LOAN AGREEMENTDATED 21.06.2017 BETWEEN KFW, FRANKFURT AM MAIN ("KFW") AND THE REPUBLIC OF SERBIA ("BORROWER") REPRESENTED BY THE MINISTER OF FINANCE FOR EUR 20,000,000.00 FOR THE PROGRAM: - PROMOTION OF RENEWABLE ENERGIES: DEVELOPING THE BIOMASS MARKET IN THE REPUBLIC OF SERBIA (FIRST COMPONENT)("Off. Herald of RS - Treaties", No. 3/2018) |
Loan ID: 28111
BMZ ID: 201197888
PREAMBLE |
4 |
|
1. |
Loan |
5 |
2. |
Channelling of the Loan |
5 |
3. |
Disbursement |
5 |
4. |
Fees |
7 |
5. |
Interest |
7 |
6. |
Repayment and prepayment |
8 |
7. |
Calculations and payments in general |
10 |
8. |
Guarantee from the Federal Republic of Germany |
10 |
9. |
Illegality |
11 |
10. |
Costs and public charges |
11 |
11. |
Special obligations |
11 |
12. |
Termination of the Agreement |
14 |
13. |
Representation and statements |
15 |
14. |
Publication and transfer of Program-related information |
16 |
15. |
General provisions |
17 |
Annex 1 Disbursement schedule |
19 |
|
Annex 2 Form of Legal Opinion of the Ministry of Justice of the Republic of Serbia |
20 |
|
Annex 3 Confirmation letter from KfW regarding the German Government Guarantee |
24 |
|
The program "Promotion of Renewable Energies: Developing the Biomass Market in the Republic of Serbia (first component)" will be co-financed by the Federal Republic of Germany (the "German Contribution") and the Swiss Confederation (the "Swiss Contribution").
The Swiss Contribution in the amount of EUR 5,000,000.00 (less KfW’s implementation fee) will be made available to the Borrower through KfW by means of a separate financing agreement (the "Financing Agreement I").
The German Contribution in the amount of EUR 22,000,000.00 will be made available through KfW by means of this loan agreement (the "Loan Agreement") and a separate financing agreement (the "Financing Agreement II").
The loan to be provided under this Loan Agreement and the financial contributions to be provided under the Financing Agreements I and II are hereinafter collectively referred to as the "Program Funds".
The basis for this Loan Agreement between KfW and the Borrower is the commitment by the Government of the Federal Republic of Germany dated 16 December 2011 and the Summary Record of the Negotiations on Development Cooperation between the Government of the Federal Republic of Germany and the Government of the Republic of Serbia held in Belgrade on 18 October 2012.
KfW will refinance the Loan granted in accordance with the conditions of this Loan Agreement with interest subsidies from low-interest budget funds provided by the Federal Republic of Germany for projects that meet development-policy eligibility criteria. The terms and conditions of the Loan comply with the OECD requirements applicable on the date of signing of the Agreement for recognition as Official Development Assistance (ODA).
On this basis and under the condition that the Federal Republic of Germany extends a guarantee for the Loan, KfW will grant a Loan in accordance with the terms and conditions of this Loan Agreement.
1.1 Amount. KfW will extend to the Borrower a Loan not exceeding a total of
EUR 20,000,000.00 ("Loan").
1.2 Purpose. The Borrower shall use the Loan exclusively to finance (i) the construction and retrofitting of district heating systems based on renewable energy sources (the "Investments") and (ii) corresponding engineering services ("Engineering Services") for selected municipalities or their corresponding district heating companies ("Program-Executing Agencies") in the Republic of Serbia ("Program"). To this end, the Borrower shall channel the Loan in full, except for the costs for the Engineering Services in the estimated amount of EUR 700,000.00, to the Program-Executing Agencies in accordance with the conditions set forth in Article 2 and ensure that the Program-Executing Agencies will use the Loan exclusively to finance the Investments. The Borrower, through the Ministry of Finance ("MoF") and the Ministry of Mining and Energy ("MoME"), and KfW will determine the details of the Program and the supplies and services to be financed from the Loan by a separate agreement ("Separate Agreement").
1.3 Taxes, charges, customs duties. Taxes and other public charges owed by the Borrower or the Program-Executing Agencies as well as customs duties will not be financed from the Loan.
1.4 Tax exemption. Taxes, import duties and other levies cannot be financed out of the Program Funds. The goods and services imported into the Republic of Serbia for the Program shall be exempted from customs fees and the trade of goods, services and equipment for the Program shall be exempted from VAT.
2.1 Channelling of the Loan to the Program-Executing Agencies. The Borrower shall channel the Loan in full, except for the costs for Engineering Services, to the Program-Executing Agencies under separate on-lending agreements ("Trilateral Agreements") concluded between the Borrower, selected municipalities and their corresponding district heating companies. The terms and conditions of such Trilateral Agreements shall be at least as favorable as the terms and conditions set out in Articles 5.1 and 6.1 hereof.
2.2 Certified translation. Prior to the first disbursement from the Loan, the Borrower through the MoME shall send KfW certified English translations of the Trilateral Agreements. This does not apply to disbursements related exclusively to the Engineering Services.
2.3 No liability of the Program-Executing Agencies. The channeling of the Loan shall not constitute any liability of the Program-Executing Agencies to KfW for payment obligations under this Loan Agreement, but will not exclude them from payment obligations towards the Borrower.
3.1 Requesting disbursements. As soon as all conditions precedent to disbursement pursuant to Article 3.3 hereof are fulfilled, KfW will disburse the Loan in accordance with the progress of the Program and upon request of the Borrower. Disbursements will be made in accordance with the disbursement schedule contained in Annex 1 to this Loan Agreement. KfW will make disbursements only up to the maximum amounts determined for each half-year. To the extent the Borrower requests disbursement of lower amounts within any half-year, the undisbursed amounts may be requested in any of the next ensuing half-year periods. With the exception of disbursements for the Engineering Services and of the last disbursement for the Investments, KfW is not obligated to make disbursements of less than EUR 200,000.00.
3.2 Deadline for requesting disbursements. KfW may refuse to make disbursements after 30 December 2021. KfW and the Borrower may agree on an extension of this deadline in writing by way of an exchange of letters.
3.3 Conditions precedent to disbursement. KfW is obligated to make disbursements under this Loan Agreement only if the following conditions precedent have been fulfilled in a manner satisfactory to KfW in form and substance:
a) The Borrower will have demonstrated to the satisfaction of KfW, by presenting a legal opinion the content of which is essentially in conformity with the specimen in Annex 2 hereof and by presenting certified copies (each with an official translation into the language of this Loan Agreement) of all documents to which such Legal Opinion refers, that the Loan Agreement is legally effective and enforceable and, in particular, that
(i) the Borrower has met all requirements under its constitutional law and other applicable legal provisions for the valid assumption of all its obligations under this Loan Agreement, and
(ii) KfW is exempted from all taxes on income from interest earnings and all levies, commissions and similar costs in the Republic of Serbia when granting the Loan;
b) KfW is in possession of an original of this Loan Agreement and the Separate Agreement, each signed with legally binding force;
c) the specimen signatures mentioned in Article 13.1 hereof have been received by KfW;
d) the guarantee from the Federal Republic of Germany mentioned in Article 8 is in force and effect without any restriction. KfW will inform the Borrower once the Guarantee is in force and effect. The form of confirmation letter to be provided by KfW will be enclosed as Annex 3 to this Loan Agreement;
e) the Borrower has paid the Management Fee set forth in Article 4.2 hereof;
f) no reason for termination has occurred, nor has an incident occurred that would become a cause for termination by notification or expiration or ascertainment or fulfilment of a condition (potential reason for termination);
g) no extraordinary circumstances have arisen that preclude or seriously jeopardise the implementation, the operation, or the purpose of the Program or the performance of the payment obligations assumed by the Borrower under this Loan Agreement; and
h) KfW has received a certified English translation of the Trilateral Agreements in accordance with Article 2.1 hereof, whereby this condition shall not apply to disbursements exclusively related to the Engineering Services as set out in Article 2.2 hereof.
KfW has the right prior to any disbursement from the Loan to demand such further documents and evidence as it deems necessary at its discretion (acting reasonably in accordance with regulations and policies applicable to KfW and/or international banking practise) to ascertain the conditions precedent for disbursement specified in this section.
3.4 Details of the disbursement procedure. The Borrower, through the MoME, and KfW will determine the details of the disbursement procedure by the Separate Agreement and, in particular, the evidence that has to be furnished by the Borrower through the MoME documenting that the requested Loan amounts are being used for the agreed purpose.
3.5 Right to cancel disbursements. Subject to the fulfilment of its obligations under Article 11 hereof the Borrower may waive the disbursement of undisbursed Loan amounts with the prior consent of KfW against payment of a Non-acceptance Compensation pursuant to and as defined in Article 3.6 hereof.
3.6 Non-acceptance Compensation. If the Borrower cancels the disbursement of a Loan amount pursuant to Article 3.5 hereof, or if such Loan amount is not disbursed at all or is not disbursed by the deadline stated in Article 3.2 hereof, the Borrower will promptly pay to KfW upon its request such amount as is necessary to compensate KfW for any losses, expenses or costs incurred by KfW as a result of the non-disbursement of the Loan amount (ʺNon-acceptance Compensation"), unless such non-disbursement constitutes a breach of this Agreement by KfW. KfW will calculate the amount of the Non-acceptance Compensation in a reasonable manner and communicate it to the Borrower.
4.1 Commitment Fee. The Borrower will pay a non-refundable commitment fee of 0.25% p. a. ("Commitment Fee") on undisbursed Loan amounts.
The Commitment Fee is due for payment semi-annually in arrears on 15 May and 15 November of each year, for the first time on 15 November 2017 but no earlier than on the respective date following the day on which this Loan Agreement enters into force and effect pursuant to Article 15.10 hereof.
The Commitment Fee will be charged if applicable with retroactive effect for the period beginning twelve months after the signing of this Loan Agreement and lasting until the date of disbursement of the Loan in full or, if applicable, until the date of definitive termination of disbursements from the Loan.
4.2 Management Fee. The Borrower will pay KfW a non-refundable one-time lump-sum management fee of 0.50% of the Loan amount stated in Article 1.1 hereof ("Management Fee").
The Management Fee is payable on the earliest of the following two dates: (i) before the first disbursement or (ii) after six months have elapsed since the signing of this Loan Agreement by KfW or after one month has elapsed since the entry into force and effect of this Loan Agreement (whichever of the dates stated under (ii) occurs later). The Management Fee is due for payment as soon as this Agreement has been signed irrespective of whether the Loan is disbursed in full or only in part or at all.
The Borrower will pay interest to KfW as follows:
5.1 Interest (Fixed Interest Rate set upon commitment of the Loan). The Borrower will pay interest on the Loan at a rate of 1.10% p. a. ("Fixed Interest Rate") until the last repayment instalment has been received in accordance with the repayment schedule set out in Article 6.1 hereof.
5.2 Interest calculation. Interest on a disbursed Loan amount will be charged from the date (exclusively) on which the respective Loan amount is disbursed from the Loan account held with KfW for the Borrower until the date (inclusively) on which the respective repayments are credited to KfW’s account specified in Article 7.3 hereof. Interest will be calculated in accordance with Article 7.1 hereof.
5.3 Payment Dates. Interest will be due in arrears for payment on the dates specified below (each a "Payment Date"):
a) prior to the due date of the first repayment instalment, on 15 May and 15 November of each year, for the first time on 15 November 2017 but no earlier than on the Payment Date following the day on which this Loan Agreement enters into force and effect pursuant to Article 15.10 hereof;
b) the due date of the first repayment instalment pursuant to Article 6.1 hereof together with such instalment;
c) thereafter on the due dates of the repayment instalments pursuant to Article 6.1 hereof.
6.1 Repayment schedule. The repayment period shall not be longer than fifteen (15) years, including up to five (5) years of grace period. The Borrower will repay the Loan as follows:
Instalment |
Due Date |
Amount in EUR |
1 |
15.05.2022 |
952,000.00 |
2 |
15.11.2022 |
952,000.00 |
3 |
15.05.2023 |
952,000.00 |
4 |
15.11.2023 |
952,000.00 |
5 |
15.05.2024 |
952,000.00 |
6 |
15.11.2024 |
952,000.00 |
7 |
15.05.2025 |
952,000.00 |
8 |
15.11.2025 |
952,000.00 |
9 |
15.05.2026 |
952,000.00 |
10 |
15.11.2026 |
952,000.00 |
11 |
15.05.2027 |
952,000.00 |
12 |
15.11.2027 |
952,000.00 |
13 |
15.05.2028 |
952,000.00 |
14 |
15.11.2028 |
953,000.00 |
15 |
15.05.2029 |
953,000.00 |
16 |
15.11.2029 |
953,000.00 |
17 |
15.05.2030 |
953,000.00 |
18 |
15.11.2030 |
953,000.00 |
19 |
15.05.2031 |
953,000.00 |
20 |
15.11.2031 |
953,000.00 |
21 |
15.05.2032 |
953,000.00 |
6.2 Undisbursed Loan amounts. Undisbursed Loan amounts will be offset against the respective last repayment instalment due pursuant to the repayment schedule set forth in Article 6.1 hereof unless KfW at its own discretion after prior consultation with the Borrower, chooses another offsetting alternative in individual cases.
6.3 Repayments in case of incomplete disbursement. If a repayment instalment is due before the Loan has been disbursed in full, this will not affect the repayment schedule pursuant to Article 6.1 hereof as long as the repayment instalment due under the repayment schedule is lower than the Loan amount disbursed and not yet repaid ("Outstanding Loan Amount"). If the repayment instalment due in accordance with Article 6.1 hereof exceeds the Outstanding Loan Amount, such repayment instalment will be reduced to the level of the Outstanding Loan Amount and the difference will be allocated evenly to the repayment instalments still outstanding. In computing the Outstanding Loan Amount KfW reserves the right to consider disbursements from the Loan that are made within a period of 45 or fewer days before a Payment Date to determine the Outstanding Loan Amount only for the next ensuing Payment Date.
6.4 Prepayment. The following will apply to prepayments:
a) Right to prepayment. Subject to the following paragraphs 6.4 b) to 6.4 e) hereof, the Borrower has the right to repay Loan amounts before the scheduled due date if this prepayment is at least in the amount of a repayment instalment pursuant to Article 6.1 hereof.
b) Notification. Prepayment of a Loan amount pursuant to Article 6.4 a) hereof is subject to notification of the prepayment by the Borrower to KfW no later than on the fifteenth Banking Day (as defined in Article 15.1 hereof) prior to the intended prepayment date. Such notice is irrevocable; it must specify the date and the amount of the prepayment and obligates the Borrower to pay to KfW the stated amount on the stated date.
c) Prepayment Compensation. If the Borrower prepays a fixed interest Loan amount the Borrower will immediately pay to KfW on demand such amount as is necessary to compensate for any losses, expenses or costs incurred by KfW as a result of such prepayment (the "Prepayment Compensation"). KfW will determine the amount of the Prepayment Compensation and communicate it to the Borrower. At the request of the Borrower KfW will provide the Borrower with an indication of the amount of the prepayment fee prior to the required irrevocable notification of the repayment pursuant to Article 6.4 b) hereof.
d) Amounts due. Together with the prepayment pursuant to Article 6.4 a) hereof, the Borrower will pay the following amounts:
(i) any Prepayment Compensation due as a result of the prepayment pursuant to Article 6.4 c) hereof; an
(ii) all interest accrued on the prepaid Loan amount and any other payments still outstanding under this Agreement that have accrued until the date of the prepayment.
e) Offsetting. Article 6.2 hereof will apply mutatis mutandis to the offsetting of prepayments.
6.5 Revised repayment schedule. In the event that Article 6.3 or Article 6.4 hereof applies, KfW will send the Borrower a revised repayment schedule that will become an integral part of this Loan Agreement and will replace the repayment schedule valid until such time.
7. Calculations and payments in general
7.1 Calculation. Interest, the Commitment Fee, default interest pursuant to Article 7.5 hereof, lump-sum compensation payments for overdue amounts pursuant to Article 7.6 hereof, Non-acceptance Compensation and Prepayment Compensation will be calculated on the basis of a 360-day year with thirty-day months.
7.2 Due date. If a payment to be made in connection with this Agreement falls due on a date that is not a Banking Day, the Borrower must make such payment on the following Banking Day. If the following Banking Day falls within the next calendar month, such payment must be made on the last Banking Day of the current calendar month.
7.3 Account number, time of crediting. The Borrower will be released from its payment obligations in connection with this Agreement if and to the extent that the respective amounts have been credited to KfW at its free disposal without any deductions in euros and no later than at 10.00 a.m. in Frankfurt am Main, Federal Republic of Germany, to KfW’s account in Frankfurt am Main, Federal Republic of Germany, number IBAN DE DE92 5002 0400 3122 3012 32 stating the due date as an additional reference ("Ref. YYYYMMDD").
7.4 Counterclaims of the Borrower. The Borrower is not entitled to assert any rights of retention or set-off or comparable rights against payment obligations under this Loan Agreement unless such rights are recognised by declaratory judgment or are not being contested by KfW.
7.5 Default interest. If any repayment instalments or prepayments pursuant to Article 6.4 hereof are not at the disposal of KfW when due, KfW may without prior reminder charge default interest at the rate of 200 basis points above the interest rate per annum set out in Article 5.1 hereof for the period beginning on the due date and ending on the date on which such payments are credited to the account of KfW specified in Article 7.3 hereof. Such default interest must be paid immediately upon KfW’s first demand.
7.6 Lump-sum compensation. KfW may without prior reminder request lump-sum compensation on overdue amounts (with the exception of the repayment instalments and prepayments mentioned in Article 7.5 hereof) from the due date until the date of payment at a rate of 200 basis points above the Fixed Interest Rate per annum pursuant to Article 5.1 hereof The lump-sum compensation must be paid immediately upon KfW’s first demand. The Borrower is free to demonstrate that no damages have occurred or that the damages were less than the lump-sum compensation.
7.7 Offsetting. KfW has the right to offset payments received against payments due under this Loan Agreement.
7.8 Calculations made by KfW. Absent manifest errors, the values calculated by KfW and calculations performed by KfW of amounts due in connection with this Loan Agreement constitute prima-facie evidence (Anscheinsbeweis).
8. Guarantee from the Federal Republic of Germany
KfW will have payment claims under this Loan Agreement guaranteed by the Federal Republic of Germany prior to the first disbursement.
If, in any applicable jurisdiction, it becomes unlawful for KfW to perform any of its obligations as contemplated by this Loan Agreement or to fund or maintain the Loan (the "Illegality Event"), upon KfW notifying the Borrower
a) the commitment of KfW will be immediately cancelled, and
b) the Borrower shall repay the Loan in full on the date specified by KfW in the notice delivered to the Borrower by KfW (being no earlier than the last day of any applicable grace period permitted by law).
In its notice hereunder, KfW will provide a reasonable explanation regarding the Illegality Event. KfW and the Borrower may agree on another repayment date or on repayment in instalments.
For the avoidance of doubt, any cancellation hereunder will be subject to Article 3.6.
10.1 No deductions or withholdings. The Borrower will make all payments under this Loan Agreement without any deductions for taxes, other public charges or other costs. In the event that the Borrower is obligated by law or for other reasons to make any such deductions or withholdings on payments, the payments made by the Borrower will increase by such amount as necessary for KfW to receive in full the amounts due under this Loan Agreement after deduction of taxes and charges.
10.2 Costs. The Borrower will bear all costs and expenses accruing in connection with the disbursement and repayment of the Loan, in particular remittance and transfer costs (including conversion fees), as well as all costs and expenses accruing in connection with the maintenance or enforcement of this Loan Agreement and of any other document related to this Loan Agreement as well as of all rights resulting therefrom.
10.3 Taxes and other charges. The Borrower will bear all taxes and other public charges accruing outside the Federal Republic of Germany in connection with the conclusion and execution of this Loan Agreement. If KfW advances such taxes or charges, the Borrower will transfer them without delay upon request to KfW’s account specified in Article 7.3 hereof or to such other account as specified by KfW.
11.1 Program implementation and special information. The Borrower through the MoME will itself and will ensure that the Program-Executing Agencies will:
a) prepare, implement, operate and maintain the Program in conformity with sound financial and technical practices, in compliance with environmental and social standards and substantially in accordance with the Program conception and the aide memoire dated 29 July 2016 agreed upon between the Borrower and KfW;
b) assign the preparation and supervision of construction of the Program to independent, qualified consulting engineers or consultants, and the implementation of the Program to qualified firms;
c) award the contracts for the goods and services to be financed from the Loan (Article 11.1 b hereof) and other Program Funds upon prior international public competitive bidding in accordance with the KfW Guidelines for Procurement of Goods, Works and associated Services and the KfW Guidelines for the Assignment of Consultants in Financial Cooperation with Partner Countries, except for the contracts for the Engineering Services for geothermal energy measures which may be awarded directly;
d) ensure the full financing of the Program and furnish to KfW upon its request evidence proving that the costs not paid from this Loan are covered;
e) keep books and records or have books and records kept that unequivocally show all costs of goods and services required for the Program and clearly identify the goods and services financed from this Loan;
f) enable KfW and its agents at any time to inspect such books and records and any and all other documentation relevant to the implementation and operation of the Program, and to visit the Program and all the installations related thereto;
g) furnish to KfW any and all such information and records on the Program and its further progress as KfW may reasonably request;
h) notify KfW of any and all circumstances that preclude or seriously jeopardise the implementation, the operation or the purpose of the Program;
i) furnish to KfW any and all such information on the Program-Executing Agencies’ financial situation as KfW may reasonably request and to keep such information confidential subject to Article 14;
j) in case of the respective district-heating companies being the Program-Executing Agencies send audited financial statements with the balance sheet and profit and loss accounts and relevant notes to KfW as soon as possible but in any case within seven months after the end of each financial year;
k) in case of the municipalities being the Program-Executing Agencies send audited financial statements (including balance sheet, income statement, report on capital expenditures and income, cash flow statement, budget execution report) according to Article 3 of the "Rulebook on the method of Preparation, Creation and Submission of financial statements uses of Budget Funds" by the Ministry of Finance of Serbia, as published in the Official Gazette of the Republic of Serbia No 18 /2015, as soon as possible but in any case within seven months after the end of each financial year; and
l) enable KfW and its agents at any time to inspect the Program-Executing Agencies’ books and records, which must reflect the Program-Executing Agencies’ business activity and financial situation in conformity with standard accounting principles.
11.2 Forwarding of OECD queries. The Borrower through the MoME will immediately and on its own initiative forward to KfW any queries received by the Borrower from the OECD or its members under the so-called "Agreement for Untied ODA Credits Transparency" following the award of the contracts for the supplies and services to be financed from the Loan and will coordinate the reply to any such queries with KfW.
11.3 Details of Program implementation. The Borrower, through the MoME, and KfW will determine the details pertaining to Article 11.1 hereof by the Separate Agreement.
11.4 Compliance. The Borrower through the MoME will ensure that the persons entrusted by itself and/or by the Program-Executing Agencies with preparing and implementing the Program, awarding contracts for the supplies and services to be financed and requesting the Loan amounts do not demand, accept, make, grant, promise or accept the promise of unlawful payments or other advantages in connection with these tasks.
11.5 Assistance to the Program-Executing Agencies. The Borrower trough the MoME will assist the Program-Executing Agencies in conformity with sound engineering and financial practices in the implementation of the Program and the performance of its obligations under the Separate Agreement.
In particular, the Borrower will grant the Program-Executing Agencies any and all permissions necessary for the implementation of the Program in line with the laws of the Republic of Serbia.
11.6 Sanctions. The Borrower will comply and shall ensure that the Program-Executing Agencies will comply with the obligations set out in the Separate Agreement, in particular with Article II.2 thereof.
11.7 Pari passu ranking. The Borrower warrants and represents that its obligations under this Loan Agreement rank and will be serviced at least pari passu with all other unsecured and not subordinated payment obligations, and, accordingly, to perform the obligations under this Loan Agreement pari passu. The Borrower will ensure to the extent permitted by law that this ranking is also assured for all future unsecured and not subordinated payment obligations.
11.8 Charges. The Borrower will itself and will ensure that the Program-Executing Agencies will not create or permit to subsist any Charges on the Program assets without KfW’s prior consent. In this Agreement, "Charge" means any mortgage, pledge, lien, charge, assignment or transfer by way of security, hypothecation or security interest and any other agreement or arrangement the effect of which is the creation of a security or any right conferring a priority of payment in respect of any obligation of any person.
This obligation does not apply:
a) to Charges existing or already agreed upon when this Loan Agreement was signed and disclosed to KfW before the Loan Agreement was signed,
b) to Charges that are customarily created in the ordinary course of business under legal or other customary contractual regulations to secure obligations (with the exception of loan liabilities) towards suppliers or other providers of services (e.g. retention of title rights customary in the industry and legal liens), or
c) to Charges that already existed at the time an asset was acquired, provided such Charges are removed within three months after acquisition.
If the Borrower or the Program-Executing Agencies grants any third party security or other rights enabling such third party to demand preferential satisfaction of claims against any of the Borrower’s or the Program-Executing Agencies’ Program assets, property or revenues, KfW may make its consent contingent upon the Borrower or the Program-Executing Agencies also providing KfW with (additional) security to the same degree that equally and rateably secures KfW’s claims against the Borrower under this Loan Agreement.
11.9 Sale of assets. Without KfW’s prior consent, the Borrower itself will not and will ensure that the Program-Executing Agencies will not sell any Program assets in their entirety or parts thereof before repayment of the Loan in full.
11.10 Money laundering. The Borrower, through the MoME, will ensure that the Program-Executing Agencies will promptly make available to KfW on demand all information and documents which KfW requires to fulfil its obligations to prevent money laundering and terrorism financing as well as for the continuous monitoring of its business relationship with the Borrower which is necessary for this purpose.
By entering into and implementing this Loan Agreement the Borrower will ensure that the Program-Executing Agencies will act in their own name and for their own account. With regard to German law or the law of the country of incorporation of the Borrower,
a) the Program-Executing Agencies’ own resources or the amounts invested in the financing of the Program will not be of illicit origin and, in particular, without this list being exhaustive, will not be associated with drug trafficking, corruption, organised criminal activity or terrorism;
b) the capital of the Program-Executing Agencies will not at any time be of illicit origin and, in particular, without this list being exhaustive, will not at any time be related to drug trafficking, corruption, organised crime or terrorism;
c) the Program-Executing Agencies will not engage in the acquisition, possession or use of property that is of illicit origin;
d) the Program-Executing Agencies will not at any time be associated with drug trafficking, corruption, organised criminal activity or terrorism, without this list being exhaustive;
e) the Program-Executing Agencies will not engage in financing terrorism.
12. Termination of the Agreement
12.1 Reasons for termination. KfW may exercise the rights set out in Article 12.2 hereof (Legal consequences of the occurrence of a cause for termination) if a circumstance arises that constitutes good cause (Wichtiger Grund). These include, in particular, the following circumstances:
a) the Borrower fails to perform payment obligations to KfW when due;
b) obligations under this Loan Agreement, the Financing Agreement I, the Financing Agreement II or under the Separate Agreement as well as any other legally binding additional agreements to this Loan Agreement are violated;
c) this Loan Agreement or any part thereof no longer has a binding effect upon the Borrower or can no longer be enforced against the Borrower;
d) any declaration, confirmation, information, representation or warranty considered by KfW to be essential for the granting and maintaining of the Loan proves to be false, misleading or incomplete;
e) other extraordinary circumstances occur which delay or preclude the performance of obligations under this Loan Agreement;
f) the Borrower is unable to prove that the Loan amounts have been used for the stipulated purpose;
g) the Borrower discontinues its payments to creditors, is insolvent or commences negotiations with one or more of the Borrower’s creditors (with the exception of KfW) on a moratorium, waiver of debts outstanding, deferment of payments or discontinuation of the debt service.
12.2 Legal consequences of the occurrence of a cause for termination. If one of the events mentioned in Article 12.1 a) - g) hereof has occurred, KfW may immediately suspend disbursements under this Loan Agreement. If this event is not resolved within a period of five days (in the case of Article 12.1 a) hereof) or in all other cases of Article 12.1 hereof within a period determined by KfW which, however, shall be at least 30 days, KfW may cancel this Loan Agreement in whole or in part with the consequence that its obligations under this Loan Agreement cease and KfW may demand the immediate repayment of all or part of the Outstanding Loan Amount together with the interest accrued and the remaining amounts owed under this Loan Agreement. Articles 7.5 and 7.6 hereof apply to accelerated amounts mutatis mutandis.
12.3 Compensation for damages. If this Loan Agreement is terminated in full or in part the Borrower will pay Non-acceptance Compensation in accordance with Article 3.6 and/or Prepayment Compensation in accordance with Article 6.4 c).
13. Representation and statements
13.1 Representation of the Borrower. The Minister of Finance and such persons as designated by him or her to KfW and authorised by specimen signatures authenticated by him or her will represent the Borrower in the execution of this Loan Agreement. The Minister of Mining and Energy and such persons as designated by him or her to KfW and authorised by specimen signatures authenticated by him or her will represent the Borrower in the implementation of the Program and this Loan Agreement. The powers of representation will not expire until their express revocation by the representative of the Borrower authorised at such time has been received by KfW.
13.2 Addresses. Declarations or notifications in connection with this Loan Agreement must be in writing. They must be sent as originals or - with the exception of requests for disbursement - via facsimile. Any and all declarations or notifications made in connection with this Loan Agreement must be sent to the following addresses:
For KfW: |
KfW |
Postfach 11 11 41 |
|
60046 Frankfurt am Main |
|
Germany |
|
Fax: +49 69 7431-2944 |
|
For the Borrower: |
Ministry of Finance |
Kneza Milosa 20 |
|
11000 Belgrade |
|
Republic of Serbia |
|
ax: +381-11-3618-961 |
|
Ministry of Mining and Energy |
|
Nemanjina 22-26 |
|
11000 Belgrade |
|
Republic of Serbia |
|
Fax: +381-11 361 66 03 |
14. Publication and transfer of Program-related information
14.1 Publication of Program-related information by KfW. To comply with internationally accepted principles of utmost transparency and efficiency in the development cooperation, KfW publishes selected information (including evaluation reports) about the Program and how it is financed during pre-contractual negotiations, while the Program-related agreement(s) is (are) being implemented and in the post-contractual stage (hereinafter referred to as the "Entire Period").
The information is published regularly on the website of KfW Development Bank (http://transparenz.kfw-entwicklungsbank.de/en).
The publication of information (either by KfW or third parties in accordance with Article 14.3 below) about the Program and how it is financed does not include any contractual documentation or any sensitive financial or business-related detailed information about the parties involved in the Program or its financing, such as
a) information about internal financial data;
b) business strategies;
c) internal corporate guidelines and reports;
d) personal data of natural persons;
e) KfW’s internal rating of the parties’ financial position.
14.2 Transfer of Program-related information to third parties. KfW shares selected information about the Program and how it is financed during the Entire Period with the entities mentioned below, particularly to ensure transparency and efficiency:
a) subsidiaries of KfW;
b) the Federal Republic of Germany and its competent bodies, authorities, institutions, agencies or entities;
c) other implementing organisations involved in German bilateral development cooperation, particularly the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH;
d) international organisations involved in collecting statistical data and their members, especially the Organisation for Economic Cooperation and Development (OECD) and its members, and
e) the Swiss Confederation represented by its State Secretariat for Economic Affairs ("SECO").
14.3 Transfer of Program-related information to third parties and publication by these. Furthermore, the Federal Republic of Germany has requested KfW to share selected information about the Program and how it is financed throughout the Entire Period with the following entities, which publish the sections relevant to the purpose:
a) Federal Republic of Germany for the purposes of the International Aid Transparency Initiative (http://www.bmz.de/de/was_wir_machen/wege/transparenz-fuer-mehr-Wirksamkeit/index.html);
b) Germany Trade & Invest (GTAI) for the purposes of market information (http://www.gtai.de/GTAI/Navigation/DE/trade.FOO);
c) OECD for the purpose of reporting financial flows in the framework of development cooperation (http://stats.oecd.org/);
d) German Institute for Development Evaluation (DEval) for the purposes of evaluating the overall German development cooperation to ensure transparency and efficiency (http://www.deval.org/de/); and
e) the Swiss public procurement platform SIMAP.
14.4 Transfer of Program-related information to other third parties (including publication by these). KfW further reserves the right to transfer (including for the purposes of publication) information about the Program and how it is financed during the Entire Period to other third parties so as to safeguard legitimate interests.
The information is not transferred by KfW to other third parties if the legitimate interests of the Borrower in the information not being transferred outweigh KfW’s interests in it being transferred. The legitimate interests of the Borrower particularly include the confidentiality of the sensitive information mentioned in Article 0, which is excluded from publication.
Furthermore, KfW is entitled to transfer information to third parties if this is necessary due to statutory or regulatory requirements or to assert or defend claims or other legal rights in court or administrative proceedings.
15.1 Banking Day. Where reference is made in this Loan Agreement to a "Banking Day" this means a day other than a Saturday or Sunday on which commercial banks in Frankfurt am Main, Federal Republic of Germany are open for general business.
15.2 Place of performance. The place of performance for all obligations under this Loan Agreement is Frankfurt am Main, Federal Republic of Germany.
15.3 Partial invalidity and gaps. If any provision of this Loan Agreement is or becomes invalid, or if there is a gap in any of the provisions of this Loan Agreement, this will not affect the validity of the remaining provisions hereof. The parties to this Loan Agreement will replace any invalid provision by a legally valid one which comes as close as possible to the spirit and purpose of the invalid provision. The parties will fill any gap in the provisions with a legally valid provision which comes as close as possible to the spirit and purpose of this Loan Agreement.
15.4 Written form. Any addenda and amendments to this Loan Agreement must be in writing. The parties may waive the written form requirement only in writing.
15.5 Assignment. The Borrower may not assign or transfer, pledge or mortgage any claims from this Loan Agreement.
15.6 Applicable law. This Loan Agreement is governed by German law.
15.7 Limitation period. All claims of KfW under this Loan Agreement expire after five years from the end of the year in which such claim has arisen and in which KfW has become aware of the circumstances constituting such claim or could have become aware of them without gross negligence.
15.8 Waiver of immunity. If and to the extent that the Borrower may now or in future in any jurisdiction claim immunity for itself or its assets and to the extent that a jurisdiction grants immunity to the Borrower and its assets from suit, execution, attachment or other legal process, the Borrower irrevocably agrees to waive such immunity for claims from and in connection with this Loan Agreement to the fullest extent permitted by the laws of such jurisdiction. Foregoing waiver of immunity shall not apply to property which is (i) used by a diplomatic, consular or special mission and missions of international organizations or international conferences of the Borrower’s Country or (ii) of a military character and under the control of a military authority.
15.9 Legal disputes. All disputes arising out of or in connection with this Loan Agreement will be settled exclusively and finally by an arbitration tribunal. In this regard, the following will apply:
a) The arbitration tribunal will consist of one or three arbitrators who will be appointed and will act in accordance with the Arbitration Rules of the International Chamber of Commerce (ICC) applicable from time to time.
b) The arbitration proceeding will be conducted in Frankfurt am Main. The language of the proceeding will be English.
15.10 Entry into force. This Loan Agreement will not enter into force and effect until
a) it has been ratified by the National Assembly of the Republic of Serbia; and
b) the Borrower has provided KfW with a written confirmation that the Loan Agreement has been duly ratified and published according to applicable law.
Should the Loan Agreement not have entered into force and effect within twelve months following the date the last party has signed this Loan Agreement, KfW may, as of the day following the end of the twelve months period until the date of entry into force, unilaterally withdraw from this Loan Agreement and thus terminate its provisional ineffectiveness by sending a written notification to the Borrower. In this event the Borrower will pay non-acceptance compensation in accordance with Article 3.6 (Non-acceptance compensation).
Done in four originals in the English language.
Belgrade, |
Belgrade. |
this 21.06. day of 2017 |
this 21.06. day of 2017 |
For the Republic of Serbia |
For KfW |
represented by |
|
the Minister of Finance |
|
______________ |
__________ _________ |
Name: Aleksandar Antic |
Name: Arne Goss Name: Simone Wunsch |
Title: Minister of Mining |
Title: Director Title: Regional Director |
and Energy |
KfW Office Belgrade KfW Frankfurt |
DISBURSEMENT SCHEDULE
Fastest possible Disbursement schedule
Until the end of each disbursement period ("Effective Date of End of Period" in accordance with the list below) the Borrower may request disbursements only up to a level that does not exceed the cumulative sum of disbursements specified in the following table.
Period |
Effective Date |
Effective Date |
Maximum amount |
1 |
01.07.2017 |
01.01.2018 |
140,000.00 |
2 |
01.01.2018 |
01.07.2018 |
280,000.00 |
3 |
01.07.2018 |
01.01.2019 |
3,880,000.00 |
4 |
01.01.2019 |
01.07.2019 |
9,000,000.00 |
5 |
01.07.2019 |
01.01.2020 |
15,000,000.00 |
6 |
01.01.2020 |
01.07.2020 |
19,500,000.00 |
7 |
01.07.2020 |
01.01.2021 |
19,700,000.00 |
8 |
01.01.2021 |
01.07.2021 |
19,900,000.00 |
9 |
01.07.2021 |
31.12.2021 |
20,000,000.00 |
FORM OF LEGAL OPINION OF THE MINISTRY OF JUSTICE OF THE REPUBLIC OF SERBIA
Note: Please amend "Republic of COUNTRY"/"COUNTRY" appropriately.
[Letterhead of Legal Adviser]
KfW |
____________________ |
Department [______] |
(date) |
Attn: [_______________________] |
|
Palmengartenstrasse 5 - 9 |
|
Postfach 11 11 41 |
|
60325 Frankfurt am Main/Germany |
|
Federal Republic of Germany |
|
Loan Agreement dated ________________ and made between KfW and [________________] ("Borrower") for an amount not exceeding in aggregate EUR _____.000.000,--.
Dear Sirs,
I am [Minister of Justice of] [legal adviser to] [head of the legal department of the ________________ (please specify ministry or other authority) of] the Republic of COUNTRY. I have acted in that capacity in connection with a loan agreement, dated _______(the "Loan Agreement"), and made between the Borrower and yourselves with respect to a loan to be granted by yourselves to the Borrower in an amount not exceeding in aggregate EUR ____.000.000,--.
1. Documents examined
I have examined:
1.1 an authentic signed original of the Loan Agreement;
1.2 the constitutional documents of the Borrower, in particular:
(a) the Constitution of the Republic of COUNTRY, dated __________, duly published in __________, No ______, page ______, as amended;
(b) Law(s) No _______ dated__________, duly published in __________, No ______, page _____, as amended [please insert here, if existing, laws (e.g. budget laws) concerning the borrowing of money by the Republic of COUNTRY];
(c) ____________________ [please refer here to other documents, e.g. decrees or resolutions by governmental or administrative bodies of COUNTRY relating to the conclusion of loan agreements by COUNTRY in general or with regard to the conclusion of the Loan Agreement]; and
(d) the Financial Cooperation Agreement between the Government of the Republic of COUNTRY and the Government of the Federal Republic of Germany dated ____________ (the "Cooperation Agreement") and such other laws, regulations, certificates, records, registrations and documents as I have deemed necessary or desirable to examine. In addition, I have made such investigations as I have deemed necessary or desirable for the purpose of giving this opinion.
2. Opinion
For the purposes of Article ________ of the Loan Agreement, I am of the opinion that under the laws of the Republic of COUNTRY at the date hereof:
2.1 According to Article _______ of the Constitution / Article ______ of the law on ___________________ [please specify as appropriate] the Borrower is entitled to enter into the Loan Agreement and has taken all necessary action to authorise the execution, delivery and performance of the Loan Agreement, in particular by virtue of:
(a) Law(s) No(s) _________dated _________ of the parliament of the Republic of COUNTRY, ratifying the Loan Agreement / approving the execution, delivery and performance of the Loan Agreement by the Borrower / _____________________ [please insert as appropriate];
(b) Resolution(s) No(s) _____________dated ___________ of the Cabinet of Ministers / of the state loan committee / ______________ [please insert governmental or administrative bodies of COUNTRY as appropriate];
(c) _________________ [please refer to other resolutions, decisions etc.].
2.2 Ms./Mr. _________________(and Ms./Mr._______________) is (are) duly authorised by _________________ [e.g. by law due to her / his position (as Minister of _____________/ as ____________), by government resolution ______________, by power of attorney of _______________ dated__________, etc.] to sign solely / jointly the Loan Agreement on behalf of the Borrower. The Loan Agreement as signed by Ms./Mr. _______________ (and Ms./Mr._______________) has been duly executed on behalf of the Borrower and constitutes legally binding obligations of the Borrower enforceable against it at law in accordance with its terms.
[Alternative 1 for Section 2.3, to be used if in addition to the documents specified in Section 2.1 and 2.2 certain official authorisations etc. must be obtained under the laws of the Republic of COUNTRY:]
2.3 For the execution and performance of the Loan Agreement by the Borrower (including without limitation the obtaining and transfer to KfW of all amounts due thereunder in the currencies specified therein), the following official approvals, authorisations, licenses, registrations and / or consents have been obtained and are in full force and effect:
(a) Approval of the _____________________ [Central Bank / National Bank /____________________], dated_________, No__________;
(b) Consent of the ________________ [Minister / Ministry of_______________], dated__________, No_________; and
(c) _________________ [please list any other official authorisations, licenses and / or consents].
No other official authorisations, consents, licenses, registrations and / or approvals of any governmental authority or agency (including the Central / National Bank of the Republic of COUNTRY) or court are required or advisable in connection with the execution and performance of the Loan Agreement by the Borrower (including without limitation the obtaining and transfer to KfW of all amounts due thereunder in the currencies specified therein) and the validity and enforceability of the Borrower’s obligations under the Loan Agreement.
[Alternative 2 for Section 2.3, to be used only if in addition to the documents specified in Section 2.1 and 2.2 no official authorisations etc. must be obtained under the laws of the Republic of COUNTRY:]
2.3 No official authorisations, consents, licenses, registrations and / or approvals of any governmental authority or agency (including the Central / National Bank of the Republic of COUNTRY) or court are required or advisable in connection with the execution and performance of the Loan Agreement by the Borrower (including without limitation the obtaining and transfer to KfW of all amounts due thereunder in the currencies specified therein) and the validity and enforceability of the Borrower’s obligations under the Loan Agreement.
2.4 No stamp tax or similar tax or duty has to be paid in connection with the validity or enforceability of the Loan Agreement.
2.5 The choice of German law to govern the Loan Agreement and the submission to arbitration in accordance with Article _______ of the Loan Agreement are valid and binding. Arbitration awards against the Borrower will be recognised and enforceable in the Republic of COUNTRY according to the following rules: __________________ [please insert applicable treaty (if any), e.g. the 1958 New York Convention, and / or the basic principles regarding recognition and enforcement of arbitration awards in COUNTRY].
2.6 The courts of the Republic of COUNTRY are at liberty to give judgment de-nominated in the currency or currencies specified in the Loan Agreement.
2.7 The borrowing by the Borrower under the Loan Agreement and the execution and performance by the Borrower of the Loan Agreement constitute private and commercial acts and not governmental or public acts. Neither the Borrower nor any of its property has any right of immunity from arbitration, suit, execution, attachment or other legal process.
2.8 The Cooperation Agreement is in full force and effect under the constitution and laws of the Republic of COUNTRY. [Pursuant to Article 3. of the Cooperation Agreement] [If the Cooperation Agreement has not entered into force but a double-taxation agreement does exist] Pursuant to the __________________________ [please specify treaty or applicable laws and regulations] / the Borrower will not be required to make any deduction or withholding from any payment the Borrower has to make under the Loan Agreement and should any such deduction or withholding be subsequently imposed, the provisions of Article _______ of the Loan Agreement shall operate so as to require the Borrower to indemnify KfW accordingly.
2.9 KfW is not and will not be deemed to be resident, domiciled, carrying on business or be subject to taxation in the Republic of COUNTRY by reason only of the execution, performance or enforcement of the Loan Agreement. It is not necessary or advisable that KfW be licensed, qualified or otherwise entitled to carry on business or that KfW appoints agents or representatives in the Republic of COUNTRY.
Consequently, the obligations of the Borrower under the Loan Agreement constitute direct and unconditional, legal, valid and binding obligations of the Borrower which are enforceable against the Borrower in accordance with their respective terms.
This legal opinion is limited to the laws of the Republic of COUNTRY.
_________________ , |
|
________________ |
|
(Place) |
|
(Date) |
|
[Signature]
Name: _________________
Enclosures:
Note: Please attach certified photocopies of the documents and legal provisions referred to above (with respect to lengthy laws or the Constitution of the Republic of COUNTRY, a copy of the relevant provisions would be sufficient) and also provide KfW with an official English or German translation of each of the above documents unless such document is issued in English or German as an official language or unless KfW has indicated that another language is satisfactory.
CONFIRMATION LETTER FROM KFW REGARDING THE GERMAN GOVERNMENT GUARANTEE
Financial Cooperation between the Republic of Serbia and the Federal Republic of Germany
Program: Promotion of Renewable Energies: Developing the Biomass Market in the Republic of Serbia
Guarantee of the Federal Republic of Germany for the Loan
Dear Sirs,
We herewith confirm that the Guarantee of the Federal Republic of Germany for the Loan as stipulated in the Preamble of the Loan Agreement dated ___________ for the Program Promotion of Renewable Energies: Developing the Biomass Market in the Republic of Serbia.
Yours sincerely,
KfW |
|
|
____________________ |
|
_____________________ |