By this Contract the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR100,000,000.00 (one hundred million euros) for the financing of the Project (the "Credit").
The Bank shall disburse the Credit in up to 10 (ten) 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.
Upon request by the Borrower (which, among others, shall specify the Component(s) to be financed with the proposed disbursement), provided that no event mentioned in
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
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.
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 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)
evidence that the Borrower has obtained all necessary Authorisations required in connection with the Contract;
c)
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; (ii) that this Contract has been duly executed by the Borrower and constitutes valid, binding and enforceable obligations of the Borrower according to its terms; (iii) the valid choice of the laws of Luxembourg and the Court of Justice of the European Union under this Contract, and (iv) the recognition and enforcement of judgments of The Court of Justice of the European Union in any proceedings taken in the Republic of Serbia in relation to this Contract;
d)
the duly executed amended and restated Project Implementation Agreement;
e)
evidence that the execution of the amended and restated Project Implementation Agreement by the Promoter and the Final Beneficiary has been duly authorised and that the persons signing the amended and restated Project Implementation Agreement on behalf of the Promoter and the Final Beneficiary are duly authorised to do so together with the specimen signature of each such persons;
f)
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;
g)
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
h)
that the conditions set out in article 3(b) of the amended and restated Project Implementation Agreement have been provided and fulfilled.
, including the first, is subject to the following conditions:
a)
that the Bank is satisfied, on or before the date falling 6 (six) Business Days before the Scheduled Disbursement Date for the proposed Tranche, that the conditions set out in the article 3(c) of the amended and restated Project Implementation Agreement have been provided and fulfilled;
b)
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.1 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)
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 amended and restated Project Implementation Agreement or the legality, validity, binding effect or enforceability of the same; and
c)
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
, 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 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, 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
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 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 cancellation.