Zakon o ratifikaciji Garancijske pogodbe med Republiko Slovenijo in Evropsko investicijsko banko za projekt gradnje slovenkih avtocest/A (MGPEIAA)

EUROPEAN INVESTMENT BANK

SLOVENIA HIGHWAYS PROJECT/A

G U A R A N T E E     A G R E E M E N T
    BETWEEN THE REPUBLIC OF SLOVENIA AND EUROPEAN INVESTMENT BANK
    Luxembourg, 7th July 1994
    Ljubljana, 11th July 1994

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 Bruno Eynard, Head of Directorate, and by Mr Michel Deleau, Head of Directorate,
    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”) dated 7/11 July 1994 and made between THE BANK and THE BORROWER, THE BANK has agreed to establish in favour of THE BORROWER a credit in an amount equivalent to 28 000 000 (twentyeight million) ecus (defined in Schedule A to this Agreement).
    - The obligations of THE BANK under THE FINANCE CONTRACT are 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 (Annexure 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 true copy of which as signed by the parties is delivered to it.

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 gereby 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 implementanion 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
    1050 Brussels
    Belgium
    – 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 Cntract 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 Annex is attached hereto: Annex I -Authority of Signatory
    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 initialed on behalf of SLOVENIA by Mr Andrej Kavčič and on behalf of THE BANK by Ms Stefania Caltabiano.

this 7th day of July 1994, at Luxembourg
    this 11th day of July 1994, at Ljubljana

Schedule A

DEFINITION OF THE ECU

Pursuant to the Regulation of the Council of the European Communities (now Council of the European Union) No 3180/78 of 18th December 1978, published in the Official Journal of the European Communities of 30th December 1978 (No L 379), as amended by Regulation of the Council No 2626/84 of 15th September 1984 published in the Official Journal of the European Communities of 16th September 1984 (No L 247) and by Regulation of the Council No 1971/89 of 19th June 1989 published in the Official Journal of the European Communities of 4th July 1989 (No L 189), and in particular its first Article, and in accordance with the announcement published by the European Communities in the Official Journal of 21st September 1989 (No C 241), the ecu is defined as the sum of the following amounts of the currencies of the Member States of the EC:

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

Any change in the composition of the ecu which is decided upon pursuant to Article 2 of Regulation No 3180/78 shall apply automatically to the present definition.
    If THE BANK should consider that the ecu shall have ceased to be used within the European Monetary System (as established by the Resolution of the European Council of 5th December 1978) and for the settlement of transactions between the central monetary authorities of the Member States of the European Communities and the institutions created by or by virtue of the treaties establishing the European Communities, it shall so notify THE BORROWER. As from the date of notification, the ecu shall be replaced by the amounts of the currencies of which it was composed according to the most recent definition of the ecu decided upon by the Council of the European Union before the date of such notification.
    The value of the ecu in any currency shall correspond to that determined by the Commission of the European Communities on the basis of daily quotations of market exchange rates. In default of such a determination, the value of the ecu in any currency shall be fixed by applying the cross-rate between that currency and any currency listed in the daily tables published by the Commission of the European Communities. If neither of the two preceding methods is applicable, the value of the ecu in any currency shall be equal to the sum of the equivalents in that currency of the amounts of the currencies listed in the first paragraph above.
    The exchange rates between the ecu and the national currencies most widely traded on the international foreign exchange markets are available daily and are published periodically in the Official Journal of the European Communities.