GUARANTEE AGREEMENTBETWEEN EUROFIMA EUROPEAN COMPANY FOR THE FINANCING OF RAILROAD ROLLING STOCK AND REPUBLIC OF SERBIA, ACTING THROUGH THE MINISTRY OF FINANCE REGARDING GOVERNMENT GUARANTEE UNDER ARTICLE 5 EUROFIMA CONVENTION("Off. Herald of RS - Treaties", No. 1/2025) |
GUARANTEE AGREEMENT (EFI NO. 20202/20206)
dated as of January 28, 2025
between
Eurofima European Company for the Financing of Railroad Rolling Stock,
Meret Oppenheim-Platz 1 C 4053 Basel, Switzerland
(Eurofima)
and
Republic of Serbia, acting through the Ministry of Finance,
Kneza Milosa Street 20, 11000 Belgrade, Republic of Serbia
(Guarantor)
regarding
Government Guarantee under Article 5 Eurofima Convention
Table of Contents
1. Definitions - Legal Framework |
3 |
1.1. Definitions |
3 |
1.2. Rules of Interpretation |
4 |
1.3. Legal Framework |
4 |
2. Guarantee |
4 |
2.1. Guarantee Undertaking |
4 |
2.2. Term and Continuing Guarantee |
5 |
2.3. Preservation of Rights |
5 |
2.4. Payments |
7 |
2.5. Assignment and Transfer |
7 |
3. Notices |
7 |
4. Miscellaneous |
8 |
4.1. Severability |
8 |
4.2. Amendments |
8 |
4.3. Execution in Counterparts |
8 |
5. Governing Law and Jurisdiction |
8 |
5.1. Governing Law |
8 |
5.2. Jurisdiction |
8 |
Recitals
(A) Whereas Eurofima intends to enter into the Equipment Financing Documents EFI No. 20202 and the Equipment Financing Documents EFI No. 20206 with the Company;
(B) While it is a condition under the Equipment Financing Documents that the Guarantor issue this Guarantee to guarantee the obligations of the Company under the Equipment Financing Documents in accordance with Art. 5a of the Eurofima Convention;
(C) While the Guarantor is aware of the Equipment Financing Documents and the Guarantor is willing to issue this Guarantee.
Now therefore, the Parties agree as follows:
1. Definitions - Legal Framework
In this Guarantee (including its Recitals) all capitalized terms used and not otherwise defined herein shall have the meaning ascribed to such terms in the Equipment Financing Contract.
CO means the Swiss Code of Obligations (Schweizerisches Obligationenrecht) dated 30 March 1911, as amended and restated from time to time.
Company means Joint Stock Company for Railway Passenger Transport "Srbijavoz", Belgrade, 6 Nemanjina Str., 11000 Belgrade, The Republic of Serbia.
Equipment Financing Documents (EFI No. 20202) means the Prefinancing and Hire Purchase Agreement (EFI No. 20202) and the respective Assignment and Mandate Agreement (EFI No. 20202) with respect to new equipment yet to be manufactured and delivered in a principal amount of up to EUR 40,000,000.
Equipment Financing Documents (EFI No. 20206) means the Hire Purchase Agreement (EFI No. 20206) and the respective Equipment Transfer Agreement (EFI No. 20206) with respect to existing equipment (part of it yet to be refurbished) in a principal amount of up to EUR 50,000,000.
Equipment Financing Documents means each and all of the Equipment Financing Documents (EFI No. 20202) and the Equipment Financing Documents (EFI No. 20206).
Eurofima Convention means the international convention, dated as of October 20, 1955, relative to the establishment of Eurofima.
Guarantee means this Guarantee Agreement (EFI No. 20202/20206).
Guaranteed Obligations means any and all obligations (present and future, actual and contingent) which are or become owing from time to time by the Company under or in connection with the Equipment Financing Documents, in each case, whether for principal, interest, breakage costs, fees, expenses, indemnification or otherwise.
Guaranteed Principal means Guaranteed Obligations in respect of the payment of the aggregate principal amounts under the Equipment Financing Documents.
1.2.1. A reference to a Party includes a reference to its successors in title, permitted transferees, designees and assigns.
1.2.2. A reference to any agreement includes such agreement as amended, restated, modified or otherwise supplemented from time to time in accordance with its terms.
1.2.3. Words denoting the singular shall include the plural and vice versa, unless the context requires otherwise.
1.2.4. Any reference in this Guarantee to a "Clause" or a "Schedule" shall, subject to any contrary indication, be construed as a reference to a clause or a schedule hereof.
This Guarantee is based on and governed by the Eurofima Convention and the provisions set forth below.
2.1.1. As security for any and all Guaranteed Obligations the Guarantor herewith unconditionally and irrevocably guarantees to Eurofima the due and punctual performance by the Company of the Guaranteed Obligations.
2.1.2. The Guarantor’s liability under this Guarantee for Guaranteed Principal shall be limited to an amount of EUR 90,000,000 and any other Guaranteed Obligation that is to be calculated in respect of or on the basis of principal outstanding under the Equipment Financing Contracts shall be limited to the amount calculated on such Guaranteed Principal. Any amount paid under this Guarantee on account of Guaranteed Principal shall reduce the liability for Guaranteed Principal, provided that Eurofima shall be free to allocate any payment received under this Guarantee first to any Guaranteed Obligation other than Guaranteed Principal and then to Guaranteed Principal.
2.1.3. This Guarantee constitutes, and is intended by the Guarantor to constitute, a primary, direct, separate, unlimited, non-accessory and independent undertaking (unbeschränkte, nicht akzessorische Verpflichtung) of the Guarantor within the meaning of Article 111 CO and the terms hereof and not a mere surety (Bürgschaft) within the meaning of Article 492 et seq. CO.
2.1.4. The Guarantor hereby undertakes to pay or indemnify Eurofima irrespective of the validity, the effectiveness and the enforceability of the Guaranteed Obligations and waiving all rights of objection and defence arising from or relating to the Guaranteed Obligations, upon first demand by Eurofima from time to time in writing stating that an amount is due and payable and has remained unpaid by the Company under or pursuant to the terms and conditions of the Equipment Financing Contract or the Guaranteed Obligations or on account of any breach thereof.
2.2. Term and Continuing Guarantee
2.2.1. This Guarantee constitutes and shall be a present and continuing obligation of the Guarantor until full and indefeasible discharge of all Guaranteed Obligations.
2.2.2. The Guarantee shall remain valid and in full force and effect, notwithstanding any amendment or modification of the Equipment Financing Documents, including without limitation any renewal, extension, supplement or replacement thereof or any refinancing granted thereunder and notwithstanding any settlement or other matter or thing whatsoever, and in particular but without limitation, shall not be considered, satisfied discharged, prejudiced, waived or released by any intermediate payment or satisfaction of all or any of the Guaranteed Obligations. If any payment made by the Company on account of the Guaranteed Obligations were to be clawed back, this Guarantee shall be reinstated.
2.3.1. This Guarantee is in addition and independent of any other security which Eurofima may at any time hold as security for the Guaranteed Obligations or any rights, powers and remedies provided by law and shall not operate so as in any way to prejudice, affect or be prejudiced or affected by any security interest or other right or remedy which Eurofima may now or at any time in the future have in respect of the Guaranteed Obligations.
2.3.2. Neither this Guarantee nor the rights, powers and remedies conferred in respect of the Guarantor upon Eurofima by this Guarantee or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or reorganisation of the Company or any change in its legal status;
(b) the winding-up, any amendment, modification, restatement, waiver, invalidity or unenforceability of the terms of the Equipment Financing Contract or the Guaranteed Obligations;
(c) any failure to take, or fully to take, any security contemplated by the Equipment Financing Documents or otherwise agreed to be taken in respect of any of the Guaranteed Obligations; and
(d) any failure to realise or fully to realise the value of, or any release, discharge, exchange or substitution of, any such security taken in respect of any of the Guaranteed Obligations.
2.3.3. Eurofima shall not be obliged before exercising any of the rights, powers or remedies conferred upon it under this Guarantee or by law:
(a) to make any demand on the Company other than a written demand for payment;
(b) to take any action or obtain judgment in any court against the Company;
(c) to make or file any claim or proof in a winding-up or dissolution of the Company; or
(d) to enforce or seek to enforce any security taken in respect of any of the Guaranteed Obligations.
2.3.4. The Guarantor agrees that, until the payment and satisfaction in full of any amount payable under or pursuant to the terms and conditions of the Guaranteed Obligations, the Guarantor shall not exercise any right, including a right of set-off, or remedy arising by reason of any performance by it of this Guarantee, whether by subrogation or otherwise, against the Company.
2.4.1. All payments under the Guarantee shall be made in the currency of the outstanding amounts under the Guaranteed Obligations and free and clear of, and without withholding or deduction for, taxes, duties, assessments, or governmental charges of whatever nature.
2.4.2. Moneys received or recovered by Eurofima under this Guarantee from the Guarantor in a currency other than that in which the said sums are due and payable under or pursuant to the Guaranteed Obligations or under Clauses 2.1.1 and/or 2.1.2 hereof shall be converted into the latter currency at the rate at which Eurofima would have sold the latter currency for the former at the opening of business on the latest day before Eurofima’s receipt or recovery on which Eurofima quoted generally a rate of exchange for such a sale.
2.5.1. The Guarantor may not transfer, assign, novate or otherwise dispose of this Guarantee or any rights or obligations hereunder without the prior written consent of Eurofima.
2.5.2. Eurofima may at any time transfer, assign, novate or otherwise dispose of or permit subrogation in this Guarantee or any rights and/or obligations hereunder without the consent of the Guarantor.
All notices in respect of this Guarantee must be made in writing to the following addresses (or such other addresses as the Parties may previously have specified by written notice to each other):
(a) If to Guarantor:
Republic of Serbia, acting through the Ministry of Finance
20 Kneza Milosa Str., 11000 Belgrade, The Republic of Serbia
Fax: (381-11) 3618-961
E-mail: kabinet@mfin.gov.rs
(b) If to Eurofima:
Eurofima European Company for the Financing
of Railroad Rolling Stock
Meret Oppenheim-Platz 1 C
4053 Basel, Switzerland
Attention: Mr. Christoph Pasternak, Chief Executive Officer
E-mail: christoph.pasternak@eurofima.org
If, at any time, any provision of this Guarantee is or becomes illegal, invalid or unenforceable in any respect, the legality, validity or enforceability of the remaining provisions will not in any way be affected or impaired. In such case the Parties shall replace the invalid or unenforceable term or provision by such valid and enforceable terms or provisions the contents of which shall reflect as closely as possible the commercial and legal purpose and intent of the provisions or terms replaced.
Any term of this Guarantee including this Clause 4.2 may be amended or waived only in writing and with the consent of all Parties.
4.3. Execution in Counterparts
This Guarantee may be executed in several counterparts with the same effect as if all Parties had signed one and the same single copy.
5. Governing Law and Jurisdiction
This Guarantee shall be governed by and construed in accordance with Swiss law.
The ordinary courts of Basel City, Canton of Basel City, Switzerland shall have exclusive jurisdiction for any dispute arising out of or in connection with this Guarantee.
[Signature Pages follow]
The Republic of Serbia
Name: |
Siniša Mali |
Name: |
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Title: |
First Deputy Prime Minister |
Title: |
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and Minister of Finance |
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EUROFIMA European Company for the Financing of Railroad Rolling Stock
Name: |
Aurélia Gerber |
Name: Dirk Dombrowski |
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Title: |
Head of Capital Markets, |
Title: Head of Middle Office |
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Treasury & Asset Management |
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