AMENDMENT AGREEMENTRELATING TO THE EUR 400,000,000 MIGA FACILITY AGREEMENT, DATED 10 DECEMBER 2021 BETWEEN REPUBLIC OF SERBIA REPRESENTED BY THE GOVERNMENT OF THE REPUBLIC OF SERBIA ACTING BY AND THROUGH THE MINISTRY OF FINANCE AS BORROWER AND J.P. MORGAN AG AS AGENT AND JPMORGAN CHASE BANK, N.A., LONDON BRANCH AS INITIAL MANDATED LEAD ARRANGER AND CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, RAIFFEISEN BANK INTERNATIONAL AG AND SANTANDER BANK N.A. AS MANDATED LEAD ARRANGERS AND CAIXABANK, S.A. AND UBS SWITZERLAND AG AS LEAD ARRANGERS AND BANCO SANTANDER, S.A., CAIXABANK, S.A., CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, JPMORGAN CHASE BANK, N.A., LONDON BRANCH, RAIFFEISEN BANK INTERNATIONAL AG AND UBS SWITZERLAND AG AS ORIGINAL LENDERS, RELATING TO A SENIOR UNSECURED TERM LOAN FACILITY TO FINANCE THE PROVISION OF CERTAIN CONSTRUCTION SERVICES BY BECHTEL ENKA UK LIMITED, OPERATING IN SERBIA THROUGH BECHTEL ENKA UK LIMITED OGRANAK BEOGRAD TO KORIDORI SRBIJE D.O.O. BEOGRAD IN RELATION TO THE CONSTRUCTION OF THE INFRASTRUCTURE CORRIDOR E-761 HIGHWAY SECTION POJATE-PRELJINA (THE MORAVA CORRIDOR)("Off. Herald of RS - Treaties", No. 4/2023) |
This amendment agreement (this "Agreement") is dated 21 March 2023 and is made between:
(A) REPUBLIC OF SERBIA represented by the Government of the Republic of Serbia acting by and through the Ministry of Finance, as borrower (the "Borrower");
(B) J.P. MORGAN SE (formerly known as JP Morgan AG) a European public company (Societas Europaea) established under the Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE), with registered address at Taunustor 1 (TaunusTurm), 60310 Frankfurt am Main, Germany, and registered with the Commercial Register B (Handelsregister B) of the local court (Amtsgericht) of Frankfurt am Main under registration number HRB 126056, as Agent (the "Agent");
(C) JPMORGAN CHASE BANK, N.A., LONDON BRANCH, BANCO SANTANDER, S.A., CAIXABANK, S.A. AND CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK as the additional financing lenders (each an "Additional Financing Lender" and together the "Additional Financing Lenders");
1. INTRODUCTION
1.1 We refer to a Facility Agreement dated 10 December 2021 creating a EUR 400,000,000 term loan facility and made between, amongst others, the Borrower, the Agent and the Original Lenders, ("the Facility Agreement").
1.2 This Agreement is supplemental to the Facility Agreement, and the Facility Agreement and this Agreement are to be read and construed as a single Agreement.
1.3 In this Agreement, terms used but not otherwise defined herein shall have the meanings ascribed to them in the Facility Agreement.
2. ADDITIONAL FINANCING
2.1 With effect from the Effective Date:
(a) the Commitments under the Facility Agreement will be increased in respect of each Additional Financing Lender to the amount set out in the table contained in paragraph (j) of clause 3.3 (Amendments to the Facility Agreement) below (the "Additional Financing Commitments");
(b) the Additional Financing Commitments will be assumed by the Additional Financing Lenders;
(c) the Borrower and each Additional Financing Lender shall assume obligations towards one another and/or acquire rights against one another as the Borrower and each Additional Financing Lender would have assumed and/or acquired had each Additional Financing Lender been an Original Lender in respect of the Additional Financing Commitments which it is to assume;
(d) each Additional Financing Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as each Additional Financing Lender and those Finance Parties would have assumed and/or acquired had each Additional Financing Lender been an Original Lender in respect of the Additional Financing Commitments which it is to assume; and
(e) the Commitments of the other Original Lenders shall continue in full force and effect.
2.2 By entering into this Agreement each Additional Financing Lender shows its willingness to assume and does (with effect from the Effective Date) assume all the obligations of a Lender corresponding to the Additional Financing Commitments which it is to assume, as if it had been an Original Lender in respect of those Additional Financing Commitments.
3. AMENDMENTS TO THE FACILITY AGREEMENT
3.1 Effective Date
The amendments set out in this Agreement will take effect on and from the date on which the Agent notifies the Borrower that all the conditions precedent listed in Schedule 1 have been fulfilled to its satisfaction (acting on the instructions of all Lenders and MIGA) (the "Effective Date"). If the Effective Date does not occur within 60 days of the date of this Agreement (or such later date agreed by the Agent) the amendments will not take effect.
3.2 Acceptance
The Agent (acting on behalf of the requisite Lenders in accordance with clause 32.1 (Required Consents)) of the Facility Agreement confirms the consent of the requisite Lenders to the increase of the Commitments in accordance with clause 2 (Additional Financing) and to the amendments to the Facility Agreement in accordance with this clause 3.3 (Amendments to the Facility Agreement) by countersigning this Agreement.
3.3 Amendments to the Facility Agreement
On and from the Effective Date, the Facility Agreement is amended as follows:
(a) on the front page, the words "€400,000,000" are deleted and replaced with the words "€500,000,000";
(b) in clause 1.1, a new definition of "Additional MIGA Premium" is included as follows:
"Additional MIGA Premium" means the insurance premium payable by the Borrower in euros to MIGA in respect of an amendment to the MIGA Guarantee as evidenced by the notice to be sent by MIGA’",
(c) in clause 1.1, a new definition of "Amendment Letter" is inserted immediately after the existing definition of "Affiliate" as follows:
"Amendment Letter" means the document entitled ‚Amendment Agreement relating to the EUR 400,000,000 MIGA Facility Agreement’ dated 21 March 2023;"
(d) in clause 1.1, the definition of "Fee Letter" is amended by adding immediately after the words "in clause 11 (Fees)" the following words:
"and any letter or letters dated on or about the date of the Amendment Letter setting out any of the fees referred to in clause 5 (Fees) of the Amendment Letter";
(e) in clause 1.1, the definition of "MIGA Guarantee" is amended by adding immediately before the words "(acting on the instructions of all Lenders") the following words:
"(as may be amended from time to time)";
(f) in clause 1.1, the definition of "MIGA Premium" is amended by adding immediately after the words "insurance premium payable by the Borrower in euros" the following words:
"(including any Additional MIGA Premium)";
(g) in clause 1.1, the definition of "Total Commitments" is amended by adding immediately after the word "Agreement" the following words:
", and as increased to EUR 500,000,000 in accordance with the Amendment Letter"; and
(h) in paragraph (a) of clause 7.1, the words "EUR 20,000,000" are deleted and replaced with the words "EUR 25,000,000";
(i) paragraph (b) of clause 11.4 is amended by adding immediately after the words "the first Utilisation Date." the following words:
"For the avoidance of doubt, in respect of this clause 11.4(b) and the payment obligations in (i) and (ii), the MIGA Premium does not include the Additional MIGA Premium, and any Additional MIGA Premium is payable in accordance with paragraph 3(a) of Schedule 1 (Conditions Precedent) of the Amendment Letter.";
(j) Schedule 1 is deleted and replaced with the following:
THE ORIGINAL PARTIES
THE ORIGINAL LENDERS
Name of Original Lender |
Commitment (EUR) |
Commitment after increase (EUR) |
Banco Santander, S.A. |
70,000,000 |
96,630,434.78 |
CaixaBank, S.A. |
50,000,000 |
62,500,000 |
Credit Agricole Corporate and Investment Bank |
70,000,000 |
96,630,434.78 |
JPMorgan Chase Bank, N.A., London Branch |
90,000,000 |
124,239,130.44 |
Raiffeisen Bank International AG |
70,000,000 |
70,000,000 |
UBS Switzerland AG |
50,000,000 |
50,000,000 |
For the avoidance of doubt, in respect of each Additional Financing Lender, on and from the Effective Date, its Commitment will be the amount set opposite its name under the heading "Commitment after increase (EUR)"."
4. REPRESENTATIONS AND CONFIRMATIONS
4.1 The Borrower makes each of the Repeating Representations to each Finance Party and each Additional Financing Lender on the date of this Agreement, the date this Agreement is countersigned by the Agent, and the Effective Date:
(a) by reference to the facts and circumstances then existing; and
(b) on the basis that references in the Repeating Representations to the Finance Documents and to the Transaction Documents include this Agreement,
and acknowledges that the Agent has entered into this Agreement and has agreed to the amendment effected by this Agreement in full reliance on those representations and warranties.
5. FEES
The Borrower shall pay to the Agent a fee in the amount and at the times agreed in a Fee Letter for the account of the each entity duly specified in that Fee Letter.
6. MISCELLANEOUS
6.1 Except as varied by the terms of this Agreement, the Facility Agreement and the other Finance Documents will remain in full force and effect. The Borrower reconfirms all of its obligations under the Facility Agreement (as amended by this Agreement) and under the other Finance Documents.
6.2 Any reference in the Finance Documents to the Facility Agreement or to any provision of the Facility Agreement will be construed as a reference to the Facility Agreement, or that provision, as amended by this Agreement.
6.3 This Agreement is a Finance Document.
6.4 The Borrower shall promptly pay to the Agent the amount of all costs and expenses reasonably incurred by it (including legal fees, subject to pre-agreed caps and the assumptions applicable thereto) in connection with the negotiation, preparation, printing, execution and perfection of this Agreement and all documents referred to in this agreement.
6.5 If, at any time, any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
6.6 This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
6.7 This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
6.8 Clause 39 (Arbitration), clause 40 (Jurisdiction) and clause 41 (Service of Process) of the Facility Agreement applies to this Agreement as if set out in full with all necessary consequential changes to clause references, references to parties and references to applicable documents.
CONDITIONS PRECEDENT
1. BORROWER AUTHORISATIONS
(a) Copies of all relevant laws, regulations and/or Authorisations, including the law on ratification of this Agreement together with evidence satisfactory to the Agent that such law has been published in the Official Gazette of the Republic of Serbia and has become effective.
(b) A certified copy of KZ forms (in Serbian: "KZ obrasci") evidencing that this Agreement has been duly reported to the NBS.
(c) A certificate of an authorised signatory of the Borrower:
(i) certifying that each copy document specified in this schedule is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement; and
(ii) confirming that the borrowing of the full amount of the Facility would not cause any borrowing, guaranteeing or similar limit binding on the Borrower or the Republic of Serbia to be breached.
2. FINANCE DOCUMENTS
(a) An original, duly executed by all parties to it of this Agreement.
(b) An original, duly executed by all parties to it of each Fee Letter.
(c) Evidence that each of this Agreement and the amendment agreement in relation to the MIGA Guarantee has been duly authorised, executed and delivered by each party thereto and is in full force and effect, including the certified copy of a decision of the Government of the Republic of Serbia: (i) approving the borrowing by the Borrower under this Agreement; (ii) authorizing the Minister of Finance of the Republic of Serbia to execute this Agreement on behalf of the Republic of Serbia, with, if applicable, evidence that any stamp taxes have been duly paid in relation to each such document and that each such document has been registered with the appropriate authorities in the Republic of Serbia.
(d) A certified Serbian translation of this Agreement.
3. MIGA GUARANTEE
Evidence that:
(a) the Additional MIGA Premium has been paid; and
(b) the amendment agreement in relation to the MIGA Guarantee to take account of this Agreement shall have been duly executed by the parties thereto and shall be in full force and effect.
4. LEGAL OPINIONS
Each of the following legal opinions in form and substance satisfactory to the Finance Parties:
(a) a legal opinion of Ashurst LLP, legal advisers to the Agent in England, in the form and substance acceptable to MIGA and the Agent and distributed to, and capable of being relied on by, the Original Lenders and MIGA;
(b) a legal opinion of BDK Advokati, legal advisers to the Agent in the Republic of Serbia, in the form and substance acceptable to MIGA and the Agent and distributed to, and capable of being relied on by, the Original Lenders and MIGA;
(c) a legal opinion from the Ministry of Justice of the Republic of Serbia in the form and substance acceptable to MIGA and the Agent and distributed to, and capable of being relied on by, the Original Lenders and MIGA; and
(d) any other legal opinion requested by any Finance Party or the Additional Financing Lenders.
5. OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that all fees, costs and expenses (including the fees payable in accordance with clause 5 (Fees) of this Agreement and the fees payable to MIGA) due and payable by the Borrower in respect of this Agreement and the amendment agreement relating to the MIGA Guarantee have been paid in full (or will be paid from the proceeds of the first Loan occurring after the Effective Date (except in respect of any fees payable to MIGA, including the Additional MIGA Premium, each of which has been paid in full)).
(b) A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement or the validity and enforceability of this Agreement.
(c) Any document or action required in relation to the issuance of the legal opinions referred to in paragraph 4 above.
SIGNATURES
THE BORROWER
Signed by: for and on behalf of THE REPUBLIC OF SERBIA as Borrower represented CONTACT DETAILS Fax: Fax: (381-11) 3618-961 Attention: |
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THE ADDITIONAL FINANCING LENDERS
Signed by: for and on behalf of JPMORGAN CHASE BANK, N.A., CONTACT DETAILS Phone: +44 20 7742 7120/+44 20 7742 5318 Attention: Ayotunde Lemo/Richard Wilkins |
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Ayotunde Lemo |
Signed by: for and on behalf of
CONTACT DETAILS |
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Jose Luis Vicent Rodriguez |
Natalia San Miguel Agudo |
Phone: +034 912 892 238/+034 657 491 608
Email: ExportFinanceBO@gruposantander.com
Attention: Ignacio del Polzo/Andra Maria Lapadatu/Remedios Cantalapiedra
ignacio.delpozo@santander.us/a.lapadatu@gruposantander.com/
rcantalapiedra@gruposantander.com/
Signed by: for and on behalf of CAIXABANK, S.A. CONTACT DETAILS Phone: +34 616 026 516/+34 660 146 816 Attention: Juan Carlos Calle LIorente/Francisco Gil Mesino |
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Juan Carlos Calle Llorente |
Francisco Gil Mesino |
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Signed by: for and on behalf of CREDIT CONTACT DETAILS Phone: + 33157872294/ Email: corinne.cancel@ca-cib.com, Attention: Corinne Cancel, Axel Ranque, |
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Marie Fevre |
Karine |
THE AGENT
Signed by: Position: Authorised Signatory for and on behalf of J.P. MORGAN SE CONTACT DETAILS Address: J. P. Morgan SE Copy to: Global Trade - Product Solutions Phone: +4402034934168/+44 20 71344029 Email:romina.coates@jpmorgan.com Attention: Romina Coates/Raj Subba |
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