By this Contract the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR 150,000,000.00 (one hundred fifty million euros) for the financing of the Project (the "Credit").
The Bank shall disburse the Credit in up to 15 (fifteen) Tranches. The amount (i) of a first Tranche shall be in a minimum amount of EUR 2,000,000.00 (two million euros) and (ii) of each following 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 after the receipt of such request, in its own discretion either:
a)
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 Disbursement Offer shall include information as set out in Schedule C; or
b)
notify the Borrower that the terms of the disbursement of the requested Tranche shall be agreed during a recorded live pricing call to be held between the Bank and the Borrower (the "Live Pricing Tranche"). In such case, subject to Articles 1.4.B and 1.4.C, and following a successful live pricing call between the Bank and the Borrower during which the Parties agree on the terms of the disbursement of the requested Tranche, the Bank shall send to the Borrower, on the same Business Day and after such successful pricing call, a Disbursement Offer reflecting the terms agreed during the call, which shall include information as set out in Schedule C. The Borrower shall confirm the Live Pricing Tranche as an Accepted Tranche and accept a Disbursement Offer by delivering a Disbursement Acceptance to the Bank by no later than the Disbursement Acceptance Deadline pursuant to paragraph (a) of Article1.2.C. The latest time for conclusion of a successful live pricing process is 5 (five) Business Days before the Final Availability Date. The Parties understand that: (i) in case the Borrower does not agree to the live pricing call being arranged, the Borrower will not receive any Disbursement Offer and (ii) the Borrower is at liberty to reject the terms offered during the live pricing call.
The latest time for receipt by the Bank of such Borrower’s request under this
is 15 (fifteen) Business Days before the Final Availability Date.
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
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.
For Tranches other than the Live Pricing Tranches, 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.
, 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
by the Borrower. 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 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; and
e)
evidence that the cooperation agreement for consultancy services to support the Project preparation has been signed, to the satisfaction of 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 (fifteen) 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, in aggregate the amounts of the previously disbursed Tranches and the amount to be disbursed under the expected disbursement does not exceed the allocated amount approved by the Bank under the Allocation Letters;
(iv)
except for the first Tranche, evidence that an amount equal to at least 50% (fifty per cent) of all previously disbursed amounts under the Contract have effectively been paid out towards any expenditure incurred with respect to the allocated Sub-Project(s);
(v)
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.
c)
in respect of a Live Pricing Tranche, that a Disbursement Acceptance duly countersigned by the Borrower has been delivered to the Bank within the deadline specified therein, pursuant to
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 Article 1.6.C(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 cancellation.
Between the period of the Date of Effectiveness and 2 (two) months before the Final Availability Date (the "Allocation Period"), the Borrower (through the Promoter and/or Implementing Entity) shall submit to the Bank one or more request(s) for allocation prepared by it (through the Promoter and/or Implementing Entity) in respect of which the Borrower (through the Implementing Entity) seeks financing under this Contract
(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 specified therein, as well as any additional relevant information required by the Bank.
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 (and must ensure that the Implementing Entity 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 (through the Promoter and/or Implementing Entity) shall ensure that, together with each Allocation Request, a procurement plan for a Sub-Project is included in that Allocation Request in form and substance satisfactory to the Bank.
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 (through the Promoter and the Implementing Entity), 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 (through the Implementing Entity and the Promoter).
b)
The Bank may by notice to the Borrower (through the Promoter and the Implementing Entity), 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 of the Project. In such case, the Bank shall inform the Borrower (through the Promoter and the Implementing Entity), thereof and the Borrower (through the Promoter and the Implementing Entity) shall promptly adapt its internal allocation procedures accordingly.
Prior to the date following 6 (six) months after the Allocation Period, the Borrower (through the Promoter or the Implementing Entity) may, by written request (prepared by it or by the Implementing Entity) to the Bank, including the reasons for the request, 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 Implementing Entity.
b)
The Bank may, in its discretion, accept the Borrower's (through the Promoter or Implementing Entity) proposal for reallocation and reallocate any portion of the Loan Outstanding in accordance with the provisions of
and shall inform the Borrower and the Implementing Entity, as the case may be, thereof by e-mail within 30 (thirty) days after the receipt of the Borrower's (through the Promoter or the Implementing Entity) Sub-Project fiche along with the proposal for reallocation. Reallocated amounts will be included in the Allocation Letter indicated in
, 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 (through the Promoter or the Implementing Entity), 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 (through the Promoter or the Implementing Entity) fails to replace such Sub-Project, the Borrower shall repay all or part of the Loan Outstanding in accordance with