a party to influence improperly the actions of a party;
(ii) Collusive Practice, meaning an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party;
(iii) Corrupt Practice, meaning the offering, giving, receiving or soliciting, directly or indirectly, of anything of value by a party to influence improperly the actions of another party;
(iv) Fraudulent Practice, meaning any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party in order to obtain a financial or other benefit or to avoid an obligation; or
(v) Obstructive Practice, meaning in relation to an investigation into a Coercive, Collusive, Corrupt or Fraudulent Practice in connection with this Loan or a Project, (a) deliberately destroying, falsifying, altering or concealing of evidence material to the investigation; and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or (b) acts intending to materially impede the exercise of the contractual rights of audit or access to information.
"Project" means an investment promoted by a Final Beneficiary, and for as long as it has not been re-allocated or re-employed by the Borrower on the terms and conditions hereunder.
"Redeployment Rate" means the Fixed Rate in effect on the day of the indemnity calculation for fixed-rate loans denominated in the same currency and which shall have the same terms for the payment of interest and the same repayment profile to the Interest Revision/Conversion Date, if any, or the Maturity Date as the Tranche in respect of which a prepayment is proposed or requested to be made. For those cases where the period is shorter than 48 (forty-eight) months (or 36 (thirty-six) months in the absence of a repayment of principal during that period) the most closely corresponding money market rate equivalent will be used, that is the Relevant Interbank Rate minus 0.125% (12.5 basis points) for periods of up to 12 (twelve) months. For periods falling between 12 (twelve) and 36/48 (thirty-six) / (forty-eight) months as the case may be, the bid point on the swap rates as published by Reuters for the related currency and observed by the Bank at the time of calculation will apply.
"Relevant Business Day" means:
(a) for EUR, a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007 (TARGET 2) is open for the settlement of payments in EUR2; and
------------
2 On 14 December 2000, the Governing
Council of the European Central Bank (ECB) has decided that, from 2002 until further notice,
the Trans-European Automated Real-time Gross settlement Express Transfer 2 (TARGET 2) system
will be closed, in addition to Saturdays and Sundays, on the following days: New Year’s Day,
Good Friday and Easter Monday, 1 May, Christmas Day and 26 December.
(b) for any other currency, a day on which banks are open for general business in the principal domestic financial centre of the relevant currency.
"Relevant Interbank Rate" means:
(a) EURIBOR for a Tranche denominated in EUR;
(b) LIBOR for a Tranche denominated in GBP or USD; and
(c) the market rate and its definition chosen by the Bank and separately communicated to the Borrower, for a Tranche denominated in any other currency. If such other market rate is or becomes at any time less than zero, for the purposes of this contract such other market rate shall be set at zero.
"Sanctioned Persons" means any individual or entity listed in one or more Sanction Lists.
"Sanction Lists" means:
(i) any economic, financial and trade restrictive measures and arms embargoes issued by the European Union pursuant to Chapter 2 of Title V of the Treaty on European Union as well as Article 215 of the Treaty on the Functioning of the European Union, as available in the official EU websites http://ec.europa.eu/external_relations/cfsp/sanctions/consol-list_en.htm and http://eeas.europa.eu/cfsp/sanctions/docs/measures_en.pdf, as amended and supplemented from time to time or on any successor page; or,
(ii) any economic, financial and trade restrictive measures and arms embargoes issued by the United Nations Security Council pursuant to Article 41 of the UN Charter as available in the official UN website http://www.un.org/Docs/sc/committees/INTRO.htm, as amended and supplemented from time to time or on any successor page.
"Scheduled Disbursement Date" means the date on which a Tranche is scheduled to be disbursed in accordance with Article 1.02C.
"Security" and "Security Interest" mean any mortgage, pledge, lien, charge, assignment, hypothecation or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
"Side-Letter" has the meaning given to it in Recital (2).
"SME and Priority Project(s)" has the meaning given to it in Recital (1).
"Social Law" means each of:
(a) any law, rule or regulation applicable in Republic of Serbia relating to Social Matters;
(b) any ILO Standards; and
(c) any United Nations treaty, convention or covenant on human rights signed and ratified by or otherwise applicable and binding on Republic of Serbia.
"Social Matters" means all, or any of, the following: (i) labour and employment conditions, (ii) occupational health and safety, (iii) protection and empowerment of rights and interests of indigenous peoples, ethnic minorities and vulnerable groups, (iv) cultural heritage (tangible and intangible), (v) public health, safety and security, (vi) involuntary physical resettlement and/or economic displacement and loss of livelihood of persons, and (vii) public participation and stakeholder engagement.
"Spread" means the fixed spread to the Relevant Interbank Rate (being either plus or minus) determined by the Bank and notified to the Borrower in the relevant Disbursement Notice or Interest Revision/Conversion Proposal.
"Statement of Environmental and Social Principles and Standards" means the statement published on EIB’s website3 that outlines the standards that the Bank requires of the projects that it finances and the responsibilities of the various parties.
------------
3 http://www.eib.org/attachments/strategies/eib_statement_esps_en.pdf
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Tranche" means each disbursement made or to be made under this Contract. In case no Disbursement Notice has been delivered, Tranche shall mean a Tranche as requested under Article 1.02B.
"Youth Employment Tranche" means any Tranche dedicated exclusively to the financing of WB JfY Projects promoted by SMEs or Midcaps which fulfil the specific youth employment criteria set out in the Side-Letter.
"USD" means the lawful currency of the United States of America.
"WB Jobs for Youth Initiative" has the meaning given to it in Recital (10).
"WB JfY Project" has the meaning given to it in Recital (10).
ARTICLE 1
1.01 Amount of Credit
By this Contract, the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount equivalent to EUR 150,000,000.00 (one hundred and fifty million euros) to be on lent to Final Beneficiaries exclusively for the financing of the SME and Priority Projects (the "Credit").
1.02 Disbursement procedure
1.02A Tranches
The Bank shall disburse the Credit in up to 20 (twenty) Tranches. The amount of each Tranche, if not being the undrawn balance of the Credit, shall be in a minimum amount equivalent to of (i) EUR 2,500,000.00 (two million five hundred thousand euros) for Youth Employment Tranches, or (ii) EUR 5,000,000.00 (five million euros) for Tranches dedicated to other SME or Midcap Projects or to Priority Projects. The aggregate total amount for Youth Employment Tranches shall not exceed EUR 75,000,000.00 (seventy five million euros).
1.02B Disbursement Request
(a) From time to time up to 15 (fifteen) days before the Final Availability Date, the Borrower or the Agent, on behalf of the Borrower, may present to the Bank a Disbursement Request for the disbursement of a Tranche. The Disbursement Request shall be in the form set out in Schedule C1 and shall specify:
(i) the amount and currency of the Tranche, being so determined that it will not exceed the aggregate of all amounts allocated pursuant to Article 1.08B less the aggregate of all amounts previously disbursed;
(ii) the preferred disbursement date for the Tranche; such preferred disbursement date must be a Relevant Business Day falling at least 15 (fifteen) days after the date of the Disbursement Request and in any event on or before the Final Availability Date, it being understood that, notwithstanding the Final Availability Date, the Bank may disburse the Tranche up to 4 (four) calendar months from the date of the Disbursement Request;
(iii) whether the Tranche is a Fixed Rate Tranche or a Floating Rate Tranche, each pursuant to the relevant provisions of Article 3.01;
(iv) the preferred interest payment periodicity for the Tranche, chosen in accordance with Article 3.01;
(v) the preferred terms for repayment of principal for the Tranche, chosen in accordance with Article 4.01;
(vi) the preferred first and last dates for repayment of principal for the Tranche;
(vii) the IBAN code (or appropriate format in line with local banking practice) and SWIFT BIC of the bank account to which disbursement of the Tranche should be made in accordance with Article 1.02D;
(viii) whether the Tranche shall be a Youth Employment Tranche or a Tranche dedicated to other SME and Mid-Cap Projects or to Priority Projects, it being understood that each Tranche may only be used for one type of those Projects:
(ix) the choice of Interest Revision/Conversion Date, if any, for the Tranche; and
(x) to which Intermediary or Intermediaries the proceeds of the Tranche are to be on lent by the Agent, on behalf of the Borrower.
(b) The Agent on behalf of the Borrower may also at its discretion specify in the Disbursement Request the following respective elements, if any, as provided by the Bank on an indicative basis and without commitment to be applicable to the Tranche, that is to say:
(1) in the case of a Fixed-Rate Tranche, the interest rate to be applicable to the Tranche up to Maturity Date or the first Interest Revision/Conversion Date, if any; and
(2) in the case of a Floating Rate Tranche, the Spread to be applicable up to the Maturity Date or the Interest Revision/Conversion Date, if any.
(c) Subject to Article 1.02C(c), each Disbursement Request is irrevocable.
(d) If it has not been previously supplied, each Disbursement Request shall be accompanied by evidence of the authority of the person or persons authorised to sign it and the specimen signature of such person or persons or a declaration that no changes has occurred in relation to the authority of the person or persons authorised to sign Disbursement requests under the Contract.
(e) Each Disbursement Request shall contain, or be accompanied by, a declaration, duly signed by the Agent and the Borrower:
(i) confirming that on the date of the declaration no situation exists in which the Bank may cancel or suspend the undisbursed part of the Credit pursuant to Article 1.06B, save for 1.06B(b);
(ii) specifying each SME and Priority Project whose part-financing is to be indirectly funded by the Tranche to be disbursed, as well as the amount of the relevant funding; and
(iii) confirming that there is no obstacle to the execution of, or disbursement under, any Intermediary Agreement or Onlending Agreement which prevents or may prevent the timely use of the amount of the Tranche (and that of any Tranche previously disbursed) for funding specified pursuant to item (ii) of this Article 1.02B(e) on the occasion of any Disbursement Request.
1.02C Disbursement Notice
(a) Not less than 10 (ten) days before the proposed Scheduled Disbursement Date of a Tranche the Bank shall, if the Disbursement Request conforms to this Article 1.02, deliver to the Agent and the Borrower a Disbursement Notice which shall specify:
(i) the amount and the currency of the Tranche;
(ii) the Scheduled Disbursement Date;
(iii) the interest rate basis for the Tranche being: (i) a Fixed Rate Tranche; or (ii) a Floating Rate Tranche all pursuant to the relevant provisions of Article 3.01;
(iv) the first interest Payment Date and the periodicity for the payment of interest for the Tranche;
(v) the terms for repayment of principal for the Tranche;
(vi) the first and last dates for repayment of principal for the Tranche;
(vii) the applicable Payment Dates for the Tranche;
(viii) the Interest Revision/Conversion Date, if requested by the Borrower, for the Tranche;
(ix) the Intermediary or Intermediaries to which the proceeds of the Tranche are to be onlent by the Agent on behalf of the Borrower; and
(x) for a Fixed Rate Tranche the Fixed Rate and for a Floating Rate Tranche the Spread applicable to the Tranche until the Interest Revision/Conversion Date, if any or the Maturity Date.
(b) If one or more of the elements specified in the Disbursement Notice does not reflect the corresponding element, if any, in the Disbursement Request, the Agent may following receipt of the Disbursement Notice, revoke the Disbursement Request by written notice to the Bank to be received no later than 12h00 Luxembourg time on the next Business Day and thereupon the Disbursement Request and the Disbursement Notice shall be of no effect. If the Agent has not revoked in writing the Disbursement Request within such period, the Agent and the Borrower will be deemed to have accepted all elements specified in the Disbursement Notice.
(c) If the Agent on behalf of the Borrower has presented to the Bank a Disbursement Request in which the Agent has not specified the fixed interest rate or spread as set out in Article 1.02B(b), the Agent and the Borrower will be deemed to have agreed in advance to the Fixed Rate or Spread as subsequently specified in the Disbursement Notice.
1.02D Disbursement Account
Disbursement shall be made to the account as the Agent on behalf of the Borrower shall notify in writing to the Bank not later than 15 (fifteen) days before the Scheduled Disbursement Date (with IBAN code or with the appropriate format in line with local banking practice). The Borrower acknowledges that payments to such account shall constitute disbursements under this Contract as if they had been made to the Borrower’s own bank account.
Only one account may be specified for each Tranche.
1.03 Currency of disbursement
Subject to availability, disbursement of each Tranche shall be made in EUR or any other currency that is widely traded on the principal foreign exchange markets.
For the calculation of the sums available to be disbursed in currencies other than EUR, and to determine their equivalent in EUR, the Bank shall apply the rate published by the European Central Bank in Frankfurt, available on or shortly before submission of the Disbursement Notice as the Bank shall decide.
1.04 Conditions of disbursement
1.04A First Tranche
The disbursement of the first Tranche under Article 1.02 is conditional upon receipt by the Bank, in form and substance satisfactory to the Bank, on or before the date falling 7 (seven) Business Days before the Scheduled Disbursement Date, of the following documents or evidence:
(a) evidence that the execution of this Contract by the Borrower has been duly authorised and that the person or persons signing the Contract on behalf of the Borrower is/are duly authorised to do so together with the specimen signature of each such person or persons;
(b) evidence that the Borrower has obtained all necessary Authorisations required in connection with this Contract;
(c) from the Borrower, a legal opinion with an English certified translation, issued by its Ministry of Justice, confirming that:
(i) the conclusion of this Contract has been authorised by a decision of the Government of the Republic of Serbia, it has been duly executed by the Borrower, its provisions are in full force and effect and it is valid, binding and enforceable in Serbia in accordance with its terms;
(ii) no exchange control consents are currently required in order to permit the receipt of the amounts disbursed hereunder on the account specified in Article 1.02D and to permit the repayment of the Loan and the payment of interest and all other amounts due under this Contract;
and
(d) a signed copy of the Side-Letter(s).
1.04B All Tranches
The disbursement of each Tranche under Article 1.02, including the first, is subject to the following conditions:
(a) that the Bank has received, in form and substance satisfactory to it, on or before the date falling 7 (seven) Business Days before the Scheduled Disbursement Date, the following documents or evidence:
(i) a certificate from the Agent and the Borrower in the form of Schedule C2,
(ii) in relation to any Youth Employment Tranche, evidence that the Bank has issued Letters of Allocation in relation to the relevant WB JfY Projects to be financed by that Youth Employment Tranche; for the avoidance of doubt, the disbursement of any Youth Employment Tranche is subject to the prior submission of Allocation Requests in relation to the relevant WB JfY Projects and subsequent issue of the relevant Letters of Allocation by the Bank;
(b) that on the Disbursement Date for the proposed Tranche:
(i) the representations and warranties which are repeated pursuant to Article 6.04 are correct in all material respects;
(ii) no event or circumstance which constitutes or would, with the passage of time or giving of notice under this Contract, constitute
(aa) an Event of Default, or
(bb) a Prepayment Event,
has occurred and is continuing unremedied or unwaived or would result from the proposed Tranche;
(iii) the Intermediary Agreement with the Intermediary, to which the proceeds of the disbursement are to be onlent by the Agent on behalf of the Borrower has been duly signed; and
(iv) each Intermediary to which any proceeds of the Tranche are to be on-lent shall have undertaken towards the Agent (in an Intermediary Agreement entered into on terms satisfactory to the Bank) to use such proceeds solely for the purpose of funding loan finance provided to Final Beneficiaries.
1.05 Deferment of disbursement
1.05A Grounds for deferment
Upon the written request of the Borrower, the Bank shall defer the disbursement of any Notified Tranche in whole or in part to a date specified by the Borrower being a date falling not later than 6 (six) months from its Scheduled Disbursement Date, and not later than 60 (sixty) days prior to the first repayment date of the Tranche indicated in the Disbursement Notice. In such a case, the Borrower shall pay the Deferment Indemnity calculated on the amount of disbursement deferred.
Any request for deferment shall have effect in respect of a Tranche only if it is made at least 7 (seven) Business Days before its Scheduled Disbursement Date.
If any of the conditions referred to in Article 1.04 is not fulfilled at the specified date and at the Scheduled Disbursement Date (or the date expected for disbursement in case of a previous deferment), disbursement will be deferred to a date agreed between the Bank and the Borrower falling not earlier than 7 (seven) Business Days following the fulfilment of all conditions of disbursement (without prejudice to the right of the Bank to suspend and/or cancel the undisbursed portion of the Credit in whole or in part pursuant to Article 1.06B). In such case, the Borrower shall pay the Deferment Indemnity calculated on the amount of the disbursement deferred.
1.05B Cancellation of disbursement deferred by six (6) months
The Bank may, by notice in writing to the Borrower, cancel a disbursement which has been deferred under Article 1.05A by more than six (6) months in aggregate. The cancelled amount shall remain available for disbursement under Article 1.02.
1.06 Cancellation and suspension
1.06A Borrower’s right to cancel
The Borrower may at any time by notice in writing to the Bank cancel, in whole or in part and with immediate effect, the undisbursed portion of the Credit. However, the notice shall have no effect in respect of (i) a Notified Tranche which has a Scheduled Disbursement Date falling within 5 (five) Business Days of the date of the notice, or (ii) a Tranche in respect of which a Disbursement Request has been submitted but no Disbursement Notice has been issued.
1.06B Bank’s right to suspend and cancel
(a) The Bank may, by notice in writing to the Borrower suspend and/or cancel the undisbursed portion of the Credit in whole or in part at any time and with immediate effect upon the occurrence of a Prepayment Event or an Event of Default or an event or circumstance which would with the passage of time or giving of notice under this Contract constitute a Prepayment Event or an Event of Default.
(b) The Bank may also suspend the portion of the Credit in respect of which it has not issued a Disbursement Notice with immediate effect in the case that a Market Disruption Event occurs.
(c) Any suspension shall continue until the Bank ends the suspension or cancels the suspended amount.
1.06C Indemnity for suspension and cancellation of a Tranche
1.06C(1) SUSPENSION
If the Bank suspends a Notified Tranche, whether upon an Indemnifiable Prepayment Event or an Event of Default, the Borrower shall pay to the Bank the Deferment Indemnity calculated on the amount of disbursement suspended.
1.06C(2) CANCELLATION
If pursuant to Article 1.06A, the Borrower cancels:
(a) a Fixed Rate Tranche which is a Notified Tranche, it shall indemnify the Bank under Article 4.02B;
(b) a Floating Rate Tranche which is a Notified Tranche or any part of the Credit other than a Notified Tranche, no indemnity is payable.
If the Bank cancels:
(a) a Fixed Rate Tranche which is a Notified Tranche upon an Indemnifiable Prepayment Event or pursuant to Article 1.05B, the Borrower shall pay to the Bank the Prepayment Indemnity; or
(b) a Notified Tranche upon an Event of Default, the Borrower shall indemnify the Bank under Article 10.03.
Save in these cases, no indemnity is payable upon cancellation of a Tranche by the Bank.
The indemnity shall be calculated as if the cancelled amount had been disbursed and repaid on the Scheduled Disbursement Date or, to the extent that the disbursement of the Tranche is currently deferred or suspended, on the date of the cancellation notice.
1.07 Cancellation after expiry of the Credit
On the day following the Final Availability Date, and unless otherwise specifically agreed to in writing between the Bank and the Borrower, the part of the Credit in respect of which no Disbursement Request has been made in accordance with Article 1.02B shall be automatically cancelled, without any notice being served by the Bank to the Borrower and without liability arising on the part of either party.
1.08 Allocation Procedure
1.08A Allocation Requests
Between the date of this Contract and 3 (three) months prior to the Final Availability Date, the Agent shall submit for approval of the Bank one or more allocation requests (each an ‘‘Allocation Request’’), one for each project of the type referred to in the first Recital of this Contract for which it demands financing hereunder, indicating (i) the amount of Credit requested in respect of the project and (ii) an electronic list of allocations following a template satisfactory to the Bank evidencing the main characteristics of the SME and Priority Projects.
Each project shall be eligible for loan financing from the Bank pursuant to the applicable criteria as set out in the Side-Letter most recently notified by the Bank to the Agent. Such criteria shall be subject to revision on the basis of the parameters applied by the Bank to the type of project concerned.
If the Agent has not delivered by 3 (three) months prior to the Final Availability Date an Allocation Request, the Bank may cancel the Credit.
No Allocation Request for an Intermediary may be submitted before the lapse of 6 (six) months, following prepayment by the same Intermediary of the whole or part of a loan granted to it by the Agent on behalf of the Borrower under an Intermediary Agreement.
1.08B Allocation
Following such examination of a project as the Bank deems necessary, the Bank shall, at its discretion, either approve or decline the relevant Allocation Request and advise the Agent of its decision.
In the event of approval the Bank shall issue to the Agent a letter (hereinafter a ‘‘Letter of Allocation’’) specifying the portion of the Credit (hereinafter an ‘‘Allocation’’) allocated to the project in question.
1.08C Re-allocation
During the Allocation Period, if:
(a) an Onlending Agreement approved by the Bank under the relevant Letter of Allocation will not be or will only partially be disbursed to the Final Beneficiary;
(b) an Onlending Agreement is voluntarily prepaid, or is prepaid following a demand for prepayment by the Intermediary or the Agent, or the amount of the Onlending Agreement is reduced for other reasons;
(c) the eligible Project costs as defined in this Contract and in the Side-Letter(s) are reduced to the extent that the funds provided by the Bank for the relevant Project exceed the eligible amount provided in this Contract and in the Side-Letters, or the Project is cancelled;
(d) a Final Beneficiary is not in compliance with the provisions of the relevant Onlending Agreement implementing Article 6.02;
(e) it is ascertained, after an Allocation Request had been approved by the Bank, that a mistake in the Allocation Request had impacted the Bank’s assessment on the eligibility of the said Project/Final Beneficiary and, given the correct information, the allocation under the Allocation Request ought not to have been approved;
(f) any fact or event becomes known to the Intermediary or the Agent or to the Bank, which in the judgement of the Bank may substantially prejudice or affect the conditions of execution or operation of a Project; and
(g) the Agent has notified the Bank, and the Bank has agreed thereto, that it wishes to re-allocate part of the Credit within a reasonable timeframe agreed with the Bank;
a corresponding part of the Loan shall be promptly re-allocated by the Agent for the purposes of financing other Projects that satisfy the criteria set out in this Contract and in the Side-Letter(s). Such proposed new Allocation Request(s) shall be presented to the Bank for approval in compliance with the conditions set out in Articles 1.08A and 1.08B. The Borrower may also choose to voluntarily prepay the sum in question under Article 4.02.
1.08D Re-employment of funds
After the end of the Allocation Period, if:
(a) an Onlending Agreement approved by the Bank under the relevant Letter of Allocation will not be or will only partially be disbursed to the Final Beneficiary;
(b) a loan pursuant to an Onlending Agreement is voluntarily prepaid by a Final Beneficiary;
(c) a loan pursuant to an Onlending Agreement is prepaid by a Final Beneficiary following a demand for prepayment from the Intermediary or the Agent;
(d) a Final Beneficiary is not in compliance with the provisions of the relevant Onlending Agreement implementing Article 6.02;
(e) a loan pursuant to an Onlending Agreement is repaid by a Final Beneficiary (at the scheduled maturity or otherwise) prior to the maturity of the Loan;
(f) the eligible Project costs as defined in this Contract and in the Side-Letter(s) are reduced to the extent that the funds provided by the Bank for the relevant Project exceed the eligible amount provided in this Contract and in the Side-Letter(s), or the Project is cancelled;
(g) it is ascertained, after an Allocation Request had been approved by the Bank, that a mistake in the Allocation Request had impacted the Bank’s assessment on the eligibility of the said Project/Final Beneficiary and, given the correct information, the allocation under the Allocation Request ought not to have been approved;
(h) any fact or event becomes known to the Intermediary or the Agent or to the Bank, which in the judgement of the Bank may substantially prejudice or affect the conditions of execution or operation of a Project; and
(i) the Agent has notified the Bank, and the Bank has agreed thereto, that it wishes to re-employ part of the Credit within a reasonable timeframe agreed with the Bank.
the Agent shall promptly re-employ a corresponding part of the Loan for the purpose of financing other Project(s) that satisfy the criteria set out in this Contract and in the Side-Letter(s) but new Allocation Requests shall not be presented to the Bank for approval. The Borrower may also choose to voluntarily prepay the sum in question under Article 4.02.
In the case of any re-employment of the Loan, the allocation deadlines and procedure set out in Articles 1.08A and 1.08B shall not apply. However, the Agent shall ensure that the so re-employed amount of the Loan is disbursed to the respective Final Beneficiary within a period of 60 (sixty) days from the date of any such re-employment, failing which the Borrower shall prepay such portion of the Loan to the Bank pursuant to Article 4.02.
The Bank reserves the right to request from the Agent a list of such re-employments of funds in a form satisfactory to the Bank.
1.08E Deadline for disbursement to Final Beneficiaries
The Borrower, having received disbursement(s) under this Contract, shall ensure that the aggregate of those funds (including, without limitation, those funds re-employed pursuant to Article 1.08D above), pursuant to the terms and conditions of this Contract and the Side-Letter(s), is fully disbursed to eligible Final Beneficiaries for eligible Projects within 6 (six) months after the date of the disbursement of the relevant tranche save to the extent that the Borrower voluntarily prepays the sum in question under Article 4.02.
1.08F EIB Allocation Report
(i) The Agent shall establish and maintain an internal reporting system for the monitoring of the Allocations (the "EIB Allocation Report");
(ii) the EIB Allocation Report shall contain the name of each Final Beneficiary, the dates and amounts of disbursements by the Intermediary to the respective Final Beneficiary as well as their interest rate (or equivalent) and duration; and
(iii) the Agent shall provide the Bank with the EIB Allocation Report including information on all Projects to which allocations have been made under this Contract at the Bank’s request.
1.09 Sums due under Article 1
Sums due under Articles 1.05 and 1.06 shall be payable in the currency of the Tranche concerned. They shall be payable within 15 (fifteen) days of the Borrower’s receipt of the Bank’s demand or within any longer period specified in the Bank’s demand.
ARTICLE 2
2.01 Amount of Loan
The Loan shall comprise the aggregate amount of Tranches disbursed by the Bank under the Credit, as confirmed by the Bank pursuant to Article 2.03.
2.02 Currency of repayment, interest and other charges
Interest, repayments and other charges payable in respect of each Tranche shall be made by the Borrower in the currency in which the Tranche is disbursed.
Any other payment shall be made in the currency specified by the Bank having regard to the currency of the expenditure to be reimbursed by means of that payment.
2.03 Confirmation by the Bank
Within 10 (ten) days after disbursement of each Tranche, the Bank shall send to the Agent and the Borrower the amortisation table referred to in Article 4.01, if appropriate, showing the Disbursement Date, currency, the amount disbursed, the repayment terms and the interest rate of and for that Tranche.
ARTICLE 3
3.01 Rate of interest
3.01A Fixed Rate Tranches
The Borrower shall pay interest on the outstanding balance of each Fixed Rate Tranche at the Fixed Rate quarterly, semi-annually or annually in arrears on the relevant Payment Dates, as specified in the Disbursement Notice, commencing on the first such Payment Date following the Disbursement Date of the Tranche was made.
If the period from the Disbursement Date to the first Payment Date is 15 (fifteen) days or less then the payment of interest accrued during such period shall be postponed to the following Payment Date.
Interest shall be calculated on the basis of Article 5.01(a).
3.01B Floating Rate Tranches
The Borrower shall pay interest on the outstanding balance of each Floating Rate Tranche at the Floating Rate quarterly, semi-annually or annually in arrears on the relevant Payment Dates, as specified in the Disbursement Notice commencing on the first such Payment Date following the Disbursement Date of the Tranche. If the period from the Disbursement Date to the first Payment Date is 15 (fifteen) days or less then the payment of interest accrued during such period shall be postponed to the following Payment Date.
The Bank shall notify the Floating Rate to the Borrower within 10 (ten) days following the commencement of each Floating Rate Reference Period.
If pursuant to Articles 1.05 and 1.06 disbursement of any Floating Rate Tranche takes place after the Scheduled Disbursement Date the Relevant Interbank Rate applicable to the first Floating Rate Reference Period shall apply as though the disbursement had been made on the Scheduled Disbursement Date.
Interest shall be calculated in respect of each Floating Rate Reference Period on the basis of Article 5.01(b). If the Floating Rate for any Floating Rate Reference Period is below zero, it will be set at zero.
3.01C Revision or Conversion of Tranches
Where the Borrower exercises an option to revise or convert the interest rate basis of a Tranche, it shall, from the effective Interest Revision/Conversion Date (in accordance with the procedure set out in Schedule D) pay interest at a rate determined in accordance with the provisions of Schedule D.
3.02 Interest on overdue sums
Without prejudice to Article 10 and by way of exception to Article 3.01, if the Borrower fails to pay any amount payable by it under the Contract on its due date, interest shall accrue (subject to mandatory provisions of the applicable laws, including Article 1154 of the Luxembourg Civil Code) on any overdue amount payable under the terms of this Contract from the due date to the date of actual payment at an annual rate equal to:
(i) for overdue sums related to Floating Rate Tranches, the applicable Floating Rate plus 2% (200 basis points);
(ii) for overdue sums related to Fixed Rate Tranches, the higher of (a) the applicable Fixed Rate plus 2% (200 basis points) or (b) the Relevant Interbank Rate plus 2% (200 basis points);
(iii) for overdue sums other than under (i) or (ii) above, the Relevant Interbank Rate plus 2% (200 basis points)
and shall be payable in accordance with the demand of the Bank. For the purpose of determining the Relevant Interbank Rate in relation to this Article 3.02, the relevant periods within the meaning of Schedule B shall be successive periods of one month commencing on the due date.
If the overdue sum is in a currency other than the currency of the Loan, the following rate per annum shall apply, namely the relevant interbank rate that is generally retained by the Bank for transactions in that currency plus 2% (200 basis points), calculated in accordance with the market practice for such rate.
3.03 Market Disruption Event
If at any time (i) from the issuance by the Bank of the Disbursement Notice in respect of a Tranche and (ii) until the date falling either 30 (thirty) calendar days for Tranches to be disbursed in EUR, GBP or USD or in the case of Tranches to be disbursed in any other currency, 2 (two) Business Days prior to the Scheduled Disbursement Date, a Market Disruption Event occurs, the Bank may notify to the Borrower that this clause has come into effect. In such case, the following rules shall apply:
(a) in the case of a Tranche to be disbursed in EUR, USD or GBP, the rate of interest applicable to such Notified Tranche until the Maturity Date or the Interest Revision/Conversion Date if any shall be the percentage rate per annum which is the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate or an alternative rate determination method reasonably determined by the Bank. The Borrower shall have the right to refuse in writing such disbursement within the deadline specified in the notification and shall bear charges incurred as a result, if any, in which case the Bank shall not effect the disbursement and the corresponding Credit shall remain available for disbursement under Article 1.02B. If the Borrower does not refuse the disbursement in time, the parties agree that the disbursement and the conditions thereof shall be fully binding for both parties.
(b) In the case of a Tranche to be disbursed in a currency other than EUR, USD or GBP, the Bank shall notify to the Borrower the EUR equivalent to be disbursed on the Scheduled Disbursement Date and the relevant percentage rate as described above under paragraph (a) applicable to the Tranche until the Maturity Date or the Interest Revision/Conversion Date if any. The Borrower shall have the right to refuse in writing such disbursement within the deadline specified in the notification and shall bear charges incurred as a result, if any, in which case the Bank shall not effect the disbursement and the corresponding portion of the Credit shall remain available for disbursement under Article 1.02B. If the Borrower does not refuse the disbursement in time, the parties agree that the disbursement in EUR and the conditions thereof shall be fully binding for both parties.
In each case the Spread or Fixed Rate previously notified by the Bank in the Disbursement Notice shall no longer be applicable.
ARTICLE 4
4.01 Normal Repayment
4.01A Repayment by instalments
(a) The Borrower shall repay each Tranche by instalments on the Payment Dates specified in the relevant Disbursement Notice in accordance with the terms of the amortisation table delivered pursuant to Article 2.03.
(b) Each amortisation table shall be drawn up on the basis that:
(i) in the case of a Fixed Rate Tranche without an Interest Revision/Conversion Date, repayment shall be made annually, semi-annually or quarterly by equal instalments of principal or constant instalments of principal and interest;
(ii) in the case of a Fixed Rate Tranche with an Interest Revision/Conversion Date or a Floating Rate Tranche, repayment shall be made by equal annual, semi-annual or quarterly instalments of principal;
(iii) the first repayment date of each Tranche shall be a Payment Date falling not earlier than 60 (sixty) days from the Scheduled Disbursement Date and not later than the first Payment Date immediately following (a) in case of SME Projects, the fourth (4th) anniversary, or (b) in case of Priority Projects, the 5th (fifth) anniversary, of the Scheduled Disbursement Date of the Tranche; and
(iv) the last repayment date of each Tranche shall be a Payment Date falling not earlier than 4 (four) years and not later than (a) in case of SME Projects, 12 (twelve) years, or (b) in case of Priority Projects, 15 (fifteen) years from the Scheduled Disbursement Date.
4.01B Single instalment
Alternatively, the Borrower may repay the Tranche in a single instalment on a Payment Date specified in the Disbursement Notice, being a date falling not less than 3 (three) years or more than (i) in case of SME Projects, 8 (eight) years, or (ii) in case of Priority Projects, 10 (ten) years, from the Scheduled Disbursement Date.
4.02 Voluntary prepayment
4.02A Prepayment option
Subject to Articles 4.02B, 4.02C and 4.04, the Borrower may prepay all or part of any Tranche, together with accrued interest and indemnities if any, upon giving a Prepayment Request with at least one (1) month’s prior notice specifying (i) the Prepayment Amount, (ii) the Prepayment Date, (iii) if applicable, the choice of application method of the Prepayment Amount in line with Article 5.05(c)(i) and (iv) the contract number ("FI nr 82.642") mentioned on the cover page of this Contract.
Subject to Article 4.02C the Prepayment Request shall be binding and irrevocable.
4.02B Prepayment indemnity
4.02B(1) FIXED RATE TRANCHE
Subject to Article 4.02B(3) below, If the Borrower prepays a Fixed Rate Tranche, the Borrower shall pay to the Bank on the Prepayment Date the Prepayment Indemnity in respect of the Fixed Rate Tranche which is being prepaid.
4.02B(2) FLOATING RATE TRANCHE
Subject to Article 4.02B(3) below, the Borrower may prepay a Floating Rate Tranche without indemnity on any relevant Payment Date.
4.02B(3) Unless the Borrower has accepted in writing a Fixed Rate in respect of an Interest Revision/Conversion Proposal pursuant to Schedule D, prepayment of a Tranche on its Interest Revision/Conversion Date as notified under Article 1.02C(a)(viii), or in accordance with Schedule C1 or D, as the case may be, may be effected without indemnity.
4.02C Prepayment mechanics
Upon presentation by the Borrower to the Bank of a Prepayment Request, the Bank shall issue a Prepayment Notice to the Borrower, not later than 15 (fifteen) days prior to the Prepayment Date. The Prepayment Notice shall specify the Prepayment Amount, the accrued interest due thereon, the Prepayment Indemnity payable under Article 4.02B or, as the case may be,
that no indemnity is due, the method of application of the Prepayment Amount and the Acceptance Deadline.
If the Borrower accepts the Prepayment Notice no later than by the Acceptance Deadline, it shall effect the prepayment. In any other case, the Borrower may not effect the prepayment.
The Borrower shall accompany the prepayment by the payment of accrued interest and indemnity, if any, due on the Prepayment Amount, as specified in the Prepayment Notice.
4.03 Compulsory prepayment
4.03A Prepayment Events
4.03A(1) NON-UTILISATION OF THE LOAN
In case that the whole or part of the Loan disbursed under this contract has not been utilized in accordance with Article 6 or 1.08C or 1.08E, the Bank may request the Borrower to immediately prepay the corresponding amount of the Loan together with accrued interest.
4.03A(2) PARI PASSU TO NON-EIB FINANCING
If the Borrower voluntarily prepays (for the avoidance of doubt, prepayment shall include a repurchase or cancellation where applicable) a part or the whole of any Non-EIB Financing and:
- such prepayment is not be made out of the proceeds of a loan or other indebtedness having a term at least equal to the unexpired term of the Non-EIB Financing prepaid,
the Bank may, by notice to the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan. The proportion of the Loan that the Bank may require to be prepaid shall be the same as the proportion that the prepaid amount of the Non-EIB Financing bears to the aggregate outstanding amount of all Non-EIB Financing.
The Borrower shall effect payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days from the date of the demand.
For the purposes of this Article, "Non-EIB Financing" includes any loan (save for the Loan and any other direct loans from the Bank to the Borrower, credit bond or other form of financial indebtedness or any obligation for the payment or repayment of money originally granted to the Borrower for a term of more than 3 (three) years.
4.03A(3) CHANGE OF LAW
The Borrower shall promptly inform the Bank if a Change-of-Law Event has occurred or is reasonably likely to occur. In such case, or if the Bank has reasonable cause to believe that a Change-of-Law Event has occurred or is about to occur, the Bank may request that the Borrower consult with it. Such consultation shall take place within 30 (thirty) days from the date of the Bank’s request. If, after the lapse of 30 (thirty) days from the date of such request for consultation the Bank is of the reasonable opinion that the effects of the Change-of-Law Event cannot be mitigated to its satisfaction, the Bank may by notice to the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan, together with accrued interest and all other amounts accrued or outstanding under this Contract, unless the Bank has otherwise agreed as a result of such consultations.
The Borrower shall effect payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days from the date of the demand.
For the purposes of this Article "Change-of-Law Event" means the enactment, promulgation, execution or ratification of or any change in or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that occurs after the date of this Contract and which, in the reasonable opinion of the Bank results or is reasonably likely to result in a Material Adverse Change.
4.03A(4) ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for the Bank to perform any of its obligations as contemplated in this Contract or to fund or maintain the Loan, the Bank shall promptly notify the Borrower and may immediately (i) suspend or cancel the undisbursed portion of the Credit and/or (ii) demand prepayment of the Loan together with accrued interest and all other amounts accrued or outstanding under this Contract on the date indicated by the Bank in its notice to the Borrower.
4.03A(5) FAILURE TO INFORM OR TRANSFER THE FINANCIAL ADVANTAGE
If the Bank determines that the Borrower, by the Agent and the relevant Intermediary Agreement, has not informed the Final Beneficiaries about the Bank support in accordance with Art. 6.02, and/or not transferred the Financial Advantage to the Final Beneficiaries in accordance with Article 6.02, it may require the Borrower to prepay the part of the Loan on which no or insufficient Financing Benefit has been transferred to the Final Beneficiaries. The Borrower shall effect payment of the amount demanded on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days from the date of the demand.
4.03B Prepayment mechanics
Any sum demanded by the Bank pursuant to Article 4.03A, together with any interest or other amounts accrued or outstanding under this Contract, including, without limitation, any indemnity due under Article 4.03C and Article 4.04, shall be paid on the date indicated by the Bank in its notice of demand.
4.03C Prepayment indemnity
In the case of an Indemnifiable Prepayment Event, the indemnity, if any, shall be determined in accordance with Article 4.02B.
4.04 General
A repaid or prepaid amount may not be reborrowed. This Article 4 shall not prejudice Article 10.
If the Borrower prepays a Tranche on a date other than a relevant Payment Date, the Borrower shall indemnify the Bank in such amount as the Bank shall certify is required to compensate it for receipt of funds otherwise than on a relevant Payment Date.
ARTICLE 5
5.01 Day count convention
Any amount due by way of interest, indemnity or fee from the Borrower under this Contract, and calculated in respect of a fraction of a year, shall be determined on the following respective conventions:
(a) in respect of interest and indemnities due under a Fixed Rate Tranche, a year of 360 (three hundred and sixty) days and a month of 30 (thirty) days;
(b) in respect of interest and indemnities due under a Floating Rate Tranche, a year of 360 (three hundred and sixty) days (but 365 (three hundred and sixty five) days (invariable) for GBP, and PLN) and the number of days elapsed; and
(c) in respect of fees, a year of 360 (three hundred and sixty) days (but 365 (three hundred and sixty five) days (invariable) for fees due in GBP, and PLN) and the number of days elapsed.
5.02 Time and place of payment
Unless otherwise specified in this Contract or in the Bank’s demand, all sums other than sums of interest, indemnity and principal are payable within 15 (fifteen) days of the Borrower’s receipt of the Bank’s demand.
Each sum payable by the Borrower under this Contract shall be paid to the relevant account notified by the Bank to the Borrower. The Bank shall notify the account not less than 15 (fifteen) days before the due date for the first payment by the Borrower and shall notify any change of account not less than 15 (fifteen) days before the date of the first payment to which the change applies. This period of notice does not apply in the case of payment under Article 10.
The Borrower shall indicate in each payment made hereunder the contract number ("FI nr 82.642") found on the cover page of this Contract.
A sum due from the Borrower shall be deemed paid when the Bank receives it.
Any disbursements by and payments to the Bank under this Contract shall be made using account(s) acceptable to the Bank. For the avoidance of doubt, any account in the name of the Borrower held with a duly authorized financial institution in the jurisdiction where the Borrower is incorporated or where the Project is undertaken is deemed acceptable to the Bank.
5.03 No set off by the Borrower
All payments to be made by the Borrower under this Contract shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
5.04 Disruption to Payment Systems
If either the Bank determines (in its discretion) that a Disruption Event has occurred or the Bank is notified by the Borrower that a Disruption Event has occurred:
(a) the Bank may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Contract as the Bank may deem necessary in the circumstances;
(b) the Bank shall not be obliged to consult with the Borrower in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; and
(c) the Bank shall not be liable for any damages, costs or losses whatsoever arising as a result of a Disruption Event or for taking or not taking any action pursuant to or in connection with this Article 5.04.
5.05 Application of sums received
(a) General
Sums received from the Borrower shall only discharge its payment obligations if received in accordance with the terms of this Contract.
(b) Partial payments
If the Bank receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under this Contract, the Bank shall apply that payment:
(i) first, in or towards payment pro rata of any unpaid fees, costs, indemnities and expenses due under this Contract;
(ii) secondly, in or towards payment of any accrued interest due but unpaid under this Contract;
(iii) thirdly, in or towards payment of any principal due but unpaid under this Contract; and
(iv) fourthly, in or towards payment of any other sum due but unpaid under this Contract.
(c) Allocation of sums related to Tranches
(i) In case of:
- a partial voluntary prepayment of a Tranche that is subject to a repayment in several instalments, the Prepayment Amount shall be applied pro rata to each outstanding installment, or, at the request of the Borrower, in inverse order of maturity;
- a partial compulsory prepayment of a Tranche that is subject to a repayment in several instalments, the Prepayment Amount shall be applied in reduction of the outstanding instalments in inverse order of maturity.
(ii) Sums received by the Bank following a demand under Article 10.01 and applied to a Tranche, shall reduce the outstanding instalments in inverse order of maturity. The Bank may apply sums received between Tranches at its discretion.
(iii) In case of receipt of sums which cannot be identified as applicable to a specific Tranche, and on which there is no agreement between the Bank and the Borrower on their application, the Bank may apply these between Tranches at its discretion.
ARTICLE 6
Borrower and Agent undertakings and representations
The undertakings in this Article 6 remain in force from the date of this Contract for so long as any amount is outstanding under this Contract or the Credit is in force.
A. SME and Priority Projects undertakings
6.01 Use of Loan
The Agent shall ensure that the proceeds of the Loan will be exclusively used for the financing by Intermediary Banks of Projects under the Intermediary Agreements and the Onlending Agreements to be entered into.
The Borrower and the Agent shall ensure that, at the end of the Allocation Period and thereafter, the Loan shall be allocated in accordance with Recital (2).
A template of the Intermediary Agreements and the Onlending Agreements shall be submitted to the Bank for its prior approval.
6.02 Other undertakings
A. The Agent shall, by each Intermediary Agreement, oblige the relevant Intermediary:
(a) to ensure that the all projects cost approved of each SME and Priority Project should not exceed EUR 25,000,000.00 (twenty five million euros);
(b) to ensure that the amount of financing by the Bank may reach (i) up to 100% (one hundred per cent.) of the loan granted by the Intermediary to a single Final Beneficiary, but may not exceed the equivalent of EUR 12,500,000.00 (twelve million five hundred thousand euros) for SME and Mid-Cap Projects; and (ii) up to 50% (fifty per cent.) of total projects’ costs from the Bank’s funds (including indirectly through other banks) for Priority Projects;
(c) confirm to the Bank, in a form to be agreed upon to the satisfaction of the Bank, at the end of the Allocation Period, that the additional volume of medium and long term financing of SMEs/Mid-Caps (with a term of more than 2 (two) years in eligible sectors as described in the Side-Letter(s)) signed during the Allocation Period and financed with non-EIB resources for each Intermediary, has been at least as much as the volume of the Bank’s Loan allocated to SMEs/Mid-Caps. Upon request from the Bank, the Agent shall deliver additional information on this additional lending volume, as far as this information is available;
(d) ensure that each Final Beneficiary is informed, in the manner considered most appropriate, of the origin of the funds placed at the latter’s disposal under this Contract;
(e) ensure appropriate product labelling by including a reference to the Bank in the product name or product documentation;
(f) insert on its relevant website/website dedicated to SME medium long term financing products an information page on the Bank’s activity in favour of SMEs, including eligibility criteria and a reference to the advantageous conditions of the Bank;
(g) ensure that each Onlending Agreement with a Final Beneficiary satisfies the conditions of Article 6.02B;
(h) comply with the Side-Letter(s);
(i) to inform each Final Beneficiary of the support by the Bank through a letter or electronic means. Such letter or message should indicate that the respective financing has benefited from support by the Bank and show the difference in terms and conditions stemming from this support and ensure that the financial conditions applied to each Onlending Agreement reflect the advantage of the Bank’s funding and that such advantage, currently amounting to (i) a minimum 50 bps (fifty basis points, but subject to amendment upon the prior written consent of the Bank), and (ii) and additional 30 bps (thirty basis points) per annum to the respective Final Beneficiary for WB JfY Projects, is clearly indicated to the Final Beneficiary by including in each Onlending Agreement the following clause:
"Participation of the European Investment Bank.
The European Investment Bank, the financing institution of the European Union established in 1958 by the Treaty of Rome, participates side-by-side with local financial institutions in the financing of investment programmes which form part of the objectives of the European Union. For as long as the present loan satisfies all eligibility criteria for financing by the European Investment Bank. <THE INTERMEDIARY> grants to the beneficiary of this loan a financial advantage reflected on the interest rate, under the terms and conditions set out in the relevant articles of the present loan agreement. Such financial advantage amounts to 50 bps (fifty basis points) - 80 bps (eighty basis points) in case of WB JfY allocations - compared to the annual interest rate that <THE INTERMEDIARY> would charge for this loan without the Bank’s participation.";
(j) ensure that the Onlending Agreements have terms and conditions consistent with this Contract including (without limitation) Article 8.01;
(k) ensure that in case of non-compliance with such undertakings, each Onlending Agreement shall provide for the obligation of the Final Beneficiary to prepay the relevant Onlending Agreement at the request of the Agent;
(l) ensure that the Intermediaries will exercise rights under the Onlending Agreements in respect of any Final Beneficiary at the specific request of the Bank, e.g. seek evidence in relation to compliance with environmental clauses set out in Article 6.02B(e) at the request of the Bank, and to transmit to the Bank forthwith any material information received in relation to such request.
B. The Agent shall, by each Intermediary Agreement, oblige the relevant Intermediary to undertake that under the relevant Onlending Agreements each Final Beneficiary:
(a) to use the sums received from the Borrower solely for the implementation of the SME and Priority Project concerned;
(b) to maintain, repair, overhaul and renew all property forming part of the SME and Priority Project as required to keep it in good working order;
(c) whenever it is bound to comply with public procurement rules of the relevant jurisdiction, undertakes to purchase equipment, secure services and order works for the SME and Priority Project by acceptable procurement procedure complying, to the Bank’s satisfaction, with its policy as described in its Guide to Procurement;
(d) to insure all works and property forming part of the SME and Priority Project with insurance companies in accordance with the most comprehensive relevant industry practice in the Republic of Serbia;
(e) (i) to implement and operate the SME and Priority Project in compliance with Environmental Law; (ii) to obtain and maintain requisite Environmental or Social Approvals for the SME and Priority Project; and (iii) to comply with any such Environmental or Social Approvals;
(f) to maintain in force all Authorisations necessary for the execution and operation of the SME and Priority Project;
(g) unless the Bank shall have given its prior consent in writing (through the Agent), to retain title to and possession of all or substantially all the assets comprising the SME and Priority Project or, as appropriate, replace and renew such assets and maintain the SME and Priority Project in substantially continuous operation in accordance with its original purpose; provided that the Bank may withhold its consent only where the proposed action would prejudice the Bank’s interests as lender to the Borrower or would render the SME and Priority Project ineligible for financing by the Bank under its Statute or under Article 309 of the Treaty on the Functioning of the European Union;
(h) to keep books and records of all financial transactions and expenditures in connection with the SME and Priority Project;
(i) to represent to the Intermediary, to the best of its knowledge, no funds invested in the SME and Priority Project by such Final Beneficiary are of illicit origin, including products of money laundering or linked to the financing of terrorism, as well as to promptly inform the Agent (through the Intermediary) if at any time it becomes aware of the illicit origin of any such funds;
(j) to promptly inform the Agent (through the Intermediary) of a genuine allegation, complaint or information with regard to Criminal Offences related to the SME and Priority Project;
(k) to request any disbursements from, and make any payments under the Onlending Agreement to a bank account in the name of such Final Beneficiary held with a duly authorised financial institution in the jurisdiction where such Final Beneficiary is incorporated or has its place of residence or where the relevant SME and Priority Project is undertaken by such Final Beneficiary;
(l) (i) to take, within a reasonable timeframe, appropriate measures in respect of any member of its management bodies who have been convicted by a final and irrevocable court ruling of a Criminal Offence perpetrated in the course of the exercise of his/her professional duties, in order to ensure that such Final Beneficiary (and/or any member of its management bodies) is excluded from any activity in relation to any funds made available under the relevant Onlending Agreement or in relation to the relevant SME and Priority Project; and (ii) to promptly inform the Agent (through the Intermediary) of any measure taken by such Final Beneficiary pursuant to Article 6.02B(l)(i),above;
(m) to allow persons designated by the Bank, as well as persons designated by other institutions or bodies of the European Union when so required by the relevant mandatory provisions of European Union law:
(i) to visit the sites, installations and works comprising the SME and Priority Project;
(ii) to interview representatives of the Final Beneficiary, and not obstruct contacts with any other person involved in or affected by the SME and Priority Project;
(iii) to review the Final Beneficiary’s books and records in relation to the execution of the SME and Priority Project and to be able to take copies of related documents to the extent permitted by the law;
(n) to provide the Bank, or ensure that the Bank is provided, with all necessary assistance for the purposes described in this Article;
(o) to execute and operate the SME and Priority Project in accordance with the principles of EU law directly applicable to the Final Beneficiary and the SME and Priority Project.
(p) do not engage in (and shall not authorise or permit any affiliate or any other Person acting on its behalf to engage in) any Prohibited Conduct in connection with the SME and Priority Project, any tendering procedure for the SME and Priority Project, or any transaction contemplated by the Contract;
(q) take such action as the Intermediary, Agent or the Bank shall be reasonably request to investigate or terminate any alleged or suspected occurrence of any Prohibited Conduct in connection with the SME and Priority Project;
(r) ensure that contracts financed by this Loan include the necessary provisions to enable the Intermediary to investigate or terminate any alleged or suspected occurrence of any Prohibited Conduct in connection with the SME and Priority Project;
(s) that it shall not (i) enter into a business relationship with any Sanctioned Person, or (ii) make any funds available to or for the benefit of, directly or indirectly, any Sanctioned Person;
(t) take within a reasonable timeframe appropriate measures in respect of any member of its management bodies who:
(i) becomes a Sanctioned Person or
(ii) is the subject of a final and irrevocable court ruling in connection with Prohibited Conduct perpetrated in the course of the exercise of their professional duties,
in order to ensure that such member is suspended, dismissed or in any case excluded from any Intermediary’s activity in relation to the Loan and to the SME and Priority Project;
(u) warrants and undertakes that neither such Final Beneficiary, its officers and directors nor any other person acting on its or their behalf or under its or their control has committed nor will commit (i) any Prohibited Conduct in connection with a SME and Priority Project or any transaction contemplated by the Contract; or (ii) any illegal activity related to the Financing of Terrorism or Money Laundering;
(v) declares that, to the best of its knowledge and belief, and after making due enquiry, no fund invested in the SME and Priority Project or its share capital is of illicit origin, including products of Money Laundering or linked to the Financing of Terrorism;
(w) undertakes:
(i) to implement and operate the SME and Priority Project in conformity with Environmental and Social Standards; and
(ii) to obtain, maintain and comply with requisite Environmental or Social Approvals for the SME and Priority Project;
and, for this purpose the Agent undertakes to seek such evidence (through the Intermediary) at the request of the Bank and to transmit to the Bank forthwith any material information received in response to such request;
The Agent shall ensure (by each Intermediary Agreement) that in each Onlending Agreement the Final Beneficiary shall acknowledge that the Bank may be obliged to communicate information relating to the Final Beneficiary and/or any SME and Priority Project to any competent institution or body of the European Union in accordance with the relevant mandatory provisions of European Union law.
In case of non-compliance with such undertakings, the Borrower shall have the right to demand early repayment of the Onlending Agreement.
The Borrower and the Agent shall use its rights under the Intermediary Agreement and/or Onlending Agreements also in the interest of the Bank.
C. The Borrower shall set up a steering committee involving the Agent, the Ministry of Finance, the Ministry of Economy and other relevant government bodies to guarantee an ex-post monitoring of the Project, ensuring that the Project is implemented in coordination with complementary policy measures.
B. General undertakings
6.03 Compliance with laws
The Borrower and the Agent shall comply in all respects with all laws and regulations to which it is subject.
6.04 General Representations and Warranties
The Borrower and the Agent represent and warrant to the Bank that:
(a) the Agent is the central bank of Republic of Serbia and it has power to carry on its business as it is now being conducted;
(b) they have the power to execute, deliver and perform their obligations under this Contract and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same by them;
(c) this Contract constitutes their legally valid, binding and enforceable obligations;
(d) the execution and delivery of, the performance of their obligations under and compliance with the provisions of this Contract do not and will not:
(i) contravene or conflict with any applicable law, statute, rule or regulation, or any judgement, decree or permit to which they are subject;
(ii) contravene or conflict with any agreement or other instrument binding upon them which might reasonably be expected to have a material adverse effect on their ability to perform their obligations under this Contract;
(iii) contravene or conflict with any provision of the Law on the National Bank of Serbia (RS Official Gazette Nos. 72/2003, 55/2004, 85/2005, 44/2010, 76/2012, 106/2012, 14/2015 and 40/2015);
(e) the latest available consolidated audited accounts of the Agent have been prepared on a basis consistent with previous years and have been approved by its auditors as representing a true and fair view of the results of its operations for that year and accurately disclose or reserve against all the liabilities (actual or contingent) of the Agent;
(f) there has been no Material Adverse Change since the date of the EIB Decision;
(g) no event or circumstance which constitutes an Event of Default has occurred and is continuing unremedied or unwaived;
(h) no litigation, arbitration, administrative proceedings or investigation is current or to its knowledge is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there subsisting against it or any of its subsidiaries any unsatisfied judgement or award;
(i) to the best of their knowledge, no funds invested in any SME and Priority Project by any Final Beneficiary are of illicit origin, including products of money laundering or linked to the financing of terrorism. To the extent permitted by law, the Borrower and/or the Agent shall promptly inform the Bank if at any time it becomes aware of the illicit origin of any such funds;
(j) neither the Borrower and/or the Agent, their officers and directors nor any other person acting on its or their behalf or under its or their control has committed nor will commit (i) any Prohibited Conduct in connection with the SME and Priority Project or any transaction contemplated by the Contract; or (ii) any illegal activity related to the Financing of Terrorism or Money Laundering;
(k) the SME and Priority Project (including without limitation, the negotiation, award and performance of contracts financed or to be financed by the Loan) has not involved or given rise to any Prohibited Conduct;
(l) to the best of their knowledge, no funds invested in the SME and Priority Project by the Agent are of illicit origin, including products of Money Laundering or linked to the Financing of Terrorism; аnd
(m) to the best of their knowledge and belief (having made due and careful enquiry) no Environmental or Social Claim has been commenced or is threatened against it.
The Borrower further represents and warranties that its payment obligations under this Contract rank not less than pari passu in right of payment with all other present and future unsecured and unsubordinated obligations under any of its debt instruments entered into by the Borrower or on its behalf, except for obligations mandatorily preferred by law applying to companies generally.
The representations and warranties set out above shall survive the execution of this Contract and are, except paragraph (f) above, deemed repeated on each Scheduled Disbursement Date and each Payment Date.
6.05 Integrity
(a) Prohibited Conduct
(i) The Borrower and/or the Agent shall not engage in (and shall not authorise or permit any Affiliate or any other Person acting on its behalf to engage in) any Prohibited Conduct in connection with the SME and Priority Project, any tendering procedure for the SME and Priority Project, or any transaction contemplated by the Contract;
(ii) The Borrower and/or the Agent undertake to take such action as the Bank shall reasonably request to investigate or terminate any alleged or suspected occurrence of any Prohibited Conduct in connection with the SME and Priority Project;
(iii) The Borrower and/or the Agent undertake to ensure that contracts financed by this Loan include the necessary provisions to enable the Borrower to investigate or terminate any alleged or suspected occurrence of any Prohibited Conduct in connection with the SME and Priority Project.
(b) Sanctions
The Borrower and/or the Agent shall not (i) enter into a business relationship with any Sanctioned Person, or (ii) make any funds available to or for the benefit of, directly or indirectly, any Sanctioned Person.
For the avoidance of doubt, such paragraph shall not apply if items (i) and (ii) above are not prohibited pursuant to the Sanctions Lists.
(c) Management
The Borrower and the Agent shall undertake to take within a reasonable timeframe appropriate measures in respect of any member of its management bodies who:
(i) becomes a Sanctioned Person or;
(ii) is the subject of a final and irrevocable court ruling in connection with Prohibited Conduct perpetrated in the course of the exercise of their professional duties
in order to ensure that such member is suspended, dismissed or in any case excluded from any Borrower’s activity in relation to the Loan and to the SME and Priority Project.
6.06 Legitimacy of the funds used for the SME Projects
The Agent warrants that it applies the Recommendations of the OECD Financial Action Task Force.
The Agent shall ensure that the Intermediaries comply with the duties of banks envisaged by the Recommendations of the OECD Financial Action Task Force.
ARTICLE 7
The undertakings in this Article 7 remain in force from the date of this Contract for so long as any amount is outstanding under this Contract or the Credit is in force.
7.01 Pari Passu
The Borrower shall ensure that its payment obligations under this Contract rank, and will rank, not less than pari passu in right of payment with all other present and future unsecured and unsubordinated obligations under any of its External Debt Instruments except for obligations mandatorily preferred by law applying to companies generally.
In particular, if the Bank makes a demand under Article 10.01 or if an event or potential event of default under any unsecured and unsubordinated External Debt Instrument of the Borrower has occurred and is continuing, the Borrower shall not make (or authorize) any payment in respect of any other such External Debt Instrument (whether regularly scheduled or otherwise) without simultaneously paying, or setting aside in a designated account for payment on the next Payment Date a sum equal to, the same proportion of the debt outstanding under this Contract as the proportion that the payment under such External Debt Instrument bears to the total debt outstanding under that Instrument. For this purpose, any payment of an External Debt Instrument that is made out of the proceeds of the issue of another instrument, to which substantially the same persons as hold claims under the External Debt Instrument have subscribed, shall be disregarded.
In this Contract, "External Debt Instrument" means (a) an instrument, including any receipt or statement of account, evidencing or constituting an obligation to repay a loan, deposit, advance or similar extension of credit (including without limitation any extension of credit under a refinancing or rescheduling agreement), (b) an obligation evidenced by a bond, debenture or similar written evidence of indebtedness or (c) a guarantee granted by the Borrower for an obligation of a third party; provided in each case that such obligation is: (i) governed by a system of law other than the law of the Borrower; or (ii) payable in a currency other than the currency of the Borrower’s country; or (iii) payable to a person incorporated, domiciled, resident or with its head office or principal place of business outside the Borrower’s country.
7.02 Security
Should the Borrower grant to a third party any security for the performance of any External Debt Instrument or any preference or priority in respect thereof, the Borrower shall, if so required by the Bank, provide to the Bank equivalent security for the performance of its obligations under this Contract or grant to the Bank equivalent preference or priority.
7.03 Clauses by inclusion
If the Borrower concludes with any other medium or long term financial creditor a financing agreement that includes a loss-of-rating clause or a covenant or other provision regarding its financial ratios or, if applicable, that is stricter than any equivalent provision of this Contract, the Borrower shall so inform the Bank and shall, at the request of the Bank, execute an agreement to amend this Contract so as to provide for an equivalent provision in favour of the Bank.
ARTICLE 8
8.01 Information concerning SME and Priority Projects and Final Beneficiaries
The Agent shall:
(a) annually provide the Bank and the Borrower with information on the total amount outstanding under the Onlending Agreements or a breakdown thereof;
(b) inform the Bank and the Borrower of the use made by it of the amounts received from Final Beneficiaries by way of voluntary or compulsory early repayment of loans made under Onlending Agreements and of the use made by it of such amounts;
(c) without undue delay inform the Bank and the Borrower of any notice of termination of any Intermediary Agreement served by the Agent to any Intermediary or of any Onlending Agreement served by an Intermediary to any Final Beneficiary;
(d) generally inform the Bank and the Borrower of any fact or event known to it which, according to the Agent’s reasonable opinion, might materially prejudice or affect the conditions of execution or operation of any SME and Priority Project or the general condition of any Final Beneficiary;
(e) deliver to the Bank all documents and information that may be reasonably requested by the Bank concerning the financing, implementation and operation of each SME and Priority Project and the activities and financial condition of each Final Beneficiary;
(f) deliver to the Bank, upon its request, a copy of any Intermediary Agreement or Onlending Agreement and of any addendum or amendment thereto, together with English translations thereof;
(g) as soon as it becomes aware thereof with respect to a Onlending Agreement, or as soon as it is informed thereof by the Final Beneficiary under the terms of the Onlending Agreements, promptly inform the Bank of a genuine allegation, complaint or information with regard to Criminal Offences related to any funds made available under the Onlending Agreement or any SME and Priority Project;
(h) as soon as it becomes aware thereof, or as soon as it is informed thereof by the Final Beneficiary under the terms of the Onlending Agreements, promptly inform the Bank if at any time it becomes aware of the illicit origin, including products of money laundering or linked to the financing of terrorism with respect to a Onlending Agreement or a SME and Priority Project;
(i) as soon as it becomes aware thereof, or as soon as it is informed thereof by the Final Beneficiary under the terms of the Onlending Agreements, promptly inform the Bank of any measure taken by the Final Beneficiary pursuant to Article 6.02B (q);
(j) inform the Bank of a genuine allegation or complaint with regard to any Prohibited Conduct related to a SME and Priority Project;
(k) inform the Bank should it become aware of any fact or information confirming or reasonably suggesting that (i) any Prohibited Conduct has occurred in connection with a SME and Priority Project, or (ii) any of the funds;
(l) inform the Bank if it becomes aware of the illicit origin of funds invested in or in the SME and Priority Project;
(m) inform the Bank of any action or protest initiated or any objection raised by any third party or any genuine complaint received by the Borrower or any Environmental or Social Claim that is to its knowledge commenced, pending or threatened against it;
(m) inform the Bank of any non-compliance by a Final Beneficiary with any Environmental and Social Standard; and
(o) inform the Bank of any suspension, revocation or modification of any Environmental or Social Approval.
8.02 Information concerning Borrower and the Agent
A. The Borrower shall inform the Bank immediately of any intention on its part to create any security interest over any of its assets in favour of a third party.
B. The Agent shall:
(a) deliver to the Bank each year, within one (1) month after their publication, copy of its annual report, balance sheet, profit and loss account and auditor’s report; the Agent shall furnish such additional information as the Bank may require as to its general financial situation;
(b) inform the Bank immediately of any alteration to the Law on the National Bank of Serbia (RS Official Gazette Nos. 72/2003, 55/2004, 85/2005, 44/2010, 76/2012, 106/2012, 14/2015 and 40/2015) or other basic documents.
C. The Borrower and the Agent shall immediately inform the Bank of:
(a) any fact which obliges them to prepay any financial indebtedness or any European Union funding;
(b) any event or decision that constitutes or may result in the a Prepayment Event;
(c) any fact or event that is reasonably likely to prevent the substantial fulfilment of any obligation of the Borrower or the Agent under this Contract;
(d) any Event of Default having occurred or being threatened or anticipated;
(e) any litigation, arbitration or administrative proceedings or investigation which is current, threatened or pending which might, if adversely determined result in a Material Adverse Change; and
(f) generally inform the Bank promptly of any fact or event, which might prevent the fulfilment of any obligation of the Borrower and the Agent under this Contract.
8.03 Investigations and information
The Borrower and the Agent undertake:
(a) any investigations concerning the integrity of the members of the Borrower’s or Agent’s managing board or other administrative body or managers;
(b) to the extent permitted by law, any material litigation, arbitration, administrative proceedings or investigation carried out by as court, administration or similar public authority, which, to the best of its knowledge and belief, is current, imminent or pending against the Borrower, the Agent or members of the Borrower’s or Agent’s management bodies in connection with Criminal Offences related to the Loan;
(c) to take such action as the Bank shall reasonably request to investigate and/or terminate any alleged or suspected act of the nature described in Article 6.05;
(d) to inform the Bank of the measures taken to seek damages from the persons responsible for any loss resulting from any such act; and
(e) to facilitate any investigation that the Bank may make concerning any such act.
8.04 Visits by the Bank
The Borrower and the Agent shall allow persons designated by the Bank, as well as persons designated by other institutions or bodies of the European Union when so required by the relevant mandatory provisions of European Union law,
(a) to interview representatives of the Borrower and the Agent and not obstruct contacts with any other person involved in or affected by the Loan; and
(b) to review the Borrower’s and Agent’s books and records in relation to the Loan and to be able to take copies of related documents to the extent permitted by the law.
The Borrower and the Agent shall provide the Bank, or ensure that the Bank is provided, with all necessary assistance for the purposes described in this Article.
The Borrower and the Agent shall facilitate investigations by the Bank and by other competent European Union institutions or bodies in connection with any alleged or suspected occurrence of a Prohibited Conduct and shall provide the Bank, or ensure that the Bank is provided, with all necessary assistance for the purposes described in this Article.
The Borrower and the Agent acknowledge that the Bank may be obliged to communicate such information in relation to this Contract and relating to the Borrower, the Agent and any Project to any competent institution or body of the European Union in accordance with the relevant mandatory provisiprovisions of European Union law.
ARTICLE 9
9.01 Taxes, duties and fees
The Borrower shall pay all Taxes, duties, fees and other impositions of whatsoever nature, including stamp duty and registration fees, arising out of the execution or implementation of this Contract or any related document and in the creation, perfection, registration or enforcement of any security for the Loan to the extent applicable.
The Borrower shall pay all principal, interest, indemnities and other amounts due under this Contract gross without deduction of any national or local impositions whatsoever; provided that, if the Borrower is obliged to make any such deduction, it will gross up the payment to the Bank so that after deduction, the net amount received by the Bank is equivalent to the sum due.
9.02 Other charges
The Borrower shall bear all charges and expenses, including professional, banking or exchange charges incurred in connection with the preparation, execution, implementation, and termination of this Contract or any related document, any amendment, supplement or waiver in respect of this Contract or any related document, and in the amendment, creation, management and realisation of any security for the Loan.
9.03 Increased costs, indemnity and set-off
(a) If (i) the Bank is obliged to incur additional costs in order to fund or perform its obligations under this Contract, or (ii) any amount owed to the Bank under this Contract or the financial income resulting from the granting of the Credit or the Loan by the Bank to the Borrower is reduced or eliminated, the Borrower shall pay to the Bank any sums or expenses incurred or suffered by the Bank.
(b) Without prejudice to any other rights of the Bank under this Contract or under any applicable law, the Borrower shall indemnify and hold the Bank harmless from and against any loss incurred as a result of any payment or partial discharge that takes place in a manner other than as expressly set out in this Contract.
(c) The Bank may set off any matured obligation due from the Borrower under this Contract (to the extent beneficially owned by the Bank) against any obligation (whether or not matured) owed by the Bank to the Borrower regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. If either obligation is unliquidated or unascertained, the Bank may set off in an amount estimated by it in good faith to be the amount of that obligation.
ARTICLE 10
10.01 Right to demand repayment
The Borrower shall repay all or part of the Loan (as requested by the Bank) forthwith, together with accrued interest and all other accrued or outstanding amounts under this Contract, upon written demand being made by the Bank in accordance with the following provisions.
10.01A Immediate demand
The Bank may make such demand immediately:
(a) if the Borrower does not pay on the due date any amount payable pursuant to this Contract at the place and in the currency in which it is expressed to be payable unless (i) its failure to pay is caused by an administrative or technical error or a Disruption Event and (ii) payment is made within 3 (three) Business Days of its due date;
(b) if any information or document given to the Bank by or on behalf of the Borrower or the Agent or any representation, warranty or statement made or deemed to be made by the Borrower in or pursuant to this Contract or in connection with the negotiation or performance of this Contract is or proves to have been incorrect, incomplete or misleading in any material respect;
(c) if, following any default of the Borrower or the Agent in relation to any loan, or any obligation arising out of any financial transaction, other than the Loan:
(i) the Borrower or the Agent is required or is capable of being required or will, following expiry of any applicable contractual grace period, be required or be capable of being required to prepay, discharge, close out or terminate ahead of maturity such other loan or obligation; or
(ii) any financial commitment for such other loan or obligation is cancelled or suspended;
(d) if the Borrower is unable to pay its debts as they fall due, or suspends its debts, or makes or seeks to make a composition with its creditors;
(e) if any action, or step is taken in relation to the, dissolution of the Agent or it ceases or resolves to cease to carry on the whole or any substantial part of its business or activities;
(f) if an encumbrancer takes possession of, or a receiver, liquidator, administrator, administrative receiver or similar officer is appointed, whether by a court of competent jurisdiction or by any competent administrative authority, of or over, any assets of the Borrower or the Agent;
(g) if the Borrower defaults in the performance of any obligation in respect of any other loan granted by the Bank or financial instrument entered into with the Bank;
(h) if the Borrower defaults in the performance of any obligation in respect of any other loan made to it from the resources of the Bank or the European Union;
(i) if a Material Adverse Change occurs as compared with the Borrower’s or the Agent conditions at the date of this Contract; or
(j) if it is or becomes unlawful for the Borrower or the Agent to perform any of its obligations under this Contract or this Contracts not effective in accordance with its terms or is alleged by the Borrower or the Agent to be ineffective in accordance with its terms.
10.01B Demand after notice to remedy
The Bank may also make such demand:
(a) if the Borrower or the Agent fails to comply with any obligation under this Contract not being an obligation mentioned in Article 10.01A; or
(b) if the Borrower or the Agent fails to comply with any obligation under a Side-Letter not being an obligation mentioned in Article 10.01A; or
(c) if any fact stated in the Recitals materially alters and is not materially restored and if the alteration either prejudices the interests of the Bank as lender to the Borrower or adversely affects the implementation or operation of any of the SME and Priority Projects,
unless the non-compliance or circumstance giving rise to the non-compliance is capable of remedy and is remedied within a reasonable period of time specified in a notice served by the Bank on the Borrower or the Agent.
10.02 Other rights at law
Article 10.01 shall not restrict any other right of the Bank at law to require prepayment of the Loan.
10.03 Indemnity
10.03A Fixed Rate Tranches
In case of demand under Article 10.01 in respect of any Fixed Rate Tranche, the Borrower shall pay to the Bank the amount demanded together with the Prepayment Indemnity on any amount of principal due to be prepaid. Such Prepayment Indemnity shall accrue from the due date for payment specified in the Bank’s notice of demand and be calculated on the basis that prepayment is effected on the date so specified.
10.03B Floating Rate Tranches
In case of demand under Article 10.01 in respect of any Floating Rate Tranche, the Borrower shall pay to the Bank the amount demanded together with a sum equal to the present value of 0.15% (fifteen basis points) per annum calculated and accruing on the amount of principal due to be prepaid
in the same manner as interest would have been calculated and would have accrued, if that amount had remained outstanding according to the original amortisation schedule of the Tranche, until the Interest Revision/Conversion Date, if any, or Maturity Date.
The value shall be calculated at a discount rate equal to the Redeployment Rate applied as of each relevant Payment Date.
10.03C General
Amounts due by the Borrower pursuant to this Article 10.03 shall be payable on the date of prepayment specified in the Bank’s demand.
10.04 Non-Waiver
No failure or delay or single or partial exercise by the Bank in exercising any of its rights or remedies under this Contract shall be construed as a waiver of such right or remedy. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights or remedies provided by law.
ARTICLE 11
11.01 Governing Law
This Contract shall be governed by the laws of the Grand Duchy of Luxembourg.
11.02 Jurisdiction
The parties hereby submit to the jurisdiction of the Court of Justice of the European Communities.
11.03 Place of performance
Unless otherwise specifically agreed by the Bank in writing, the place of performance under this Contract shall be the seat of the Bank.
11.04 Evidence of sums due
In any legal action arising out of this Contract the certificate of the Bank as to any amount or rate due to the Bank under this Contract shall, in the absence of manifest error, be prima facie evidence of such amount or rate.
11.05 Amendments
Any amendment to this Contract shall be made in writing and shall be signed by the parties hereto.
ARTICLE 12
12.01 Notices to either party
Notices and other communications given under this Contract addressed to either party to this Contract shall be made to the address or facsimile number as set out below, or to such other address or facsimile number as a party previously notifies to the other in writing:
|
For the Borrower |
Ministry of Finance Kneza Milosa 20 11000 Belgrade Republic of Serbia Fac-simile: + 381 11 3618961 |
|
For the Bank |
Attention: OPS/MA/3-PUB SEC (SI,HR,WBs) 100 boulevard Konrad Adenauer L-2950 Luxembourg Fac-simile: +352 437967487 |
|
For the Agent |
National Bank of Serbia Kralja Petra 12 11000 Belgrade Republic of Serbia Fac-simile: +381 11 3027394 |
12.02 Form of notice
Any notice or other communication given under this Contract must be in writing.
Notices and other communications, for which fixed periods are laid down in this Contract or which themselves fix periods binding on the addressee, may be made by hand delivery, registered letter or facsimile. The date of delivery, registration or, as the case may be, the stated date of receipt of transmission shall be conclusive for the determination of a period.
Other notices and communications may be made by hand delivery, registered letter or facsimile or, to the extent agreed by the parties by written agreement, by email or other electronic communication.
Without affecting the validity of any notice delivered by facsimile according to the paragraphs above, a copy of each notice delivered by facsimile shall also be sent by letter to the relevant party on the next following Business Day at the latest.
Notices issued by the Borrower pursuant to any provision of this Contract shall, where required by the Bank, be delivered to the Bank together with satisfactory evidence of the authority of the person or persons authorised to sign such notice on behalf of the Borrower and the authenticated specimen signature of such person or persons.
12.03 Changes to parties
Neither the Borrower nor the Agent may assign or transfer any of its rights or obligations under this Contract without the prior written consent of the Bank.
The Bank may assign all or part of its rights and benefits or transfer (by way of novation, sub-participation or otherwise) all or part of its rights, benefits and obligations under this Contract with the prior written consent of the Borrower, not to be unreasonably delayed.
Notwithstanding the foregoing, the Bank may assign all or part of its rights and benefits or transfer (by way of novation, sub-participation or otherwise) all or part of its rights, benefits and obligations under this Contract to the European Central Bank or to other EU institutions, upon prior written notice by the Bank to the Borrower.
12.04 Entry into force
This Contract shall enter into force upon confirmation by the Bank to the Borrower that it has received a certified copy of the Official Gazette of the Republic of Serbia publishing the law on ratification of this Contract by the Parliament of the Republic of Serbia.
12.05 Recitals and Schedules
The Recitals and following Schedules form part of this Contract
Schedule A Form of Allocation Request
Schedule B Definition of EURIBOR and LIBOR
Schedule C1 Form of Disbursement Request
Schedule C2 Form of Certificate from the Borrower
Schedule D Interest Rate Revision and Conversion
IN WITNESS WHEREOF the parties hereto have caused this Contract to be executed in 6 (six) originals in the English language and have initialled each page of this Contract on their behalf.
Belgrade, 13 June 2016
|
Signed for and on behalf of |
Signed for and on behalf of |
|
The Ministry of Finance |
The Vice-President |
|
Mr Dušan VUJOVIĆ |
Mr Dario SCANNAPIECO |
|
Signed for and on behalf of |
|
|
The Governor |
|
|
Ms Jorgovanka TABAKOVIĆ |
|
FORM OF ALLOCATION REQUEST
DEFINITIONS OF EURIBOR AND LIBOR
A. EURIBOR
"EURIBOR" means:
(a) in respect of a relevant period of less than one month, the Screen Rate (as defined below) for a term of one month;
(b) in respect of a relevant period of one or more months for which a Screen Rate is available, the applicable Screen Rate for a term for the corresponding number of months; and
(c) in respect of a relevant period of more than one month for which a Screen Rate is not available, the rate resulting from a linear interpolation by reference to two Screen Rates, one of which is applicable for a period next shorter and the other for a period next longer than the length of the relevant period,
(the period for which the rate is taken or from which the rates are interpolated being the "Representative Period").
For the purposes of paragraphs (b) and (c) above, "available" means the rates, for given maturities, that are calculated and published by Global Rate Set Systems Ltd (GRSS), or such other service provider selected by the European Money Markets Institute (EMMI), under the sponsorship of EMMI EURIBOR ACI, or any successor to that function of EMMI and EURIBOR ACI as determined by the Bank.
"Screen Rate" means the rate of interest for deposits in EUR for the relevant period as published at 11h00, Brussels time, or at a later time acceptable to the Bank on the day (the "Reset Date") which falls 2 (two) Relevant Business Days prior to the first day of the relevant period, on Reuters page EURIBOR 01 or its successor page or, failing which, by any other means of publication chosen for this purpose by the Bank.
If such Screen Rate is not so published, the Bank shall request the principal euro-zone offices of four major banks in the euro-zone, selected by the Bank, to quote the rate at which EUR deposits in a comparable amount are offered by each of them as at approximately 11h00, Brussels time, on the Reset Date to prime banks in the euro-zone interbank market for a period equal to the Representative Period. If at least 2 (two) quotations are provided, the rate for that Reset Date will be the arithmetic mean of the quotations.
If fewer than 2 (two) quotations are provided as requested, the rate for that Reset Date will be the arithmetic mean of the rates quoted by major banks in the euro-zone, selected by the Bank, at approximately 11h00, Brussels time, on the day which falls 2 (two) Relevant Business Days after the Reset Date, for loans in EUR in a comparable amount to leading European Banks for a period equal to the Representative Period.
If no rate is available as provided above, EURIBOR shall be the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate or an alternative rate determination method reasonably determined by the Bank.
B. LIBOR USD
"LIBOR" means, in respect of USD:
(a) in respect of a relevant period of less than one month, the Screen Rate for a term of one month;
(b) in respect of a relevant period of one or more months for which a Screen Rate is available, the applicable Screen Rate for a term for the corresponding number of months; and
(c) in respect of a relevant period of more than one month for which a Screen Rate is not available, the rate resulting from a linear interpolation by reference to two Screen Rates, one of which is applicable for a period next shorter and the other for a period next longer than the length of the relevant period,
(the period for which the rate is taken or from which the rates are interpolated being the "Representative Period").
For the purposes of paragraphs (b) and (c) above, "available" means "calculated and published" under the aegis of the ICE Benchmark Administration Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) for given maturities.
"Screen Rate" means the rate of interest for deposits in USD for the relevant period as set by the ICE Benchmark Administration Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) and released by financial news providers at 11h00, London time, or at a later time acceptable to the Bank on the day (the "Reset Date") which falls 2 (two) London Business Days prior to the first day of the relevant period.
If such Screen Rate is not so released by any financial news provider acceptable to the Bank, the Bank shall request the principal London offices of 4 (four) major banks in the London interbank market selected by the Bank to quote the rate at which USD deposits in a comparable amount are offered by each of them at approximately 11h00, London time, on the Reset Date, to prime banks in the London interbank market for a period equal to the Representative Period. If at least 2 (two) such quotations are provided, the rate will be the arithmetic mean of the quotations provided.
If fewer than 2 (two) quotations are provided as requested, the Bank shall request the principal New York City offices of 4 (four) major banks in the New York City interbank market, selected by the Bank, to quote the rate at which USD deposits in a comparable amount are offered by each of them at approximately 11h00, New York City time, on the day falling 2 (two) New York Business Days after the Reset Date, to prime banks in the European market for a period equal to the Representative Period. If at least 2 (two) such quotations are provided, the rate will be the arithmetic mean of the quotations provided.
If no rate is available as provided above, LIBOR shall be the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate or an alternative rate determination method reasonably determined by the Bank.
C. LIBOR GBP
"LIBOR" means, in respect of GBP:
(a) in respect of a relevant period of less than one month, the Screen Rate for a term of one month;
(b) in respect of a relevant period or of one or more months for which a Screen Rate is available, the applicable Screen Rate for a term for the corresponding number of months; and
(c) in respect of a relevant period of more than one month for which a Screen Rate is not available, the rate resulting from a linear interpolation by reference to two Screen Rates, one of which is applicable for a period next shorter and the other for a period next longer than the length of the relevant period,
(the period for which the Screen Rate is taken or from which the Screen Rates are interpolated being the "Representative Period")
For the purposes of paragraphs (b) and (c) above, "available" means "calculated and published" under the aegis of the ICE Benchmark Administration Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) for given maturities.
"Screen Rate" means the rate of interest for deposits in GBP for the relevant period as set by the ICE Benchmark Administration Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) and released by financial news providers at 11h00, London time, or at a later time acceptable to the Bank on the day (the "Reset Date") on which the relevant period starts or, if that day is not a Business Day in London, on the next following day which is such a Business Day.
If such Screen Rate is not so released by any financial news provider acceptable to the Bank, the Bank shall request the principal London offices of 4 (four) major banks in the London interbank market, selected by the Bank, to quote the rate at which GBP deposits in a comparable amount are offered by each of them at approximately 11h00, London time, on the Reset Date, to prime banks in the London interbank market for a period equal to the Representative Period. If at least 2 (two) such quotations are provided, the rate will be the arithmetic mean of the quotations provided.
If fewer than 2 (two) quotations are provided as requested, the rate will be the arithmetic mean of the rates quoted at approximately 11h00, London time, on the Reset Date by major banks in London (selected by the Bank) for loans in GBP in a comparable amount to leading European banks for a period equal to the Representative Period.
If no rate is available as provided above, LIBOR shall be the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate or an alternative rate determination method reasonably determined by the Bank.
D. General
For the purposes of the foregoing definitions:
(a) "London Business Day" means a day on which banks are open for normal business in London and "New York Business Day" means a day on which banks are open for normal business in New York.
(b) All percentages resulting from any calculations referred to in this Schedule will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with halves being rounded up.
(c) The Bank shall inform the Borrower without delay of the quotations received by the Bank.
(d) If any of the foregoing provisions becomes inconsistent with provisions adopted under the aegis of EMMI and EURIBOR ACI (or any successor to that function of EMMI and EURIBOR ACI as determined by the Bank) in respect of EURIBOR, or of the ICE Benchmark Administration Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) in respect of LIBOR, the Bank may by notice to the Borrower amend the provision to bring it into line with such other provisions.
FORM OF DISBURSEMENT REQUEST (ARTICLE 1.02B)
FORM OF CERTIFICATE FROM THE BORROWER AND THE AGENT
INTEREST RATE REVISION AND CONVERSION
If an Interest Revision/Conversion Date has been included in the Disbursement Notice for a Tranche, the following provisions shall apply.
A. Mechanics of Interest Revision/Conversion
Upon receiving an Interest Revision/Conversion Request the Bank shall, during the period commencing 60 (sixty) days and ending 30 (thirty) days before the Interest Revision/Conversion Date, deliver to the Borrower an Interest Revision/Conversion Proposal stating:
(a) the Fixed Rate and/or Spread that would apply to the Tranche, or the part thereof indicated in the Interest Revision/Conversion Request pursuant to Article 3.01; and
(b) that such rate shall apply until the Maturity Date or until a new Interest Revision/Conversion Date, if any, and that interest is payable quarterly, semi-annually or annually in arrears on designated Payment Dates.
The Borrower may accept in writing an Interest Revision/Conversion Proposal by the deadline specified therein.
Any amendment to the Contract requested by the Bank in this connection shall be effected by an agreement to be concluded not later than 15 (fifteen) days prior to the relevant Interest Revision/Conversion Date.
B. Effects of Interest Revision/Conversion
If the Borrower duly accepts in writing a Fixed Rate or a Spread in respect of an Interest Revision/Conversion Proposal, the Borrower shall pay accrued interest on the Interest Revision/Conversion Date and thereafter on the designated Payment Dates.
Prior to the Interest Revision/Conversion Date, the relevant provisions of the Contract and Disbursement Notice shall apply to the entire Tranche. From and including the Interest Revision/Conversion Date onwards, the provisions contained in the Interest Revision/Conversion Proposal relating to the new interest rate or Spread shall apply to the Tranche (or part thereof) until the new Interest Revision/Conversion Date, if any, or until the Maturity Date.
C. Non-fulfilment of Interest Revision/Conversion
If the Borrower does not submit an Interest Revision/Conversion Request or does not accept in writing the Interest Revision/Conversion Proposal for the Tranche or if the parties fail to effect an amendment requested by the Bank pursuant to Paragraph A above, the Borrower shall repay the Tranche (or part thereof) on the Interest Revision/Conversion Date, without indemnity. The Borrower will repay on the Interest Revision/Conversion Date any part of a Tranche which is unaffected by the Interest Revision/Conversion.