Zakon o ratifikaciji Garancijske pogodbe med Republiko Slovenijo in Evropsko investicijsko banko za projekt gradnje slovenskih avtocest/B (MGPGSA)

Ljubljana, 17th November 1995

Luxembourg, 28th November 1995

This Agreement is made between:
    The Republic of Slovenia, represented by Mr Mitja Gaspari, Minister of Finance.
    hereinafter called: “THE GUARANTOR”, of the first part, and
    European Investment Bank having its Head Office at 100 Boulevard Konrad Adenauer, Luxembourg-Kirchberg, Grand-Duchy of Luxemburg, represented by Mr Panagiotis Gennimatas, Vice President,
    hereinafter called: “THE BANK”, of the second part.
    Whereas:
    – Within the framework of the Protocol (hereinafter called the “Protocol”) relating to financial cooperation and the Cooperation Agreement between the European Economic Community (now European Community) (hereinafter called “THE EC”) and the Republic of Slovenia, signed in Luxembourg on 5th April 1993, THE GUARANTOR has requested THE BANK to grant a credit to Družba za avtoceste v Republiki Sloveniji, DARS d.d. (hereinafter called “THE BORROWER”) for the purpose of financing a project which consists in the design, construction and commissioning of 3 motorway sections on the European itinerary E57.
    – By an agreement (hereinafter called “THE FINANCE CONTRACT”) which shall be entered into between THE BANK and THE BORROWER, THE BANK shall establish in favour of THE BORROWER a credit in an amount equivalent to 32 000 000 (thirtytwo million) ecus (defined in Schedule A to this Agreement).
    – The obligations of THE BANK under THE FINANCE CONTRACT will be conditional upon the prior execution and delivery by the Republic of Slovenia of a guarantee of performance by THE BORROWER of its financial obligations under THE FINANCE CONTRACT and the delivery of a favourable legal opinion thereon.
    – By Article 12 of the Protocol THE GUARANTOR undertook to make available to debtors, being beneficiaries of loans granted pursuant to the Protocol, or to guarantors of such loans, the currency necessary for the payment of interest and commission and for the amortisation of such loans.
    – By Article 10 of the Protocol THE GUARANTOR agreed to grant exemption from all national or local duties or fiscal charges on the interest and all other payments due in respect of loans granted by THE BANK pursuant to the financial cooperation.
    – Execution of this Guarantee Agreement has been authorised by the Parliament of Slovenia (Annex I).
    Now therefore it is hereby agreed as follows:

Article 1

Finance Contract

1.01 THE GUARANTOR declares that it is well acquainted with the terms, conditions and clauses of THE FINANCE CONTRACT. A copy of the final draft of THE FINANCE CONTRACT is enclosed hereto (Annex II) and a true copy of it as signed by the parties, substantially in the form of the draft enclosed hereto, shall be delivered to THE GUARANTOR by THE BANK.

Article 2

Undertakings by THE GUARANTOR

2.01 THE GUARANTOR, as primary obligor and not merely as surety, guarantees entirely the full and punctual performance of all the monetary obligations of THE BORROWER to THE BANK under THE FINANCE CONTRACT, including all payments of interest without any limitation, commissions, incidental charges and other expenses and all the sums being due by THE BORROWER to THE BANK under any provision of THE FINANCE CONTRACT, when the guarantee is enforced.
    2.02 If THE GUARANTOR should hereafter grant to any third party security for the performance of any of its external debt obligations or any preference or priority in respect thereof, THE GUARANTOR shall so inform THE BANK and shall, if so required by THE BANK, provide to THE BANK equivalent security for the performance of its obligations hereunder or grant to THE BANK equivalent preference or priority. THE GUARANTOR represents that no such security, preference or priority presently exists.
    Nothing in this Article 2.02 shall apply to any vendor’s lien or to any charge which secures only the purchase price of any land or goods.
    2.03 THE GUARANTOR undertakes:
    a) to take all necessary measures to ensure the timely completion of THE PROJECT;
    b) to furnish information on legislation or regulatory framework affecting THE BORROWER which may have an impact on the implementation of THE PROJECT.

Article 3

Enforcement of guarantee

3.01 Demand may be made under this Agreement as soon as THE BORROWER has not performed all or part of the obligations guaranteed pursuant to Article 2 of this Agreement.
    3.02 THE GUARANTOR hereby waives irrevocably any objection or exception in law to the total or partial enforcement of this guarantee. It undertakes to perform its obligations upon request in writing or by telegram by THE BANK whenever demand is made and to pay the sums due without any limitation, retention or condition, without THE BANK having to furnish any special evidence in support of its request other than the reason for the demand under this guarantee. In particular, THE BANK is not bound to prove that it has taken any action against THE BORROWER; it is not obliged, prior to the enforcement of this guarantee, to realise securities or to enforce any other security that THE BORROWER or a third party may have constituted.
    3.03 The payment by THE GUARANTOR shall fall due on the fifteenth day following that on which demand is made.
    3.04 In the event of THE BANK making demand, the GUARANTOR shall have the right to discharge immediately under the conditions set out in THE FINANCE CONTRACT, all the monetary obligations of THE BORROWER under THE FINANCE CONTRACT which are still outstanding at the time of such discharge.

Article 4

Subrogation

4.01 When THE GUARANTOR has made a payment to THE BANK, it is subrogated, to the extent of such payment, to the rights and actions relating to the said payment that THE BANK has against THE BORROWER; this right of subrogation shall not be invoked to the detriment of THE BANK.

Article 5

Information

5.01 THE BANK shall inform THE GUARANTOR of any fact or event of which it becomes aware which is likely to jeopardise the payment or repayment by THE BORROWER of the sums hereby guaranteed: provided however that THE BANK is not bound to seek any such information and shall incur no liability by reason of this provision.
    5.02 THE GUARANTOR shall inform THE BANK forthwith of any fact or event likely to jeopardise the performance of its obligations under this Agreement.
    5.03 THE GUARANTOR shall inform THE BANK of any security given to a third party for the purpose of Article 2.02.

Article 6

Modification of the FINANCE CONTRACT

6.01 THE BANK shall inform THE GUARANTOR of changes, which do not increase the obligations of THE GUARANTOR, made to the FINANCE CONTRACT by THE BANK for the purpose of improving or strengthening the position of THE BANK towards THE BORROWER.
    THE BANK shall have the right to grant to THE BORROWER extensions of time of up to three months in respect of each repayment of principal or payment of interest and any other incidental expenses as it sees fit, without being bound to submit its decision to THE GUARANTOR.
    Any modifications in THE FINANCE CONTRACT other than those referred to in the above paragraphs of this Article 6 shall be submitted for approval to THE GUARANTOR. The latter may refuse its approval only if the proposed modifications are likely to be prejudicial to it in its capacity as guarantor.

Article 7

Guarantee of the EC

7.01 This Guarantee is independent of guarantees given to THE BANK by the EC. THE GUARANTOR hereby waives any right to contribution or indemnity from the EC. If payment is made to THE BANK by the EC on account of any guaranteed sum, the EC may recover from THE GUARANTOR the amount so paid by it.

Article 8

Taxes, Charges and Expenses

8.01 Taxes or fiscal charges, legal costs and other expenses incurred in the execution or implementation of this Guarantee Agreement shall be borne by THE GUARANTOR. THE GUARANTOR shall make payments hereunder without withholding or deduction on account of tax or fiscal charges.

Article 9

Legal regime of the Agreement

9.01 Applicable Law
    The legal relations between the parties to this Agreement, its formation and validity shall be governed by the French law.
    9.02 Performance
    The place of performance of this Agreement is the head office of THE BANK.
    9.03 Jurisdiction
    The parties hereto submit to the exclusive jurisdiction of the Court of Justice of the European Communities and all disputes concerning the Guarantee Agreement shall be submitted to such court.
    The decision of the Court of Justice of the European Communities shall be conclusive and shall be accepted as such by the parties without restriction or reservation.
    9.04 Waiver
    The parties hereto agree that this Guarantee Agreement is of a commercial nature and hereby undertake to waive any immunities which they may now or hereafter enjoy in any country from the jurisdiction of the Court of Justice of the European Communities.
    9.05 Evidence of Sums due
    In any legal action arising out of this Guarantee Agreement the certificate of THE BANK as to any amount due to THE BANK under this Guarantee Agreement shall be prima facie evidence of such amount.
    9.06 Entry into effect
    This Agreement shall enter into effect after its ratification by the Parliament of the Republic of Slovenia.

Article 10

Final Clauses

10.01 Notices
    Notices and other communications given hereunder shall be sent to the respective address set out below except that notices to THE GUARANTOR relating to litigation whether pending or threatened shall be sent to the address mentioned under 2) below where THE GUARANTOR elects domicile:
    – for THE GUARANTOR:
    1) Ministry of Finance
    Zupanciceva, 3
    61000 Ljubljana
    Slovenia
    2) Embassy of the Republic of Slovenia
    179, Avenue Louise
    B-1050 Brussels
    – for THE BANK:
    100 Boulevard Konrad Adenauer
    L-2950 Luxembourg-Kirchberg
    Each party may, by notice to the other, change its addresses as set out above, provided that the address in 2) above may only be changed to another address within THE EC.
    10.02 Form of Notice
    Notices and other communications, for which fixed periods are laid down in this Contract or which themselves fix periods binding on the addressee, shall be served by hand delivery, registered letter, telegram, telex, confirmed fax or any other means of transmission which affords evidence of receipt by the addressee. The date of registration or, as the case may be, the stated date of receipt of transmission shall be conclusive for the determination of a period.
    10.03 Recitals, Schedule and Annexes
    The Recitals and Schedule A (Definition of the Ecu) form part of this Guarantee Agreement.
    The following Annexes are attached hereto:
    Annex I – Authority of Signatory
    Annex II – Draft Finance Contract
    In witness whereof the parties hereto have caused this Agreement to be executed in three originals in the English language.
    This Guarantee Agreement has been initialled on behalf of the REPUBLIC OF SLOVENIA by Mr Andrej Kavčič and on behalf of THE BANK by Ms Stefania Caltabiano.

Signed for and on behalf of REPUBLIC OF SLOVENIA
The Minister of Finance
Mitja Gaspari, (s)
Signed for and on behalf of EUROPEAN INVESTMENT BANK
The Vice President
Panagiotis Gennimatas, (s)

this 17th day of November 1995, at Ljubljana
    this 28th day of November 1995, at Luxembourg

Schedule A

THE ECU

The value of the ECU as referred to in Article 109g and 109(l)4 of the EC Treaty is equal to the value of the ECU that is at present used as the unit of account of the European Communities, which value is established on the basis of the specific amounts of the currencies of the member countries of the European Community shown below.
    Pursuant to Council Regulation (EEC) No. 1971/89 of 19th June 1989, the ECU is at present defined as the sum of the following amounts:

German mark                                               0,6242
pound Sterling                                           0,08784
French franc                                               1,332
Italian lira                                               151,8
Dutch guilder                                             0,2198
Belgian franc                                              3,301
Luxembourg franc                                           0,130
Danish krone                                              0,1976
Irish pound                                             0,008552
Greek drachma                                              1,440
Spanish peseta                                             6,885
Portuguese escudo                                          1,393

Article 109g of the EC Treaty, as amended by the Treaty on European Union, in force from 1st November 1993, provides: “The currency composition of the ECU basket shall not be changed. From the start of the third stage, the value of the ECU shall be irrevocably fixed in accordance with Article 109(l)4”.
    Other changes to the nature or composition of the ECU may be made by the European Communities in accordance with the EC Treaty. If changes are made, references herein to the ECU shall thereupon be deemed to be references to the ECU as so changed.
    If THE BANK should consider that the ECU has ceased to be used as the unit of account of the European Communities and as the single currency of the European Union, it shall so notify THE GUARANTOR. As from the date of such notification, the ECU shall be replaced by the currencies of which it was comprised – or their countervalue in one or more of those currencies – as at the time of its most recent use as the unit of account of the European Communities.
    EVROPSKA INVESTICIJSKA BANKA
    PROJEKT SLOVENSKIH AVTOCEST/B