Tekst ugovora / prilog
SCHEDULE 1A DEFINITIONS
| Act of Corruption | means any of the following: (a) the act of promising, offering or giving, directly or indirectly, to a Public Official or to any person who directs or works, in any capacity, for a private sector entity, an undue advantage of any nature, for the relevant person himself or herself or for another person or entity, in order that this person acts or refrains from acting in breach of his or her legal, contractual or professional obligations and, having for effect to influence his or her own actions or those of another person or entity; or (b) the act of a Public Official or any person who directs or works, in any capacity, for a private sector entity, soliciting or accepting, directly or indirectly, an undue advantage of any nature, for the relevant person himself or herself or for another person or entity, in order that this person acts or refrains from acting in breach of his or her legal, contractual or professional obligations and, having for effect to influence his or her own actions or those of another person or entity. |
| Act(s) of Terrorism | means: (i) any act prohibited by the United Nations Conventions and Protocols related to the fight against terrorism (which may be consulted on the following website: https://legal.un.org/ola/Default.aspx); (ii) any of the offences referred to in articles 3 to 10 of Directive (EU) 2017/541 of the European Parliament of 15 March 2017 on combating terrorism; or (iii) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing any act. |
| Agreement | means this credit facility agreement, including its recitals, Schedules and, if applicable, any amendments made in writing thereto. |
| Anti-Competitive Practices | means: (a) any concerted or implicit action having as its object and/or as its effects to impede, restrict or distort fair competition in a market, including without limitation when it tends to: (i) limit market access or the free exercise of competition by other companies; (ii) prevent price setting by the free play of markets by artificially favouring the increase or decrease of such prices; (iii) limit or control any production, markets, investment or technical progress; or (iv) share out markets or sources of supply; |
| (b) any abuse by a company or group of companies of a dominant position within a domestic market or in a substantial part thereof; or (c) any bid or predatory pricing having as its object and/or its effect to eliminate from a market, or to prevent a company or one of its products from accessing the market. | |
| Applicable Procurement Policies and Rules | means the contractual provisions contained in the procedures relating to procurement financed by the Co- Financier (entitled EBRD's Procurement Policies and Rules (PP&R) and dated May 2022) referred to in the EBRD Loan Agreement and in full force and effect on the date of this Agreement, a copy of which is available on EBRD Procurement policies or any website that may replace it. |
| Authorisation(s) | means any authorisation, consent, approval, resolution, permit, licence, exemption, filing, notarisation or registration, or any exemptions in respect thereof, obtained from or provided by an Authority, whether granted by means of an act, or deemed granted if no answer is received within a defined time limit, as well as any approval and consent given by the Borrower’s creditors. |
| Authority(ies) | means any government or statutory entity, department or commission exercising a public prerogative, or any administration, court, agency or State or any governmental, administrative, tax or judicial entity. |
| Availability Period | means the period from and including the Signing Date up to the Deadline for Drawdown of Funds. |
| Available Facility | means, at any given time, the maximum principal amount specified in Clause 2.1 (Facility) less (i) the aggregate amount of any Drawdowns drawn by the Borrower; (ii) the amount of any Drawdown to be made pursuant to any pending Drawdown Request; and (iii) any portion of the Facility which has been cancelled pursuant to Clauses 8.3 (Cancellation by the Borrower) and/or 8.4 (Cancellation by the Lender). |
| Business Day | means a day (other than Saturday or Sunday) on which banks are open for the entire day for general business in Paris, and which is a TARGET Day in the event that a Drawdown has to be done on such day. |
| Certified | means for any copy, photocopy or other duplicate of an original document, the certification by any duly authorised person, as to the conformity of the copy, photocopy or duplicate with the original document. |
| Co-Financier | means the European Bank for Reconstruction and Development (EBRD). |
| Co-Financing | means the loan provided by the Co-Financier for an amount of up to seventy five million Euros (EUR 75,000,000) to be committed from the date of the effectiveness of the EBRD |
| Loan Agreement. | |
| Co-Financing Agreement | means the agreement (“Project Implementation Agreement”) to be entered into between the Lender and the Co- Financier, providing terms and conditions under which, among others, the Lender and the Co-Financier shall co- finance the Project and a number of monitoring works that the Lender delegates to the Co-Financier with respect to the Facility and the Project implementation. |
| Contractor(s) | means third party contractor(s) in charge of implementing all or part of the Project pursuant to Project Documents. |
| Deadline for Drawdown of Funds | means December 31, 2028, date after which no further Drawdown may occur. |
| Deadline for the First Drawdown | means February 11, 2026. |
| Drawdown | means a drawdown of all or part of the Facility made, or to be made, available by the Lender to the Borrower pursuant to the terms and conditions set out in Clause 3 (Drawdown Of Funds) or the principal amount outstanding of such Drawdown which remains due and payable at a given time. |
| Drawdown Date | means the date on which a Drawdown is made available by the Lender. |
| Drawdown Period | means the period starting on the first Drawdown Date up to and including the first of the following date: (i) the date on which the Available Facility is equal to zero; (ii) the Deadline for Drawdown of Funds. |
| Drawdown Request | means a request substantially in the form set out in Schedule 5A (Form of Drawdown Request). |
| Effective Date | means the date on which the conditions set out in Part II of Schedule 4 have been fulfilled and shall occur at the latest 180 calendar days after the Signing Date. |
| EBRD | means the European Bank for Reconstruction and Development (EBRD). |
| EBRD Loan Agreement | means the agreement and all the related financing documentations to be entered into between EBRD (the Co- Financier) and the Borrower providing terms and conditions under which the EBRD loan will be made available to the Borrower. |
| Eligible Expense(s) | means the expense(s) as set out in Schedule 3 (Financing Plan). |
| Embargo | means any sanction of a commercial nature aiming at prohibiting any import and/or export (supply, sale or transfer) of one or several goods, products or services going to and/or coming from a country for a given period as published and amended from time to time by the United Nations, the European Union or France. |
| ESComplaints Management | means the contractual terms contained in the Environmental and Social Complaints-Management Mechanism’s Rules of |
| Mechanism’s Rules of Procedure | Procedure, which is available on the Website, as amended from time to time. |
| EURIBOR | means the inter-bank rate applicable to Euro for any deposits denominated in Euro for a period comparable to the relevant period, as determined by the European Money Markets Institute (EMMI), or any successor administrator, at 11:00 am Brussels time, two (2) Business Days before the first day of the Interest Period. |
| Euro(s) or EUR | means the single currency of the member states of the European Economic and Monetary Union, including France, and having legal tender in such Member States. |
| Event of Default | means any event or circumstance set out in Clause 13.1 (Events of Default). |
| Facility | means the credit facility made available by the Lender to the Borrower in accordance with this Agreement up to the maximum principal amount set out in Clause 2.1 (Facility). |
| Financial Indebtedness | means any financial indebtedness for and in respect of: (a) any monies borrowed on a short, medium or long-term basis; (b) any amounts raised pursuant to the issue of bonds, notes, debentures, loan stock or any similar instruments; (c) any funds raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; (d) any potential payment obligation that results from a guarantee, bond, or any other instrument. |
| Financial Sanctions List | means the list(s) of persons, groups or entities which are subject to financial sanctions by the United Nations, the European Union and/or France. For information purposes only and for the convenience of the Borrower, who may rely on, the following references or website addresses: For the list maintained by the United Nations, the European Union and France, the following website may be consulted: https://gels-avoirs.dgtresor.gouv.fr/List. |
| Financing Plan | means the financing plan of the Project set out in Schedule 3 (Financing Plan). |
| Fixed Reference Rate | means three point eleven per cent (3.11%) per annum. |
| Fraud | means any unfair practice (acts or omissions) deliberately intended to mislead others, to intentionally conceal elements there from, or to betray or vitiate his/her consent, to circumvent any legal or regulatory requirements and/or to violate internal rules and procedures of the Borrower or a third party in order to obtain an illegitimate benefit. |
| Fraud against the Financial Interests of the European Union | means any intentional act or omission intended to damage the European Union budget and involving (i) the use or presentation of false, inaccurate or incomplete statements |
| or documents, which has as effect the misappropriation or wrongful retention of funds or any illegal reduction in resources of the general budget of the European Union; (ii) the non-disclosure of information with the same effect; and (iii) misappropriation of such funds for purposes other than those for which such funds were originally granted. | |
| Grace Period | means the period from the Signing Date up to and including the date falling forty eight (48) months after such date, during which no principal repayment under the Facility is due and payable. |
| Illicit Origin | means funds obtained through: (a) the commission of any predicate offence as designated in the FATF 40 recommendations Glossary under "Designated categories of offences" (https://www.fatf- gafi.org/media/fatf/documents/recommendations/pdfs/F ATF%20Recommendations%202012.pdf); (b) any Act of Corruption; or (c) any Fraud against the Financial Interests of the European Community, if or when applicable. |
| Index Rate | means the TEC 10 daily index, the ten-year constant maturity rate displayed on a daily basis on the relevant quotation page of the Reference Financial Institution or any other index which may replace the TEC 10 daily index. On the Signing Rate Setting Date, the Index Rate is two point eighty-nine per cent (2.89%) per annum. |
| Interest Period(s) | means each period from a Payment Date (exclusive) up to the next Payment Date (inclusive). For each Drawdown under the Facility, the first interest period shall start on the Drawdown Date (exclusive) and end on the next successive Payment Date (inclusive). |
| Interest Rate | means the interest rate expressed as a percentage and determined in accordance with Clause 4.1 (Interest Rate). |
| Margin | means one per cent (1%) per annum. |
| Market Disruption Event | means the occurrence of one of the following events: (i) EURIBOR is not determined by the European Money Markets Institute (EMMI), or any successor administrator, at 11:00am Brussels time, two (2) Business Days before the first day of the relevant Interest Period or on the Rate Setting Date; or (ii) before close of business of the European interbank market, two (2) Business Days prior to the first day of the relevant Interest Period or on the Rate Setting Date, the Borrower receives notification from the Lender that (i) the cost to the Lender of obtaining matching resources in the relevant interbank market would be in excess of EURIBOR for the relevant Interest Period; or (ii) it cannot or will not be able to obtain matching resources on the relevant interbank market in the ordinary course of business to fund the relevant Drawdown for the relevant time period. |
| Material Adverse Effect | means a material and adverse effect on: (a) the Project, insofar as it would jeopardise the implementation and operation of the Project in accordance with this Agreement and the Project Documents; (b) the business, assets, financial condition of the Borrower or its ability to perform its obligations under this Agreement and the Project Documents; (c) the validity or enforceability of this Agreement and any Project Documents; or (d) any right or remedy of the Lender under this Agreement. |
| Misuse of AFD's Funds or Assets | means the non-compliant, inappropriate and/or abusive use of the resources, property or assets belonging to the Lender, made knowingly, recklessly or negligently. |
| Money Laundering | means: (i) the act of facilitating by any means, the false justification of the origin of the assets or proceeds of the perpetrator of a felony or a misdemeanour which brought him a direct or indirect benefit; or (ii) the act of assisting in investing, concealing or converting the direct or indirect proceeds of a felony or a misdemeanour. |
| Non-Cooperative Practices | means: (i) the act of destroying, falsifying, altering, concealing or unreasonably withholding evidence or any other information, documents or records sought to be disclosed in connection with an investigation by the Lender of an allegation of Prohibited Practices to materially obstruct the investigation; or the act of making false statements to materially obstruct the investigation of an allegation of Prohibited Practices; or (ii) the act of threatening, harassing or intimidating any party in order to prevent it from disclosing information relating to an investigation conducted by the Lender, or the continuation of the investigation; or (iii) any acts carried out in order to materially obstruct the Lender in exercising its contractual rights to audit, inspect or access to information in the context of an investigation based on an allegation of Prohibited Practices. |
| National Bank of Serbia or NBS | means the central bank of the Republic of Serbia. |
| Outstanding Principal | means, in respect of any Drawdown, the outstanding principal amount due in respect of such Drawdown, corresponding to the amount of the Drawdown paid by the Lender to the Borrower less the aggregate of instalments of principal repaid by the Borrower to the Lender in respect of such Drawdown. |
| Payment Dates | means April 25 and October 25 of each year. |
| Payment Systems Disruption Event | means either or both of: (a) a material disruption to the payment or communication systems or to the financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by this Agreement to be carried out), provided that the disruption is not caused by, and is beyond the control of, any of the Parties; or (b) the occurrence of any other event which results in a disruption (of a technical or system-related nature) to the treasury or payment operations of a Party preventing that, or any other Party: (i) from performing its payment obligations under this Agreement; or (ii) from communicating with the other Parties in accordance with the terms of this Agreement, and which (in either case) is not caused by, and is beyond the control of, either Party. |
| Prepayment Compensatory Indemnity | means the indemnity calculated by applying the following percentage to the amount of the Facility which is repaid in advance: – if the repayment occurs between the Signing Date and the 1st anniversary (exclusive) of the Signing Date: three per cent (3%); – if the repayment occurs between the 1st anniversary (inclusive) and the 2nd anniversary (exclusive) of the Signing Date: two per cent (2%); – if the repayment occurs between the 2nd anniversary (inclusive) and the 6th anniversary (exclusive) of the Signing Date: one per cent (1%); – if the repayment occurs after the 6th anniversary (inclusive): zero point five per cent (0.5%). |
| Prohibited Practice(s) | means Anti-Competitive Practices, Acts of Corruption, Fraud, Fraud against the Financial Interests of the European Union, Non-Cooperative Practices, Misuse of AFD's Funds or Assets, as well as any breach of any applicable anti-Money Laundering and counter-Terrorist Financing laws. |
| Project | means the project as described in Schedule 2 (Project Description). |
| Project Agreements | means the agreements to be entered into between the Co- Financier, the Borrower, acting through the Ministry of Environmental Protection (MEP), and each of the Project Entities for each sub-project. |
| Project Authorisations | means the Authorisations necessary in order for (i) the Borrower to implement the Project and execute all Project Documents to which it is a party, and to exercise its rights and perform its obligations under the Project Documents to which it is a party; and (ii) the Project Documents to which the Borrower is a party, to be admissible as evidence before courts in the jurisdiction of the Borrower or before a competent arbitral tribunal. |
| Project Documents | means all documents, and in particular agreements, delivered or executed by the Borrower in relation to the implementation of the Project, i.e.: • the consulting engineer contracts (studies and supervision of investments); • Project authorizations; • Supply and investment work contracts; • Environmental & Social Action Plan (ESAP) as validated by the Co-Financier and the MEP; • Project Agreements; • Project procurement plan; • any contract signed by the Borrower and necessary for the proper execution of the Project. |
| Public Official | means any holder of legislative, executive, administrative or judicial office whether appointed or elected, serving on permanent basis or otherwise, paid or unpaid, regardless of rank, or any other person defined as a public official under the domestic law of the Borrower’s jurisdiction, and any other person exercising a public function, including for a public agency or organisation, or providing a public service. |
| Rate Conversion | means the conversion of the floating rate applicable to all or part of the Facility into a fixed rate pursuant to Clause 4.1 (Interest Rate). |
| Rate Conversion Request | means a request substantially in the form attached in the Schedule 5C (Form of Rate Conversion Request). |
| Rate Setting Date | means, for each fixed rate Drawdown or Rate Conversion: (i) the first Wednesday (or, if that date is not a Business Day, the immediately following Business Day) following the date of receipt by the Lender of the Drawdown Request or Rate Conversion Request, provided that this request is received by the Lender at least two (2) full Business Days prior to said Wednesday; or in other cases (ii) the second Wednesday (or, if that date is not a Business Day, the immediately following Business Day) following the date of receipt by the Lender of the Drawdown Request or Rate Conversion Request. |
| Reference Financial | means a financial institution chosen as a suitable reference |
| Institution | financial institution by the Lender and which regularly publishes quotations of financial instruments on one of the international financial information networks according to the practices recognised by the banking industry. |
| Restructuring | means any debt restructuring, and more generally any debt treatment operation, initiated by and/or organised, adopted within a formal or informal framework such as the Paris Club. |
| Schedule(s) | means any schedule or schedules to this Agreement. |
| Signing Date | means the date of execution of this Agreement by all the Parties. |
| Signing Rate Setting Date | means December 11, 2024. |
| TARGET Day | means a day on which the Trans European Automated Real Time Gross Settlement Express Transfer 2 (TARGET2) system, or any successor thereto, is open for payment settlement in Euros. |
| Tax(es) | means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with a failure to pay or any delay in the payment of any such amounts). |
| Technical Completion Date | means the date for the technical completion of the Project which is expected to be December 31, 2028. |
| Terrorist Financing | means providing or collecting, directly or indirectly, funds or managing funds with the intention that they should be used, or in the knowledge that they are to be used, for the purpose of committing an Act of Terrorism. |
| Visibility and Communication Guide | means all contractual provisions binding on the Borrower relating to the communication and visibility of projects financed by AFD and contained in the document entitled "Visibility guide for projects supported by AFD - Level 1", a copy of which has been given to the Borrower before the signing. |
| Website | means the website of AFD (http://www.afd.fr/) or any other such replacement website. |
| Withholding Tax | means any deduction or retention in respect of a Tax on any payment made under or in connection with this Agreement. |
SCHEDULE 1B CONSTRUCTION
(a)
“assets” includes present and future properties, revenues and rights of every description;
(b)
any reference to the “Borrower”, a “Party” or a “Lender” includes its successors in title, permitted assigns and permitted transferees;
(c)
any reference to a Financing Document or other document is a reference to this Agreement or to such other document as amended, restated or supplemented and includes, if applicable, any document which replaces it through novation, in accordance with the Agreement;
(d)
a “guarantee” includes any cautionnement, aval and any garantie which is independent from the debt to which it relates;
(e)
“indebtedness” means any obligation of any person whatsoever (whether incurred as principal or as surety) for the payment or repayment of money, whether present, future, actual or contingent;
(f)
a “person” includes any person, company, corporation, partnership, trust, government, state or state agency or any association, or group of two or more of the foregoing (whether or not having separate legal personality);
(g)
a “regulation” includes any legislation, regulation, rule, decree, official directive, instruction, request, advice, recommendation, decision or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, supervisory authority, regulatory authority, independent administrative authority, agency, department or any division of any other authority or organisation (including any regulation issued by an industrial or commercial public entity) having an effect on this Agreement or on the rights and obligations of a Party;
(h)
a provision of law is a reference to that provision as amended;
(i)
unless otherwise provided, a time of day is a reference to Paris time;
(j)
The Section, Clause and Schedule headings are for ease of reference only and do not affect the interpretation of this Agreement;
(k)
unless otherwise provided, words and expressions used in any other document relating to this Agreement or in any notice given in connection with this Agreement have the same meaning in that document or notice as in this Agreement;
(l)
an Event of Default is “continuing” if it has not been remedied or if the Lender has not waived any of its rights relating thereto;
(m)
a reference to a Clause or Schedule shall be a reference to a Clause or Schedule of this Agreement; and
(n)
words importing the plural shall include the singular and vice-versa.
SCHEDULE 2 PROJECT DESCRIPTION
1. The purpose of the Project is to assist the Borrower in the development of regional waste management centres in certain regions of the Republic of Serbia.
2. The Project consists of the following, subject to such modifications thereof as the Lender and the Borrower may agree upon from time to time:
(i)
Construction or expansion of :
a. the regional waste management system in Kalenić solid waste region (“Eko-Tamnava” d.o.o. is the Project Entity);
b. the regional waste management system in Sombor solid waste region (“Rančevo” d.o.o. is the Project Entity);
c. the regional waste management system in Duboko solid waste region (“Duboko” d.o.o. is the Project Entity); and
d. the regional waste management system in Nova Varoš solid waste region (“Banjica” d.o.o. is the Project Entity).
e. the regional waste management system in Pirot solid waste region (“Pirot” d.o.o. is the Project Entity);
f. the regional waste management system in Sremska Mitrovica solid waste region (“Srem-Mačva” d.o.o. is the Project Entity);
g. the regional waste management system in Indjija solid waste region (“Ingrin” d.o.o. is the Project Entity);
h. the multi-regional primary sorting system within existing solid waste regions.
(ii) Engagement of suitably qualified consultants to assist in works supervision, and related studies, designs, technical assistance and procurement and implementation support.
3. The Project is expected to be completed by December 31, 2028.
SCHEDULE 3 FINANCING PLAN
Any amendment to this financing plan requires the Lender's prior no objection notice.
PART I - FINANCING PLAN AND ELIGIBLE EXPENSES
1. The table attached to this Schedule sets forth the component of the Project and related Eligible Expenses to be financed out of the proceeds of the Facility
2. Notwithstanding the provisions of paragraph 1 above, no Drawdown shall be made in respect of expenditures incurred prior to the date of the signing of the Agreement.
Components Amount of the AFD % of expenditures to be
Facility (EUR) financed by the Facility out
of the Project’s total amount
[AFD and EBRD loans
combined]
Project:
Capital expenditures 75,000,000 50% (goods, works, and (excluding VAT and custom services) (including duties) contingencies), procurement support, works supervision, studies and designs, and technical assistance
Total: 75,000,000
PART II - NON-ELIGIBLE EXPENSES
Front-end fees, VAT and custom duties are not eligible.
SCHEDULE 4 CONDITIONS PRECEDENT
The following applies to all documents delivered by the Borrower as a condition precedent:
- if the document which is delivered is not an original but a photocopy, the original Certified photocopy shall be delivered to the Lender;
- the final version of a document which draft was previously sent to, and agreed upon by the Lender, shall not materially differ from the agreed draft;
- documents not previously sent and agreed upon, shall be satisfactory to the Lender.
PART I – CONDITIONS PRECEDENT TO THE SIGNING
(a)
Delivery by the Borrower to the Lender of the following documents:
(i)
Delivery by the Borrower to the Lender of a Certified copy of a conclusion of the Government of the Republic of Serbia approving the Agreement and expressly authorizing Minister of Finance of the Republic of Serbia to execute this Agreement;
(ii) A certificate of the Borrower (signed by authorized signatory) confirming that (i) borrowing the total Facility commitments would not cause any borrowing, guaranteeing or similar limit binding on the Borrower to be exceeded, and (ii) that the public debt loan under this Agreement is within the limits set by the law governing the budget of the Republic of Serbia;
(b)
Confirmation from the Co-Financier to the Lender that its Board of Directors has approved the EBRD loan.
PART II - CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THE
AGREEMENT
(a)
This Agreement has been duly signed by the Lender and the Borrower;
(b)
Delivery by the Borrower to the Lender of the following documents:
(i)
An original of the legal opinion from the Minister of Justice customary for this type of transaction in form and content satisfactory to the Lender with certified copies (each with an official translation into the language of this Agreement) of all documents to which such legal opinion refers, demonstrating that the Agreement is legally effective and enforceable and, in particular: (i) that the Borrower has met all requirements under its constitutional law and other applicable legal provisions for the valid assumption of all its obligations under this Agreement, (ii) that no official authorisations, consents, licenses, registrations and/or approvals of any governmental authority or agency (including the National Bank of Republic of Serbia) are required or advisable in connection with the execution and performance of this Agreement by the Borrower (including without limitation that all amounts due by the Borrower to the Lender under this Agreement whether as principal or interest, late payment interest, Prepayment Indemnity, incidental costs and expenses or any other sum are freely convertible and transferable), (iii) that choice of French law to govern this Agreement and the submission to arbitration are valid and binding, as well as that arbitration awards against the Borrower will be recognized and enforceable in the Republic of Serbia, and (iv) that neither the Borrower nor any of its property has any right of immunity from arbitration, suit, execution or other legal process;
(ii) Evidence of the enactment by the National Assembly of the Republic of Serbia of the law ratifying this Agreement (together with evidence of such law being promulgated by the President of the Republic of Serbia) and published in the Official Gazette of the Republic of Serbia;
(iii) Confirmation of the Ministry of Finance of the Republic of Serbia that this Agreement has been duly evidenced therewith.
PART III – CONDITIONS PRECEDENT TO THE FIRST DRAWDOWN
(a)
This Agreement has become effective upon the satisfaction of the conditions stipulated in the Part II of this Schedule 4 of the Agreement;
(b)
Delivery by the Borrower to the Lender of:
(i)
a copy of conclusion of the Government of the Republic of Serbia appointing and authorizing persons to sign, on behalf of the Borrower, the Drawdown Requests and any certificate in connection with this Agreement and to take all other measures and/or sign all other necessary documents on behalf of the Borrower under this Agreement
(ii) a certificate of specimen of the signature of each person listed in this conclusion;
(c)
Execution of the amendment to the Co-financing Agreement, in order to include Ingrin sub-project;
(d)
Confirmation that the EBRD Loan Agreement has become effective;
(e)
Amendment of the existing Project Agreements, and execution of the new Project Agreement for the Ingrin sub-project;
(f)
Payment by the Borrower to the Lender of all fees and expenses due and payable under this Agreement.
PART IV – CONDITIONS PRECEDENT FOR ALL DRAWDOWNS INCLUDING THE
FIRST DRAWDOWN
(a)
Reception by the Lender from the Co-Financier of the confirmation in writing that its conditions precedents for the relevant drawdown are met.
(b)
Delivery by the Borrower to the Lender of the following documents:
(i)
all contracts and order forms together with any plans and quotes (if applicable) previously provided to the Co-Financier, in connection with the Drawdown requested to be paid directly; and
(ii) any reports, invoices or interim payment requests, in form and substance satisfactory to the Lender and the Co-Financier, which may be delivered in the form of Certified photocopies.
SCHEDULE 5A FORM OF DRAWDOWN REQUEST
[on the Borrower’s letterhead]
To: AGENCE FRANÇAISE DE DÉVELOPPEMENT
On: [date]
Borrower’s Name – Credit Facility Agreement n° CRS 1029 01 H dated
December 17, 2024
Drawdown Request n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n° CRS 1029 01 H entered into between the Borrower and the Lender dated December 17, 2024 (the “Agreement”). Capitalised words and expressions used but not defined herein have the meanings given to them in the Agreement.
2. This letter is a Drawdown Request. 3. We irrevocably request that the Lender makes a Drawdown available on the following terms:
Amount: EUR [●] or, if less, the Available Facility.
Interest Rate: [fixed / floating]
4. The Interest Rate will be determined in accordance with the provisions of Clause 4 (Interest) and Clause 5 (Change to the Calculation of Interest) of the Agreement. The Interest Rate applicable to the requested Drawdown will be provided to us in writing and we accept this Interest Rate [(subject to the paragraph below, if applicable)], including when the Interest Rate is determined by reference to a Replacement Benchmark plus any Adjustment Margin as notified by the Lender following the occurrence of a Screen Rate Replacement Event.
[For fixed Interest Rate only:] If the Interest Rate applicable to the requested Drawdown is greater than] (in letters[●]%), we request that you cancel this Drawdown Request. 5. We confirm that each condition specified in Clause 2.4 (Conditions precedent) is satisfied on the date of this Drawdown Request and that no Event of Default is continuing or is likely to occur. We agree to notify the Lender immediately if any of the conditions referred to above is not satisfied on or before the Drawdown Date.
6. The proceeds of this Drawdown should be credited to the following bank account(s):
In the event of a direct payment to the Contractor(s)
Please note that it is possible to make several payments to different Contractors under a single Drawdown as defined in the Agreement. If there are several Contractors, the following information must be provided for each Contractor:
(a)
Name of the Contractor: [●]
(b)
Address of the Contractor: [●]
(c)
IBAN Account Number: [●]
(d)
SWIFT Number: [●]
(e)
Bank and bank’s address of the Contractor: [●]
(f)
Correspondent bank and account number of the Contractor’s bank: [●]]
7. This Drawdown Request is irrevocable.
8. We have attached to this Drawdown Request all relevant supporting documents specified in Clause 2.4 (Conditions precedent) of the Agreement.
[List of supporting documents]
Yours sincerely,
Authorised signatory of Borrower
SCHEDULE 5B FORM OF CONFIRMATION OF DRAWDOWN AND RATE
[on Agence Française de Développement letterhead]
To: [the Borrower]
Date: [●]
Ref: Drawdown Request n° [●] dated [●]
Borrower’s Name – Credit Facility Agreement n° CRS 1029 01 H dated
December 17, 2024
Drawdown Confirmation n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n° CRS 1029 01 H entered into between the Borrower and the Lender dated December 17, 2024 (the “Agreement”). Capitalised words and expressions used but not defined herein have the meanings given to them in the Agreement.
2. By a Drawdown Request Letter dated [●], the Borrower has requested that the Lender makes available a Drawdown in the amount of EUR [●], pursuant to the terms and conditions of the Agreement.
3. The Drawdown which has been made available according to your Drawdown Request is as follows:
• Amount: [●amount in words] ([●])
[Option: floating Interest Rate Drawdowns :
• Applicable interest rate: equal to the aggregate of the six-month EURIBOR1 and the Margin]2
[Option: fixed Interest Rate Drawdowns:
• Applicable interest rate: [●percentage in words]
For information purposes only
• Rate Setting Date: [●]
• Fixed Reference Rate: [●percentage in words] ([●]%) per annum
• Index Rate on the Signing Rate Setting Date: [●percentage in words] ([●]%)
• Index Rate on the Rate Setting Date: [●].
• Effective global rate (for a 6 month period): [●percentage in words] ([●]%)
• Effective global rate (per annum): [●percentage in words] ([●]%)]
1 If the six-month EURIBOR is not available on the date of confirmation of drawdown due to the occurrence of a Screen Rate Replacement Event, the Replacement Benchmark, the precise terms and conditions of replacement of such Screen Rate with a Replacement Benchmark and the related total effective rates will be communicated to the Borrower in a separate letter. 2 To be deleted in case of fixed Interest Rate. [It being specified that the above Interest Rate may vary in accordance with the provisions of clauses 4.1.1(a) (Floating Interest Rate) and 5.2 (Replacement of Screen Rate) of the Agreement.]3
Yours sincerely,
Authorised signatory of Agence Française de Développement
3 To be deleted in case of fixed Interest Rate.
SCHEDULE 5C FORM OF RATE CONVERSION REQUEST
[on the Borrower’s letterhead]
To: AGENCE FRANÇAISE DE DÉVELOPPEMENT
On: [date]
Borrower’s Name – Credit Facility Agreement n° CRS 1029 01 H dated
December 17, 2024
Rate Conversion Request n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n° CRS 1029 01 H entered into between the Borrower and the Lender dated December 17, 2024 (the “Agreement”). Capitalised words and expressions used but not defined herein have the meanings given to them in the Agreement.
2. Pursuant to Clause 4.1.3 (a) (Conversion from a floating Interest Rate to a fixed Interest Rate) of the Agreement, we hereby request that you convert the floating Interest Rate of the following Drawdowns:
• [list the relevant Drawdowns],
into a fixed Interest Rate in accordance with the terms of the Agreement.
2. This rate conversion request will be deemed null and void if the applicable fixed Interest Rate exceeds [percentage in words] [●%].
Yours sincerely,
Authorised signatory of Borrower
SCHEDULE 5D FORM OF RATE CONVERSION CONFIRMATION
[on Agence Française de Développement letterhead]
To: [the Borrower]
Date: [●]
Re: Rate Conversion Request n° [●] dated [●]
Borrower’s Name – Credit Facility Agreement n° CRS 1029 01 H dated
December 17, 2024
Rate Conversion Confirmation n°[●]
Dear Sirs,
SUBJECT: Conversion from a floating Interest Rate to a fixed Interest Rate
1. We refer to the Credit Facility Agreement n°CRS 1029 01 H entered into between the Borrower and the Lender dated December 17, 2024 (the “Agreement”). Capitalised words and expressions used but not defined herein have the meanings given to them in the Agreement.
2. We refer also to your Rate Conversion Request dated [●]. We confirm that the fixed Interest Rate applicable to the Drawdown(s) referred to in your Rate Conversion Request delivered in accordance with Clause 4.1.3 (a) (Conversion from a floating Interest Rate to a fixed Interest Rate) of the Agreement is:
● [●]% per annum.
3. This fixed Interest Rate, calculated in accordance with Clause 4.1.1 (Selection of Interest Rate) will apply to the Drawdown(s) referred in your Rate Conversion Request from [●] (effective date).
4. Further, we notify you that the effective global rate per annum of the Facility is [●]%.;
Yours sincerely,
Authorised representative of Agence Française de Développement
SCHEDULE 6 FORM OF FOLLOW-UP REPORT OF THE PROJECT INDICATORS
The follow-up report prepared for AFD and the Co-Financier will include Project impact monitoring of:
- Number of total Project recipients;
- Number of people whose climate resilience is increased by the Project;
- Number of recipients of essential goods and services thanks to the Project;
- Number of users and inhabitants of cities (M/F) whose quality of life is improved by the Project;
- Number of people (M/F) benefiting from improved essential services (water, sanitation, energy, waste management) thanks to the Project;
- Number of regional & municipal structures that have benefited from capacity building thanks to the Project.
SCHEDULE 7 INFORMATION THAT THE LENDER IS AUTHORIZED EXPRESSLY
TO DISCLOSE ON THE LENDER’S WEBSITE (IN PARTICULAR ON ITS OPEN
DATA PLATFORM)
1. Information relating to the Project
- Number and name in AFD’s book;
- Description;
- Operating sector;
- Place of implementation;
- Expected project starting date;
- Expected Technical Completion Date; and
- Status of implementation updated on a semi-annual basis.
2. Information relating to the financing of the Project
- Kind of financing (loan, grant, co-financing, delegated funds);
- Principal amount of the Facility;
- Total amount drawn on annual basis;
- Drawdown amounts planning on a three year basis; and
- Amount of the Facility which has been drawn down (updated as the implementation of the Project goes).
3. Other information
- Transaction information notice attached to this Schedule; and
- The report of the Project evaluation, the content of which is defined in Article 11.10 (Project Evaluation).
SCHEDULE 7-1 TRANSACTION INFORMATION NOTICE
AFD provides a second sovereign loan to finance Serbia’s national solid waste management program, in line with EU standards.
CONTEXT
The waste sector is a key environmental challenge for Serbia’s EU accession, requiring significant investment to meet EU standards. Decades of underinvestment and insufficient planning have resulted in inadequate waste management infrastructure, including collection, transport, treatment, and recovery. The national municipal waste collection rate is 82%, with large disparities between municipalities (25-100%) and urban/rural areas.
PROJECT DESCRIPTION
The program, co-financed by the EBRD, aims to modernize solid waste management infrastructure and improve stakeholder engagement. Phases 1 and 2 include eight sub-projects covering one-third of the country's municipalities, addressing all stages of waste management: collection, sorting, transport, disposal, and recovery (recycling, energy from landfill biogas). Phase 3 will provide additional funding for existing sub-projects and support the development of new regional waste management center.
OBJECTIVES
The program aims to reduce the adverse environmental and health impact of solid waste in several of the country's cities, while improving the living environment for residents.
STAKEHOLDERS AND OPERATING MODE
The borrower is the Republic of Serbia, represented by the Ministry of Finance. The project will be implemented through a Project Implementation Unit set up within the Ministry of Environmental Protection (MEP). The MEP is responsible for the strategic and operational management of environmental and climate issues.
FINANCING PLAN
The total Phase 3 cost of 150 M€ will be financed on a 50:50 basis with EBRD.
SCHEDULE 8 – AFD’S COVENANT OF INTEGRITY
COVENANT OF INTEGRITY (the “Covenant”)
Date: Tendering No:
Invitation for Tenders No.:
To: ______ [insert name of Client](the “Client”)
We acknowledge that the contract(s) subject to this tender process are intended to be co-financed by the European Bank for Reconstruction and Development (“EBRD”) and the Agence Française de Développement (“AFD”) (hereafter the “Banks”). The Banks and the Client have agreed that this tender process is governed by the EBRD’s Procurement Policies and Rules.
We declare and covenant that neither we nor anyone, including any of our subsidiaries and affiliates, and all of our directors, employees, agents or joint venture partners, consortium, or association (“JVCA”) partners, as well as any sub- contractors, suppliers, sub-suppliers, concessionaires, consultants or sub- consultants, where these exist, acting on our behalf with due authority or with our knowledge or consent, or facilitated by us, has engaged, or will engage, in any Prohibited Practices (as defined below) in connection with the Procurement Process or in the execution or supply of any works, goods or services for [specify the contract or tender invitation] (the “Contract”) and covenant to so inform you if any instance of any such Prohibited Practices shall come to the attention of any person in our organisation having responsibility for ensuring compliance with this Covenant.
We declare that we have paid, or will pay, the following commissions, gratuities, or fees with respect to the Tendering process or execution of the Contract:4
Name of Recipient Addr ess Reas on Amo unt
We declare that no affiliate of the Client (except for those, we have demonstrated that there is not a significant degree of common ownership, influence or control amongst the Borrower/the Grant Recipient, the Client or the Client’s agent and the affiliates) is participating in our submission in any capacity whatsoever.
We shall, for the duration of the Procurement Process and, if we are successful in our tender, for the duration of the Contract, appoint and maintain in office an officer, who shall be a person reasonably satisfactory to you and to whom you shall have full and immediate access, having the duty, and the necessary powers, to ensure compliance with this Covenant.
We declare and covenant that, except for the matters disclosed in this Covenant of Integrity:
4 If none has been paid or is to be paid, indicate “none”.
(i)
we, our subsidiaries and affiliates, and all of our directors, employees, agents or JVCA partners, where these exist, have not been convicted in any court or sanctioned by any authority of any offence involving a Prohibited Practices in connection with any procurement process or provision of works, goods or services during the ten years preceding the date of this Covenant;
(ii) none of our directors, employees, agents or a representatives of a JVCA partner, where these exist, has been dismissed or has resigned from any employment on the grounds of being implicated in any Prohibited Practice during the ten years preceding the date of this Covenant;
(iii) we, our subsidiaries and affiliates and our directors, employees, agents or JVCA partners, where these exist, have not been excluded by any major Multilateral Development Bank or International Financial Institution (including World Bank Group, African Development Bank, Asian Development Bank, EBRD, European Investment Bank or Inter-American Development Bank) from participation in a procurement process or from contract award, or otherwise have not been subject to any other enforcement action or sanction by such institutions on the grounds of engaging in a Prohibited Practice;
(iv) neither we, nor anyone, including any of our directors, employees, agents, JVCA partners, or subsidiaries and affiliates, as well as any sub-contractors, or suppliers or affiliates of the sub-contractor or supplier, where these exist, acting on our behalf with due authority or with our knowledge or consent, or facilitated by us, (i) is listed or otherwise subject to EU sanctions5, UN sanctions6 and /or sanctions by the French authorities (the “French Sanctions”)7, and (ii) in connection with the tendering process, or in the execution or supply of any works, goods or services for the Contract, has acted or will act in contravention of EU Sanctions, UN Sanctions, or French Sanctions;
(v)
we furthermore undertake to immediately inform the Client and EBRD if any of the instances described under Articles (i) – (iv) come to our attention after signing this Covenant or occur at a later stage.
If applicable, provide full disclosure of any convictions, dismissal, resignations, exclusions or other information relevant to Articles (i) (ii) (iii) or (iv) in the box below.
| Name of Entity Required to be Disclosed | Reason Disclosure is Required8 |
5 Pursuant to Chapter 2 of Title V of the TEU and the objectives of the Common Foreign and Security Policy set out in Article 21 of the TEU and Article 215 of the TFEU.
6 Pursuant to Article 41 Chapter VII of the United Nations Charter. 7 The French Sanctions can be consulted at: https://www.tresor.economie.gouv.fr/services-aux- entreprises/sanctions-economiques. 8 For each matter disclosed, provide details of the measures that were taken, or shall be taken, to ensure that neither the disclosed entity nor any of its directors, employees or agents commits any Prohibited Practices in connection with the Tender for this Contract. We understand that any misrepresentation in relation to or omission to provide full disclosure of information as required by this Covenant may result in the rejection of the tender and it may also lead to enforcement actions, sanctions or any other type of measures in accordance with the Banks’ applicable policies and procedures.
For the purpose of this Covenant, the terms set forth below define Prohibited Practices9 as:
● Corrupt Practice which means the offering, giving, receiving or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party;
● Fraudulent Practice which means any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain a financial or other benefit or to avoid an obligation;
● Coercive Practice which means impairing or harming, or threatening to impair or harm, directly or indirectly, any party or the property of any party to influence improperly the actions of a party;
● Collusive Practice which means an arrangement between two or more parties designed to achieve an improper purpose, including to influence improperly the actions of another party;
● Obstructive Practice which means any of (1) destroying, falsifying, altering or concealing of evidence material to the Banks’ investigation, which impedes the Banks’ investigation; (2) making false statements to investigators in order to materially impede the Banks’ investigation into allegations of a Prohibited Practice; (3) failing to comply with requests to provide information, documents or records in connection with the Banks’ investigation; (4) threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the Banks’ investigation or from pursuing the investigation; or (5) materially impeding the exercise of the Banks’ contractual rights of audit or inspection or access to information;
● Theft which means the misappropriation of property belonging to another party;
● Misuse of EBRD resources or EBRD assets which means improper use of EBRD’s resources or EBRD’s assets, committed either knowingly or recklessly;
● Misuse of AFD’s Resources or AFD Assets which means improper use of the AFD’s Resources or AFD Assets, committed either knowingly or recklessly;
● Money laundering. This term refers to a) the act of facilitating, by any means, the false justification of the origin of the property or income of the perpetrator of a felony or misdemeanour which has brought him a direct or indirect benefit; b) the act of assisting in investing, concealing or converting the direct or indirect products of a felony or misdemeanour;
9 EBRD refers to Prohibited Practices as ‘Prohibited Practices’ as defined in EBRD’s Enforcement Policy and Procedures (http://www.ebrd.com/integrityand-compliance.html). AFD refers to Prohibited Practices as ‘Prohibited Practices’ as defined in AFD Group’ policy to Prevent and Combat Prohibited Practices (https://www.afd.fr/en/ressources/afd-groups-policy-prevent-and-combat-prohibited-practices-2020). ● Terrorist financing. This term is defined as the act of providing or collecting, directly or indirectly, funds or managing funds with the intention that they should be used or in the knowledge that they are to be used to commit a terrorist act.
At any time following the submission of our tender, we shall grant, and shall cause our JVCA partners, as well as our directors, employees, agents, sub-contractors, sub-consultants, service providers, suppliers and any other third parties engaged or involved for any part of the Procurement Process or Contract to permit the Banks and/or persons appointed by any of them, the right to inspect and copy all accounts, books, records and other documents (on any media or in any format) relating to the Procurement Process and execution of the Contract and have any such accounts, books, records, and documents audited by the Banks and by auditors appointed by any of the Banks. We accept to preserve all these records generally in accordance with applicable law but in any case for at least six years from the date of tender submission and, in the event we are awarded the Contract, at least six years from the date of substantial performance of the Contract.
We acknowledge that we will be ineligible to be awarded an EBRD-financed contract or for EBRD funding if we are included on EBRD’s lists of persons or entities ineligible to become an EBRD counterparty (as such lists may be found on EBRD’s website) or we are subject to UN Sanctions. We furthermore acknowledge that if we are subject to EU Sanctions, UN Sanctions, or French Sanctions, we will not be eligible to be awarded a contract to be financed by the AFD.
| Name: | |
| In the capacity of: | |
| Signed: | |
| Duly authorised to sign for and on behalf of: | |
| Date: |
Note: The original of this Covenant must be kept by the Client and made available upon request from the EBRD and/or AFD.
SCHEDULE 9 NON-EXHAUSTIVE LIST OF ENVIRONMENTAL AND SOCIAL
DOCUMENTS WHICH THE BORROWER PERMITS TO BE DISCLOSED IN
CONNECTION WITH E&S COMPLAINTS-MANAGEMENT MECHANISM’S RULES
OF PROCEDURE
- Environmental & Social Reports;
- Chapter from the environmental and social feasibility study;
- Chapters from the environmental and social monitoring reports.
SCHEDULE 10 - BIODIVERSITY DATA SHARING
Nature of the data
The biodiversity data covered by the Biodiversity Data Sharing clause of this Agreement are the flora and fauna observation data collected as part of naturalist field inventories dedicated to the Project. These data may result from visual sightings, auditory observations, recordings or even specimen collections.
Each published item of data shall, at the least, include information pertaining to: the type of observation, the taxon’s scientific name, the date and location of observation.
Unless the data may be deemed sensitive, observations shall be published using the same location accuracy as that collected in the field.
Data that may be deemed sensitive are, in particular, observations of native fauna and flora whose survival within the local population is threatened due to the intentional removal or destruction of specimens. The data provider shall deliberately downgrade the accuracy of location details for so-called sensitive species. The extent of the downgrading of location details shall be adapted to the species’ sensitivity so as to prevent any risk of further pressure on the populations of those species concerned.
Procedures for data sharing
The Project’s biodiversity data shall be published using the GBIF’s framework www.gbif.org.
Information about the Project in relation with which the data was collected shall be provided in addition to the mandatory metadata required by the GBIF. A short description of the Project followed by the names of the contractors and funders, including the AFD, shall be included.
As to the conditions regarding data use, the data provider must opt for one of the two least restrictive rights levels, that is: the Public Domain (CC0) Licence or the Creative Commons Attribution (CC-BY) Licence.
In addition to this appendix, the data provider and its sub-contractors may rely on the Practical Recommendations Guide for the Publication of Biodiversity Data published by the AFD, which can be downloaded at: https://www.afd.fr/en/ressources/data4nature-practical-recommendations-guide- publishing-primary-biodiversity-data