PREFERENTIAL BUYER CREDIT LOAN AGREEMENTON CONSTRUCTION OF THE FAST ROAD NOVI SAD- RUMA ("FRUŠKOGORSKI CORRIDOR") PROJECT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SERBIA REPRESENTED BY THE MINISTRY OF FINANCE AS BORROWER AND THE EXPORT-IMPORT BANK OF CHINA AS LENDER("Off. Herald of RS - Treaties", No. 1/2022) |
PBC (2021) NO.23 TOTAL NO. (528)
DATED January 26, 2022
Contents
ARTICLE 1 DEFINITIONS |
2 |
ARTICLE 2 CONDITIONS AND UTILIZATION OF THE FACILITY |
7 |
ARTICLE 3 DISBURSEMENT OF THE FACILITY |
8 |
ARTICLE 4 REPAYMENT OF PRINCIPAL AND PAYMENT OF INTEREST |
10 |
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY THE BORROWER |
13 |
ARTICLE 6 SPECIAL COVENANTS |
14 |
ARTICLE 7 EVENTS OF DEFAULT |
19 |
ARTICLE 8 MISCELLANEOUS |
21 |
ARTICLE 9 CONDITIONS TO EFFECTIVENESS |
24 |
Appendix 1 |
27 |
Appendix 2 |
30 |
Appendix 3 |
32 |
Appendix 4 |
33 |
Appendix 5 |
34 |
Appendix 6 |
37 |
Appendix 7 |
40 |
Appendix 8 |
42 |
Appendix 9 |
43 |
Appendix 10 |
44 |
Appendix 11 |
45 |
THIS PREFERENTIAL BUYER CREDIT LOAN AGREEMENT
(the "Agreement") is made on the day of January 26, 2022 (date)
BETWEEN
The Government of the Republic of Serbia (hereinafter referred to as the "Borrower"), represented by the Ministry of Finance, having its office at 20 Kneza Milosa Street, 11000, Belgrade, Serbia;
AND
THE EXPORT-IMPORT BANK OF CHINA (hereinafter referred to as the "Lender"), having its registered office at No. 30, Fu Xing Men Nei Street, Xicheng District, Beijing 100031, China.
WHEREAS:
(A) On August 20, 2009, the Government of the People’s Republic of China and the Government of the Republic of Serbia entered into Agreement on Economical and Technical Cooperation in the field of Infrastructure, which enforced from June 25, 2010.
(B) The Borrower has requested that the Lender make available a loan facility of up to US Dollar Six Hundred and Eight Million and Three Hundred Eighty Four Thousand and Six Hundred Ten only (US$ 608,384,610.00) to the Borrower for the financing needs under the Commercial Contract (as defined in Article 1), and;
(C) Republic of Serbia, represented by the Government of the Republic of Serbia, on behalf of the Ministry of Construction, Transport and Infrastructure (hereinafter referred to as the "Financer") and Public Enterprise "Roads of Serbia" (hereinafter referred to as the "Investor") and Koridori Srbije d.o.o (hereinafter referred to as the "Employer") and China Road and Bridge Corporation (hereinafter referred to as the "Contractor") have entered into on 6th of October 2020 the Commercial Contract on Design and Execution of Works on Construction of the Fast Road - IB Category State Road No. 21 Novi Sad - Ruma ("Fruškogorski Corridor") Project (hereinafter referred to as the "Commercial Contract") with the contract number 48-00-7081/2020-3 for the purpose of the implementation of the Project (as defined in Article 1).
NOW THEREFORE, the Borrower and the Lender hereby agree as follows:
ARTICLE 1
Where used in this Agreement, unless the context otherwise requires, the following terms have the following meanings:
1.1 "Account Bank of the Lender" means the Export-Import Bank of China.
1.2 "Affiliates" means, in relation to any person Controlling or Controlled by, or jointly Controlling or Controlled by, a third party with such person with respect to equity interests, funds, operations, sales and distributions or in any other aspects.
1.3 "Agreement" means this preferential buyer credit loan agreement and its appendices and any amendment to such agreement and its appendices from time to time upon the written consent of the parties.
1.4 "Availability Period" means the period commencing on the date specified in the Notice of Commencement of Availability Period and ending on the earliest of (a) the date falling 60 months thereafter; (b) the date on which the Facility is fully disbursed, cancelled or terminated hereunder; and (c) any date mutually agreed upon in writing by the Lender and the Borrower;
1.5 "Banking Day" means a day on which banks are open for ordinary banking business in Beijing and Belgrade, including Saturdays and Sundays on which banks are open for business as required by the provisional regulations of China and Serbia, but excluding the legal festivals and holidays of China and Serbia and Saturdays and Sundays falling out of the aforesaid regulations.
1.6 "China" means the People’s Republic of China.
1.7 "Commitment Fee" means the fees calculated and paid in accordance with Article 2.2 and Article 2.7.
1.8 "Commercial Contract" means, the Commercial Contract on Design and Execution of Works on Construction of the Fast Road - IB Category State Road No. 21 Novi Sad - Ruma ("Fruškogorski Corridor") Project with the contract number 48-00-7081/2020-3 for the purpose of the implementation of the Project entered by and between Republic of Serbia, represented by the Government of the Republic of Serbia, on behalf of the Ministry of Construction, Transport and Infrastructure as the "Financer" and Public Enterprise "Roads of Serbia" as the "Investor" and Koridori Srbije d.o.o as the "Employer" and China Road and Bridge Corporation as the "Contractor" on 6th of October 2020 with the total amount of US Dollar Seven Hundred Fifteen Million and Seven Hundred Forty Six Thousand and Six Hundred only (US$715,746,600.00).
1.9 "Control" means, in relation to any person, having voting rights or material impacts over the management and decision-making of such person’s operation, finance and other matters directly or indirectly;
1.10 "Disbursement" means the advance of the Facility made in accordance with Article 3 of this Agreement.
1.11 "End-User" means the Government of the Republic of Serbia represented by the Ministry of Construction, Transport and Infrastructure, as the Financier in accordance with the Commercial Contract and Public Enterprise "Roads of Serbia", as the Investor in accordance with the Commercial Contract and Koridori Srbije d.o.o, as the Employer in accordance with the Commercial Contract, which ultimately utilize the Facility.
1.12 "Engineer" means a person or a group appointed by the End-User to act for control of the execution of the duties foreseen by the Commercial Contract.
1.13 "Event of Default" means any event or circumstance specified as such in Article 7.
1.14 "Facility" has the meaning set forth in Article 2.1.
1.15 "Final Repayment Date" means the date on which the Maturity Period expires.
1.16 "First Repayment Date" means the first repayment date of principal and interest after the maturity of the Grace Period.
1.17 "Grace Period" means the period commencing on the date specified in the Notice of Commencement of Availability Period and ending on the date 60 months thereafter, during which period only the interest and no principal is payable by the Borrower to the Lender. The Grace Period includes the Availability Period.
1.18 "Interest Payment Date" means the 15th of May and the 15th of November in each calendar year and the Final Repayment Date.
1.19 "Irrevocable Notice of Drawdown" means the notice issued in the form set out in Appendix 5 attached hereto.
1.20 "Loan" means the aggregate principal amount disbursed and from time to time outstanding under the Facility.
1.21 "Management Fee" means the fees calculated and paid in accordance with Article 2.2 and Article 2.6.
1.22 "Maturity Period" means the period commencing on the date specified in the Notice of Commencement of Availability Period and ending on the date falling 240 months thereafter, including the Grace Period and the Repayment Period.
1.23 "Notice of Commencement of Availability Period" means a written notice in the form set forth in Appendix 10 attached hereto, in which the commencement date of Availability Period shall be specified;
1.24 "Notice of Effectiveness of Loan Agreement" means a written notice in the form set forth in Appendix 9 attached hereto, in which the effective date of this Agreement shall be specified.
1.25 "Project" means Construction of the Fast Road Novi Sad - Ruma ("Fruškogorski Corridor") Project.
1.26 "Borrower’s Country" refers to the country where the Borrower is located, i.e., the Republic of Serbia.
1.27 "Relevant Parties" means the parties to the Commercial Contract, any parties relevant to the Project.
1.28 "Repayment Date of Principal and Interest" means each Interest Payment Date and the Final Repayment Date.
1.29 "Repayment Period" means the period commencing on date on which the Grace Period expires and ending on the Final Repayment Date.
1.30 "Repayment Schedule" means the schedule showing the dates and amounts of repayments of the Loan set forth in Appendix 11 attached hereto.
1.31 "Sanctions" means any of the following measures or actions enacted, promulgated, enforced, administered, implemented or interpreted from time to time by any Sanctions Authority in the form of, including but not limited to laws, regulations, administrative orders, directives, guidance or decisions:
(a) prohibiting or restricting any person from performing any act under any legal documents;
(b) having adverse effects on the trade, operation, business, investment, export, financing, or assets of the Lender, any Affiliates of the Lender, any person relevant to performance of the Loan and Relevant Parties.
1.32 "Sanctions Authority" means any legislative institution, administration institution, government or intergovernmental organization, transnational institution or international organization (including any governmental institution or agency of the foregoing) administering economic or financial sanctions or trade embargoes, including but not limited to the United Nations Security Council, the US Department of the Treasury (including the Office of Foreign Assets Control, OFAC), the US Department of Commerce and any other governmental agency of the US, the European Union and the United Kingdom government.
1.33 "Sanctions Restricted Person" means any person that is, or is owned or Controlled (as defined herein, and in addition as such terms are interpreted in accordance with applicable Sanctions laws and regulations) by one or more persons that is:
(a) designated by a Sanctions Authority (including on a list of sanctioned entities or on a list of sanctioned sectors) to be the target of Sanctions or the subject of Sanctions; or
(b) located or ordinarily resident in, or incorporated or organized under the laws of a country or territorial that is the target of country-wide or territory-wide Sanctions.
1.34 "Section 1" has the meaning as assigned in Article 12 of Commercial Contract.
1.35 "Section 2" has the meaning as assigned in Article 12 of Commercial Contract.
1.36 "Section 3" has the meaning as assigned in Article 12 of Commercial Contract.
1.37 "Section 4" has the meaning as assigned in Article 12 of Commercial Contract.
1.38 "US Dollar" or "US$" means the lawful currency for the time being of the United States of America.
ARTICLE 2
CONDITIONS AND UTILIZATION OF THE FACILITY
2.1 Subject to the terms and conditions of this Agreement, the Lender hereby agrees to make available to the Borrower a loan facility (hereinafter referred to as the "Facility") in an aggregate principal amount not exceeding US Dollar Six Hundred and Eight Million and Three Hundred Eighty Four Thousand and Six Hundred Ten only (US$ 608,384,610.00).
2.2 The rate of interest applicable to the Loan shall be three percent (3%) per annum. The rate applicable to the Management Fee shall be zero-point five percent (0.5%). The rate applicable to the Commitment Fee shall be zero-point five percent (0.5%) per annum.
2.3 The Maturity Period for the Facility shall be 240 months, starting from the date of the Notice of Commencement of Availability Period to the Final Repayment Date, among which the Grace Period shall be 60 months and the Repayment Period shall be 180 months.
2.4 The entire proceeds of the Facility shall be applied by the Borrower for the sole purpose of the payment of approximately eighty five percent (85%) of the Commercial Contract amount, and not be used for payment of brokerage fees, agency fees or commission.
2.5 The goods, technologies and services purchased by using the proceeds of Facility shall be purchased from China preferentially according to the Commercial Contract.
2.6 The Borrower shall pay to the Lender a Management Fee on the aggregate amount of the Facility equal to US Dollar Three Million and Forty One Thousand and Nine Hundred Twenty Three and Five Cent (US$3,041,923.05) in one lump within thirty (30) days after this Agreement becomes effective but not later than the first Disbursement Date in any case, which amount shall be calculated at the rate set forth in Article 2.2. The Management Fee shall be paid to the account designated in Article 4.4.
2.7 On the date falling 30 days after the date on which this Agreement becomes effective until the date that facility has been fully withdrawn or last date of Availability Period on whichever comes first, the Borrower shall pay semi-annually to the Lender a Commitment Fee calculated at the rate set forth in Article 2.2 on the undrawn and uncanceled balance of the Facility. The Commitment Fee shall accrue from and including the date falling 30 days after the date on which this Agreement becomes effective and shall be calculated on the basis of the actual number of days elapsed and a 360 day year. The Commitment Fee shall accrue on a daily basis and be paid in arrears to the account designated in Article 4.4 on each Interest Payment Date.
ARTICLE 3
3.1 The first disbursement is subject to the satisfaction of the conditions precedent set out in Appendix 1 attached hereto (or such conditions precedents have been waived by the Lender in writing). After all the conditions stipulated in Appendix 1 have been fulfilled to the satisfaction of the Lender, the Lender shall issue a Notice of Commencement of Availability Period to the Borrower.
3.2 In relation to each disbursement after the first disbursement, besides the satisfaction of the conditions set forth in Article 3.1, such disbursement shall also be subject to the satisfaction of the conditions set out in Appendix 2 attached hereto.
3.3 The Availability Period may be extended, provided that an application for such extension is submitted by the Borrower to the Lender thirty (30) days prior to the end of the Availability Period and such application is approved by the Lender. In any event, the Availability Period shall not exceed the Grace Period unless both Lender and Borrower reach consensus and sign amendment agreement. Any portion of the Facility undrawn at the end of the Availability Period or the extension thereof shall be automatically canceled. Before the end of the Availability Period, the Borrower shall not, without the consent of the Lender, cancel all or any part of the undrawn Facility.
3.4 The Lender shall not be obliged to make any disbursement under this Agreement unless it has received all the documents set forth in Article 3.1 or 3.2 and has determined after examination that the conditions precedent to the drawdown of the Facility by the Borrower have been satisfied. For those conditions which have not been satisfied by the Borrower, the Lender may require the remedy by the Borrower within a specified period. In the event that the Borrower fails to remedy within a reasonable period of time, the Lender may refuse to make the disbursement.
3.5 Subject to conditions in Article 3.1 and 3.2 and other terms and conditions of this Agreement, the Borrower shall issue, during the Availability Period, an Irrevocable Notice of Drawdown via courier to the Lender and instruct the Lender to make the Disbursement, via the Borrower’s Account (as defined in Article 4.5), into:
(a) the account opened by the Chinese Contractor with the Lender for the purpose of the Commercial Contract:
Payee: China Road and Bridge Corporation
Opening Bank: The Export-Import of China
Account No.:1360000100000956204
(b) Or,
such other account confirmed by Contractor in written form and designated in any agreement made in writing entered into by the Borrower and the Lender for the purpose of receiving payments under or in connection with the Commercial Contract.
Each account under above paragraph (a) and (b) is hereinafter referred to as the "Disbursement Account".
3.6 Forthwith upon the allocation of the disbursement to the Borrower’s Account, the Lender shall be deemed as having completed its disbursement obligation under this Agreement and such disbursement shall become the indebtedness of the Borrower. The Borrower shall repay to the Lender the principal amount drawn and outstanding under the Facility together with any interest accrued thereon in accordance with this Agreement.
3.7 The Lender shall not be under any obligation to make any further Disbursement under the Facility if the aggregate amount of the Disbursements made under this Agreement would exceed the principal amount of the Facility.
ARTICLE 4
REPAYMENT OF PRINCIPAL AND PAYMENT OF INTEREST
4.1 The Borrower is obligated to repay to the Lender all the principal amount drawn and outstanding under the Facility, all the interest accrued thereon and such other amount payable by the Borrower in accordance with the terms and conditions of this Agreement. Without the written consent of the Lender, the Maturity Period shall not be extended.
4.2 The Borrower shall pay interest on the principal amount drawn and outstanding under this Agreement at the rate set forth in Article 2.2. The interest shall be calculated on the basis of the actual number of days elapsed and a 360 day year, including the first day of the Interest Period during which it accrues but excluding the last, and shall be paid in arrears on each Interest Payment Date. If any payment to be made by the Borrower hereunder falls due on any day which is not a Banking Day, such payment shall be made on the immediately preceding Banking Day.
4.3 All the principal amount drawn under this Agreement shall be repaid to the Lender by 30 equal installments on each Repayment Date of Principal and Interest within the Repayment Period and the Final Repayment Date in accordance with the Repayment Schedule as Appendix 11 sent by the Lender to the Borrower after the expiration of the Availability Period.
4.4
4.4.1 Any payments or repayments made by the Borrower under this Agreement shall be remitted to the:
(a) the account of the Lender as following:
For USD payment/repayment
Payee: The Export-Import Bank of China (EIBCCNBJXXX)
Opening Bank: Bank of China New York Branch
Swift Code: BKCHUS33
Account No.: 01000130;
For EUR payment/repayment
Payee: The Export-Import Bank of China (EIBCCNBJXXX)
Open Bank: Bank of China Frankfurt Branch
Swift Code: BKCHDEFF
Account No.: 1083002004
(b) Or,
such other account as designated by the Parties in any amendment to this Agreement made in writing entered into by and between the Lender and the Borrower.
Each account under above paragraph (a) and (b) is hereinafter referred to as the "Repayment Account". And such payment shall be made with a message that such payment is made for "[Construction of the Fast Road Novi Sad - Ruma ("Fruškogorski Corridor") Project] Loan Agreement, PBC (2021) NO.23 TOTAL NO. (528)".
4.4.2 All repayments/payments by the Borrower to the Lender under this Agreement shall only be made to the Repayment Account. Any repayment/payment by the Borrower to the Lender made to an account other than the Repayment Account does not constitute any repayment/payment under the Agreement and the Borrower shall not be exempted from its repayment/payment obligations under this Agreement in accordance with the terms and conditions thereof. Any repayment/payment shall only be considered as completed when the Lender deducts the corresponding amount from the Repayment Account.
4.5 The Lender shall open and maintain on its book a lending account for the Borrower entitled "The Government of the Republic of Serbia Account on Construction of the Fast Road Novi Sad - Ruma ("Fruškogorski Corridor") Project (name of the Project)" (hereinafter referred to as the "Borrower’s Account") to record the amount owing or repaid or paid by the Borrower. The amount of the Facility recorded as drawn and outstanding in the Borrower’s Account shall be the evidence of the Borrower’s indebtedness owed to the Lender and shall be binding on the Borrower in the absence of manifest error.
4.6 For the avoidance of doubt, the Borrower’s Account may only be amended by amendment to this Agreement made in writing and entered into by and between the Lender and the Borrower.
4.7 Both the Borrower and the Lender shall keep accurate book records of any disbursement under the Facility and repayment of principal and interest under this Agreement and shall verify such records once a year.
4.8 The Borrower may prepay the principal amount drawn and outstanding under the Facility by giving the Lender a 30 days’ prior written notice, and such prepayment shall be subject to the consent of the Lender. At the time of prepayment, the Borrower shall also pay to the Lender all interest accrued on the prepaid principal in accordance with Article 4.2 up to the date of prepayment. Any prepayment made pursuant to this Article shall reduce the amount of the repayment installments in inverse order of maturity.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY THE BORROWER
The Borrower hereby represents and warrants to the Lender as follows:
5.1 The Borrower is the Government of the Republic of Serbia and represented by Ministry of Finance and has full power, authority and legal rights to borrow the Facility on the terms and conditions hereunder.
5.2 The Borrower has completed all the authorizations acts and procedures as required by the laws of the Borrower’s Country in order for this Agreement to constitute valid and legally binding obligations of the Borrower in accordance with its terms, including obtaining all the approvals and authorizations from relevant authorities of the Borrower’s Country, and effecting all the registrations or filings as required by the laws of the Borrower’s Country, and such approvals, authorizations, registrations and filings are in full force and effect.
5.3 As from the date on which this Agreement becomes effective, this Agreement constitutes legal, valid and binding obligation of the Borrower.
5.4 The Borrower is not in default under any law or agreement applicable to it, the consequence of which default could materially and adversely affect its ability to perform its obligations under this Agreement and no Event of Default has occurred under this Agreement.
5.5 The signing of this Agreement by the Borrower constitutes, and the Borrower’s performance of its obligations under this Agreement will constitute commercial acts. Neither the Borrower nor any of its assets is entitled to any right of immunity on the grounds of sovereign or otherwise from arbitration, suit, execution or any other legal process with respect to its obligations under this Agreement, as the case may be, in any jurisdiction.
5.6 None of the Borrower, or any Relevant Parties, or any shareholders, senior officers, directors, or employees of the Borrower, or any Relevant Parties (together the "Obligor Parties") is:
(i) a Sanctions Restricted Person;
(ii) in violation of or has violated any Sanctions imposed or adopted by any Sanctions Authority in connection with this Project;
(iii) engaged in any transaction, activity or conduct that could reasonably be expected to result in it or them becoming a Sanctions Restricted Person; or
(iv) the subject of or otherwise involved in any inquiries, claims, lawsuits, investigations or other proceedings relating to Sanctions.
5.7 All information supplied to the Lender by the Borrower is true and accurate in all material respects.
The Borrower represents and warrants to the Lender that the foregoing representations and warranties will be true and accurate throughout the Maturity Period with reference to the facts and circumstances subsisting from time to time. The Borrower acknowledges that the Lender has entered into this Agreement in reliance upon the representations and warranties contained in this Article.
ARTICLE 6
6.1 The Borrower hereby covenants to the Lender that the obligations and liabilities of the Borrower under this Agreement are direct, unconditional and general obligations and rank and will rank at least pari passu in right of payment and security with all other present or future unsecured and unsubordinated indebtedness (both actual and contingent) of the Borrower. Any preference or priority granted by the Borrower to such indebtedness shall be forthwith applicable to this Agreement without prior request from the Lender.
6.2 The Borrower undertakes with the Lender that it will ensure that all amounts disbursed under this Agreement be used for the purposes specified in Article 2.4 and Article 2.5 and that it will pay the interest and any other payable amounts hereunder and repay the principal to the Lender in accordance with the terms and conditions hereunder. The performance by the Borrower of all its obligations under this Agreement shall be unconditional under all circumstances.
6.3 All payments by the Borrower under this Agreement shall be paid in full to the Lender without set-off or counterclaim or retention and free and clear of and without any deduction or withholding for or on account of any taxes or any charges. In the event the Borrower is required by law to make any such deduction or withholding from any payment hereunder, then the Borrower shall forthwith pay to the Lender such additional amount as will result in the immediate receipt by the Lender of the full amount which would have been received hereunder had no such deduction or withholding been made.
6.4 The Borrower hereby covenants to the Lender that it will take immediate steps and fulfill all the conditions necessary to maintain in full force and effect all approvals, authorizations, registrations and filings specified in Article 5.2.
6.5 The Borrower will include all amounts due and payable, or to fall due and payable to the Lender hereunder in each of its annual budgets during each fiscal year. However, the Borrower’s failure to include corresponding allocation in its budget shall not in any way reduce or affect its obligations under this Agreement or to be used as a defense for the failure to make any payment due under the Loan Agreement.
6.6 The Borrower shall submit to the Lender the following documents and hereby covenants to the Lender that the information contained in such documents is true and accurate:
(1) The Borrower shall submit to the Lender semi-annually during the Maturity Period reports on the actual progress and operation status of the Project and the utilization of the disbursed Facility proceeds.
(2) The Borrower shall supply to the Lender any other information pertaining to the performance of this Agreement at any time reasonably requested by the Lender.
6.7 The Lender shall be entitled to examine and supervise the utilization of the proceeds of the Facility and the performance of this Agreement. The Borrower shall facilitate the aforesaid examination and supervision of the Lender, including without limitation cause the relevant authority to issue the long-term multiple entry visa of (Borrower’s country) to loan officer of the Lender.
6.8 During the Maturity Period, the Borrower shall inform in writing the Lender within 30 days from the date on which the following events occur:
(1) any material decision, change, accident and other significant facts pertaining to the Project or the Borrower;
(2) any change of the authorized persons and the specimen of their signatures involved in the drawdown of the Facility under this Agreement;
(3) any change of the communication address of the Borrower specified in Article 8.8;
(4) the occurrence of any Event of Default specified in Article 7;
(5) any significant amendment or supplement to the Commercial Contract;
6.9 The Borrower is obliged to notify the Lender, without delay, upon becoming aware of the occurrence of any event or dispute which may limit, restrict, interfere with or otherwise adversely affect the performance by any party of its obligations under the Commercial Contract, including but not limited to any event or dispute in connection with:
(1) taxation; and
(2) any party’s failure to timely perform its relevant obligations under such Commercial Contract.
To ensure the due performance of the Commercial Contract, the Borrower shall promptly do all such acts and coordinate with relevant parties to remedy and minimize the impact arising out of such aforementioned event or dispute.
6.10 The Borrower undertakes with the Lender that so long as any sum remains outstanding under this Agreement, the Borrower will not engage in the activities which, in the opinion of the Lender, will materially and adversely affect the performance of the Borrower’s obligations under this Agreement.
6.11 The Borrower undertakes with the Lender that at the request of the Lender, the Borrower will provide the Lender within six months of completion of the Project with the Project completion summary report and provide within the period as required by the Lender the documents and materials for the post evaluation for the Project. The Borrower shall ensure the authenticity, accuracy, validity and integrity of the documents and materials provided.
6.12 The Borrower hereby represents, warrants and undertakes that its obligations and liabilities under this Agreement are independent and separate from those stated in agreements with other creditors (whether official creditors, Paris Club creditors or other creditors), and the Borrower shall not seek from the Lender any kind of comparable terms and conditions which are stated or might be stated in agreements with other creditors.
6.13 The Borrower undertakes with the Lender that the Borrower will and will ensure that any other Obligor Party will,
(i) comply with Sanctions with respect to any operations and conducts performed,under the Project or the Commercial Contract;
(ii) disclose voluntarily or at the request of the Lender from time to time, timely and sufficiently, any documents or information in relation to Sanctions, including but not limited to:
(A) the fact that any Obligor Party has become a Sanctions Restricted Person;
(B) the fact that any Obligor Party is involved in any inquiries, claims, lawsuits, investigations or other proceedings relating to Sanctions;
(C) business and operations of any Obligor Party or the Commercial Contract or the Project are targeted or otherwise restricted by Sanctions, including Sanctions that could result in any Obligor Party becoming a Sanctions Restricted Person; and
(D) any other circumstances that could have adverse consequences on this Agreement due to Sanctions;
(iii) cooperate with the Lender to provide sufficient information at its request from time to time, timely and sufficiently, for the purpose of compliance with any Sanctions, anti-money laundering and anti-terrorism requirements; and
(iv) irrevocably authorize the Lender, for the purposes of compliance with Sanctions, anti-money laundering and anti-terrorist financing requirements, to disclose information to Sanctions Authorities or other regulatory authorities or other competent agencies.
6.14 The Borrower undertakes with the Lender that the Borrower will not and will ensure that any other Obligor Party will not:
(i) become a subject or target of Sanctions;
(ii) directly or indirectly use any monies advanced under this Facility or lend, contribute or otherwise make available such monies to any person where the purpose or effect of such monies being used, lent, contributed or otherwise made available:
(A) is to fund or facilitate any activity that would at that time be in breach of Sanctions or be an activity with, or for the benefit of, a Sanctions Restricted Person; or
(B) could reasonably be expected to result in a breach of Sanctions by an Obligor Party, the Lender or any of its branch offices or Affiliates;
(iii) directly or indirectly fund all or any part of a payment under this Agreement out of proceeds derived from any business or transaction which is prohibited by Sanctions, which is with a Sanctions Restricted Person or which would otherwise result in a breach of Sanctions by the Lender or any of its branch offices or Affiliates; or
(iv) carry out any transactions, activities, operations, or conducts, with respect to any operations and conducts performed, under the Project or the Commercial Contract, in violation of the Sanctions or that could result in any Obligor Party becoming a Sanctions Restricted Person.
6.15 If the Lender in its sole discretion determines that the performance of this Agreement and / or the making, funding or allowing to remain outstanding of all or part of the Loan hereunder becomes impossible, prohibited by law or regulation, or could result in the Lender or any of its branch offices or Affiliates being sanctioned, the Lender may so notify the Borrower with a written notice specifying the said circumstances and shall at the same time be entitled to one or more of the following measures:
(a) cancel any available Facility;
(b) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding to the Lender under this Agreement be immediately due and payable;
(c) directly deduct the outstanding amount due and payable by the Borrower under this Agreement, including but not limited to outstanding Loans, together with accrued interest and all other amounts accrued, from any account of the Borrower (denominated in any currency) opened with the Lender, the Agent or any other onshore and offshore branch offices of the Lender, if applicable; or
(d) exercise any other rights of the Lender under this Agreement and in accordance with applicable laws and regulations.
ARTICLE 7
7.1 Each of the following events and circumstances shall be an Event of Default:
(1) The Borrower, for any reason, fails to pay any due and payable principal, interest, Commitment Fee, Management Fee or other sums in accordance with the provisions hereof unless such payment is made within 30 days of its due date;
(2) Any representation and warranty made by the Borrower in Article 5, Article 6 or other Articles of this Agreement, or any certificate, document and material submitted and delivered by the Borrower pursuant to this Agreement proves to have been untrue or incorrect in any material respect;
(3) The Borrower fails to punctually perform any of its other obligations under this Agreement or is in breach of any of its covenants and undertakings made under this Agreement, and does not remedy such breach to the satisfaction of the Lender within 30 days after receipt of written notice from the Lender requiring it to do so;
(4) Any other event which constitutes a default of the Borrower occurs in respect of any other agreement involving the borrowing of money or any guarantee between the Borrower and any other banks or financial institutions;
(5) Significant changes have occurred with respect to the Project or the Borrower, either of which, in the opinion of the Lender, may have material adverse effect on the ability of the Borrower to perform its obligations under this Agreement;
(6) The Borrower stops or suspends repayment to its creditors generally;
(7) any other events or circumstances, in the reasonable judgment of the Lender, that can be deemed as the credit deterioration of the Borrower or may jeopardize the Loan or any rights of the Lender under this Agreement.
7.2 Upon the occurrence of any of the aforesaid Event of Default and at any time thereafter (unless such Event of Default has been waived by or remedied to the satisfaction of the Lender), the Lender may, by written notice to the Borrower, take either or all of the following actions (but without prejudice to any other rights and remedies available to it):
(a) declare the principal of and accrued interest on the Loan and all other sums payable hereunder to be, whereupon the same shall become, immediately due and payable without further demand, notice or other legal formality of any kind;
(b) cancel the Facility unutilized by the Borrower or declare the Facility terminated without giving prior notice whereupon the obligation of the Lender to make further Disbursement hereunder shall immediately cease; and
(c) enforce its rights under the Guarantee/Mortgage/Pledge (if applicable).
7.3 Where there occurs any change of the laws or government policies in the country of either the Lender or the Borrower, which makes it impossible for either the Lender or the Borrower to perform its obligations under this Agreement, the Lender may, by written notice to the Borrower, terminate the disbursement of the Facility, and/or declare all the principal and accrued interest and all other sums payable hereunder to be immediately due and payable by the Borrower without further demand, notice or other legal formality of any kind.
ARTICLE 8
8.1 The Borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8.5 hereof or with the enforcement of any arbitral award pursuant thereto.
8.2 Without prior written consent of the Lender, the Borrower may not assign or transfer all or any part of its rights or obligations hereunder in any form to any third party. The Lender is entitled to assign or transfer all or any part of its rights, interests and obligations hereunder to a third party with notice to the Borrower. The Borrower shall sign all such documents and do necessary acts and things as the Lender may reasonably require for the purpose of perfecting and completing any such assignment and transfer, provided that any costs incurred by the Borrower in connection therewith shall be borne by the Lender.
8.3 This Agreement is legally independent of the relevant Commercial Contract. Any claims or disputes arising out of the Commercial Contract shall not affect the obligations of the Borrower under this Agreement.
8.4 This Agreement as well as the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of China.
8.5 Any dispute arising out of or in connection with this Agreement shall be resolved through friendly consultation. If no settlement can be reached through such consultation, each party shall have the right to submit such dispute to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration. The arbitration shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award shall be final and binding upon both parties. The arbitration shall take place in Beijing.
8.6 The Borrower hereby irrevocably designates Embassy of the Republic of Serbia in China with its address at San Li Tun Dong 6 Jie 1, Beijing, China as its authorized agent to receive and acknowledge on its behalf service of any notice, writ, summons, order, judgment or other legal documents in China. If for any reason the agent named above (or its successor) no longer serves as agent of the Borrower to receive legal documents as aforesaid, the Borrower shall promptly designate a successor agent satisfactory to the Lender. The Borrower hereby agrees that, any such legal documents shall be sufficiently served on it if delivered to the agent for service at its address for the time being in Beijing, whether or not such agent gives notice thereof to the Borrower.
8.7 The Borrower shall keep all the terms, conditions and the standard of fees hereunder or in connection with this Agreement strictly confidential. Without the prior written consent of the Lender, the Borrower shall not disclose any information hereunder or in connection with this Agreement to any third party unless required by applicable law.
8.8 All notices or other documents in connection with this Agreement shall be in writing and shall be delivered or sent either personally or by post or facsimile to the following respective address or facsimile number of both parties; in the event that the following address or facsimile number of any party hereunder has changed, such party shall immediately inform the other party in the way set out in this Agreement:
To the Lender: Sovereign Business Department
(Concessional Loan Department)
The Export-Import Bank of China
No. 30, Fu Xing Men Nei Street, Xicheng District,
Beijing, 100031
People’s Republic of China
Fax No.: +86-10-66086308
Telephone: +86-10-83579143
Contact Person: Mr. Mao Haoyu
To the Borrower: Public Debt Administration
Ministry of Finance
Government of the Republic of Serbia
Pop Lukina 7-9, 11000 Belgrade, Serbia
Fax No.: + 381 11 2629 055
Telephone: + 381 11 3202 461
Contact Person: Ms. Ana Tripović, Director
Any notice or document so addressed to the relevant party under this Agreement shall be deemed to have been delivered:
(1) if sent by personal delivery: at the time of delivery;
(2) if sent by post: 15 days after posting (excluding Saturdays, Sundays and statutory holidays);
(3) if sent by facsimile, when the notice or document is dispatched by fax machine.
8.9 This Agreement shall be signed in the English language. The notes and other written documents delivered between the Borrower and the Lender under this Agreement shall all be written in English.
8.10 Unless otherwise provided, no failure or delay by the Lender in exercising any of its rights, power or privilege under this Agreement shall impair such right, power or privilege or operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege in accordance with applicable laws.
8.11 The appendices to this Agreement shall be deemed as an integral part of this Agreement and have the same legal effect as this Agreement.
8.12 Matters not covered in this Agreement shall be settled through friendly consultation and signing of supplementary agreements between the Borrower and the Lender.
ARTICLE 9
9.1 This Agreement shall become effective upon the satisfaction of the following conditions:
(1) This Agreement has been duly signed by the Lender and the Borrower;
(2) The Lender has received copies of the approval issued by the relevant authorities of the Borrower’s Country approving the borrowing by the Borrower hereunder;
(3) Document evidencing the establishment of designated team by End-User specifically responsible for supervision and urge of the effectiveness of this Agreement and on-time completion of project design, permit approval process.
9.2 The effective date of this Agreement shall be the date specified in the Notice of Effectiveness of Loan Agreement sent by the Lender to the Borrower after all the conditions precedent to the effectiveness of this Agreement have been fully satisfied.
9.3 In the event that this Agreement fails to become effective within one year after signing by the parties, the Lender shall have the right to re-evaluate the implementation conditions of the Project and utilization conditions of the Facility to determine whether to continue the performance of this Agreement or not.
9.4 This Agreement shall be made in two counterparts with equal legal effect.
IN WITNESS WHEREOF, the two parties hereto have caused this Agreement to be duly signed on their respective behalf, by their duly authorized representatives, on the date stated at the beginning of this Agreement.
Signed by: ___________________ |
|
Signed by :_____________________ |
Appendices:
1. Conditions Precedent to the First Disbursement
2. Conditions Precedent to Each Disbursement after the First Disbursement
3. Full Powers
4. Power of Attorney (for Drawdown)
5. Form of Irrevocable Notice of Drawdown
6. Form of Legal Opinion
7. Irrevocable Power of Attorney of Borrower’s Process Agent
8. Letter of Confirmation
9. Form of Notice of Effectiveness of Loan Agreement
10. Notice of Commencement of Availability Period
11. Form of Repayment Schedule
CONDITIONS PRECEDENT TO THE FIRST DISBURSEMENT
Upon the Borrower’s application to the Lender for the making of the first disbursement, the Lender shall not be obliged to make any such disbursement to the Borrower unless the Borrower has fulfilled the following conditions and the Lender has received the following documents to its satisfaction:
(1) Copy of this Agreement which has been duly signed by all parties thereto respectively and have become effective;
(2) Certified true copies of the Commercial Contract and other relevant documents in connection therewith acceptable to the Lender which have been duly signed by all parties thereto and have become effective;
(3) Drawdown schedule submitted by the Borrower which has been recognized and accepted by the Lender;
(4) The authorization of the Borrower, by which the Borrower authorizes one or more representatives to sign this Agreement, Irrevocable Notice of Drawdown and any other documents in relation to this Agreement, and the signature specimen of such authorized representatives.
(5) Document(s) evidencing that the funds under the Project other than the Facility under this Agreement has been raised as planned;
(6) Certified true copies of any and all documents evidencing that the End-User has made payment to the Contractor, without utilizing the proceeds of the Loan, prior to first disbursement (hereinafter referred to as the "Self-raised Fund"), so that after such disbursement, the ratio of the aggregate Self-raised Fund to the Loan shall not be lower than 15:85;
(7) If applicable, certified true copies of all filing, registration and record of this Agreement and any other documents with any governmental agency, court, public office or other authority required under the laws and regulations of the Borrower’s country to ensure the validity, legality and enforceability of such documents;
(8) Certified true copies of any and all documents which could evidence that the Management Fee and Commitment Fee payable hereunder have been paid by the Borrower to the Lender in accordance with the provisions of Article 2.6 and Article 2.7;
(9) An original Irrevocable Notice of Drawdown in the form set out in Appendix 5 attached hereto duly signed by the authorized signatory of the Borrower and affixed with the official stamp of the Borrower, and sent by courier or authenticated SWIFT not later than the tenth (10th) Banking Day prior to the date on which the drawdown is scheduled to be made; such Irrevocable Notice of Drawdown authorizes the Lender to pay the relevant amount to the account designated by the Borrower, and such drawdown shall be in compliance with the stipulations of the Commercial Contract;
(10) Legal opinion in the form and substance set forth in Appendix 6 or in the form and substance otherwise approved by the Lender in writing issued by the Ministry of Justice or other governmental institutions with the similar authority of the Borrower’s Country in connection with the transactions contemplated hereunder;
(11) The irrevocable power of attorney to the process agent by the Borrower named in Article 8.6 in the form set forth in Appendix 7 or in the form and substance otherwise approved by the Lender in writing and the written confirmation of acceptance of appointment by such process agent in the form of Appendix 8 or in the form and substance otherwise approved by the Lender in writing;
(12) Commitment Letter issued by End-User to promise the relevant project design, permit approval will be completed on time in accordance with Commercial Contract and progress of construction work;.
(13) Time Schedule issued by End-User regarding the land expropriation and demolition for Section 3, Section 1 and Section 4 of the Project;
(14) Certified true copies of the Engineer contract which has been duly signed with the Engineer;
(15) Certified true copies of the major design and construction subcontracts in full form and substance acceptable to the Lender which have been duly signed by the Contractor and relevant subcontractors;
(16) Contractor establishes and submits detailed regulation for subcontractor management;
(17) Document evidencing the conditions set in Article 53 of Commercial Contract for Commencement of Service and Works on section 2 of the Project have been fully met, and Contractor confirms in written form that the status of land expropriation and demolition of Section 2 of the Project satisfies the requirements of construction work;
(18) Such other document(s) or condition(s) relating to the transactions under this Agreement as the Lender may reasonably request.
After all the above conditions have been fulfilled to the satisfaction of the Lender, the Lender shall issue a Notice of Commencement of Availability Period to the Borrower.
In the event that the Borrower fails to fulfill the above conditions within one year after the effectiveness of this Agreement, the Lender shall have the right to re-evaluate the implementation conditions of the Project and utilization conditions of the Facility to determine whether to continue the performance of this Agreement or not.
CONDITIONS PRECEDENT FOR EACH DISBURSEMENT AFTER THE FIRST DISBURSEMENT
1.1 For each disbursement after the first disbursement hereunder, the Lender shall not be obliged to make any such disbursement to the Borrower, unless the Borrower has fulfilled the following conditions and the Lender has received the following documents to its satisfaction:
(1) An original Irrevocable Notice of Drawdown in the form set out in Appendix 5 attached hereto duly signed by the authorized signatory of the Borrower and affixed with the official stamp of the Borrower, and sent by courier not later than the tenth (10 th) Banking Day prior to the date on which the drawdown is scheduled to be made; such Irrevocable Notice of Drawdown authorizes the Lender to pay the relevant amount to the account designated by the Borrower, and such drawdown shall be in compliance with the stipulations of the Commercial Contract;
(2) No Event of Default has occurred (or will likely to occur as a result of the drawdown being made) under this Agreement;
(3) All representations, warranties, and undertakings made by the Borrower hereunder shall be true and correct as at the date such drawdown is scheduled to be made with reference to the facts and circumstances then subsisting;
(4) The Borrower has paid the interest due and payable under this Agreement in accordance with Article 4;
(5) The Borrower has paid the Commitment Fee due and payable under this Agreement in accordance with Article 2.7;
(6) Certified true copies of documents evidencing that the End-User has made sufficient payment to the Contractor, without utilizing the proceeds of the Loan, prior to each disbursement, so that after such disbursement, the ratio of the aggregate Self-raised Fund to the Loan shall not be lower than 15:85;
(7) The Facility hereunder has not been terminated;
(8) Such other document(s) and condition(s) as the Lender may reasonably request.
1.2 The Lender shall not be obliged to make the disbursement for the implementation of construction work of Section 3, 1 and 4 of the Project to the Borrower for the first time unless all the conditions precedent set out in 1.1 above and following condition have been satisfied:
(1) Document evidencing the conditions set in Article 53 of Commercial Contract for Commencement of Service and Works on each section separately (sections 3, 1 and 4) of the Project have been fully met, and the status of land expropriation and demolition of each section (sections 3, 1 and 4) of the Project satisfies the requirements of construction work.
FULL POWERS
The Minister of Foreign Affairs of the Republic of Serbia H.E. (name) __________, authorizes hereby, on behalf of the Government of the Republic of Serbia,
(name) ____________________________
to sign, on behalf of the Government of the Republic of Serbia, the Preferential Buyer Credit Loan Agreement on Construction of the Fast Road Novi Sad-Ruma ("Fruškogorski Corridor") Project between the Government of the Republic of Serbia represented by the Ministry of Finance as Borrower and the Export-Import Bank of China as Lender.
IN WITNESS WHEREOF this Full Powers is granted to (name) ____________.
DONE at the Ministry of Foreign Affairs in Belgrade this (date) ________.
Signature: ____________________
POWER OF ATTORNEY (FOR DRAWDOWN)
I, _________ (Name of Authorizing Person), am _____________ (Title of the Authorizing Person) of _______________ (hereinafter referred as the "Institution"). I hereby confirm that I have the full legal right and authority to make drawdowns on behalf of the Institution in accordance with the terms and conditions of the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________ (No. ___________, hereinafter referred to as the "Agreement"). In the event that I am not available when a drawdown is to be made, I confirm that I hereby authorize Mr. ___________ (hereinafter referred as the "Authorized Signatory"), ____________ (Title of the Authorized Signatory) of the Institution, to make the drawdown under the Agreement, to sign the documents and to handle other matters in connection therewith on behalf of the Institution.
Signature: ____________________
Title: _____________________
Date: _____________________
Specimen Signature of the Authorized Signatory:
Name: __________________
Title: ___________________
FORM OF IRREVOCABLE NOTICE OF DRAWDOWN
(BY EXPRESS DELIVERY OR TESTED SWIFT)
From: ___________ (the Borrower)
To: The Sovereign Business Department (Concessional Loan Department)
The Export-Import Bank of China
No. 30, Fu Xing Men Nei Street, Xicheng District,
Beijing, 100031,
P.R.China
Tel: 010-83579143
Serial No: ____________
Date: ____________
Dear Sirs,
Pursuant to Article 3 of the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________(No. ___________, hereinafter referred to as the "Agreement") dated _______________ (date) by and between (the "Borrower") and The Export-Import Bank of China (the "Lender"). This is a Notice of Drawdown. Capitalized terms used herein and not otherwise defined shall have the same meanings as defined in the Agreement.
1. We hereby apply for a Disbursement on the following terms:
Proposed Disbursement Date: |
[ ] (or, if that is not a Business Day, the next Business Day) |
Amount: In Words: |
[ ](Currency: USD ________________________________ |
Disbursement Account (in accordance with Article 3.5 of the Agreement): |
Payee:___________________ |
Pursuant to the terms and conditions of the Agreement, we hereby instruct and authorize you to debit the Borrower’s Account, with the amount of the Disbursement.
2. This Disbursement is made to the ________ Invoice (Invoice No. ___________) under the _____________ Commercial Contract (Contract No.: ________), and for the payment of _____________________ (purpose).
3. We hereby confirm that forthwith upon the allocation of the Disbursement to the Borrower’s Account, this Disbursement shall be deemed as having been made by us under the Agreement and the amount drawn shall forthwith constitute our indebtedness to you accordingly. We shall repay such amount to you together with any interest accrued thereon in accordance with the terms and conditions of the Agreement.
We further confirm that:
1) the representations and warranties made by us in the Agreement remain true, correct and valid in all respects by reference to the facts and circumstances subsisting as of the date of this Notice of Drawdown;
2) no Event of Default referred to in the Agreement has occurred and continuously exists or would result from the proposed Loan;
3) all the conditions precedent specified in the Agreement have been satisfied and have remained true, accurate and valid in all respects by reference to the facts and circumstances subsisting as of the date of this Notice of Drawdown.
This Notice of Drawdown is irrevocable.
_______________ |
(Full Name of the Borrower) |
|
(Official Stamp of the Borrower) |
_______________ |
|
(Signature of Authorized Signatory) |
|
FORM OF LEGAL OPINION
To: The Export-Import Bank of China
Date: ____________________
Dear Sirs,
Re: The Preferential Buyer Credit Loan Agreement on the ______________ Project (No. ___________)
We are the Ministry of Justice of the Republic of Serbia,_qualified and authorized to issue this legal opinion in connection with the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________(No. ___________, the "Loan Agreement") between the Export-Import Bank of China as the lender (the "Lender") and ______________________ as the borrower (the "Borrower).
For the purposes of this legal opinion, we have examined copies of the following documents:
(1) the executed Loan Agreement;
(2) Such laws and regulations and such other documents, certificates, records and instruments as necessary and appropriate to render the opinions hereinafter set forth.
This legal opinion is given on the basis of the laws of the ______________ effective as at the date hereof.
Based on the foregoing, we are of the opinion that:
1. The Borrower is the government of a sovereign state which is duly established and validly existing under the laws of ________, and has full power, authority and legal right to assume civil liabilities with its assets.
2. The Borrower has full power, authority and legal right to enter into and perform its obligations under the Loan Agreement and has taken all necessary action to authorize the signing, delivery and performance of the Loan Agreement and ________________of the Borrower has been duly authorized and has the power to sign the Loan Agreement on behalf of the Borrower.
3. The Loan Agreement has been duly signed by the Borrower, and constitutes legal, valid and binding obligations of the Borrower enforceable in accordance with its terms.
4. The signing, delivery and performance of the Loan Agreement by the Borrower do not violate or conflict with or result in a breach of any law or regulation of ___________.
5. All authorizations and consents of any authority in ____________ required in connection with the signing, delivery and performance of the Loan Agreement by the Borrower have been obtained and are in full force and effect, including making payments in foreign currencies under the Loan Agreement and making the Loan Agreement admissible in evidence in the courts of ________.
6. No registration fee or similar tax is payable in _______ in respect of the Loan Agreement by the Borrower and the Lender. No withholding would be made in respect of any payment to be made by the Borrower to the Lender under the Loan Agreement.
7. The signing and performance of the Loan Agreement by the Borrower constitute commercial acts, and the declaration that the Borrower shall not have any right of immunity in connection with any proceedings or any enforcement of an arbitral award or court decision on the grounds of sovereignty or otherwise is valid and irrevocably binding on the Borrower.
8. The payment obligations of the Borrower under the Loan Agreement rank at least pari passu with all its other unsecured and unsubordinated indebtedness except those which are mandatorily preferred by operation of ____________ law.
9. The choice of Chinese law as the governing law under the Loan Agreement is a valid choice of law. The submission of any dispute arising out of or in connection with the Loan Agreement to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration under the Loan Agreement does not contravene any law of ______. The appointment by the Borrower of a process agent in China does not violate any provision of any law or regulation of _______.
10. The Lender is not and will not be deemed to be resident, domicile or having an establishment in __________ by reason only of the execution, delivery, performance and/or enforcement of the Loan Agreement.
This legal opinion is strictly limited to the matters stated herein and may be relied upon only by you in respect of the captioned matter. It may not be relied upon for any other purposes and may not be disclosed to any other persons without our consent.
Yours faithfully,
__________________________
IRREVOCABLE POWER OF ATTORNEY
(Appointment of the Borrower’s Process Agent)
Date:_________
Dear Sirs:
We refer to the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________(No. ___________, hereinafter referred to as "the Agreement"). We hereby appoint you under the Agreement as our agent for the sole purpose of receiving for us and on our behalf service of any legal documents issued by the China International Economic and Trade Arbitration Commission (CIETAC) in respect of any legal action or proceedings arising out of or in connection with the Agreement. We hereby confirm that we shall as soon as possible provide you with a true and correct copy of the Agreement and all relevant related documents. We further hereby confirm that your obligations as our agent are limited to those set out in the paragraphs below and that any other services will only be on our specific request and subject to your agreement. Your obligations are:
(1) Promptly to forward to us (to the extent lawful and possible) by registered post prepaid express airmail addressed as hereafter shown, or by such expeditious means as you may deem appropriate, the original or a copy of any notice of arbitration received by you:
Attention:
Tel:
or to such other address as we may from time to time request in a notice to you sent by registered post prepaid express airmail and marked "For the Attention of the person in charge of Service of Process/ Re: Service of Process";
(2) Perform the duties as Process Agent in accordance with the Agreement.
We should be grateful if you would indicate your acceptance of your appointment by signing the form of acknowledgement contained in the duplicate of this letter and returning the same to us or to such other person as we may identify to you.
Yours faithfully,
Name:
Title:
LETTER OF CONFIRMATION
To: |
(name of the Borrower) |
|
|
Date: |
We hereby acknowledge receipt of the letter dated _______________ from the ___________________ (the Borrower), the above is a true copy of which, and agree to our appointment under it to receive on behalf of ___________________ (the Borrower) service of legal documents issued out of the China International Economic and Trade Arbitration Commission (CIETAC) in any legal action or proceedings arising out of or in connection with the Agreement referred to in that letter.
Yours faithfully,
Name:
Title:
FORM OF NOTICE OF EFFECTIVENESS OF LOAN AGREEMENT
From: |
The Export-Import Bank of China |
|
No. 30, Fu Xing Men Nei Street, Xicheng District, Beijing 100031. |
|
People’s Republic of China |
To: ___________________________ (the Borrower)
Date: ____________
Dear Sirs,
Pursuant to Article 9 of the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________ (No. ___________, hereinafter referred to as "the Agreement") between___________________ (the "Borrower") and the Export-Import Bank of China (the "Lender"), we hereby inform you that:
(a) all the conditions as set out in Article 9.1 of the Agreement have been satisfied;
(b) The Agreement shall become effective on and from the date hereof.
|
|
The Export-Import Bank of China |
|
|
_______________ |
|
|
(Signature of Authorized Signatory) |
NOTICE OF COMMENCEMENT OF AVAILABILITY PERIOD
From: The Export-Import Bank of China
No. 30, Fu Xing Men Nei Street, Xicheng District, Beijing 100031.
People’s Republic of China
Tel:
To: [_________________]
Date:
Dear Sirs,
Pursuant to Article 3 of the Preferential Buyer Credit Loan Agreement No. [_______] (hereinafter referred to as the "Agreement") dated [______] between [________] (the "Borrower") and the Export-Import Bank of China (the "Lender"), we hereby inform you that:
(a) all the conditions as set out in Appendix 1 of the Agreement have been satisfied or, as the case may be, waived; and
(b) the Availability Period (as defined in the Agreement) shall commence on the date hereof.
|
The Export-Import Bank of China |
|
__________________________ |
|
(signature of Authorized Signatory) |
FORM OF REPAYMENT SCHEDULE
Concerning the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________ (No. ___________)
Number of |
Date Due |
Amount In US Dollars |
1 |
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2 |
|
|
3 |
|
|
4 |
|
|
5 |
|
|
6 |
|
|
7 |
|
|
8 |
|
|
Total |
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Note: The amount appeared in this schedule just refer to repayment of the Principal of the Loan under the Preferential Buyer Credit Loan Agreement on the ______________ Project dated _________(No. ___________), while the interest accrued shall be paid according to the provisions of Article 4 of the aforesaid Agreement.