Tekst ugovora / prilog
Contract Number (FI N°) 95.884
Operation Number (Serapis N°) 2022-0716
EPS GREEN FINANCING A
EFSD+ Dedicated Investment Window 1
Finance Contract
between the Republic of Serbia
and the
European Investment Bank
Belgrade, 27.12.2024
Luxembourg, 27/12/2024
WHEREAS: .......................................................................................................................... 7
INTERPRETATION AND DEFINITIONS .............................................................................. 9
ARTICLE 1 ......................................................................................................................... 19
1.1 AMOUNT OF CREDIT ............................................................................................ 19
1.2 DISBURSEMENT PROCEDURE ............................................................................ 19
1.2.A TRANCHES ............................................................................................................... 19
1.2.B DISBURSEMENT OFFER ............................................................................................. 19
1.2.C DISBURSEMENT ACCEPTANCE ................................................................................... 19
1.2.D DISBURSEMENT ACCOUNT ........................................................................................ 20
1.3 CURRENCY OF DISBURSEMENT ........................................................................ 20
1.4 CONDITIONS OF DISBURSEMENT ...................................................................... 20
1.4.A CONDITION PRECEDENT TO THE FIRST REQUEST FOR DISBURSEMENT OFFER ............... 20
1.4.B FIRST TRANCHE ....................................................................................................... 20
1.4.C SECOND AND SUBSEQUENT TRANCHES ..................................................................... 21
1.4.D ALL TRANCHES ......................................................................................................... 21
1.5 DEFERMENT OF DISBURSEMENT ...................................................................... 22
1.5.A GROUNDS FOR DEFERMENT ...................................................................................... 22
1.5.B CANCELLATION OF A DISBURSEMENT DEFERRED BY 6 (SIX) MONTHS ............................ 23
1.6 CANCELLATION AND SUSPENSION .................................................................... 23
1.6.A BORROWER’S RIGHT TO CANCEL ................................................................................ 23
1.6.B BANK’S RIGHT TO SUSPEND AND CANCEL .................................................................... 23
1.6.C INDEMNITY FOR SUSPENSION AND CANCELLATION OF A TRANCHE ................................ 24
1.7 CANCELLATION AFTER EXPIRY OF THE CREDIT .............................................. 25
1.8 SUMS DUE UNDER ARTICLES 1.5 AND 1.6 ......................................................... 25
1.9 ALLOCATION PROCEDURE ................................................................................. 25
1.9.A ALLOCATION REQUEST ............................................................................................. 25
1.9.B ALLOCATION LETTER ................................................................................................ 26
1.10 REALLOCATION PROCEDURE............................................................................. 26
ARTICLE 2 ......................................................................................................................... 27
2.1 AMOUNT OF LOAN................................................................................................ 27
2.2 CURRENCY OF PAYMENTS ................................................................................. 27
2.3 CONFIRMATION BY THE BANK ............................................................................ 27
ARTICLE 3 ......................................................................................................................... 27
3.1 RATE OF INTEREST .............................................................................................. 27
3.1.A FIXED RATE TRANCHES ............................................................................................ 27
3.1.B FLOATING RATE TRANCHES ...................................................................................... 27
3.1.C REVISION OR CONVERSION OF TRANCHES ................................................................. 28
3.2 INTEREST ON OVERDUE SUMS .......................................................................... 28
3.3 MARKET DISRUPTION EVENT ............................................................................. 28
ARTICLE 4 ......................................................................................................................... 29
4.1 NORMAL REPAYMENT ......................................................................................... 29
4.1.A REPAYMENT BY INSTALMENTS ................................................................................... 29
4.1.B SINGLE INSTALMENT ................................................................................................. 29
4.2 VOLUNTARY PREPAYMENT ................................................................................ 29
4.2.A PREPAYMENT OPTION ............................................................................................... 29 4.2.B PREPAYMENT INDEMNITY .......................................................................................... 30 4.2.C PREPAYMENT MECHANICS ......................................................................................... 30 4.2.D ADMINISTRATIVE FEE ................................................................................................ 30
4.3 COMPULSORY PREPAYMENT AND CANCELLATION ........................................ 31
4.3.A PREPAYMENT EVENTS .............................................................................................. 31 4.3.B PREPAYMENT MECHANICS ......................................................................................... 33 4.3.C PREPAYMENT INDEMNITY .......................................................................................... 33
4.4 GENERAL .............................................................................................................. 33
4.4.A NO PREJUDICE TO ARTICLE 10 .................................................................................. 33 4.4.B NO REBORROWING ................................................................................................... 33
ARTICLE 5 ......................................................................................................................... 33
5.1 DAY COUNT CONVENTION .................................................................................. 33
5.2 TIME AND PLACE OF PAYMENT .......................................................................... 34
5.3 NO SET-OFF BY THE BORROWER ...................................................................... 34
5.4 DISRUPTION TO PAYMENT SYSTEMS ................................................................ 34
5.5 APPLICATION OF SUMS RECEIVED .................................................................... 34
5.5.A GENERAL ................................................................................................................. 34 5.5.B PARTIAL PAYMENTS .................................................................................................. 34 5.5.C ALLOCATION OF SUMS RELATED TO TRANCHES ........................................................... 35
ARTICLE 6 ......................................................................................................................... 35
A. PROJECT UNDERTAKINGS ........................................................................................ 35 6.1 USE OF LOAN AND AVAILABILITY OF OTHER FUNDS ....................................... 35
6.2 COMPLETION OF PROJECT ................................................................................. 36
6.3 INCREASED COST OF PROJECT ......................................................................... 36
6.4 PROCUREMENT PROCEDURE ............................................................................ 36
6.5 CONTINUING PROJECT UNDERTAKINGS .......................................................... 36
6.6 ADDITIONAL UNDERTAKINGS ............................................................................. 37
B. GENERAL UNDERTAKINGS ........................................................................................ 39
6.7 COMPLIANCE WITH LAWS ................................................................................... 39
6.8 CHANGE IN BUSINESS ......................................................................................... 39
6.9 BOOKS AND RECORDS ........................................................................................ 39
6.10 INTEGRITY ............................................................................................................ 40
6.11 DATA PROTECTION .............................................................................................. 40
6.12 GENERAL REPRESENTATIONS AND WARRANTIES .......................................... 41
6.13 CONFLICT OF INTEREST ..................................................................................... 42
ARTICLE 7 ......................................................................................................................... 43
7.1 PARI PASSU RANKING ......................................................................................... 43
7.2 ADDITIONAL SECURITY ....................................................................................... 43
7.3 CLAUSES BY INCLUSION ..................................................................................... 43
ARTICLE 8 ......................................................................................................................... 44
8.1 INFORMATION CONCERNING THE PROJECT .................................................... 44
8.2 INFORMATION CONCERNING THE BORROWER ............................................... 45
8.3 VISITS, RIGHT OF ACCESS AND INVESTIGATION ............................................. 45
8.4 DISCLOSURE AND PUBLICATION ....................................................................... 46
ARTICLE 9 ......................................................................................................................... 47
9.1 TAXES, DUTIES AND FEES .................................................................................. 47
9.2 OTHER CHARGES ................................................................................................ 47
9.3 INCREASED COSTS, INDEMNITY AND SET-OFF ................................................ 47
ARTICLE 10 ....................................................................................................................... 48 10.1 RIGHT TO DEMAND REPAYMENT ....................................................................... 48
10.1.A IMMEDIATE DEMAND .................................................................................................. 48 10.1.B DEMAND AFTER NOTICE TO REMEDY .......................................................................... 49
10.2 OTHER RIGHTS AT LAW ...................................................................................... 49
10.3 INDEMNITY ............................................................................................................ 49
10.3.A FIXED RATE TRANCHES ............................................................................................ 49 10.3.B FLOATING RATE TRANCHES ...................................................................................... 49 10.3.C GENERAL ................................................................................................................. 49
10.4 NON-WAIVER ........................................................................................................ 50
ARTICLE 11 ....................................................................................................................... 50
11.1 GOVERNING LAW ................................................................................................. 50
11.2 JURISDICTION ....................................................................................................... 50
11.3 PLACE OF PERFORMANCE ................................................................................. 50
11.4 EVIDENCE OF SUMS DUE .................................................................................... 50
11.5 ENTIRE AGREEMENT ........................................................................................... 50
11.6 INVALIDITY ............................................................................................................ 50
11.7 AMENDMENTS ...................................................................................................... 51
11.8 COUNTERPARTS .................................................................................................. 51
ARTICLE 12 ....................................................................................................................... 51
12.1 NOTICES ................................................................................................................ 51
12.1.A FORM OF NOTICE ..................................................................................................... 51 12.1.B ADDRESSES ............................................................................................................. 52 12.1.C NOTIFICATION OF COMMUNICATION DETAILS ............................................................... 52
12.2 ENGLISH LANGUAGE ........................................................................................... 52
12.3 EFFECTIVENESS OF THIS CONTRACT ............................................................... 52
12.4 RECITALS, SCHEDULES AND ANNEXES ............................................................ 53
SCHEDULE A .................................................................................................................... 55
TECHNICAL DESCRIPTION .............................................................................................. 55
SCHEDULE B .................................................................................................................... 76
DEFINITION OF RELEVANT INTERBANK RATE .............................................................. 76
SCHEDULE C .................................................................................................................... 78
FORM OF DISBURSEMENT OFFER/ACCEPTANCE (ARTICLES 1.2.B AND1.2.C) ......... 78
SCHEDULE D .................................................................................................................... 81
INTEREST RATE REVISION AND CONVERSION ............................................................ 81
SCHEDULE E .................................................................................................................... 82
CERTIFICATES TO BE PROVIDED BY THE BORROWER............................................... 82
THIS CONTRACT IS MADE BETWEEN:
Republic of Serbia, represented by Mr. Siniša Mali, First Deputy
(the "Borrower") Prime Minister and Minister of Finance, on behalf of the Government as representative of the Republic of Serbia,
of the first part, and
European Investment Bank having its seat at 100 Blvd. (the "Bank") Konrad Adenauer, Luxembourg, L-2950 Luxembourg, represented by Matteo Rivellini, Head of Division and Hazal Hatunoglu, Legal Counsel,
of the second part,
The Bank and the Borrower together are referred to as the “Parties” and any of them is a “Party”.
WHEREAS:
(a)
The Borrower, represented by the Ministry of Finance of the Republic of Serbia (MoF), has stated that it, acting in cooperation with the Ministry of Mining and Energy of the Republic of Serbia (MoME), and JSC Elektroprivreda Srbije Belgrade (the “Promoter”, as further defined below), is undertaking a project of modernising existing hydro power plants and commissioning new renewable energy generation plants with associated consultancy services (each operation a “Scheme” or a "Sub-Project" and collectively the "Project"), as more particularly described in the technical description set out in Schedule A to this Contract (the "Technical Description"). The Project Implementation Unit (the “PIU”) will be created at the level of the Promoter to help to manage the Project.
(b)
The total cost of the Project, as estimated by the Bank, is EUR 407,500,000.00 (four hundred seven million five hundred thousand euros) and the Borrower has stated that it intends to finance the Project as follows:
Source Amount (EUR m)
Credit from the Bank under this 100.00 Contract (Tranche A 100m)
Loan from EBRD 67.00
Grant from WBIF 39.09
Other sources 201.41
TOTAL 407.50
(c)
The financing under this Contract is provided pursuant to the European Fund for Sustainable Development Plus ("EFSD+"), an integrated financial package supplying financing capacity in the form of grants, budgetary guarantees and financial instruments worldwide; and in particular under the exclusive investment window for operations with sovereign counterparts and non- commercial sub-sovereign counterparts under article 36.1 of the NDICI-GE Regulation ("EFSD+ DIW1"). Pursuant to article 36.8 of the NDICI-GE Regulation, on 29 April 2022, the Bank and the European Union, represented by the European Commission, entered into an EFSD+ guarantee agreement (the "EFSD+ DIW1 Guarantee Agreement") whereby the European Union granted to the Bank a comprehensive guarantee for eligible financing operations of the Bank in respect of projects carried out in countries within the geographic areas referred to in article 4(2) of the NDICI-GE Regulation and in Annex I of the IPA Ill Regulation (the "EFSD+ DIW1' Guarantee"). The Republic of Serbia is an eligible country pursuant to the NDICI-GE Regulation and the IPA III Regulation.
(d)
The Republic of Serbia and the Bank concluded on 11 May 2009 a framework agreement governing the Bank's activities in the territory of the Republic of Serbia (the "Framework Agreement"). By signing this Contract, the Borrower gives its formal consent in accordance with Article 2 of the Framework Agreement to the loan financing to be provided hereunder falling within the scope of the Framework Agreement.
(e)
In order to fulfil the financing plan set out in Recital (b), the Borrower has requested from the Bank a credit in total amount of EUR 100,000,000.00 (one hundred million euros).
(f)
The Bank, considering that the financing of the Project falls within the scope of its functions and having regard to the statements and facts cited in these Recitals, has decided to give effect to the Borrower’s request providing to it a first portion of the credit in an amount of EUR 100,000,000.00 (one hundred million euros) under this finance contract (the "Contract"); provided that the amount of the Bank loan, when aggregated with the amount of any other loan which may be extended by the Bank for the purposes of the Project, shall not, in any case, exceed 50% (fifty per cent) of the total cost of the Project set out in Recital (b).
(g)
The Borrower has authorised the borrowing of the sum of EUR 100,000,000.00 (one hundred million euros) represented by this credit on the terms and conditions set out in this Contract.
(h)
The Borrower shall make the funds of the Credit available to the Promoter pursuant to a loan fund transfer agreement among the MoF, the MoME and the Promoter (the "Loan Fund Transfer Agreement") reflecting requirements under this Contract.
(i)
The Statute of the Bank provides that the Bank shall ensure that its funds are used as rationally as possible in the interests of the European Union; and, accordingly, the terms and conditions of the Bank's loan operations must be consistent with relevant policies of the European Union.
(j)
The Bank considers that access to information plays an essential role in the reduction of environmental and social risks, including human rights violations, linked to the projects it finances and has therefore established its transparency policy, the purpose of which is to enhance the accountability of the Bank’s group towards its stakeholders.
(k)
The Bank supports the implementation of international and European Union standards in the field of anti-money laundering and countering the financing of terrorism and promotes tax good governance standards. It has established policies and procedures to avoid the risk of misuse of its funds for purposes which are illegal or abusive in relation to applicable laws. The Bank’s group statement on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism is available on the Bank’s website and offers further guidance to the Bank’s contracting counterparties.1
(l)
The Bank has established an overarching policy framework that allows the Bank’s Group to focus on sustainable and inclusive development, committing to a just and fair transition and supporting the transition to economies and communities that are climate and disaster resilient, low carbon, environmentally sound and more resource efficient. The policy framework includes the EIB Group Environmental and Social Policy and the EIB Environmental and Social Standards. The EIB Group Environmental and Social Policy and the EIB Environmental and Social Standards are available on the Bank’s website and offers further guidance to the Bank’s contracting counterparties.
1 http://www.eib.org/about/compliance/tax-good-governance/index.htm?f=search&media=search NOW THEREFORE it is hereby agreed as follows:
INTERPRETATION AND DEFINITIONS
Interpretation
In this Contract:
(a)
references to “Articles”, “Recitals”, “Schedules” and “Annexes” are, save if explicitly stipulated otherwise, references respectively to articles of, and recitals, schedules and annexes to this Contract;
(b)
references to "law" or "laws" mean:
(i)
any applicable law and any applicable treaty, constitution, statute, legislation, decree, normative act, rule, regulation, judgement, order, writ, injunction, determination, award or other legislative or administrative measure or judicial or arbitral decision in any jurisdiction which is binding or applicable case law; and
(ii) EU Law;
(c)
references to "applicable law", "applicable laws" or "applicable jurisdiction" mean:
(i)
a law or jurisdiction applicable to the Borrower, its rights and/or obligations (in each case arising out of or in connection with this Contract), its capacity and/or assets and/or the Project; and/or, as applicable
(ii) a law or jurisdiction (including in each case the Bank’s Statute) applicable to the Bank, its rights, obligations, capacity and/or assets;
(d)
references to a provision of law or a treaty are references to that provision as amended or re-enacted;
(e)
references to any other agreement or instrument are references to that other agreement or instrument as amended, novated, supplemented, extended or restated;
(f)
words and expressions in plural shall include singular and vice versa; and
(g)
references to “month” mean a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that and subject to the definition of Payment Date, Article 5.1 and Schedule B and unless provided otherwise in this Contract:
(i)
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and
(ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
(h)
a reference in this Contract to a page or screen of an information service displaying a rate shall include:
(i)
any replacement page of that information service which displays that rate; and
(ii) the appropriate page of such other information service which displays that rate from time to time in place of that information service,
and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Bank.
Definitions
In this Contract:
"Accepted Tranche" means a Tranche in respect of which a Disbursement Offer has been duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline.
"Agreed Deferred Disbursement Date" has the meaning given to it in Article 1.5.A(2)(b).
“Allocation Procedure” has the meaning given to it in Article 1.9.
“Allocation Letter” has the meaning given to it in Article 1.9.
“Allocation Request” has the meaning given to it in Article 1.9.A.
“AML Directives" means (i) Directive (EU) lo. 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing amending Regulation (EU) lo 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, as amended, supplemented and replaced from time to time and (ii) Directive 2018/843 of the European Parliament and of the Council of 19 June 2018 on anti-money laundering and terrorist financing as amended, supplemented or restated from time to time.
"Authorisation(s)" means an authorisation, permit, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Authorised Signatory" means a person authorised to sign individually or jointly (as the case may be) Disbursement Acceptances on behalf of the Borrower and named in the most recent List of Authorised Signatories and Accounts received by the Bank prior to the receipt of the relevant Disbursement Acceptance.
"Business Day" means a day (other than a Saturday or Sunday) on which the Bank and commercial banks are open for general business in Luxembourg and in Belgrade.
"Cancelled Tranche" has the meaning given to it in Article 1.6.C(2).
"Change in the Beneficial Ownership" means a change in the ultimate ownership or control of an entity according to the definition of "beneficial owner" set out in article 3(6) of Directive 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing as modified and /or supplemented from time to time.
"Change-of-Law Event" has the meaning given to it in Article 4.3.A(3).
"Close Associate(s)” means "persons known to be close associates" as defined in the AML Directives.
“Commercial Operation Date” means the date when the last commissioning tests have been passed for the whole facility and facility starts to generate power to earn revenue with full capacity.
"Contract" has the meaning given to it in Recital (f).
"Contract Number" means the Bank generated number identifying this Contract and indicated on the cover page of this Contract after the letters "FI N°".
"Credit" has the meaning given to it in Article 1.1.
“Date of Effectiveness” has the meaning given to it in Article 12.3.
"Declaration on Honour" means the "Declaration on Honour" under EFSD+ signed by the Borrower on 20 December 2024.
"Deferment Fee" means a fee calculated on the amount of an Accepted Tranche deferred or suspended at the rate of the higher of:
(a)
0.125% (12.5 basis points), per annum; and
(b)
the percentage rate by which:
(i)
the interest rate that would have been applicable to such Tranche had it been disbursed to the Borrower on the Scheduled Disbursement Date, exceeds
(ii) EURIBOR (one month rate) less 0.125% (12.5 basis points), unless such rate is less than zero in which case it shall be set at zero.
Such fee shall accrue from the Scheduled Disbursement Date to the Disbursement Date or, as the case may be, until the date of cancellation of the Accepted Tranche in accordance with this Contract.
"Disbursement Acceptance" means a copy of the Disbursement Offer duly signed by the Borrower in accordance with the List of Authorised Signatories and Accounts.
"Disbursement Acceptance Deadline" means the date and time of expiry of a Disbursement Offer, as specified therein.
"Disbursement Account" means, in respect of each Tranche, the bank account to which disbursements may be made under this Contract, as set out in the most recent List of Authorised Signatories and Accounts.
"Disbursement Date" means the date on which disbursement of a Tranche is made by the Bank.
"Disbursement Offer" means a letter substantially in the form set out in Schedule C.
"Dispute" has the meaning given to it in Article 11.2.
"Disruption Event" means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Contract; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that Party from:
(i)
performing its payment obligations under this Contract; or
(ii) communicating with the other Party,
and which disruption (in either such case as per (a) or (b) above) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"EFSD+" has the meaning given in Recital (c).
"EFSD+ DIW1" has the meaning given in Recital (c).
“EFSD+ DIW1 Guarantee” has the meaning given in Recital (c).
"EFSD+ DIW1 Guarantee Agreement" has the meaning given in Recital (c).
“Eligible Expenditure” means expenditure (including costs of design and supervision, if relevant, and net of taxes and duties payable by the Borrower and/or the Promoter) incurred by the Borrower or the Promoter for the Project, in respect of works, goods and services relating to items specified in the Technical Description as eligible for financing under the Credit (for the avoidance of doubt excluding rights of way which shall be financed by the Borrower), which have been the object of contract or contracts executed on terms satisfactory to the Bank, having regard to the most recent edition of the Bank's Guide to Procurement.
“EIB Environmental and Social Standards” means the EIB Environmental and Social Standards of 2022 which are published on the Bank’s website and which describe the environmental and social requirements that all EIB-financed projects must meet and the responsibilities of the various parties, including the Borrower and the Promoter.
"Environment" means the following:
(a)
fauna and flora, living organisms including the ecological systems;
(b)
land, soil, water (including marine and coastal waters), air, climate and the landscape (natural or man-made structures, whether above or below ground);
(c)
cultural heritage (natural, tangible and intangible);
(d)
the built environment; and
(e)
human health and wellbeing.
"Environmental and Social Impact Assessment Study" means the environmental and social impact assessment.
"Environmental and Social Documents" means the Environmental and Social Impact Assessment Study and environmental permits or screen-out decision from the competent Serbian authority.
"Environmental and Social Standards" means:
(a)
Environmental Laws and Social Laws applicable to the Project or the Borrower;
(b)
the EIB Environmental and Social Standards; and
(c)
the Environmental and Social Documents.
“Environmental or Social Approval” means any Authorisation required by an Environmental Law or a Social Law in connection with the construction or operation of the Project.
“Environmental or Social Claim” means any claim, proceeding, formal notice or investigation by any person in respect of any breach or alleged breach of any Environmental and Social Standards.
“Environmental Law” means:
(a)
EU law, including principles and standards save for any derogation accepted by the Bank for the purpose of this Contract based on any agreement between Republic of Serbia and the EU;
(b)
Serbian laws and regulations; and
(c)
international treaties and conventions signed and ratified by or otherwise applicable and binding on, the Republic of Serbia, in each case of which a principal objective is the preservation, protection or improvement of the Environment.
"EU Law" means the acquis communautaire of the European Union as expressed through the Treaties of the European Union, the regulations, directives, delegated acts, implementing acts, and the case law of the Court of Justice of the European Union.
"EUR" or "euro" means the lawful currency of the Member States of the European Union, which adopt or have adopted it as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union.
"EURIBOR" has the meaning given to it in Schedule B.
"Event of Default" means any of the circumstances, events or occurrences specified in Article 10.1.
"Family Member(s)" has the meaning given to such term in the AML Directives.
“Final Availability Date" means the day falling 84 (eighty four) months after the Date of Effectiveness and if such day is not a Relevant Business Day, then the preceding Relevant Business Day.
"Financing of Terrorism" means the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any of the offences listed in the Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (as amended, replaced or re-enacted from time to time).
“Financial Regulation” means Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EC, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).
"Fixed Rate" means an annual interest rate determined by the Bank in accordance with the applicable principles from time to time laid down by the governing bodies of the Bank for loans made at a fixed rate of interest, denominated in the currency of the Tranche and bearing equivalent terms for the repayment of capital and the payment of interest. Such rate shall not be of negative value.
"Fixed Rate Tranche" means a Tranche on which the Fixed Rate is applied.
"Floating Rate" means a fixed-spread floating annual interest rate, determined by the Bank for each successive Floating Rate Reference Period equal to the Relevant Interbank Rate plus the Spread. If the Floating Rate for any Floating Rate Reference Period is calculated to be below zero, it will be set at zero.
"Floating Rate Reference Period" means each period from one Payment Date to the next relevant Payment Date; the first Floating Rate Reference Period shall commence on the date of disbursement of the Tranche.
"Floating Rate Tranche" means a Tranche on which the Floating Rate is applied.
"Framework Agreement" has the meaning given in Recital (d).
"GAAP" means generally accepted accounting principles in the Republic of Serbia, including IFRS.
"Guide to Procurement" means the Guide to Procurement published on EIB’s website2 that informs the promoters of projects financed in whole or in part by the EIB of the arrangements to be made for procuring works, goods and services required for the Project.
"IFRS" means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"Illegality Event" has the meaning given to it in Article 4.3.A(4).
"ILO" means the International Labour Organisation.
"ILO Standards" means any treaty, convention or covenant of the ILO signed and ratified by or otherwise applicable and binding on the Republic of Serbia, and the Core Labour Standards (as defined in the ILO Declaration on Fundamental Principles and Rights at Work).
"Indemnifiable Prepayment Event" means a Prepayment Event other than the Non-EIB Financing Prepayment Event or Illegality Event.
"Interest Revision/Conversion" means the determination of new financial conditions relative to the interest rate, specifically the same interest rate basis ("revision") or a different interest rate basis ("conversion") which can be offered for the remaining term of a Tranche or until the next Interest Revision/Conversion Date, if any, in respect of any Tranche denominated in EUR.
"Interest Revision/Conversion Date" means the date, which shall be a Payment Date, specified by the Bank in the Disbursement Offer.
"Interest Revision/Conversion Proposal" means a proposal made by the Bank under Schedule D.
"Interest Revision/Conversion Request" means a written notice from the Borrower, delivered at least 75 (seventy-five) days before an Interest Revision/Conversion Date, requesting the Bank to submit to it an Interest Revision/Conversion Proposal. The Interest Revision/Conversion Request shall also specify:
(a)
the Payment Dates chosen in accordance with the provisions of Article 3.1;
(b)
the amount of the Tranche for which the Interest Revision/Conversion shall apply; and
(c)
any further Interest Revision/Conversion Date chosen in accordance with Article 3.1.
“IPA III Regulation” means Regulation (EU) 2021/1529 of the European Parliament and of the Council of 15 September 2021 establishing the Instrument for Pre- Accession assistance (IPA III).
"List of Authorised Signatories and Accounts" means a list, in form and substance satisfactory to the Bank, setting out:
(a)
the Authorised Signatories, accompanied by evidence of signing authority of the persons named on the list and specifying if they have individual or joint signing authority;
2 https://www.eib.org/en/publications/guide-to-procurement.htm Please note that the reference is to the version of the Guide in force at the time of the relevant project procurement that it a.
(b)
the specimen signatures of such persons;
(c)
the bank account(s) to which disbursements may be made under this Contract (specified by IBAN code if the country is included in the IBAN Registry published by SWIFT, or in the appropriate account format in line with the local banking practice), BIC/SWIFT code of the bank and the name of the bank account(s) beneficiary, together with evidence that such account(s) have been opened in the name of the beneficiary; and
(d)
the bank account(s) from which payments under this Contract will be made by the Borrower (specified by IBAN code if the country is included in the IBAN Registry published by SWIFT, or in the appropriate account format in line with the local banking practice), BIC/SWIFT code of the bank and the name of the bank account(s) beneficiary, together with evidence that such account(s) have been opened in the name of the beneficiary.
"Loan" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract.
"Loan Fund Transfer Agreement" has the meaning given to it in Recital (h).
"Loan Outstanding" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract that remains outstanding.
"Market Disruption Event" means any of the following circumstances:
(a)
there are, in the reasonable opinion of the Bank, events or circumstances adversely affecting the Bank’s access to its sources of funding;
(b)
in the opinion of the Bank, funds are not available from the Bank's ordinary sources of funding in order to adequately fund a Tranche in the relevant currency and/or for the relevant maturity and/or in relation to the reimbursement profile of such Tranche; or
(c)
in relation to a Floating Rate Tranche:
(i)
the cost to the Bank of obtaining funds from its sources of funding, as determined by the Bank, for a period equal to the Floating Rate Reference Period of such Tranche (i.e. in the money market) would be in excess of the applicable Relevant Interbank Rate; or
(ii) the Bank determines that adequate and fair means do not exist for ascertaining the applicable Relevant Interbank Rate for the relevant currency of such Tranche.
"Material Adverse Change" means, any event or change of condition, which, in the opinion of the Bank has a material adverse effect on:
(a)
the ability of the Borrower to perform its obligations under this Contract; or
(b)
the financial condition or prospects of the Borrower.
"Maturity Date" means the last Repayment Date of a Tranche specified pursuant to Article 4.1.A(b)(iv) or the sole Repayment Date of a Tranche specified pursuant to Article 4.1.B.
“MoME” means the Ministry of Mining and Energy of the Republic of Serbia or its legal successor.
“Money Laundering” means:
(a)
the conversion or transfer of property, knowing that such property is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such activity to evade the legal consequences of his action;
(b)
the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from criminal activity or from an act of participation in such activity;
(c)
the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from criminal activity or from an act of participation in such activity; or
(d)
participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the foregoing points.
“NDICI-GE Regulation” means Regulation (EU) 2021/947 of the European Parliament and of the Council of 9 June 2021 establishing the Neighbourhood, Development and International Cooperation Instrument – Global Europe.
"Non-EIB Financing" has the meaning given to it in Article 4.3.A(2).
"Non-EIB Financing Prepayment Event" has the meaning given to it in Article 4.3.A(2).
"Payment Account" means the bank account from which payments under this Contract will be made by the Borrower, as set out in the most recent List of Authorised Signatories and Accounts.
"Payment Date" means the annual, semi-annual or quarterly dates specified in the Disbursement Offer until and including the Interest Revision/Conversion Date, if any, or the Maturity Date, save that, in case any such date is not a Relevant Business Day, it means:
(a)
for a Fixed Rate Tranche either:
(i)
the following Relevant Business Day, without adjustment to the interest due under Article 3.1; or
(ii) the preceding Relevant Business Day with adjustment (but only to the amount of interest due under Article 3.1 that accrued over the last interest period), in case repayment of principal is made in a single instalment in accordance with Schedule D point C or Article 4.1.B; and
(b)
for a Floating Rate Tranche, the following Relevant Business Day in that month, or, failing that, the nearest preceding Relevant Business Day, in all cases with corresponding adjustment to the interest due under Article 3.1.
“PIU” has the meaning given to it in Recital (a).
"Prepayment Amount" means the amount of a Tranche to be prepaid by the Borrower in accordance with Article 4.2.A or Article 4.3.A, as applicable.
"Prepayment Date" means the date, as requested by the Borrower and agreed by the Bank or indicated by the Bank (as applicable) on which the Borrower shall effect prepayment of a Prepayment Amount.
"Prepayment Event" means any of the events described in Article 4.3.A.
"Prepayment Indemnity" means in respect of any principal amount to be prepaid, the amount communicated by the Bank to the Borrower as the present value (calculated as of the Prepayment Date) of the excess, if any, of:
(a)
the interest that would accrue thereafter on the Prepayment Amount over the period from the Prepayment Date to the Interest Revision/Conversion Date, if any, or the Maturity Date, if it were not prepaid; over
(b)
the interest that would so accrue over that period, if it were calculated at the Redeployment Rate, less 0.19% (nineteen basis points).
The said present value shall be calculated at a discount rate equal to the Redeployment Rate, applied as of each relevant Payment Date.
"Prepayment Notice" means a written notice from the Bank to the Borrower in respect of prepayment of a Fixed Rate Tranche and/or a Floating Rate Tranche in accordance with Article 4.2.C, specifying the Prepayment Amount, the Prepayment Date, the accrued interest due, the fee under Article 4.2.D, if any, and in respect of Fixed Rate Tranches only, the Prepayment Indemnity, if any, due on the Prepayment Amount.
"Prepayment Offer" means a written notice from the Bank to the Borrower in accordance with Article 4.2.C.
"Prepayment Request" means a written request from the Borrower to the Bank to prepay all or part of the Loan Outstanding, in accordance with Article 4.2.A.
"Prohibited Conduct” means any Financing of Terrorism, Money Laundering or Prohibited Practice.
"Prohibited Practice" means any:
(a)
Coercive Practice, meaning the impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of a party to influence improperly the actions of a party;
(b)
Collusive Practice, meaning an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party;
(c)
Corrupt Practice, meaning the offering, giving, receiving or soliciting, directly or indirectly, of anything of value by a party to influence improperly the actions of another party;
(d)
Fraudulent Practice, meaning any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party in order to obtain a financial (including, for the avoidance of taxation related) or other benefit or to avoid an obligation;
(e)
Obstructive Practice, meaning in relation to an investigation into a Coercive, Collusive, Corrupt or Fraudulent Practice in connection with this Loan or the Project, (a) destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators, with the intent to impede the investigation; (b) threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or (c) acts intending to impede the exercise of the EIB Group’s contractual rights of audit or inspection or access to information;
(f)
Tax Crime, meaning all offences, including tax crimes relating to direct taxes and indirect taxes and as defined in the national law of the Republic of Serbia, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year; or
(g)
Misuse of EIB Group Resources and Assets, meaning any illegal activity committed in the use of the EIB Group’s resources or assets (including the funds lent under this Contract) knowingly or recklessly; or
(h)
any other illegal activity that may affect the financial interests of the European Union, according to the applicable laws.
"Project" has the meaning given to it in Recital (a).
"Project Cost Reduction Event" has the meaning given to it in Article 4.3.A(1).
"Promoter" means JSC ELEKTROPRIVREDA SRBIJE BELGRADE (registration number 07020171), a company fully owned by the Republic of Serbia, as a founder and sole shareholder, where the rights of the founder are exercised by the Government of the Republic of Serbia.
"Redeployment Rate" means the fixed annual rate determined by the Bank, being a rate which the Bank would apply on the day of the indemnity calculation to a loan that has the same currency, the same terms for the payment of interest and the same repayment profile to the Interest Revision/Conversion Date, if any, or the Maturity Date as the Tranche in respect of which a prepayment or cancellation is proposed or requested to be made. Such rate shall not be of negative value.
"Relevant Business Day" means a day on which real time gross settlement system operated by the Eurosystem (T2), or any successor system, is open for settlement of payments in EUR.
"Relevant Interbank Rate" means EURIBOR for a Tranche denominated in EUR.
“Relevant Party” has the meaning given to it in Article 8.3.
“Relevant Person” means:
(a)
with respect to the Borrower, any ministries, other central executive government bodies or other governmental sub-divisions or any of their officials or representatives, or any other person acting for any of them, on its behalf, or under its control, having the authority to manage and/or supervise the Credit, the Loan, the Project; and
(b)
with respect to the Promoter, any member of its management bodies, or any person acting for it, on its behalf, or under its control, having the power to give material directions and/or exercise control with respect to the Credit, the Loan or the Project.
"Repayment Date" shall mean each of the Payment Dates specified for the repayment of the principal of a Tranche in the Disbursement Offer, in accordance with Article 4.1.
"Requested Deferred Disbursement Date" has the meaning given to it in Article 1.5.A(1)(a)(ii).
"Sanctioned Person" means any individual or entity (for the avoidance of doubt, the term entity includes, but is not limited to, any government, group or terrorist organisation) who is a designated target of, or who is otherwise a subject of, Sanctions (including, without limitation, as a result of being owned or otherwise controlled, directly or indirectly, by any individual or entity, who is a designated target of, or who is otherwise a subject of, Sanctions).
"Sanctions" means the economic or financial sanctions laws, regulations, trade embargoes or other restrictive measures (including, in particular, but not limited to, measures in relation to the financing of terrorism) enacted, administered, implemented or enforced from time to time by any of the following:
(a)
the United Nations including, inter alia, the United Nations Security Council;
(b)
the European Union including, inter alia, the Council of the European Union and the European Commission, and any other competent bodies/institutions or agencies of the European Union;
(c)
the government of the United States of America, and any department, division, agency, or office thereof, including, inter alia, the Office of Foreign Asset Control (OFAC) of the United States Department of the Treasury, the United States Department of State and/or the United States Department of Commerce; and
(d)
the government of the United Kingdom, and any department, division, agency, office or authority including, inter alia, the Office of Financial Sanctions Implementation of His Majesty’s Treasury and the Department for International Trade of the United Kingdom.
"Scheduled Disbursement Date" means the date on which a Tranche is scheduled to be disbursed in accordance with Article 1.2.B, which shall be a Relevant Business Day falling at least 10 (ten) days after the date of the Disbursement Offer and on or before the Final Availability Date.
“Social Law” means:
(a)
EU law, including principles and standards save for any derogation accepted by the Bank for the purpose of this Contract based on any agreement between the Republic of Serbia and the EU;
(b)
laws and regulations of Republic of Serbia;
(c)
international treaties and conventions signed and ratified by or otherwise applicable and binding on Republic of Serbia;
(d)
any ILO Standards;
in each case of which a principal objective is the protection or improvement of Social Matters; and
(e)
any United Nations treaty, convention or covenant on human rights signed and ratified by or otherwise applicable and binding on the Republic of Serbia.
“Social Matters” means all, or any of, the following:
(a)
labour and working conditions;
(b)
occupational health and safety;
(c)
rights and interests of vulnerable groups;
(d)
rights and interests of indigenous peoples;
(e)
gender equality;
(f)
public health, safety and security;
(g)
avoidance of forced evictions and alleviation of hardship arising from involuntary resettlement; and
(h)
stakeholder engagement.
"Spread" means the fixed spread (being of either positive or negative value) to the Relevant Interbank Rate, as determined by the Bank and notified to the Borrower in the relevant Disbursement Offer, or in the Interest Revision/Conversion Proposal.
“Sub-Project” has meaning given to it in Recital A.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Technical Description" has the meaning given to it in Recital (a).
"Tranche" means each disbursement made or to be made under this Contract. In case no Disbursement Acceptance has been received, Tranche shall mean a Tranche as offered under Article 1.2.B.