Zakon o potvrđivanju Ugovora o kreditnom aranžmanu kupca između Republike Srbije koju zastupa Vlada Republike Srbije postupajući preko Ministarstva finansija u svojstvu Zajmoprimca aranžiran od strane BNP Paribas, Credit Agricole Corporate and Investment Bank i Societe Generale u svojstvu Ovlašćenih vodećih aranžera sa Credit Agricole Corporate and Investment Bank u svojstvu Banke za globalnu koordinaciju i dokumentaciju i Credit Agricole Corporate and Investment Bank u svojstvu Agenta ESA i Kreditnog aranžmana i Societe Generale u svojstvu Agenta životne i društvene sredine i Koordinatora zelenog zajma i Finansijskih institucija navedenih u Delu 1 Priloga 1 u svojstvu Prvobitnih zajmodavaca
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Opšte Informacije
Donosilac
Narodna skupština Republike Srbije
Član 25. Zakon o potvrđivanju Ugovora o kreditnom aranžmanu kupca između Republike Srbije koju zastupa Vlada Republike Srbije postupajući preko Ministarstva finansija u svojstvu Zajmoprimca aranžiran od strane BNP Paribas, Credit Agricole Corporate and Investment Bank i Societe Generale u svojstvu Ovlašćenih vodećih aranžera sa Credit Agricole Corporate and Investment Bank u svojstvu Banke za globalnu koordinaciju i dokumentaciju i Credit Agricole Corporate and Investment Bank u svojstvu Agenta ESA i Kreditnog aranžmana i Societe Generale u svojstvu Agenta životne i društvene sredine i Koordinatora zelenog zajma i Finansijskih institucija navedenih u Delu 1 Priloga 1 u svojstvu Prvobitnih zajmodavaca – ROLE OF THE FACILITY AND ECA AGENT, THE MANDATED LEAD ARRANGER, THE GLOBAL COORDINATING AND DOCUMENTATION BANK, THE ENVIRONMENTAL AND SOCIAL AGENT AND THE GREEN LOAN COORDINATOR
Each of the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent, the Green Loan Coordinator and the Lenders appoints the Facility and ECA Agent to act as its agent under and in connection with the Finance Documents and each of the Lenders appoint the Facility and ECA Agent to act as its agent under and in connection with the ECA Insurance Policy.
b)
Each of the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent, the Green Loan Coordinator and the Lenders authorise the Facility and ECA Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility and ECA Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
c)
Each Finance Party (other than the Facility and ECA Agent) irrevocably authorises the Facility and ECA Agent to:
(i)
perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions;
(ii)
execute each Finance Document expressed to be executed by the Facility and ECA Agent;
(iii)
communicate with the ECA in connection with the Transaction Documents and the ECA Insurance Policy and to act generally on its behalf in relation to the ECA and the ECA Insurance Policy;
(iv)
act on its behalf in relation to any claim, and to receive any payment, under the ECA Insurance Policy; and
(v)
make and receive payments expressed to be made by it under this Agreement.
d)
Each Lender irrevocably appoints the Facility and ECA Agent to be its attorney for the purposes of taking any action under such ECA Insurance Policy in accordance with the terms thereof.
25.2 No fiduciary duties
a)
Nothing in this Agreement constitutes the Facility and ECA Agent or any Mandated Lead Arranger, the Global Coordinating and Documentation Bank, the Environmental and Social Agent or the Green Loan Coordinator as a trustee or fiduciary of any other person.
b)
The Facility and ECA Agent, the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent and the Green Loan Coordinator shall not be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
25.3 Duties, rights and discretions
a)
The Facility and ECA Agent's duties under the Finance Documents are solely mechanical and administrative in nature. Except where a Finance Document or the ECA Insurance Policy specifically provides otherwise, the Facility and ECA Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
b)
The Facility and ECA Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility and ECA Agent to the extent that such document is delivered for that Party by any other Party or the ECA.
c)
If the Facility and ECA Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.
d)
If the Facility and ECA Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party under this Agreement it shall promptly notify the other Finance Parties.
e)
The Facility and ECA Agent may rely on:
(i)
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii)
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
f)
The Facility and ECA Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
(i)
no Default has occurred (unless it has actual knowledge of a Default arising under
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised.
g)
The Facility and ECA Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
h)
Without prejudice to the generality of paragraph (g) above or paragraph (i) below, the Facility and ECA Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility and ECA Agent (and so separate from any lawyers instructed by the Lenders) if the Facility and ECA Agent in its reasonable opinion deems this to be necessary.
i)
The Facility and ECA Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility and ECA Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
j)
The Facility and ECA Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document or the ECA Insurance Policy.
k)
Unless a Finance Document expressly provides otherwise, the Facility and ECA Agent may disclose to any other Party any information it reasonably believes it has received as Facility and ECA Agent under this Agreement.
l)
The Facility and ECA Agent may disclose to the Lenders the result of any vote of the Lenders under or in connection with this Agreement or the other Finance Documents.
m)
Notwithstanding any other provision of any Finance Document or the ECA Insurance Policy to the contrary, neither the Facility and ECA Agent nor any Mandated Lead Arranger nor the Global Coordinating and Documentation Bank, the Environmental and Social Agent nor the Green Loan Coordinator is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
n)
Notwithstanding any provision of any Finance Document or the ECA Insurance Policy to the contrary, the Facility and ECA Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
o)
The Facility and ECA Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents and the ECA Insurance Policy to which it is expressed to be a party (and no others shall be implied).
25.4 No duty to monitor
a)
The Facility and ECA Agent shall not be bound to enquire:
(i)
whether or not any Default or Declassification Event has occurred;
(ii)
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
(iii)
whether any other event specified in any Finance Document has occurred.
b)
The Green Loan Coordinator is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
Each of the Lenders authorises the Facility and ECA Agent to follow any instructions of ECA and/or the French Authorities in accordance with the terms and conditions of the ECA Insurance Policy and acknowledges that any Lender's failure to conform to such instructions or to the terms and conditions of the ECA Insurance Policy may result in lapse of coverage thereunder.
b)
Each of the Lenders agrees that neither the Facility and ECA Agent nor any of its officers, directors, agents or employees shall be liable for any action taken or omitted by it or them, under instructions from the ECA and/or the French Authorities which it is or they are obliged to follow under the ECA Insurance Policy or in connection therewith.
c)
Each of the Lenders agrees that, to the extent permitted by the ECA, any communication between any Lenders and the ECA in connection with the ECA Insurance Policy or any Finance Document shall be conducted by and through the Facility and ECA Agent.
d)
Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall oblige any Finance Party to act (or omit to act) in a manner that is inconsistent with the terms of the ECA Insurance Policy and, in particular:
–
the Facility and ECA Agent shall be authorised to take all such actions as it may deem necessary to ensure that the terms of the ECA Insurance Policy are complied with; and
–
the Facility and ECA Agent shall not be obliged to do anything if, in its opinion, to do so could result in a breach of any term of the ECA Insurance Policy.
(ECA override) and to the provisions of Clauses 25.5(a) to 25.5(d) above which shall prevail:
(i)
the Facility and ECA Agent shall:
(x)
unless a contrary indication appears in a Finance Document exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility and ECA Agent in accordance with any instructions given to it by:
(A) all Lenders if the relevant Finance Document stipulates the matter is an all Lenders decision; and
(B) in all other cases, the Majority Lenders; and
y)
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (x) above
ii)
the Facility and ECA Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Facility and ECA Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
iii)
save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility and ECA Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all the Finance Parties;
iv)
the Facility and ECA Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions;
v)
in the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Facility and ECA Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders;
vi)
subject to the provisions of paragraph (vii) and (viii) below, any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and, in case of a Finance Document to which the Borrower is a party, the Borrower and any such amendment or waiver will be binding on all Parties. Each Finance Party agrees that the Facility and ECA Agent may effect and sign, on behalf of any Finance Party, any amendment or waiver permitted by this
the definition of “Anti-Corruption Laws”, “Anti-Money Laundering and Anti-Terrorism Financing Regulations”, “Sanctionable Activity”, "Sanctions", "Sanctioned Country”, “Sanctions Authority” and “Sanctioned Person” in
shall not be made or given without the prior consent of all the Lenders.
viii)
an amendment or waiver which relates to the rights or obligations of the Facility and ECA Agent, a Mandated Lead Arranger, the Global Coordinating and Documentation Bank, the Environmental and Social Agent or the Green Loan Coordinator (each in their capacity as such) may not be effected without the consent of, respectively, the Facility and ECA Agent, that Mandated Lead Arranger, the Global Coordinating and Documentation Bank, the Environmental and Social Agent or the Green Loan Coordinator, as the case may be.
25.6 Responsibility for documentation
Neither the Facility and ECA Agent nor the Global Coordinating and Documentation Bank, nor the Mandated Lead Arrangers, nor the Environmental and Social Agent, nor the Green Loan Coordinator:
a)
are responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Borrower or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents;
b)
are responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the ECA Insurance Policy or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document or the ECA Insurance Policy; or
c)
Without prejudice to the generality of paragraph (a) and (b) above, none of the Facility and ECA Agent, the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent, nor the Green Loan Coordinator is responsible or liable for the adequacy, accuracy or completeness of any Green Loan Information (whether oral or written) supplied by the Borrower, the Independent Environmental and Social Consultant or any other person in or in connection with any Green Loan Report and/or any Green Loan Provisions contemplated in this Agreement or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with the Facility.
25.7 Exclusion of liability
a)
The Facility and ECA Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document or the ECA Insurance Policy, unless directly caused by its gross negligence or wilful misconduct.
b)
The Facility and ECA Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility and ECA Agent if the Facility and ECA Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility and ECA Agent for that purpose.
c)
Nothing in this Agreement shall oblige the Facility and ECA Agent to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender or any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender and each Lender confirms to the Facility and ECA Agent that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility and ECA Agent, the Global Coordinating and Documentation Bank, the Mandated Lead Arrangers, the Environmental and Social Agent or the Green Loan Coordinator.
d)
The Facility and ECA Agent shall not be responsible for any delay in making available any Utilisation resulting from a request for the delivery of information or documents required by the Facility and ECA Agent arising as a result of any error, omission or discrepancy in the documents and other evidence provided pursuant to
(Further conditions precedent (including the first Utilisation)).
e)
No Party (other than the Facility and ECA Agent) may take any proceedings against any officer, employee or agent of the Facility and ECA Agent in respect of any claim it might have against the Facility and ECA Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or the ECA Insurance Policy and any officer, employee or agent of the Facility and ECA Agent may rely on this Clause.
f)
Neither the Facility and ECA Agent nor the Green Loan Coordinator is acting in an advisory capacity to any person in respect of the Green Loan Principles. Nothing in this Agreement shall oblige the Facility and ECA Agent or the Green Loan Coordinator to verify or monitor on behalf of any Lender whether any Loan will comply with the Green Loan Principles. Each Finance Party is solely responsible for making its own independent appraisal of, and analysis in relation to, the Project and each Green Loan Provision.
g)
The Green Loan Coordinator will not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
h)
No Party (other than the Green Loan Coordinator) may take any proceedings against any officer, employee or agent of the Green Loan Coordinator in respect of any claim it might have against the Green Loan Coordinator or in respect of any act or omission of any kind by that officer, employee or agent in relation to the Facility.
25.8 Lenders' indemnity to the Facility and ECA Agent
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility and ECA Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facility and ECA Agent (otherwise than by reason of the Facility and ECA Agent's gross negligence or wilful misconduct).
25.9 Resignation of the Facility and ECA Agent
a)
Subject to the ECA Insurance Policy, the Facility and ECA Agent may resign by giving 30 days’ notice to the ECA, the Finance Parties and the Borrower provided that no such resignation shall be effective until a successor for the Facility and ECA Agent is appointed in accordance with this Clause. The Majority Lenders (after consultation with the Borrower) may appoint a successor Facility and ECA Agent with the approval of the ECA.
b)
If the Majority Lenders have not appointed a successor Facility and ECA Agent in accordance with paragraph (a) within 20 days after notice of resignation was given, the retiring Facility and ECA Agent (after consultation with the Borrower) may appoint a successor Facility and ECA Agent with the approval of the ECA.
c)
The retiring Facility and ECA Agent shall, at its own cost, make available to the successor Facility and ECA Agent such documents and records and provide such assistance as the successor Facility and ECA Agent may reasonably request for the purposes of performing its functions as Facility and ECA Agent under the Finance Documents.
d)
The Facility and ECA Agent's resignation notice shall only take effect upon the appointment of a successor subject to the Facility and ECA Agent being a party in that capacity to the ECA Insurance Policy.
e)
Upon the appointment of a successor, the retiring Facility and ECA Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of
. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
f)
The Facility and ECA Agent shall resign in accordance with paragraph
a)
above if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Facility and ECA Agent under the Finance Documents, either:
i)
the Facility and ECA Agent fails to respond to a request under
(FATCA information) and a Lender reasonably believes that the Facility and ECA Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
ii)
the information supplied by the Facility and ECA Agent pursuant to
(FATCA information) indicates that the Facility and ECA Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or
iii)
the Facility and ECA Agent notifies the Borrower and the Lenders that the Facility and ECA Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
and (in each case) a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility and ECA Agent were a FATCA Exempt Party, and that Lender, by notice to the Facility and ECA Agent, requires it to resign.
25.10 Replacement of the Facility and ECA Agent
a)
After consultation with the Borrower, the Majority Lenders may (with the prior consent of the ECA), by giving 30 days' notice to the Facility and ECA Agent, replace the Facility and ECA Agent by appointing a successor Facility and ECA Agent.
b)
The retiring Facility and ECA Agent shall (at the expense of the Lenders) make available to the successor Facility and ECA Agent such documents and records and provide such assistance as the successor Facility and ECA Agent may reasonably request for the purposes of performing its functions as Facility and ECA Agent under the Finance Documents and the ECA Insurance Policy.
c)
The appointment of the successor Facility and ECA Agent shall take effect on the later of :
(i)
the date specified in the notice from the Majority Lenders to the retiring Facility and ECA Agent ; and
(ii)
the date on which the successor Facility and ECA Agent becomes a party to the ECA Insurance Policy.
d)
As from the date on which the appointment of the successor Facility and ECA Agent takes effect, the retiring Facility and ECA Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of
(and any agency fees for the account of the retiring Facility and ECA Agent shall cease to accrue from (and shall be payable on) that date).
e)
Any successor Facility and ECA Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
25.11 Confidentiality
a)
In acting as agent for the Finance Parties, the Facility and ECA Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
b)
If information is received by another division or department of the Facility and ECA Agent, it may be treated as confidential to that division or department and the Facility and ECA Agent shall not be deemed to have notice of it.
25.12 Relationship with the Lenders
The Facility and ECA Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility and ECA Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
i)
entitled to or liable for any payment due under any Finance Document or the ECA Insurance Policy on that day; and
ii)
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document or the ECA Insurance Policy made or delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
25.13 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information supplied by it or on its behalf in connection with any Transaction Document, each Lender confirms to the Facility and ECA Agent, the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent and the Green Loan Coordinator that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document and the ECA Insurance Policy.
25.14 Deduction from amounts payable by the Facility and ECA Agent
If any Party owes an amount to the Facility and ECA Agent under the Finance Documents the Facility and ECA Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility and ECA Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
25.15 Role of the Mandated Lead Arrangers, the Global Coordinating and
Documentation Bank, the Environmental and Social Agent and the
Green Loan Coordinator
Except as specifically provided in the Finance Documents, neither the Mandated Lead Arrangers, the Global Coordinating and Documentation Bank, the Environmental and Social Agent nor the Green Loan Coordinator have obligations of any kind to any other Party under or in connection with any Finance Documents or the ECA Insurance Policy.