GUARANTEE AGREEMENTbetween The Kingdom of Belgium The Republic of Bulgaria The Czech Republic The Kingdom of Denmark The Federal Republic of Germany The Republic of Estonia The Hellenic Republic The Kingdom of Spain The French Republic Ireland The Italian Republic The Republic of Cyprus The Republic of Latvia The Republic of Lithuania The Grand Duchy of Luxembourg The Republic of Hungary Malta The Kingdom of the Netherlands The Republic of Austria The Republic of Poland The Portuguese Republic Romania The Republic of Slovenia The Slovak Republic The Republic of Finland The Kingdom of Sweden The United Kingdom of Great Britain and Northern Ireland and EUROPEAN INVESTMENT BANK concerning loans to be made by the European Investment Bank in favour of investment projects in the African, Caribbean and Pacific States and in the Overseas Countries and Territories BETWEEN: THE KINGDOM OF BELGIUM, THE REPUBLIC OF BULGARIA, THE CZECH REPUBLIC, THE KINGDOM OF DENMARK, THE FEDERAL REPUBLIC OF GERMANY, THE REPUBLIC OF ESTONIA, THE HELLENIC REPUBLIC, THE KINGDOM OF SPAIN, THE FRENCH REPUBLIC, IRELAND, THE ITALIAN REPUBLIC, THE REPUBLIC OF CYPRUS, THE REPUBLIC OF LATVIA, THE REPUBLIC OF LITHUANIA, THE GRAND DUCHY OF LUXEMBOURG, THE REPUBLIC OF HUNGARY, MALTA, THE KINGDOM OF THE NETHERLANDS, THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF POLAND, THE PORTUGUESE REPUBLIC, ROMANIA, The Republic of Slovenia, The Slovak Republic, THE REPUBLIC OF FINLAND, THE KINGDOM OF SWEDEN, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, acting through the agencies respectively indicated in Annex 1 to the present Agreement (hereafter referred to as the "Guarantee Agreement" or "Guarantee") and represented by the signatories respectively listed on the signature pages (each hereafter referred to as a "Guarantor" and collectively as the "Guarantors" or "Member States") of the first part, and European Investment Bank having its Head Office at 100, boulevard Konrad Adenauer, L-2950 Luxembourg Kirchberg, Grand Duchy of Luxembourg, represented by Mr. Philippe Maystadt, President (hereafter referred to as the "Bank") of the second part. WHEREAS: 1. The Guarantors undertook certain obligations to act as guarantor in Article 4 of the Internal Agreement of 17 July 2006 (hereafter called the "Cotonou Internal Agreement II") relating to the financing of Community aid under the multi-annual financial framework for the period 2008 to 2013 in accordance with the Partnership Agreement signed in Cotonou (Benin) on 23 June 2000 between the European Community and its Member States and the African, Caribbean and Pacific States as revised in Luxembourg on 25 June 2005 (hereafter called the "Cotonou Partnership Agreement II") and on the allocation of financial assistance for the Overseas Countries and Territories to which part four of the EC Treaty applies under Council Decision 2001/822/EC of 27 November 2001 on the association of the Overseas Countries and Territories (hereafter called the "Association Decision"). 2. Having regard to the foregoing recital, the Board of Governors of the Bank authorised on 31 May 2006 to grant loans from its own resources for investment projects covered by the multi-annual financial framework for the period 2008 to 2013 for a total amount of up to EUR 2000 million under the Cotonou Partnership Agreement II, and EUR 30 million under the Association Decision. 3. The aforementioned authorisation of the Board of Governors of the Bank was issued on condition that the loans granted by the Bank Agreements made pursuant to the Cotonou Internal Agreement II shall be the subject of a satisfactory guarantee from the Guarantors and that loans granted to finance investment projects under the Cotonou Internal Agreement II satisfy the Bank's usual criteria for lending from its own resources. 4. Article 4 of the Cotonou Internal Agreement II provides that this Guarantee shall be restricted to 75% of the total amount of the credits opened by the Bank under all Loan Agreements made pursuant to the Cotonou Partnership Agreement II and the Association Decision (together referred to herein as the "Cotonou Framework"). 5. The said Article 4 further provides that Member States shall be liable under this Guarantee in proportion to their contributions to the capital of the Bank. Article 4.1 of the Bank's Statute specifies the respective share of each Member State in the capital of the Bank. 6. In respect of Adequately Secured Loan Agreements (as defined below), this Guarantee only covers Political Risks, as defined in Annex 3. 7. The Guarantors and the Bank intend that, where the Guarantors are subrogated to the rights and remedies of the Bank in relation to any Loan, the Bank shall, if so requested by the Guarantors, administer and manage the Loan Agreement which has gone into default in accordance with the terms and conditions of the the Cotonou II Arrears Administration Agreement (as defined below). 8. Pending signature of the Cotonou II Arrears Administration Agreement, the Guarantors and the Bank agree to apply the arrears administration agreement entered into by the Member States and the Bank on 8 April 2002 to all recovery actions initiated by the Bank in respect of Loan Agreements covered by this Guarantee and the new terms and conditions for own resource operations in the African, Caribbean and Pacific States as approved by the Board of Directors of the Bank on 12 June 2007. IT IS HEREBY AGREED AS FOLLOWS: Definitions A. In this Guarantee: "Adequately Secured Loan Agreement ("ASLA") means any Loan Agreement for which in the Bank's opinion there is adequate security covering for credit risks and which the Bank, exercising its discretion, declares to qualify as such in writing to the Guarantors. ASLAs so defined, shall only be covered by this Guarantee as regards Political Risks as defined in Annex 3. "Borrower" means any beneficiary of a Loan from the Bank within the scope of the Cotonou Internal Agreement II or the Association Decision. "Cotonou II Arrears Administration Agreement" means the agreement to be entered into between the Guarantors and the Bank setting out provisions and procedures for the recovery by the Bank of claims in respect of sums to which the Guarantors are entitled by virtue of a payment made by the Guarantors to the Bank under the Guarantee. "Credit Risk Policy Guidelines" means the Bank's credit risk policy guidelines for own resource operations outside the European Union as well as, where applicable, the Bank's EU credit risk policy guidelines, as approved, amended, supplemented or modified by the Bank from time to time. "EIB Financing Operation" means a Loan extended by the Bank to eligible investment projects carried out in a Host Country from the Bank's own resources and in accordance with its own rules and procedures, granted under the Cotonou Framework and governed by a Loan Agreement entered into by the Bank with a Borrower. "Guaranteed Debtor" means a Borrower or its Third-Party Guarantor. "Guaranteed Sum(s)" means any obligation covered by this Guarantee consisting of principal, interest, commissions, indemnities, charges, expenses and other accessories and any other sum which is at any time owed by a Guaranteed Debtor to the Bank on account of a Loan or a Third-Party Guarantee. "Host Government" means the authorities currently in place, or any successor authorities, that effectively control part or all of the territory of a Host Country or any political or territorial subdivision, or any other public authority of such country, and includes any entity located inside or outside the Host Country and vested with regulatory powers conferred by the laws of the Host Country. "Host Country" means each of the countries listed in the Cotonou Framework. "Loan" means the provision of money from the Bank to a Borrower as a loan or as a bond or any equivalent instrument, which is acceptable to the Bank as a substitute for a loan in accordance with the Credit Risk Policy Guidelines, according to the terms laid down in a Loan Agreement. "Loan Agreement" means a signed agreement concluded between the Bank and a Borrower, setting forth the terms applicable to an EIB Financing Operation in the form of Loan. "Loan-loss Cover Account" or "LLCA" means an account in euros to be constituted by the Bank in the name of the Guarantors, which shall be funded from the income resulting from the application of risk-pricing on EIB Financing Operations, excluding ASLAs as defined above, and which shall be managed in accordance with the provisions of the Cotonou II Arrears Administration Agreement. "Third-Party Guarantee" means a guarantee issued by a third party in favour of the Bank, including but not limited to a letter of credit or a comfort letter issued in connection with the grant of a Loan to a Borrower, and includes any undertaking by any party jointly liable for all or part of the Guaranteed Debtor's obligations towards the Bank in respect of a Loan granted by the Bank. "Third-Party Guarantor" means an issuer of a Third-Party Guarantee on behalf of a Borrower. B. The following terms have the respective meanings assigned to them in the Recitals, Articles and Annexes specified hereafter:
In this Guarantee, unless the context otherwise requires: (a) headings are for convenience only and do not affect the interpretation of this Guarantee; (b) words importing the singular include the plural and vice versa; (c) a reference to an Article, a party or an Annex is a reference to that Article of, or that party or Annex to, this Guarantee. ARTICLE 1 1.01 To the extent of its respective participation as set out in Annex 2 and without prejudice to Article 2.02, each Guarantor as primary obligor and not merely as surety hereby irrevocably: (a) guarantees, waiving any right to object, in accordance with the terms and conditions laid down below, the punctual and full performance of all financial obligations of every Guaranteed Debtor in respect of Loans made by the Bank from its own resources pursuant to the Cotonou Framework. (b) undertakes to pay any amount of the Guaranteed Sum owed by the Guaranteed Debtor to the Bank, upon demand by the Bank, in euros and in accordance with the provisions laid down in Article 3. 1.02 The Guarantors' obligations defined in Article 1.01 above shall apply to all EIB Financing Operations concluded pursuant to the Cotonou Internal Agreement II in respect of which the relevant Loan Agreement has been signed under the multi-annual financial framework for the period 2008 to 2013. 1.03 A. Without prejudice to ASLAs under Article 2.03, this Guarantee shall cover all risks. B. The total liability of the Guarantors under this Guarantee in respect of the Cotonou Framework is limited to 75% of the total amount of the credits opened by the Bank pursuant to the Cotonou Framework which are subject to the following ceilings, namely: ■ EUR 2000 million for the Cotonou Partnership Agreement II; and ■ EUR 30 million for the Association Decision. 1.04 The obligations of the Guarantors under this Guarantee shall terminate upon the earliest to occur of the following: (i) payment is made in full of the Guaranteed Sums; or (ii) 31 December 2010 provided that: (a) on that date this Guarantee is replaced with a new Guarantee in respect of the Cotonou Internal Agreement II on terms satisfactory to the Guarantors and the Bank; and (b) notwithstanding such termination the Guarantors shall remain subject to all liabilities and obligations under this Guarantee in respect of all Guaranteed Sums. ARTICLE 2 2.01 This Guarantee may be called whenever a Guaranteed Debtor fails, in whole or in part, to pay any Guaranteed Sum on its due date. Any sum received or realised by the Bank for the purpose of discharge of a Guaranteed Sum shall be disregarded, if the Bank's use of such sum is in any way restricted. 2.02 Before calling the Guarantee when a Guaranteed Debtor fails, in whole or in part, to pay any Guaranteed Sum on its due date, the Bank shall give to the Guarantors such prior notice as is reasonably practicable of its intention to make a call in respect thereof. For the avoidance of doubt, the obligations of the Bank under this Article 2.02 will not be construed in any way as a condition precedent to the enforceability of the obligations of the Guarantors under Article 1.01. 2.03 However, for agreements which are covered by Third-Party Guarantees and which the Bank declares in writing to the Guarantors are ASLAs, this Guarantee may only be called upon whenever, because of the occurrence of one of the events defined in Annex 3 (hereafter a "Political Risk"): (i) a Guaranteed Debtor is unable to pay, or the Bank is unable to receive, a Guaranteed Sum on its due date; or (ii) a Third-Party Guarantor is prevented from collecting amounts which are due to it in respect of a Guaranteed Sum, provided that: (a) any demand for payment made by a Third-Party Guarantor on account of a payment that it has made on behalf of a Guaranteed Debtor must have been presented to the Bank at the latest 2 years from (xx) the specified contractual final repayment date under the relevant agreement or (yy) in case of early repayment, whether voluntary or obligatory, of the relevant Loan, the due date of that early repayment; and (b) this Guarantee is limited to the amount which the Bank or, as the case may be, the Third-Party Guarantor could have recovered but for the occurrence of a Political Risk. 2.04 A precautionary demand upon the Bank under a Third-Party Guarantee can be made by a Third-Party Guarantor in the cases stated in Section 4, second paragraph, point (b), of Annex 3, where the enforcement period mentioned therein has not yet expired within the 2 years preclusion period set out in article 2.03 (ii) of this Guarantee. Such precautionary demand does not entitle the Bank to make a demand for payment under this Guarantee, but merely serves as a means to suspend the preclusion set out in article 2.03 (ii) of this Guarantee. Any remaining part of the preclusion period shall start to run again upon expiration of the enforcement period set out in Section 4, second paragraph, point (b), of Annex 3. The Bank shall inform the Guarantors of any precautionary demands made by a Third-Party Guarantor. 2.05 A. Subject to B below, the Bank's determination as to the occurrence of a Political Risk shall be final and binding. The determination shall take effect 15 calendar days following notice to the Guarantors. B. If a majority of the Guarantors, measured by percentage participation set out in Annex 2, instructs the Bank to contest a Guaranteed Debtor's claim that a Political Risk has occurred, the Bank shall execute such instructions pursuant to its obligations under the Cotonou II Arrears Administration Agreement. However, the Guarantors and the Bank shall be bound as between themselves by any final decision of a competent court or arbitral tribunal over a dispute between the Bank and a Guaranteed Debtor that determines the occurrence of a Political Risk. The Bank shall keep the Guarantors regularly informed of the status of any such proceedings. 2.06 The Bank shall inform the Guarantors of each occurrence of a Political Risk and of any disagreement between the Bank and a Guaranteed Debtor as to the occurrence of a Political Risk. 2.07 The Guarantee may also be called whenever a Guaranteed Debtor makes, or the Bank through the realisation of a Third-Party Guarantee receives, a payment which the Bank cannot, for any reason, use without restriction or over which it does not have unfettered control. ARTICLE 3 3.01 The Guarantors shall pay to the Bank the amounts demanded by the Bank in euros. The amounts demanded by the Bank shall take into account any funds which are capable of being applied by the Bank from the LLCA in respect of unpaid Guaranteed Sums. The LLCA shall be managed in accordance with the provisions of the Cotonou II Arrears Administration Agreement and the terms and conditions laid down by the Bank's governing bodies from time to time, as most recently approved on 12 June 2007. 3.02 The Guarantor's payment obligations under this Guarantee shall be made in accordance with the provisions of the Cotonou II Arrears Administration Agreement, and in any case shall be made no later than 3 years after demand in writing is made by the Bank under the Guarantee. 3.03 The Bank shall not require any individual Guarantor to make any payment due, unless at the same time and in the proportions of Annex 2, it requires the other Guarantors to make payment pursuant to this Guarantee. If the Bank has determined that a Political Risk has occurred, it may make such a demand, and the Guarantors shall comply with the demand, even in a case where the Guarantors have instructed the Bank in the terms envisaged by Article 2.05 B. ARTICLE 4 4.01 The Bank shall manage all Loans covered by this Guarantee in accordance with good banking practice and with the Bank's standard criteria and procedures, in particular, in accordance with its Credit Risk Policy Guidelines as modified from time to time, and subject to its usual controls. The Bank shall act with due diligence in recovering any Guaranteed Sum from any Guaranteed Debtor or from any security. The terms and conditions applicable to the Loans covered by this Guarantee are defined in accordance with the principles and guidelines laid down by the Bank's governing bodies from time to time, as most recently approved on 12 June 2007. 4.02 The Guarantors hereby authorise the Bank to grant to a Guaranteed Debtor one or more extensions of time and to generally amend the terms of the relevant agreement with any Guaranteed Debtor, while remaining within the scope of the Cotonou Framework. 4.03 The Bank shall provide to the Guarantors twice a year by 31 January and 31 July respectively: (i) an information sheet, in the form of Annex 4, containing information, effective as of 31 December and 30 June on the Loan Agreements covered by the present Guarantee; and (iii) the prudential limits, in the form of Annex 5, as defined in accordance with the principles and guidelines laid down by the Bank's governing bodies from time to time, as most recently approved on 12 June 2007. 4.04 The Bank shall inform the Guarantors of any fact or circumstance, which it judges not to be already generally known and which it considers likely to result in the making of a demand under this Guarantee. The Bank is not obliged to seek such information. ARTICLE 5 5.01 To the extent that a Guarantor makes any payment to the Bank pursuant to this Guarantee, it shall be subrogated to the rights, including security rights, of the Bank in respect of its claims against the Guaranteed Debtors. Such right of subrogation may not be invoked to the detriment of the Bank. 5.02 In every Third-Party Guarantee, the Bank shall exclude any right of contribution against the Guarantors by the Third-Party Guarantor and shall exclude any other right of recourse of the Third-Party Guarantor against the Guarantors. The Bank shall indemnify the Guarantors for any liability towards Third-Party Guarantors resulting from this Guarantee. 5.03 Where the Guarantors are subrogated to the rights of the Bank, the Bank shall, if so requested by the Guarantors, administer and manage the relevant claims under Article 5.01 in accordance with the terms and conditions of the Cotonou II Arrears Administration Agreement. 5.04 Pending signature of the Cotonou II Arrears Administration Agreement, the Guarantors and the Bank agree to apply the arrears administration agreement entered into by the Member States and the Bank on 8 April 2002 to all recovery actions initiated by the Bank in respect of Loan Agreements covered by this Guarantee and the new terms and conditions for own resource operations in the African, Caribbean and Pacific States as approved by the Board of Directors of the Bank on 12 June 2007. 5.05 As part of the subrogation upon the occurrence of a Non-Transfer of Currency, as defined in Annex 3, the following provision applies: When a Guaranteed Sum falls due and where the Guaranteed Debtor, on terms acceptable to the Bank, makes a deposit, in the amount of the said Guaranteed Sum, or equivalent financial asset in favour of the Bank in local currency, in the currency of the Loan or in any other freely convertible currency but where such deposit or other asset is not transferable or convertible, the Guarantors hereby authorise the Bank to limit the Guarantors' claim in respect of the portion of the Guaranteed Sum corresponding to the amount of the deposit or other asset, to such deposit or other asset. ARTICLE 6 6.01 Any fiscal charges and other expenses incurred in connection with the making, the performance or the enforcement of this Guarantee shall be borne by the Guarantors pro-rata to their respective participations as set out in Annex 2. 6.02 The Guarantors will indemnify the Bank for all taxes and expenses incurred by the Bank in seeking recovery of Guaranteed Sums, in accordance with the Cotonou II Arrears Administration Agreement or pending its adoption, in accordance to the arrears administration agreement entered into by the Member States and the Bank on 8 April 2002. ARTICLE 7 7.01 This Guarantee shall be governed by and construed in accordance with the general principles common to the laws of the Member States. ARTICLE 8 8.01 Any dispute between the parties to this Guarantee that is not promptly and amicably resolved shall be referred for decision to the Court of Justice of the European Communities pursuant to Article 238 of the EC Treaty ARTICLE 9 9.01 Having regard to the fact that some of the information exchanged in the context of this Guarantee may be confidential and may even be in some instances commercially sensitive, both the Bank and the Guarantors undertake to abstain from divulging to a third-party, without the prior written consent of the other, any information communicated to either of them in the context of this Guarantee. This undertaking does not affect, however, the communication of information which is required by operation of law or by an order of a court of competent jurisdiction. ARTICLE 10 10.01 Notices and other communications given hereunder to the Guarantors or to the Bank shall be sent by registered letter or other recognised means of communication addressed to the recipient at its address set out below: For a Guarantor: Its respective address set out in Annex 1 For the Bank: 100, boulevard
Konrad L-2950 Luxembourg Any change to the addresses as listed above shall have effect only after such change has been notified in writing to the other parties. The Recitals and the five Annexes form an integral part of this Guarantee. ARTICLE 11 11.01 This Guarantee will be binding in respect of each Guarantor immediately upon its valid signature or ratification of the Guarantee. 11.02 The authentic texts of this Guarantee shall be in English, French and German. This Guarantee shall be signed in one original in each of the three authentic languages. 11.03 The originals shall be deposited at the Bank. The Bank shall send certified copies of the originals in the three authentic languages to each Guarantor bound by this Guarantee. IN WITNESS WHEREOF each of the parties hereto has caused this Guarantee to be signed by its authorised signatory on the date hereafter respectively provided.
Annex 1 List of Addresses for the purposes of Article 10
Annex 2 Respective participation of Guarantors1
1 See fifth Recital
Annex 3 Definition of Political Risksnamely Non-Transfer of Currency, Expropiation, War or Civil Disturbance and Denial of Justice upon Breach of Contract 1. NON-TRANSFER OF CURRENCY means: any action by the Host Government which, directly or indirectly, prevents a Guaranteed Debtor from converting funds in local currency into the currency of the Loan Agreement or into a freely convertible currency or into another currency deemed acceptable by the Bank, or from transferring outside the Host Country the local currency concerned or the currency into which the local currency has been converted, for the purpose of (i) paying any Guaranteed Sum, (ii) receiving any Guaranteed Sum in the currency and in accordance with the terms and conditions agreed, or (iii) recovering any Guaranteed Sum which has been duly paid; and any failure by the Host Government to take action with a view to effecting or allowing such conversion or such transfer by or on behalf of the Bank, or a Guaranteed Debtor; with the proviso that: (a) the Guaranteed Debtor is able freely and lawfully to avail itself within the Host Country of the local currency or other currency into which the local currency has been converted; and (b) the Guaranteed Debtor concerned or, as the case may be, the Bank has without success for a period of 30 days endeavoured by all reasonable means to complete the necessary legal formalities to effect the transfer or conversion. 2. EXPROPIATION means: any measure taken, directed, authorised, ratified, or approved by the Host Government, which is an administrative action or a legislative action and constitutes expropriation within the meaning of this Section 2. A measure constitutes an act of expropriation within the meaning of this Section 2 if the measure: (a) prevents the Guaranteed Debtor from paying a Guaranteed Sum and results in a default that continues for a period of 90 days; or (b) deprives for a period of 90 days a Third-Party Guarantor or the Bank of its rights as a creditor against collateral security or commercial guarantees of repayment in respect of scheduled payments that have fallen due for other reasons than as a consequence of one of the risks defined in this Annex; or (c) deprives a Third-Party Guarantor or the Bank, for a 90-day period, of the use of funds deposited either in local currency or in foreign currency, with a financial institution in the Host Country, by him or for his account for the purposes of recovery under scheduled payments. No measure on the part of the Host Government shall be deemed to constitute an expropriation if it constitutes a bona fide non-discriminatory measure of general application of a kind that governments normally take in the public interest for such purposes as ensuring public safety, raising tax revenue, protecting the environment or regulating economic activities, unless the measure is designed by the Host Government to have a confiscatory effect. Breach by the Host Government of a contractual obligation owed to a Guaranteed Debtor shall not of itself constitute an expropriatory measure. 3. WAR OR CIVIL DISTURBANCE means: any act of war (declared or otherwise), revolution, insurrection, civil war, riot or social strife, terrorism or sabotage having the direct and immediate effect of (i) preventing a Guaranteed Debtor for a period of 90 days from paying a Guaranteed Sum or (ii) preventing a Third-Party Guarantor or the Bank for a period of 90 days from effecting recovery in respect of Guaranteed Sums which have been duly paid or from receiving a Guaranteed Sum in the due currency and in the manner contractually provided for. In all cases, to constitute an act of war or civil disturbance, the act must have been undertaken with the primary intent of pursuing a political objective. Acts undertaken principally in order to support labour, employment, students' interests or other non-political objectives shall not be covered under this Section 3. The time periods of 30 or 90 days referred to in Sections 1, 2 and 3 of this Annex shall not apply if the payment default, deprivation of entitlement or non-recovery results from the extension of an event, as defined in this Annex, the existence of which has been duly established during a prior payment default for which the time periods referred to above have already been applied. 4. DENIAL OF JUSTICE UPON BREACH OF CONTRACT means: the repudiation or breach by a Host Government of a Project Agreement (as defined below), where the repudiation or breach either: (i) prevents, or materially contributes to preventing, the Guaranteed Debtor from performing its obligations towards the Bank; or (ii) prevents the Bank or a Third-Party Guarantor from realising the full value of security taken over the revenues or other benefits derived from any security interest in the Project Agreement. Cover shall be limited to cases where an arbitral tribunal renders a final, binding and enforceable award providing for damages in respect of the Relevant Party's claim for damages for breach or repudiation; provided that: (a) the award is for a specified monetary amount, and is rendered for breach of a contractual obligation under, or for repudiation of, a Project Agreement by the Host Government; (b) the Relevant Party has made reasonable efforts to exhaust all legal remedies to enforce the award against the Host Government for a period of 180 consecutive days from the date of the award. A precautionary demand upon the Bank can be made by a Third-Party Guarantor in cases where this period has not yet expired within the 2 years preclusion period set out in Article 2.03 (ii) of this Guarantee. Such precautionary demand does not entitle the Bank to make a demand for payment under this Guarantee, but merely serves as a means to suspend the preclusion set out in article 2.03 (ii) of this Guarantee. Any remaining part of the preclusion period shall start to run again upon expiration of the enforcement period. The Bank shall inform the Guarantors of any precautionary demands made by a Third-Party Guarantor; (c) the Host Government's refusal to enforce the award is arbitrary and/or discriminatory. For this purpose: (a) An "arbitral tribunal" means any arbitral tribunal or panel, wherever it is established, which is independent from the Host Government, and which is entrusted under the terms of the Project Agreement to make a final, binding and enforceable award on a claim by a Relevant Party there under and whose award is capable of enforcement in the Host Country under the provisions of the New York Convention on the Recognition and Enforcement of Arbitral Awards; (b) An award is deemed to be "binding", if it creates legal rights for the parties in relation to the subject matter of the dispute between them; (c) An award is deemed to be "enforceable" unless the arbitral tribunal that renders the award, or any other competent body, suspends or denies the enforcement of the award; (d) An award of an arbitral tribunal is deemed "final", if the time for appeal or challenge to the award has expired without an admissible challenge or appeal having been made; (e) "Project" means a project within the scope of the Cotonou Framework and described by a Project Credit Report; (f) "Project Agreement" means an agreement, contract or binding commitment between a Relevant Party and a Host Government which is directly related to a Project and is, in the reasonable opinion of the Bank, critical to the financial or technical viability of the Project, and includes, by way of illustration, any of the following types of agreement or commitment, namely supply agreements, off-take agreements, subsidy agreements, user agreements, concessions, licences to exploit, or price setting mechanisms; (g) "Relevant Party" means a Borrower or a parent company or a subsidiary of the Borrower situated in the same country than the Borrower. The Relevant Party or the Third-Party Guarantor shall be obliged to take all reasonable efforts to exhaust available remedies to enforce the award against the Host Government or to use reasonable efforts to ensure that the Relevant Party or the Third-Party Guarantor which is able to exercise those remedies does so. Each agreement with a Guaranteed Debtor shall reserve for the Bank the right to specify the measures that the Relevant Party or the Third-Party Guarantor shall take, or shall ensure be taken, to enforce an arbitral award on a claim for breach or repudiation of contract. The Bank is not obliged to require any party to take measures that are, in the judgement of the Bank, disproportionate to their likely benefit. The Bank may agree to reimburse any Guaranteed Debtor for the reasonable cost of enforcement proceedings. The Guarantors shall reimburse the Bank for any cost it thereby incurs. 5. GENERAL EXCLUSION None of the following acts or risks shall warrant the calling of the Guarantee: • any act of the Host Country to which the Guaranteed Debtor or, in the case of Section 4 of this Annex, the Relevant Party, has freely consented or where the preponderant cause lies in the illegal and unreasonable conduct of the Guaranteed Debtor or the Relevant Party; • any Political Risk, as defined above, clearly prevailing at the date on which the Bank signed the relevant Loan Agreement or security agreement and producing the effects referred to in this Annex at such date. Annex 4
Annex 5
Ministrs E.Repše Vīza: Valsts sekretārs M.Bičevskis
ARREARS ADMINISTRATION AGREEMENTbetween The Kingdom of Belgium The Republic of Bulgaria The Czech Republic The Kingdom of Denmark The Federal Republic of Germany The Republic of Estonia The Hellenic Republic The Kingdom of Spain The French Republic Ireland The Italian Republic The Republic of Cyprus The Republic of Latvia The Republic of Lithuania The Grand Duchy of Luxembourg The Republic of Hungary Malta The Kingdom of the Netherlands The Republic of Austria The Republic of Poland The Portuguese Republic Romania The Republic of Slovenia The Slovak Republic The Republic of Finland The Kingdom of Sweden The United Kingdom of Great Britain and Northern Ireland and EUROPEAN INVESTMENT BANK governing procedures for payments and reimbursements under Member States Guarantees in favour of the EUROPEAN INVESTMENT BANK
THE KINGDOM OF BELGIUM, THE REPUBLIC OF BULGARIA, THE CZECH REPUBLIC, THE KINGDOM OF DENMARK, THE FEDERAL REPUBLIC OF GERMANY, THE REPUBLIC OF ESTONIA, THE HELLENIC REPUBLIC, THE KINGDOM OF SPAIN, THE FRENCH REPUBLIC, IRELAND, THE ITALIAN REPUBLIC, THE REPUBLIC OF CYPRUS, THE REPUBLIC OF LATVIA, THE REPUBLIC OF LITHUANIA, THE GRAND DUCHY OF LUXEMBOURG, THE REPUBLIC OF HUNGARY, MALTA, THE KINGDOM OF THE NETHERLANDS, THE REPUBLIC OF AUSTRIA, THE REPUBLIC OF POLAND, THE PORTUGUESE REPUBLIC, ROMANIA, The Republic of Slovenia, The Slovak Republic, THE REPUBLIC OF FINLAND, THE KINGDOM OF SWEDEN, THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, acting through the agencies respectively indicated in the Annex to the present Agreement and represented by the signatories respectively listed on the signature pages (each hereafter referred to as a "Guarantor" and together as "the Guarantors" or "Member States") and European Investment Bank having its Head Office at 100, boulevard Konrad Adenauer, L-2950 Luxembourg Kirchberg, Grand Duchy of Luxembourg, represented by Mr. Philippe Maystadt, President (hereafter referred to as the "Bank") WHEREAS: 1. The Guarantors are parties to the Guarantee Agreement concluded with the Bank (hereafter called the "Guarantee Agreement" or "Guarantee") in respect of the Loans made by the Bank from its own resources under the Internal Agreement of 17 July 2006 (hereafter called the "Cotonou Internal Agreement II") relating to the financing of Community aid under the multi-annual financial framework for the period 2008 to 2013 in accordance with the Partnership Agreement signed in Cotonou (Benin) on 23 June 2000 between the European Community and its Member States and the African, Caribbean and Pacific States as revised in Luxembourg on 25 June 2005 (hereafter called the "Cotonou Partnership Agreement II") and on the allocation of financial assistance for the Overseas Countries and Territories to which part four of the EC Treaty applies under Council Decision 2001/822/EC of 27 November 2001 on the association of the Overseas Countries and Territories (hereafter called the "Association Decision") (together referred to herein as the "Cotonou Framework"). 2 The Guarantee provides for subrogation of the Guarantors to the rights and remedies of the Bank against the Guaranteed Debtors to the extent that the Guarantors make a payment under the Guarantee. 3. The Guarantors and the Bank intend by means of the present Agreement (referred to in the Guarantee as the "Cotonou II Arrears Administration Agreement") to set out provisions and procedures for the recovery of claims in respect of Subrogated Sums. 4. The present Agreement further gives effect to the Guarantee which provides that where a Guarantor is subrogated to the rights and remedies of the Bank in relation to any Loan, the Bank and the Guarantor shall enter into an agreement for the Bank's administration and management of the Loan. The present Agreement does not preclude the Bank and the Guarantors from making specific agreements for the management of individual Loans.
IT IS HEREBY AGREED AS FOLLOWS:Article 1 In this Agreement: "Agreement" means this Arrears Administration Agreement. "Call Date" means the date on which a call is made on the Guarantors under the Guarantee. "Call Date Exchange Rate" in respect of any currency means the rate of exchange between euros and that currency, as published by the European Central Bank at 2 PM Frankfurt time 5 EIB Business Days prior to the Call Date. "Borrower" has the meaning ascribed to it in the Guarantee. "Default Date" means the due date for payment of a sum owed by a Guaranteed Debtor under a Loan Agreement, and in respect of which no discharge has been received. "Default Sum" means a sum owed by a Guaranteed Debtor under a Loan Agreement, and in respect of which the due date for payment has passed. "EIB Business Day" means a day on which the Bank is open for normal business in Luxembourg. "EIB Financing Operation" has the meaning ascribed to it in the Guarantee. "Guarantee Agreement" or "Guarantee" has the meaning ascribed to it in the first Recital. "Guaranteed Debtor" has the meaning ascribed to it in the Guarantee. "Guarantee Payment" means a payment by a Guarantor to the Bank of Guaranteed Sums under the Guarantee. "Guaranteed Sum(s)" has the meaning ascribed to it in the Guarantee. "Host Country" has the meaning ascribed to it in the Guarantee. "Loan" has the meaning ascribed to it in the Guarantee. "Loan Agreement" has the meaning ascribed to it in the Guarantee. "Loan-loss Cover Account" or "LLCA" means an account in euros to be constituted by the Bank in the name of the Guarantors, which is intended to mitigate risks assumed by the Member States under the Guarantee and shall be managed in accordance with the terms and conditions laid down by the Bank's governing bodies from time to time, as most recently approved on 12 June 2007. The LLCA shall be funded from (i) the income resulting from the application of risk-pricing on EIB Financing Operations,excluding ASLAs (as defined in the Guarantee) as approved by the Bank's governing bodies in accordance with its internal rules from time to time, (ii) Recovered Amounts and (iii) credit interest to be calculated at a daily interest rate, to be determined and notified by the Bank in accordance with the applicable principles from time to time laid down by the Bank's governing bodies, payable on a monthly basis. The LLCA shall be debited with (i) Guarantee Payments, pursuant to this Agreement, and (ii) the Recovery Administration Fee, provided there are sufficient funds in the account. "Member State Call Account" or "MSCA" means an account in euros to be constituted by the Bank in the name of each Guarantor, which shall be managed in accordance with the terms and conditions laid down by the Bank's governing bodies from time to time, as most recently approved on 12 June 2007. The MSCAs shall be debited with (i) Guarantee Payments, pursuant to this Agreement, (ii) debit interest to be calculated at a daily interest rate, payable on a monthly basis, to be determined and notified by the Bank in accordance with the applicable principles from time to time laid down by the Bank's governing bodies and (iii) the Recovery Administration Fee. The MSCAs shall be credited by the Guarantors with (i) amounts equivalent to expected Guarantee Payments under the Guarantee and (ii) amounts in respect of any negative balance and accrued debit interest, and credited by the Bank with (i) Recovered Amounts and (ii) credit interest to be calculated at a daily interest rate, payable on a monthly basis, to be determined and notified by the Bank in accordance with the applicable principles from time to time laid down by the Bank's governing bodies. "Recovery Administration Fee" or "Fee" means a fee as defined under Article 5 of this Agreement. "Recovered Amounts" means the part of a Subrogated Sum actually recovered by and paid to the Bank. "Recovery Date Exchange Rate" means the rate of exchange between euros and the currency of the amount recovered against a Default Sum, as published by the European Central Bank at 2 PM Frankfurt time 5 EIB Business Days after the date on which the relevant amount is recovered and is freely available to the Bank. "Third-Party Guarantee" has the meaning ascribed to it in the Guarantee. "Third-Party Guarantor" has the meaning ascribed to it in the Guarantee. "Subrogated Sum" means a sum to which the Guarantors are entitled by virtue of a payment made by the Guarantors to the Bank under the Guarantee. In this Agreement, unless the context otherwise requires: (a) headings are for convenience only and do not affect the interpretation of this Agreement; (b) words importing the singular include the plural and vice versa; and (c) a reference to an Article, a party or an Annex is a reference to that Article of, or that party or Annex to this Agreement. Article 2 2.01 This Agreement sets out provisions and procedures for the recovery of claims in respect of Subrogated Sums. 2.02 This Agreement shall apply to any Guarantee granted by the Guarantors to the Bank in respect of Guaranteed Sums provided that the Guarantors and the Bank expressly so agree in writing. Each party hereby declares to so agree, subject to any amendment to this Agreement as may be subsequently agreed by the parties. 2.03 Each Guarantor confirms its obligations as expressed in the Guarantee and appoints the Bank to administer Subrogated Sums for the purpose of effecting recovery in accordance with the terms and conditions of this Agreement. Article 3 3.01 When a Default Sum arises under a Loan Agreement and remains outstanding for a period of approximately 5 months, the Bank shall make a call under the Guarantee in respect thereof. 3.02 The Bank shall make a call in respect of a Guaranteed Sum in accordance with and pursuant to the terms of the Guarantee. The Guaranteed Sum demanded by the Bank under the Guarantee shall be expressed in euros and shall be calculated at the Call Date Exchange Rate. The time for payment by the Guarantors of a Guaranteed Sum shall be as specified in the Guarantee. 3.03 The Bank shall apply funds held in the LLCA in discharge of the Guaranteed Sum on the Call Date. To the extent that the funds in the LLCA are not sufficient to discharge the Guaranteed Sum in full, the Bank shall on the Call Date withdraw from each MSCA an amount in proportion to the Guarantors' respective participation as provided in the Guarantee. Debit interest will accrue and be payable on any resulting negative MSCA balance. Each Guarantor must pay to the Bank any resulting negative balance on its MSCA under that call within the time for payment by the Guarantors of a Guaranteed Sum, as specified in the Guarantee. Debit interest accrued on the MSCAs shall be payable by the Guarantors each year by 31st of December, at the latest. 3.04 The Bank shall generate an account statement in respect of each call under a Guarantee, informing the Guarantor of the amounts applied from the LLCA and the MSCAs in respect of the Guaranteed Sums and the resulting balance of the LLCA and MSCAs. 3.05 By 30th of April of each year, the Bank shall provide each Guarantor with a report setting out: (i) a non-exhaustive forecast of expected calls under the Guarantee for the current calendar year; (ii) the recovery proceeding(s) initiated on behalf of and in the name of the Guarantor during the previous calendar year; and (iii) LLCA and MSCA account statements (including any accrued interest). Additionally, the Bank shall provide the Guarantors with an electronic account statement at each relevant LLCA and MSCA movement. Article 4 4.01 Whenever a Guarantor is subrogated to the rights and remedies of the Bank under and pursuant to a payment made under the Guarantee, the Bank shall without undue delay initiate recovery proceedings on behalf and in the name of the Guarantor. 4.02 Recovery proceedings undertaken by the Bank for a Subrogated Sum shall be carried out in a manner consistent with the care and diligence applied to recovery proceedings initiated for any sums to be recovered in relation to projects financed by the Bank without the Guarantors' Guarantee. 4.03 Where the Bank recovers any part of a Subrogated Sum for the account of the Guarantors, the Bank shall without undue delay repay into the LLCA an amount equivalent to the amounts applied from the LLCA in discharge of the Default Sum, less the amount of the Fee due under Article 5. Any amount remaining shall be distributed to the MSCAs in proportion to the Guarantors' respective participation as provided in the Guarantee, less the amount of the Fee due under Article 5. The Bank shall, if necessary, convert the recovered sum into euros and shall, for this purpose, apply the Recovery Date Exchange Rate. 4.04 In the cases described in article 5.05 of the Guarantee and if requested to do so by the Guarantors, should the value of a deposit or equivalent financial asset have diminished at the time when such deposit or equivalent financial asset made available by the Guaranteed Debtor for loans in the host country, being a Subrogated Sum, becomes transferable or convertible, the Bank shall make use of any rights and remedies conferred on it under and pursuant to a framework agreement entered into between the Bank and the Host Government, in order to seek to recover an amount corresponding to the amount of the devaluation. 4.05 Subject to the instructions of a Guaranteed Debtor, the Bank may allocate any amount recovered in respect of a Default Sum owed by that Guaranteed Debtor in or towards the discharge of the same or any other Default Sum owed by the Guaranteed Debtor. For this purpose, the Bank may effect the conversions of currency that it may deem necessary. Article 5 5.01 By way of remuneration for the Bank's services to the Guarantors under this Agreement and, in particular, for any temporary exchange risk incurred, each Guarantor shall severally pay to the Bank its respective share of the Recovery Administration Fee. The Fee shall be calculated at the rate of 2 % p.a. as may be revised and notified by the Bank in accordance with the applicable principles from time to time laid down by the Bank's governing bodies and shall be charged from day to day on the outstanding amount of each Guaranteed Sum less any recoveries obtained. It shall be payable for the period running from the due date of the Default Sum to the date on which the Bank recovers the last amount outstanding in respect thereof. The Fee shall be calculated on the basis of a month of 30 days and a year of 360 days. The Fee shall be payable in a single instalment on each date on which any portion of a Guaranteed Sum is recovered. The Fee shall be payable in euros and be calculated at the Recovery Date Exchange Rate. 5.02 Five years from the date of entry into force of this Agreement and thereafter at convenient periodic intervals, the Bank shall, if it deems it appropriate, propose a revision of the rate for calculation of the Fee mentioned in this Article 5. This revision shall take account of changes in the volume of work involved in the execution of this Agreement and other relevant factors. Such revision may be upward or downward. Any downward revision shall take immediate effect. Any upward revision shall take effect upon receipt by the Bank of the consents of 75% by weight of the Guarantors, calculated as provided for in Article 9. The Guarantors shall not unreasonably withhold or delay their consent. Article 6 6.01 The Bank shall be released from its duties of administration of a Subrogated Sum in the following circumstances: (a) where, by a decision, having the consent of Guarantors holding 75% or more by value of the Guarantors' aggregate entitlement to the Subrogated Sum, as determined pursuant to Article 9, the Guarantors authorise the Bank to suspend/abandon further action in relation thereto, other than to remit amounts recovered; or (b) where the Bank renounces its duties in respect of a Subrogated Sum by communication to the Guarantors made at any time after the later of (i) the 12th anniversary of the due date for payment and (ii) the date falling 9 months from the due date for the last scheduled repayment under the relevant Loan Agreement. 6.02 For the purposes of this Article 6, the Bank shall suspend action towards the Guaranteed Debtor from the date on which the Bank is in receipt of sufficient consents to form the required majority or, as the case may be, the date on which the Bank gives to the Guarantors notice of renunciation, provided that suspension shall not prejudice the Bank's obligation to preserve the Guaranteed Debtor's liability for the Default Sum and shall not prejudice the Bank's obligation to maintain the accounts in connection with the Default Sum pursuant to this Agreement. The Bank shall promptly inform the Guarantors of the suspension. The suspension is irreversible. 6.03 If the Bank is released from its duty to endeavour to recover a Subrogated Sum, the Guarantors shall pay the residual Fee accrued up to the date of the release. However, if the Bank is released from its duty in connection with a Subrogated Sum by reason of a general programme of discharge, for example under the programme for heavily indebted poor countries (HIPC), the Recovery Administration Fee shall be payable at the rate of 1% p.a., as may be revised and notified by the Bank in accordance with the applicable principles from time to time laid down by the Bank's governing bodies, instead of the rate mentioned in Article 5. The residual Fee is payable and shall be debited from the LLCA and/or MSCAs 2 months from the date upon which the Bank's duty has ceased, as notified to the Guarantors by the Bank. Article 7 7.01 The Guarantors shall indemnify the Bank for all taxes incurred by the Bank in the carrying out of its duties under this Agreement. The Bank shall account for any eventual reimbursement of taxes from other sources. 7.02 In addition to any fee which may be payable under Article 5, the Guarantors shall, in proportion to their respective shares in Guaranteed Sums, and up to the aggregate limit of 2% of the Default Sum laid down by article 1.01 of the Guarantee, indemnify the Bank for all external expenses reasonably incurred by the Bank. The said limit shall not apply where the Bank gives to the Guarantors prior written notice that it will incur expenses which may exceed the limit but which it believes will increase the net sum recovered. This indemnity shall be limited to expenses for obtaining from third parties advice and services that the staff of the Bank could not reasonably provide. The Bank may deduct such expenses from any amount recovered against any Subrogated Sum. It shall render accounts to the Guarantors. The Guarantors' obligations are conditional upon the Bank having first endeavoured and failed during a period of 90 days to obtain reimbursement of the expenses from the Guaranteed Debtor. The Bank shall continue to seek reimbursement from the Guaranteed Debtor, notwithstanding payment by the Guarantors. Article 8 08.01 The rights and duties of the parties to this Agreement shall be governed by the general principles common to the laws of the Member States. Any dispute between the parties to this Agreement that is not promptly and amicably resolved shall be referred for decision to the Court of Justice of the European Communities pursuant to Article 238 of the EC Treaty. Article 9 09.01 Any amendment to this Agreement shall be concluded with the consent of the Bank and by favourable decision of 75% by weight of the Guarantors, as calculated by reference to the respective percentage liability of each Guarantor as set out in Annex 2 of the Guarantee. Each Guarantor individually agrees to be bound by any amendment so decided. Article 10 10.01 Notices and other communications given hereunder to the Guarantors or to the Bank shall be sent by facsimile or by registered letter addressed to the recipient at its address set out below: For the Guarantor: Its respective address set out in the Annex 1 For the Bank: 100, boulevard Konrad Adenauer L-2950 Luxembourg Any change to the addresses as listed above shall have effect only after such change has been notified in writing to the other parties. The Recitals and the Annexes form an integral part of this Agreement. Article 11 11.01 This Agreement will be binding in respect of each Guarantor immediately upon its valid signature or ratification of the Agreement. 11.02 The authentic texts of this Agreement shall be in English, French and German. This Agreement shall be signed in one original in each of the three authentic languages. 11.03 The originals shall be deposited at the Bank. The Bank shall send certified copies of the originals in the three authentic languages to each Guarantor bound by this Agreement. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed by its authorised signatory on the date hereinafter respectively provided.
Annex 1 List of Addresses for the purposes of Article 10
Ministrs E.Repše Vīza: Valsts sekretārs M.Bičevskis |
Document information
Status: In force Int. Org.: Type: international agreement multilateral Adoption: 20.02.2009. Entry into force: 06.01.2010. Place of adoption: BriseleRatification: Parliament Reservation: No Declaration: No Depositary: Council of European UnionPublication: "Latvijas Vēstnesis", 158, 06.10.2009.Language: Related documents
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