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. |
| Advance(s) | has the meaning given to it in Clause 3.4. (Disbursement Methods) |
| AFD’s Covenant of Integrity | means AFD’s integrity and eligibility statement form, in the form set out in Schedule 6 that any applicant, bidder or consultant shall deliver pursuant to the terms set out in Clause 11.5 (Procurement) of the Agreement. |
| 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 Regulations | means the contractual provisions in the procurement policies and procedures financed by the Co-Financier (in particular “Procurement Regulations for Investment Projects Financing (IPF) Borrowers”), which is available on the Co-Financier’s website. |
| 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(s) | means the following co-financier of the Project: the |
| International Bank for Reconstruction and Development (IBRD). | |
| Co-Financing | means the loan provided by the Co-Financier with a maximum amount of sixty million Euros (EUR 60,000,000) to finance in part the Project. |
| Co-Financing Agreement | means the 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 May 15, 2030, date after which no further Drawdown may occur. |
| Deadline for the First Drawdown | means September 18, 2026. |
| Deadline for Use of Funds | means May 15, 2030. |
| Disbursement and Financial Information Letter or DFIL | means the Disbursement and Financial Information Letter to be issued by the Co-Financier to the Borrower (after prior consultation with the Lender) providing instructions with respect to drawdowns (disbursements) under the Facility and the Co-Financier Loan Agreement between the Borrower and the Co-Financier, in accordance with the Co-Financing Agreement, as such DFIL may be amended from time to time. |
| 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 including any Advance. |
| 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). |
| Disbursement Notice | means the notice sent by the Co-Financier to the Lender advising the Lender to make available to the Borrower the requested Drawdown, in accordance with the Co- Financing Agreement. |
| Effective Date | means the date on which the conditions set out in Part II of Schedule 4 (Conditions Precedent) have been fulfilled and shall occur at the latest 180 calendar days after the Signing Date. |
| Eligible Expense(s) | means the expense(s) relating to the component(s) of |
| the Project 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. |
| ES Complaints- Management Mechanism’s Rules of Procedure | means the contractual terms contained in the Environmental and Social Complaints-Management Mechanism’s Rules of Procedure, which is available on the Website, as amended from time to time. |
| ESCP | means the environmental and social commitment plan referred to in the IBRD Loan Agreement, setting out the Borrower’s commitment to avoid, mitigate or compensate negative consequences of the Project, on human and natural environment and any planned monitoring, as well as the formal steps required in order to carry out such actions. |
| 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 t o 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 zero one per cent (3.01%) 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 seventy-two (72) months after such date, during which no principal repayment under the Facility is due and payable. |
| IBRD | means International Bank for Reconstruction and Development. |
| IBRD Loan Agreement | means the agreement and all the related financing documentations to be entered into between IBRD (the Co-Financier) and the Borrower providing terms and conditions under which the IBRD loan will be made available to the Borrower. |
| 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/content/dam/fatf- gafi/recommendations/FATF%20Recommendations %202012.pdf.coredownload.inline.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 three point twelve per cent (3.12%) 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 sixty-five (65) basis points 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. |
| National Bank of Serbia or NBS | means the central bank of the Republic of Serbia. |
| 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. |
| 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 May 15 and November 15 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 | means the indemnity calculated by applying the following percentage to the amount of the Facility which |
| Indemnity | is repaid in advance: - if the repayment occurs prior to the 6th anniversary (exclusive) of the Signing Date: two per cent (2%); - if the repayment occurs between the 6th anniversary (inclusive) and the 8th anniversary (exclusive) of the Signing Date: one per cent (1%); - if the repayment occurs after the 8th anniversary (inclusive) of the Signing Date: 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). |
| Designated Account | has the meaning given to that term in Clause 3.4.3(a) (Opening of the Designated Account |
| 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 Project Operations Manual • RD Agreement as defined in the IBRD Loan Agreement • IZS Agreement as defined in the IBRD Loan Agreement • Serbia Cargo Agreement in the IBRD Loan Agreement • Srbijavoz Agreement as defined in the IBRD Loan Agreement |
| Project Operations Manual | has the meaning given to it in the IBRD Loan Agreement. |
| 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 as 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 (ii) in other cases, 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 Institution | means a financial institution chosen as a suitable reference 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. |
| Schedule(s) | means any schedule or schedules to this Agreement. |
| Serbia Railway Sector Modernization Programme | means the multi-phase programmatic approach (MPA) programme, cofinanced by IBRD and AFD, with a global objective to enhance the efficiency and safety of existing railway assets and to improve governance and institutional capacity of the railway sector in Serbia. |
| Signing Date | means the date of execution of this Agreement by all the Parties. |
| Signing Rate Setting Date | means November 6, 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). |
| 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" or "Communication guide for projects supported by AFD - Level 2" as the case may be, 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. |
| Withdrawal Application | has the meaning given to it under the IBRD Loan 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 Agreement 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
Capitalised words and expressions used in this Schedule shall have the meaning given to them in the “Appendix” of the IBRD Loan Agreement, except as otherwise provided in this Agreement.
The objective of the Project is to maintain the quality of infrastructure and safety of railway operations through enhanced maintenance of existing railway assets.
The Project constitutes a phase of the MPA Program, and consists of the following parts:
Part 1. Infrastructure and Asset Management
1.1 Developing IZS’s in-house capacity to conduct infrastructure maintenance of existing railways subsystems within IZS’ network by:
(a)
acquiring New Machinery, including, inter alia: (i) ballast regulators; (ii) draisines; (iii) wagons; (iv) heavy-duty rail-road motorcars with cranes and buckets; (v) equipment for maintenance and replacement of track turnouts; and (vi) cranes, lifting jacks, and turntables); and
(b)
repairing and refurbishing out-of-order heavy-duty machinery already belonging to IZS, such as: (i) draisines; and (ii) machinery and equipment for rail track maintenance (tamping machines, ballast cleaners, dynamic track stabilizers, ballast regulator and profiler equipment).
1.2 Modernizing IZS’s maintenance facilities (tentatively Lapovo and Sajlovo, or Batajnica and Topcider) which would store spare parts and the equipment necessary for the routine maintenance and emergency interventions on the railway network, by investing in small works and small infrastructure, inter alia, roof repairs, fire safety and protection, solar panels power supply.
1.3 Improving the infrastructure, service quality, and safety standards of new and rehabilitated railways through the financing of a service contract that encompasses works and equipment, and also provides capacity building to IZS on railway maintenance with regards to, inter alia: (a) tracks and turnouts (rail grinding/replacement, geometry correction–tamping, ballast injection, fasteners and sleepers replacement, prevention/remediation of snow and freezing damage; (b) signaling and telecoms systems (track-side equipment); and (c) power supply (traction power substations, paralleling posts, sectioning paralleling posts, traction power return system, and overhead contact line equipment).
1.4 Providing technical assistance and capacity building for IZS to adopt: (a) the RIAMS to administer newly constructed sections of railway lines; and (b) stocks and spare parts management systems.
1.5 Providing technical assistance to support IZS in developing technical documentation, including engineering designs, environmental/social impact assessments, and economic assessment, of the rehabilitation and upgrade of a regional railway line.
Part 2. Institutional Strengthening and Project Management
2.1 (a) Adopting ICT technologies and business support systems, asset management systems, financial reporting systems, and document management systems to strengthen (a) Srbijavoz’s ticketing and business processes; and (b) Serbia Cargo’s train and cargo geo- localization systems and client interface platform.
(b)
Supporting the implementation of Srbijavoz’s marketing strategy.
2.2 (a) Developing human capital by: (a) providing technical assistance and capacity building activities to RD, IZS, Srbijavoz and Serbia Cargo staff (including the Human Resources departments); (b) adopting human resources strategies for IZS, Srbijavoz and Serbia Cargo; and
(c)
developing academic curricula to generate a pipeline of professional staff able to supply the railway sector.
(b)
Increasing the female workforce in the Borrower’s railway sector by:
(a)
developing the Internship Program for RD, IZS, Srbijavoz and Serbia Cargo; (b) implementing the Internship Program (including by disbursing Internship Payments); and (c) endeavoring to permanently employ female interns in male dominated technical and managerial fields.
2.3 Providing Project management support, including by, inter alia: (a) financing staff and technical support for the Project implementation unit (“PIU”) and Project implementation teams (“PITs)”; (b) carrying out Training and knowledge exchange activities; (c) carrying out communication and citizen engagement activities; (d) conducting Project audits; and (e) acquiring office equipment and financing of Operating Costs.
Part 3. Railway Modernization Enablers
3.1 Increasing cargo rail traffic and promoting private sector participation by, inter alia: (a) developing a strategy for Logistics Centers to promote rail/road and rail/waterways services; and (b) and conducting an economic and financial assessment of last mile connectivity investments from existing industrial facilities to the main railway network.
3.2 Enabling the growth of passenger rail traffic by: (a) executing three Integrated Territorial Development (“ITD”) pilot projects; and (b) developing a railway station business model, including, inter alia, an investment and maintenance plan.
SCHEDULE 3 - FINANCING PLAN
PART I - FINANCING PLAN
| IBRD (EURm) | AFD (EURm) | Total (EURm) | |
| Component 1. Infrastructure Investments and Asset Management | 54.9 | 54.9 | 109.8 |
| Component 2. Institutional Strengthening and Project Management | 2.6 | 2.6 | 5.2 |
| Component 3. Railway Modernization Enablers | 2.3 | 2.3 | 4.6 |
| TOTAL | 59.8 | 59.8 | 119.6 |
PART II - ELIGIBLE EXPENSES
| Category | Amount of the Facility Allocated (expressed in EUR) | Percentage of Eligible Expenses to be financed by the Facility out of the Project’s total amount [AFD’s Facility and IBRD loan combined] |
| (1) Goods, works, non- consulting services, consulting services, Internship Payments, Operating Costs, and Training for the Project | 60,000,000 | 50% (inclusive of Taxes other than Value Added Tax and Customs Duties for works, goods and non- consulting services) |
| TOTAL AMOUNT | 60,000,000 |
For the purpose of this table:
(a)
Capitalised words and expressions used shall have the meaning given to them in the “Appendix” of the IBRD Loan Agreement, except as otherwise provided in this Agreement;
(b)
For the purpose of this table, the custom duties and value added tax for the importation and supply of works, goods and non-consulting services, within the Borrower’s territory and for the purpose of the implementation of the Project, shall not be financed out of the Facility’s proceeds. The Borrower confirms that the importation and supply of works, goods and non- consulting services, within the Borrower’s territory and for the purpose of the implementation of the Project, shall be exempted from customs duties and value added tax.
(c)
the term “Project’s total amount” means the total cost of Project activities to be jointly financed by the Facility and by the Co-Financier, which is estimated to be the equivalent of EUR 120,000,000.
PART III - NON-ELIGIBLE EXPENSES Front-end fees 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 BE SATISFIED ON THE SIGNING DATE
(a)
Delivery by the Borrower to the Lender of a Certified copy of a conclusion of the Government of the Republic of Serbia approving the report from the negotiations with regard to conclusion of this Agreement, approving the borrowing by the Borrower under this Agreement and expressly authorizing Minister of Finance of the Republic of Serbia to execute this Agreement;
(b)
Delivery by the Borrower to the Lender of 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;
(c)
Confirmation from the Co-Financier to the Lender that it has approved the IBRD 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 (eachwith an official translation into the language of this Agreement) of all relevant 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.
(c)
Signature of the IBRD Loan Agreement.
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)
Confirmation that the IBRD Loan Agreement has become effective and that the conditions precedent to the first disbursement in respect of such loan have been fulfilled;
(c)
Delivery by the Borrower to the Lender of a copy of the government conclusion appointing and authorising persons to sign the Drawdown Requests and a certificate of specimen of the signature of each person listed in this conclusion;
(d)
The Co-Financing Agreement between the Lender and the Co-Financier has been executed;
(e)
Payment by the Borrower to the Lender of all fees and expenses due and payable under this Agreement;
(f)
In Case of Advance, delivery to the Lender of a certificate of the National Bank of Serbia certifying that the Designated Account has been opened in the name of the Project and providing account details for such Designated Account.
PART IV - CONDITIONS PRECEDENT FOR ALL DRAWDOWNS INCLUDING THE FIRST
DRAWDOWN
Reception by the Lender from the Co-Financier of the Disbursement Notice related to the Drawdown.
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_____ dated [●]
Drawdown Request n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n° [●] entered into between the Borrower and the Lender dated [●] (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]
Disbursement method(s): [Reimbursement and/or Direct Payment and/or Advance]
Proposed Drawdown Date: [optional]
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 [●] ([●]%), 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:
(a)
Name [of the Borrower]: [●]
(b)
Address [of the Borrower]: [●]
(c)
IBAN Account Number: [●]
(d)
SWIFT Number: [●]
(e)
Bank and bank’s address [of [●] the Borrower]:
(f)
[if currency other than Euro] [●] correspondent bank and account number of the Borrower’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°[●] dated [●]
Drawdown Confirmation n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n°[●] entered into between the Borrower and the Lender dated [●] (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: [●percentage in words] ([●]%) per annum [equal to the aggregate of the six-month EURIBOR1 (equal to [●]% per annum) and the Margin]
[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: [●percentage in words] ([●]%)
• Index Rate on the Rate Setting Date: [●]
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. • Effective global rate (for a 6 month period): [●percentage in words] ([●]%)
• Effective global rate (per annum)2: [●percentage in words] ([●]%)]
[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 a Screen Rate) of the Agreement.]3
Yours sincerely,
.........................................................
Authorised signatory of Agence Française de Développement
2 Periodic global effective rate to be provided also. 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°[●] dated [●]
Rate Conversion Request n°[●]
Dear Sirs,
1. We refer to the Credit Facility Agreement n°[●] entered into between the Borrower and the Lender dated [●] (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.
3. 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°[●] dated [●]
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°[●] entered into between the Borrower and the Lender dated [●] (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 – AFD’S COVENANT OF INTEGRITY
Invitation of Bids/Proposals/Contract [Name] No.__________
To:___________________________
We declare and undertake that neither we nor anyone, including any member of our joint venture or any of our suppliers, contractors, sub-contractors, consultants, 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 activity prohibited under AFD Group’s Policy to prevent and combat Prohibited Practices4 in connection with the present procurement process and (in case of award) the execution of the above-referenced contract (“Contract”), including any amendments thereto.
We agree to preserve all accounts, records, and other documents (whether in hard copy or electronic format) related to the procurement and execution of the Contract.
We, any party acting on our behalf, the members of our joint venture, our sub- contractors, our direct or indirect shareholders, and our subsidiaries, authorize AFD to conduct investigations and, in particular, inspect the documents and accounting records relating to the procurement and performance of the Contract, including, but not limited to, our internal processes and rules related to the respect of international sanctions pronounced by the United Nations, the European Union and/or France and to have them verified by auditors appointed by AFD.
We declare that we have paid, or that we shall pay, the commissions, benefits, fees, gratuities or charges relating to the procurement procedure or the performance of the Contract to the following third party/parties (for example, an intermediary/agent)(*):
| Name of beneficiary | Contact details | Purpose | Amount (indicate the currency) |
(*): If no amount has been paid or is to be paid, indicate “None”.
We acknowledge that AFD’s participation in the financing of the Contract is subject to AFD Group’s Policy to prevent and combat Prohibited Practices.
4 Available at https://www.afd.fr/en We acknowledge that AFD will not be able to participate in the financing of the Contract if we, including any party acting on our behalf,5 any member of our joint venture, any of our suppliers, contractors, subcontractors, consultants or sub- consultants, any of our direct or indirect shareholders, or any of our subsidiaries acting:
• are directly or indirectly subject to, controlled by a person or an entity subject to, or acting in the name or on behalf of a person or entity subject to individual sanctions measures adopted by the United Nations, the European Union and/or France6.
• are directly or indirectly subject to, controlled by a person or an entity subject to, or acting in the name or on behalf of a person or entity subject to sectoral sanctions measures adopted by the United Nations, the European Union7 and/or France.
• In connection with the execution of the Contract, acquire or supply goods that are subject to embargoes adopted by the United Nations, European Union and/or France5.
We undertake to promptly inform the Contracting Authority, which shall inform AFD, of any change of circumstance regarding the sections above after we have signed the present Covenant.
Name: ___________ In the capacity of:
Duly empowered to sign in the name and on behalf of6: _____________________________
Signature_____________________ Dated:_____________________
5 Directors, (including any person who is a member of the administrative management or supervisory body, or with powers of representation, decision or control), employees, or agents (be them declared or not). 6 For information purposes only, the following references or website addresses are provided: 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
5 For information only, UE sectorial sanctions are available at: https://www.sanctionsmap.eu/#/main 6 In case of joint venture, the name of the joint venture shall be inserted here, and the person duly authorized to sign the application, bid or proposal on behalf of the applicant, proposer, bidder or consultant shall sign the Covenant.
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 project 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 drown 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 summary of the Project evaluation, the content of which is defined in Article 11.11 (Project Evaluation).
SCHEDULE 8 – COMMUNICATION NOTE OF THE PROJECT