By this Contract the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR 100,000,000.00 (one hundred million euros) for the financing of the Project (the "Credit").
The Bank shall disburse the Credit in up to 10 Tranches. The amount of each Tranche shall be in a minimum amount of EUR 10,000,000.00 (ten million euros) or (if less) the entire undrawn balance of the Credit.
has occurred and is continuing, the Bank shall send to the Borrower within 5 (five) Business Days after the receipt of such request a Disbursement Offer for the disbursement of a Tranche. The latest time for receipt by the Bank of such Borrower’s request is 15 (fifteen) Business Days before the Final Availability Date. The Disbursement Offer shall include information as set out in Schedule C.
The Parties agree that a Disbursement Offer may be issued by the Bank as an unsigned document and in such case shall be considered validly executed and delivered on behalf of the Bank provided that such Disbursement Offer is sent by email from the following e-mail address EIB-FirmDisbursementOffer@eib.org to the e-mail address of the Borrower indicated in Article12.1.B. The above email will include (in copy) relevant Bank’s officers for the Borrower’s information.
The Borrower may accept a Disbursement Offer by delivering a Disbursement Acceptance to the Bank no later than the Disbursement Acceptance Deadline, to be followed by registered letter in accordance with
The Disbursement Acceptance shall be signed by an Authorised Signatory with individual representation right or two or more Authorised Signatories with joint representation right and shall specify the Disbursement Account to which the disbursement of the Tranche should be made in accordance with
If a Disbursement Offer is duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline, the Bank shall make the Accepted Tranche available to the Borrower in accordance with the relevant Disbursement Offer and subject to the terms and conditions of this Contract.
The Borrower shall be deemed to have refused any Disbursement Offer which has not been duly accepted in accordance with its terms on or before the Disbursement Acceptance Deadline.
The Bank may rely on the information set out in the most recent List of Authorised Signatories and Accounts provided to the Bank by the Borrower. If a Disbursement Acceptance is signed by a person defined as Authorised Signatory under the most recent List of Authorised Signatories and Accounts provided to the Bank by the Borrower, the Bank may assume that such person has the power to sign and deliver in the name and on behalf of the Borrower such Disbursement Acceptance.
Disbursement shall be made to the Disbursement Account specified in the relevant Disbursement Acceptance, provided that such Disbursement Account is acceptable to the Bank.
(e), the Borrower acknowledges that payments to a Disbursement Account notified by the Borrower shall constitute disbursements under this Contract as if they had been made to the Borrower's own bank account.
Only one Disbursement Account may be specified for each Tranche.
The Bank shall have received from the Borrower in form and substance satisfactory to the Bank:
a)
evidence that the execution of this Contract by the Borrower has been duly authorised and that the person or persons signing this Contract on behalf of the Borrower is/are duly authorised to do so together with the specimen signature of each such person or persons;
b)
at least 2 (two) originals of this Contract duly executed by all Parties; and
Any request for a Disbursement Offer made by the Borrower without the above documents having been received by the Bank and to its satisfaction shall be deemed not made.
is conditional upon receipt by the Bank, in form and substance satisfactory to it, on or before the date falling 6 (six) Business Days before the Scheduled Disbursement Date (and, in the case of deferment under
, the Requested Deferred Disbursement Date or the Agreed Deferred Disbursement Date, respectively) for the proposed Tranche, of the following documents or evidence:
a)
evidence that the Borrower has obtained all necessary Authorisations, required in connection with this Contract and the Project;
b)
a favourable legal opinion issued in the English language by the Ministry of Justice of the Borrower confirming, inter alia (i) the authority of persons signing this Contract on behalf of the Borrower; and (ii) that this contract has been duly executed by the Borrower and creates valid, binding and enforceable obligations on the Borrower according to its terms; (iii) the valid choice of laws of the Grand Duchy of Luxembourg law under this Contract, and (iv) the recognition and enforcement of judgments of Court of Justice of the European Union in any proceedings taken in the Republic of Serbia in relation to this Contract;
c)
the Borrower shall have taken all action necessary to exempt from taxation for all payments of principal, interest and other sums due hereunder and to permit the payment of all such sums gross without deduction of tax at source shall have been taken;
d)
any necessary exchange control consents shall have been obtained to permit receipt of disbursements hereunder, repayment of the same and payment of interest and all other amounts due hereunder; such consents must extend to the opening and maintenance of the accounts to which disbursement of the Credit is directed;
e)
copy of the Environmental and Social Documents; and
f)
evidence that the Allocation Letter has been signed by the Bank for the Sub- Project(s) that is/are identified at the moment of disbursement of the first Tranche, and that the disbursement amount is not less than the amount that is the equivalent of EUR 10,000,000.00 (ten million euros).
, subsequent to the first disbursement, is conditional upon receipt by the Bank, in form and substance satisfactory to it, on or before the date falling 6 (six) Business Days before the Scheduled Disbursement Date (and, in the case of deferment under
, the Requested Deferred Disbursement Date or the Agreed Deferred Disbursement Date, respectively), of the following documents or evidence:
a)
except for the Tranches, disbursement of which amounts to the last 10% (ten per cent) of the Credit, evidence that the amount of the Tranche (except for the first Tranche) to be disbursed does not exceed 10% (ten per cent) of the Credit and (i) 80% (eighty per cent) of the proceeds of all previously disbursed Tranches have been allocated to eligible Sub-Projects, as evidenced by Allocation Letters issued by the Bank; and (ii) 50% (fifty per cent) of the proceeds of all previously disbursed Tranches have been effectively paid out towards any expenditure incurred with respect to any allocated Sub-Project under this Credit.
b)
for all Tranches, disbursement of which amounts to the last 10% (ten per cent) of the Credit:
(i)
100% (one hundred percent) of the proceeds of all previously disbursed Tranches have been allocated to eligible Sub-Projects, as evidenced by Allocation Letters issued by the Bank;
(ii)
a list and procurement plan of Sub-Projects that are expected to be allocated under each such Tranche is submitted to the Bank;
(iii)
the Bank being satisfied with the outcome of the ex-post procurement review(s) conducted by the Bank.
, including the first, is subject to the following conditions:
a)
that the Bank has received, in form and substance satisfactory to it, on or before the date falling 6 (six) Business Days before the Scheduled Disbursement Date (and, in the case of deferment under
, the Requested Deferred Disbursement Date or the Agreed Deferred Disbursement Date, respectively) for the proposed Tranche, of the following documents or evidence:
(i)
a certificate from the Borrower in the form of Schedule E signed by an authorised representative of the Borrower and dated no earlier than the date falling 15 Business Days before the Scheduled Disbursement Date (and, in the case of deferment under
, the Requested Deferred Disbursement Date or the Agreed Deferred Disbursement Date, respectively);
(ii)
that the Bank is satisfied that on the date of the relevant Disbursement Offer and the Disbursement Date for the proposed Tranche the Framework Agreement is legal, valid, binding and enforceable and that no event or circumstance has occurred which could, in the opinion of the Bank, adversely affect the legal, valid, binding and enforceable nature of the Framework Agreement;
(iii)
evidence that the Bank has received at the allocation stage (as described in this Contract) for each Sub-Project to be financed from the respective Tranche, in form and substance satisfactory to it, the data and information for the Sub-Project(s) the value of which is/are under EUR 5,000,000.00 (five million euro) or the completed project fiche (as described in the Schedule A to this Contract), if the relevant Sub- Project(s)’ value is over EUR 5,000,000.00 (five million euro);
(iv)
evidence that the Loan Fund Transfer Agreement has been duly signed and is effective to the satisfaction of the Bank;
(v)
evidence that the Bank has received the relevant information as required under Schedule A.1.5 (PROJECT INFORMATION TO BE SENT TO THE BANK AND METHOD OF TRANSMISSION); and
(vi)
a copy of any other authorisation or other document, opinion or assurance which the Bank has notified the Borrower is necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by, this Contract or the legality, validity, binding effect or enforceability of the same;
b)
that on the Scheduled Disbursement Date (and, in the case of deferment under
no event or circumstance which constitutes or would with the passage of time or the giving of notice or the making of any determination under this Contract (or any combination of the foregoing) constitute:
(1)
an Event of Default; or
(2)
a Prepayment Event
has occurred and is continuing unremedied or unwaived or would result from the disbursement of the proposed Tranche.
The Borrower may send a written request to the Bank requesting the deferral of the disbursement of an Accepted Tranche. The written request must be received by the Bank at least 5 (five) Business Days before the Scheduled Disbursement Date of the Accepted Tranche and specify:
(i)
whether the Borrower would like to defer the disbursement in whole or in part, and if in part, the amount to be deferred; and
(ii)
the date until which the Borrower would like to defer a disbursement of
the above amount (the "Requested Deferred Disbursement Date"), which must be a date falling not later than:
1)
6 (six) months from its Scheduled Disbursement Date;
(2)
30 (thirty) days prior to the first Repayment Date; and
(3)
the Final Availability Date.
b)
Upon receipt of such a written request, the Bank shall defer the disbursement of the relevant amount until the Requested Deferred Disbursement Date.
1.5.A(2) FAILURE TO SATISFY CONDITIONS TO DISBURSEMENT
a)
The disbursement of an Accepted Tranche shall be deferred if any condition for disbursement of such Accepted Tranche referred to in
at its Scheduled Disbursement Date (or, where the Scheduled Disbursement Date has been deferred previously, the date expected for disbursement).
b)
The Bank and the Borrower shall agree the date until which the disbursement of such Accepted Tranche shall be deferred (the "Agreed Deferred Disbursement Date"), which must be a date falling:
(i)
not earlier than 6 (six) Business Days following the fulfilment of all conditions of disbursement; and
(ii)
not later than the Final Availability Date.
c)
Without prejudice to the Bank’s right to suspend and/or cancel the undisbursed portion of the Credit in whole or in part pursuant to
, the Bank may notify the Borrower in writing that such disbursement shall be cancelled and such cancellation shall take effect on the date of such written notification. The amount of the disbursement which is cancelled by the Bank pursuant to this
The Borrower may send a written notice to the Bank requesting a cancellation of the undisbursed Credit or a portion thereof.
b)
In its written notice, the Borrower:
(i)
must specify whether the Credit shall be cancelled in whole or in part and, if in part, the amount of the Credit to be cancelled; and
(ii)
must not request any cancellation of an Accepted Tranche, which has a Scheduled Disbursement Date falling within 5 (five) Business Days of the date of such written notice.
c)
Upon receipt of such written notice, the Bank shall cancel the requested portion of the Credit with immediate effect. If requested by the Borrower in writing, the Bank shall issue a confirmation of such cancellation.
At any time upon the occurrence of the following events, the Bank may notify the Borrower in writing that the undisbursed portion of the Credit shall be suspended and/or (except upon the occurrence of a Market Disruption Event) cancelled in whole or in part:
(i)
a Prepayment Event;
(ii)
an Event of Default;
(iii)
an event or circumstance which would with the passage of time or the giving of notice or the making of any determination under this Contract (or any combination of the foregoing) constitute a Prepayment Event or an Event of Default;
(iv)
a Material Adverse Change; or
(v)
a Market Disruption Event provided the Bank has not received a Disbursement Acceptance.
b)
On the date of such written notification from the Bank the relevant portion of the Credit shall be suspended and/or cancelled with immediate effect. Any suspension shall continue until the Bank ends the suspension or cancels the suspended amount.
If the Bank suspends an Accepted Tranche upon the occurrence of an Indemnifiable Prepayment Event or an Event of Default or of an event or circumstance which would, with the passage of time or the giving of notice or the making of any determination under this Contract (or any combination of the foregoing) constitute an Indemnifiable Prepayment Event or an Event of Default or upon the occurrence of a Material Adverse Change, the Borrower shall pay to the Bank the Deferment Fee calculated on the amount of such Accepted Tranche.
1.6.C(2) CANCELLATION
a)
If an Accepted Tranche which is a Fixed Rate Tranche (the "Cancelled Tranche") is cancelled:
by the Bank upon an Indemnifiable Prepayment Event or an event or circumstance which would, with the passage of time or the giving of notice or the making of any determination under this Contract (or any combination of the foregoing) constitute an Indemnifiable Prepayment Event or upon the occurrence of a Material Adverse Change or pursuant to
the Borrower shall pay to the Bank an indemnity on such Cancelled Tranche.
b)
Such indemnity shall be:
(i)
calculated assuming that the Cancelled Tranche had been disbursed and repaid on the same Scheduled Disbursement Date or, to the extent the disbursement of the Tranche is currently deferred or suspended, on the date of the cancellation notice; and
(ii)
in the amount communicated by the Bank to the Borrower as the present value (calculated as of the date of cancellation) of the excess, if any, of:
(1)
the interest that would accrue thereafter on the Cancelled Tranche over the period from the date of cancellation pursuant to this
(2), to the Interest Revision/Conversion Date, if any, or the Maturity Date, if it were not cancelled; over
(2)
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 of the applicable Tranche.
c)
If the Bank cancels any Accepted Tranche upon the occurrence of an Event of Default, the Borrower shall indemnify the Bank in accordance with
On the day following the Final Availability Date, unless otherwise specifically notified in writing by the Bank to the Borrower, any part of the Credit in respect of which no Disbursement Acceptance has been received in accordance with
shall be automatically cancelled, without any further notice from the Bank to the Borrower and without any liability arising on the part of either Party. If requested by the Borrower in writing, the Bank shall issue a confirmation of such cancelation.
At any time but in any case no later than 3 (three) months before the Final Availability Date, the Borrower, acting through the MoME, may submit to the Bank a request for allocation which shall also be co-signed with the Promoter
(the "Allocation Request").
b)
Each Allocation Request shall be supported by a project fiche in the form of the tables set out in the Schedule A of this Contract, containing the information on technical, environmental and economical criteria, inclusive of the procurement plan, executive summary of the EIA and the assessment of impact on areas of nature conservation where applicable, as well as any additional relevant information required by the Bank. The Bank reserves the right to change the procedure and, following agreement with the Promoter, the project fiche from time to time.
c)
The Loan may solely be allocated to Sub-Projects identified as eligible for financing in the Technical Description under this Contract. In order for a Sub- Project to qualify for financing hereunder, the Borrower must comply with the Allocation Procedure under this
The Loan shall be allocated to Sub-Projects, which are agreed with the Bank in accordance with the principles of the Bank framework loan allocation review procedure set out in the Technical Description, provided that the Bank is satisfied that there is sufficient information available on such Sub-Projects.
e)
The Bank's funds shall be allocated to the eligible Sub-Projects with procedures modulated according to the Sub-Projects size and in line with the Bank's applicable procedures for framework loans, as set out in the Technical Description.
f)
The Borrower, acting through the MoME, shall provide the Bank with any additional information regarding the Sub-Projects as the Bank, at its own discretion, may request.
g)
To be eligible for loan financing from the Bank, the Borrower, acting through the MoME, shall verify the compliance of the Sub-Projects with the relevant and applicable Bank's policies and guidelines. All Sub-Projects shall be technically, economically and financially viable and sustainable, comply with the Bank's environmental and social standards, and be undertaken following the procedures as described in the Bank's Guide to Procurement.
h)
The Borrower, acting through the MoME, shall provide, together with each Allocation Request, a procurement plan for a Sub-Project included in that Allocation Request in form and substance satisfactory to the Bank.
i)
The Bank reserves the right to review the Allocation Procedure and may, by notice to the Borrower, amend the Allocation Procedure, to bring it in line with the Bank's policies or to reflect the results of the review(s) of the implementation capacity and performance of the Project. In such case, the Bank shall inform the Borrower thereof and the Borrower shall promptly adapt its internal allocation procedures accordingly.
The Bank shall have full discretion whether or not to approve the Allocation Request so submitted following such examination of the Sub-Projects as it deems necessary and shall, in the event of confirmation/approval, issue an Allocation Letter (the "Allocation Letter"), informing the Borrower of its confirmation/approval of the Sub-Projects submitted and of the amount in EUR allocated to such Sub-Project. In the event the Bank does not approve a submitted Allocation Request, the Bank shall inform the Borrower thereof.
b)
The Bank may by notice to the Borrower amend the Allocation Procedure to bring it into line with the Bank’s policies or reflect the results of the review of the implementation capacity and performance. In such case, the Bank shall inform the Borrower thereof and the Borrower shall promptly adapt its internal allocation procedures accordingly.
c)
The Bank reserves the right to review the allocation procedures in view of the development of the Project.
Prior to 3 (three) months before the Final Availability Date, the Borrower, acting through the MoME, may, by written request (co-signed with the Promoter) to the Bank, which request shall include also the reasons of the request of the Borrower and the Promoter, propose to reallocate in accordance with the provisions of this
any part of the Loan Outstanding which has been allocated but not spent on a Sub-Project, or not made available in full, directly or indirectly, by the Borrower and/or the Promoter.
b)
The Bank may, in its discretion, accept the Borrower's acting through the MoME (as co-signed with the Promoter) proposal for reallocation and reallocate any portion of the Loan Outstanding in accordance with the provisions of
and shall inform the Borrower and the Promoter thereof by e-mail within 30 (thirty) days after the receipt of the Borrower's Sub- Project fiche along with the proposal for reallocation. Reallocated amounts will be included in the Allocation Letter indicated in
If the reallocation is not possible or possible only in part, the Borrower, acting through the MoME, after receiving the notice from the Bank, shall in accordance with
, prepay immediately to the Bank the part of the Loan Outstanding which has been disbursed by the Bank subject to the original allocation.
d)
Upon the Bank’s written request, the Borrower, acting through the MoME, and the Promoter shall propose to reallocate any part of the Loan Outstanding which has been allocated, in accordance with the procedures described in
, in relation to a Sub-Project if such Sub-Project, in the opinion of the Bank, is ineligible for financing by the Bank under the Bank’s Statute, policies or guidelines or under Article 309 of the Treaty on the Functioning of the European Union or if the Sub-Project no longer complies with the requirements of this Contract. If within the timeframe provided for in the Bank’s written request the Borrower fails to replace such Sub-Project, the Borrower shall repay all or part of the Loan Outstanding in accordance with