Zakon o ratifikaciji Pogodbe med Republiko Slovenijo in Evropsko banko za obnovo in razvoj o prevzemu pravic in obveznosti iz posojilne pogodbe (Projekt Slovenskih železnic) z dne 12. 04. 1994 med Slovenskimi železnicami, d. d. in Evropsko banko za obnovo in razvoj in Pogodbe med Republiko Slovenijo, Evropsko investicijsko banko in Holdingom Slovenske železnice, d.o.o., o odstopu in prevzemu pravic in obveznosti (Projekt Slovenskih železnic/A, Projekt Slovenskih železnic/B, Projekt Slovenskih železnic II, Transjugoslovanski železniški projekt II/A) (MEBPSZ)

A S S U M P T I O N     A G R E E M E N T
    
    RELATING TO THE LOAN AGREEMENT (SLOVENIA RAILWAY PROJECT) DATED 12 APRIL 1994, BETWEEN SLOVENSKE ZELEZNICE D.D. AND EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
    between
    REPUBLIC OF SLOVENIA
    and
    EUROPEAN BANK
    FOR RECONSTRUCTION AND DEVELOPMENT
    Dated as of 31 May 2004

 
    THIS AGREEMENT (the "ASSUMPTION AGREEMENT"), is made on 31 May 2004,
     
    between:
    THE REPUBLIC OF SLOVENIA (the "Slovenia") represented by the Minister of Finance Dr. Dušan Mramor; and
    EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT, with its address at One Exchange Square, London EC2A 2JN, England (the "Bank")
    (collectively, the "Parties" and each a "Party").
     
    WHEREAS:
    (A) Pursuant to a Loan Agreement dated 12 April 1994 between the Bank and Slovenske Zeleznice d.d. ("SZ”) (the "Loan Agreement") the Bank has extended to SZ a loan in the amount of USD 15,200,000 (fifteen million two hundred thousand dollars) and DM 60,300,000 (sixty million three hundred thousand Deutsche Marks) to assist the Slovenia in improving the condition of its main international rail network and to assist SZ in the implementation of its railways restructuring programme.
    (B) As of the date hereof the total outstanding principal amount of Tranche A of the Loan is USD 5,700,005 and the total outstanding principal amount of Tranche B of the Loan is Euro 11,561,588.
    (C) Slovenia and the Bank are parties to a Guarantee Agreement dated 12 April 1994 (the "Guarantee Agreement") pursuant to which Slovenia has guaranteed all the obligations of SZ under and in connection with the Loan Agreement.
    (D) On 27 November 1999, the Parliament of Slovenia passed the Railway Transport Act (the “Act”) (Official Gazette of the Republic of Slovenia No 92/1999, 11/2001, 33/2001 and 120/2002). Pursuant to Article 34 of the Act, Slovenia agreed to assume, among others, the Monetary Rights and Obligations (as defined below) of SZ under and in connection with the Loan Agreement.
    (E) On 14 March 2003, the Parliament of Slovenia passed the Act on Restructuring the Public Company Slovenske Zeleznice d.d. (the "Restructuring Act"), pursuant to which SZ was dissolved and in its place a limited liability company Holding Slovenske Zeleznice d.o.o. ("Holding SZ") was established. Holding SZ is the legal successor of the SZ.
     (F) In furtherance of the Act, Slovenia is hereby willing to assume the Monetary Rights and Obligations (as defined below), subject to the terms and conditions set forth in this Assumption Agreement.
    (G) The Bank is willing to consent to the assumption by Slovenia of the Monetary Rights and Obligations, subject to the terms and conditions set forth in this Assumption Agreement.
    (H) Execution of this Assumption Agreement by Slovenia has been authorised by the Parliament of the Republic of Slovenia on January 14th, 2004, a copy of which has been provided to the Bank.
     
    NOW THEREFORE, the Parties hereby agree as follows:

ARTICLE 1 – DEFINITIONS AND HEADINGS

Section 1.01. Definitions
    Capitalised terms used in this Assumption Agreement, which are not otherwise defined herein, shall have the meaning ascribed to them in the Loan Agreement. For the purpose of this Assumption Agreement the following capitalized terms have the following meanings:

"Effective Date" has the meaning specified in Section 5.01.

"Monetary Rights and Obligations" means any and all of SZ’s financial rights and obligations relating to the repayment of the Loan as set forth in Articles II, VII and VIII of the Loan Agreement.

"SZ" means Slovenske Zeleznice d.d. and, as the context may require, its legal successor Holding Slovenske Zeleznice d.o.o.

 
    Section 1.02. Headings
    The headings of the Articles, Sections and the Schedule are inserted for convenience of reference only and shall not be used to interpret this Assumption Agreement.

ARTICLE 2 –ACKNOWLEDGMENTS

Section 2.01. Acknowledgements
    (a) Slovenia hereby acknowledges that it has read and understands the terms and conditions of the Loan Agreement, a true copy of which it has received. Slovenia confirms that it is aware of any and all amounts outstanding under the Loan Agreement and the terms of their repayment.
    (b) Slovenia hereby acknowledges and agrees that, as of the date hereof, the Loan is fully disbursed and that SZ's right to request disbursements has expired.

ARTICLE 3 – ASSUMPTION AND DISCHARGE

Section 3.01. Assumption
    With the effect from the Effective Date:
    (a) Slovenia hereby irrevocably and unconditionally assumes the Monetary Rights and Obligations and undertakes to the Bank to accept, observe, perform and otherwise fulfil all such Monetary Rights and Obligations in substitution of SZ;
    (b) the Bank hereby acknowledges and consents to the assumption of the Monetary Rights and Obligations by Slovenia pursuant to Section 3.01 and hereby releases and discharges SZ from all and any such Monetary Rights and Obligations to the extent assumed by Slovenia pursuant to this Assumption Agreement;
     
    Section 3.02. Discharge
    With the effect from the Effective Date, the Bank hereby acknowledges and confirms that the Guarantor shall be released and discharged from any and all obligations under and in connection with the Guarantee Agreement and that the Guarantee Agreement shall terminate.

ARTICLE 4 – CERTAIN COVENANTS AND UNDERTAKINGS

Section 4.01. Financial and Economic Data
    (a) Slovenia shall cause the Holding SZ furnish to the Bank as soon as available, but in any case not later than six months after the end of each financial year,
    (i) certified copies of its consolidated financial statements, for such year prepared and audited in accordance with international auditing principles and standards consistently applied, by independent auditors; and
     (ii) a report of such auditors.
     
    Section 4.02. Negative Pledge
    (a) Slovenia undertakes to ensure that no other external debt shall have priority over the Loan in the allocation, realisation or distribution of foreign exchange held under the control or for the benefit of Slovenia. If any lien shall be created on any public assets as security for any external debt, or any arrangement having an equivalent effect, which will or might result in a priority for the benefit of the creditor of the external debt in the allocation, realisation or distribution of foreign exchange, the lien shall, unless the Bank shall otherwise agree, ipso facto, and at no cost to the Bank, equally and rateably secure the principal of, and the interest and other charges on, the Loan, and Slovenia, in creating or permitting the creation of such lien, shall make express provision to that effect; provided, however, that, if for any constitutional or other legal reason such provision cannot be made with respect to any lien created on assets of any of its political or administrative subdivisions, Slovenia shall promptly and at no cost to the Bank secure the principal of, and the interest and other charges on, the Loan by an equivalent lien on other public assets satisfactory to the Bank.
    (b) The foregoing undertaking shall not apply to:
    (1) any lien created on property, at the time of purchase thereof, solely as security for payment of the purchase price of that property or as security for the payment of debt incurred for the purpose of financing the purchase of such property; and
    (2) any lien arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after its date.

ARTICLE 5 – MISCELLANEOUS

Section 5.01. Effectiveness
    This Assumption Agreement shall become effective on the date (the "Effective Date”) when the Bank dispatches a written notice to Slovenia confirming that it has received the legal opinion from the Attorney General of Slovenia in form and substance satisfactory to the Bank including the matters described in Schedule attached hereto.
     
    Section 5.02. Enforceability
    The rights and obligations of the Parties under this Assumption Agreement shall be valid and enforceable in accordance with their terms notwithstanding any local law to the contrary. No Party shall be entitled under any circumstances to assert any claim that any provision of this Assumption Agreement is invalid, void or unenforceable for any reason.
     
    Section 5.03. Failure to Exercise Rights
    No delay in exercising, or omission to exercise, any right, power or remedy accruing to any Party under this Assumption Agreement upon any default shall impair any such right, power or remedy or to be construed to be a waiver thereof or an acquiescence in such default; nor shall the action of such Party in respect of any default, or any acquiescence in any default, affect or impair any right, power or remedy of such Party in respect of any other or subsequent default.
     
    Section 5.04. Notices
    Any notice or request required or permitted to be given or made under this Assumption Agreement shall be in writing. Such notice or request shall be deemed to have been duly given or made when it has been delivered by hand, mail, cable, telex or telefax to the Party to which it is required to be given or made, at the Party’s address specified below or at any other address as the Party shall have specified in writing to the Party giving the notice or making the request.
     
    For Slovenia:
    Ministry of Finance of the Republic of Slovenia
    1502 Ljubljana
    Zupanciceva 3
    Slovenia
    Alternative address for communications by telefax:
    (386) 1 478 6705
     
    For the Bank:
    European Bank for Reconstruction and Development
    One Exchange Square
    London EC2A 2JN
    England
    Attention: Operation Administration Unit
    Alternative address for communications by telex:
    881 2161
    Alternative address for communications by telefax:
    (44) 20 7338 6100
     
    Section 5.06. Miscellaneous
    Provisions of Articles VI and IX and Sections 10.05, 11.02, 11.03 and 11.04 of the Loan Agreement shall apply to this Assumption Agreement, as if set out herein in full, mutatis mutandis (including, without prejudice to the generality thereof), as if references therein to the “Agreement” were to this Assumption Agreement and references to the "Borrower" were to Slovenia.
     
    IN WITNESS THEREOF the Parties have, acting through their duly authorised representatives, have caused this Assumption Agreement to be executed and delivered in four (4) copies in the English language, each considered an original as of the day and year first above written.
     
    REPUBLIC OF SLOVENIA
    By: /S/ DR. DUŠAN MRAMOR
    Name: Dr. Dušan Mramor
    Title: Minister
     
    EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
    By: /S/ RICCARDO PULITI
    Name: Riccardo Puliti
    Title: Director

SCHEDULE – LEGAL OPINIONS

Pursuant to Section 5.01 of the Assumption Agreement, Slovenia shall furnish the Bank with a legal opinion of its Attorney General which shall state, inter alia, the following:
     
    (a) the Government of Slovenia is authorised to act on behalf of Slovenia in respect of concluding any agreement to be made with the Bank and making all the actions necessary to undertake and to implement obligations contained in such agreements;
    (b) the Assumption Agreement has been duly executed and delivered on behalf of Slovenia by Dr. Dušan Mramor;
     (c) there are no legal impediments under Slovenian laws to the execution and performance of the Assumption Agreement by the Government of Slovenia;
    (d) all requirements necessary for the effectiveness of the Assumption Agreement under Slovenian law (including, but not limited to, ratification and publication in the Official Gazette of Slovenia) have been fulfilled and the Assumption Agreement is in full force and effect and constitutes a valid and legally binding obligation of Slovenia, enforceable in accordance with its terms;
    (e) nothing contravenes or limits the right of the Bank to request prompt and full performance by Slovenia of the Monetary Rights and Obligations under the Loan Agreement and the obligations under the Assumption Agreement.
     

EUROPEAN INVESTMENT BANK
 
                                                  FI N° 1.7023
                                                  FI N° 1.7024
                                                  FI N° 1.7359
                                                  FI N° 1.4089
SLOVENIA RAILWAYS PROJECT/A
SLOVENIA RAILWAYS PROJECT/B
SLOVENIA RAILWAYS PROJECT II
TRANS-YUGOSLAV RAILWAY II/A PROJECT

A S S I G N M E N T     A N D     A S S U M P T I O N
    A G R E E M E N T
    
    between
    REPUBLIC OF SLOVENIA
    and
    EUROPEAN INVESTMENT BANK
    and
    HOLDING SLOVENSKE ŽELEZNICE, d.o.o.

 
    Luxembourg, 12th March 2004
    Ljubljana,15th July 2004
     
    THIS AGREEMENT IS MADE BETWEEN:
    The Republic of Slovenia, acting through the Ministry of Finance, having its office at Župančičeva 3, 1502 Ljubljana, Republic of Slovenia represented by Dr. Dušan Mramor, Minister of Finance,
    hereinafter referred to as: “Republic of Slovenia”
    of the first part
     
    European Investment Bank having its Head Office at 100 Boulevard Konrad Adenauer, Luxembourg, Grand-Duchy of Luxembourg, represented by Mr. Cormac Murphy, Head of Division and Mr. Gian Domenico Spota, Principal Counsel,
    hereinafter referred to as: the “Bank"
    of the second part, and
     
    Holding Slovenske železnice, d.o.o., having its office at Kolodvorska 11, 1000 Ljubljana, Republic of Slovenia, represented by Mr. Blaz Miklavcic, General Manager and Mr. Andrej Godec, Deputy General Manager,
    hereinafter referred to as: "HSZ”
    of the third part
     
    WHEREAS:
    1. The Bank and HSZ (formerly known in 1992 as Slovenske železnice, p.o. (Official Gazette of the Republic of Slovenia No 33/92), which then transformed into Slovenske železnice, d.d. in 1995, (Official Gazette of the Republic of Slovenia No 71/93) which has now been registered as Holding Slovenske železnice, d.o.o. as of 29 August 2003) entered into following Finance Contracts (hereinafter together called “Contracts”):
    (a) Finance Contract (hereinafter called “Contract A”) regarding Slovenia Railways Project/A (Fi Nr. 1.7023) dated 10/13 December 1993 in an amount equivalent to EUR 38 million to assist the Republic of Slovenia in improving the condition of its core rail network and to assist HSZ in the implementation of its railways restructuring programme as amended by letter dated 13 August 1996;
    (b) Finance Contract (hereinafter called “Contract B”) regarding Slovenia Railways Project/B (Fi Nr. 1.7024) dated 10/13 December 1993 in an amount equivalent to EUR 9 million to assist the Republic of Slovenia in improving the condition of its core rail network and to assist SZ in the implementation of its railways restructuring programme;
    (c) Finance Contract (hereinafter called “Contract C”) regarding Slovenia Railways Project II (Fi Nr. 1.7359) dated 7/11 July 1994 in an amount equivalent to EUR 13 million to partially rehabilitate and upgrade trunk east-west railway of the Republic of Slovenia;
    (d) Finance Contract (hereinafter called the “Contract D”) regarding Trans-Yugoslav Railway II/A Project (FI Nr 1.4089) dated 24 July 1989 in an amount equivalent to EUR 16 million for the execution of the strategic reform programme for the Yugoslav railways during 1989 – 1993 regarding parts of the programme located in the Republic of Slovenia, which by letter dated 8 June 1995 was amended and for which HSZ assumed all rights and obligations of Zeleznisko Gospodarstvo Ljubljana, the original borrower.
     
    2. The Republic of Slovenia provided security for the Contracts by entering into following Guarantee Agreements (hereinafter together called “Guarantees”) with the Bank:
    aa) for Contract A, Guarantee Agreement between the Republic of Slovenia and the Bank dated 18 January 1994 (hereinafter called “Guarantee A”);
    bb) for Contract B, Guarantee Agreement between the Republic of Slovenia and the Bank dated 18 January 1994 (hereinafter called “Guarantee B”);
    cc) for Contract C, Guarantee Agreement between the Republic of Slovenia and the Bank dated 7/11 July 1994 (hereinafter called “Guarantee C”).
    dd) for Contract D, Guarantee Agreement between the Republic of Slovenia and the Bank dated 25 August / 11 September 1997 (hereinafter called “Guarantee D”), which replaced the guarantee agreement between Ljubljanska Banka-Zdruzena Banka and the Bank dated 24 July 1989.
     
    3. In November 1999 the Parliament of the Republic of Slovenia passed a new Railway Transport Act (Official Gazette of the Republic of Slovenia, No 92-4349/1999) (the ”Act”). According to Article 34 of the Act, the Republic of Slovenia shall take over HSZ’s Financial Obligations (as defined in Paragraph 3.01) under (among others) the above-mentioned Contracts. Accordingly, “Project Related Obligations” (as defined in Paragraph 3.02) under the Contracts are expected to continue to be fulfilled by HSZ.
     
    4. The Bank, having considered the changes introduced by the Act has agreed to execute this assignment and assumption agreement (hereinafter the “Agreement).
     
    5. Execution of this Agreement by HSZ has been authorised by the Board of Directors (Annex I hereto).
     
    6. Execution of this Agreement by the Republic of Slovenia has been authorised by the Parliament of the Republic of Slovenia (Annex II hereto).
     
    NOW, THEREFORE it is hereby agreed as follows:

ARTICLE 1

The Finance Contract

1.01 The Republic of Slovenia declares that it is well acquainted with the terms, conditions and clauses of the Contracts, a true copy of each of which it has received. Furthermore the Republic of Slovenia confirms that it is aware of the amounts of principal outstanding (as set out in Annex III) under the Contracts and the terms of their repayment.

ARTICLE 2

Effective Date

2.01 This Agreement shall become effective on the date (hereinafter called the “Effective Date”), on which the Bank shall have notified the Republic of Slovenia and HSZ that it is satisfied with the legal opinions referred to in Article 5 hereof.

ARTICLE 3

Assignment and Assumption

3.01 With effect from the Effective Date, all rights and obligations regarding the Financial Obligations (as defined below) of HSZ under each of the Contracts shall be assigned and transferred by HSZ to the Republic of Slovenia and the Republic of Slovenia hereby agrees to acquire and assume such rights and obligations upon itself. Accordingly, all references in the Contracts to HSZ with respect to such Financial Obligations shall from the Effective Date be construed as references to the Republic of Slovenia.
    For the purpose of this Agreement “Financial Obligations” means the payment of any sum of principal, interest, commission, liquidated damages, charges, expenses and other monies which is expressed to be payable from time to time by HSZ to the Bank under the Contracts.
     
    3.02 For the avoidance of doubt, the transfer of obligations under the Contracts does not include Project Related Obligations (as defined below) which shall continue to be fulfilled by HSZ as set out in the Contracts.
    For the purpose hereof, “Project Related Obligations” means all undertakings of HSZ included in any of the Contracts specifying obligations to be fulfilled by HSZ in the context of the implementation and execution of the respective Projects including, but not limited to, HSZ’s obligations under Articles 7 and 9 of Contract A and Articles 6 and 8 of Contract B, C and D.

ARTICLE 4

Release

4.01 With effect from the Effective Date and with regard to Article 3 above:
    (a) with respect to the Financial Obligations under the Contracts, HSZ and the Bank shall be released from further obligations towards each other and their respective rights against each other shall be cancelled; and
    (b) the Republic of Slovenia shall be discharged and released from its obligations under each of the Guarantees.

ARTICLE 5

Legal Opinions

5.01 Promptly after the execution of this Agreement the legal advisor to HSZ shall issue a legal opinion, in form and substance satisfactory to the Bank, stating that, under the laws of the Republic of Slovenia:
    (a) HSZ is duly organised and validly existing under the laws of the Republic of Slovenia as a legal entity;
    (b) this Agreement has been duly executed and delivered on behalf of HSZ by Mr. Blaz Miklavcic, General Manager and Mr. Andrej Godec, Deputy General Manager;
    (c) this Agreement is in full force and effect and the obligations of HSZ hereunder are valid and binding upon it and enforceable in accordance with its terms;
    (d) consequently, nothing contravenes or limits the right of the Bank to request prompt and full performance of HSZ’s obligations under the Contracts and this Agreement;
    (e) the choice of the French law as the law governing this Agreement is valid and enforceable in connection with any claim or dispute between HSZ and the Bank; and
    (f) the Court of Justice of the European Communities shall have jurisdiction in connection with any claim or dispute in relation to this Agreement and any judgement thereof shall be fully enforceable in the Republic of Slovenia in accordance with its terms.
     
    5.02 Promptly after the execution of this Agreement the attorney general of the Republic of Slovenia shall issue a legal opinion, in form and substance satisfactory to the Bank, stating that, under the laws of the Republic of Slovenia:
    (a) this Agreement has been duly executed and delivered on behalf of the Republic of Slovenia by Dr. Dušan Mramor, Minister of Finance;
    (b) all requirements, if any, necessary for the effectiveness of this Agreement under laws of the Republic of Slovenia (including but not limited to ratification and publication in the official gazette of the Republic of Slovenia) have been fulfilled so that the obligations of the Republic of Slovenia hereunder are valid and binding upon it and enforceable in accordance with their terms;
    (c) consequently, nothing contravenes or limits the right of the Bank to request prompt and full performance of the obligations of the Republic of Slovenia under the Contracts and this Agreement;
    (d) the choice of the French law as the law governing the Contracts and this Agreement is valid and enforceable in connection with any claim or dispute between the Republic of Slovenia and the Bank; and
    (e) the Court of Justice of the European Communities shall have jurisdiction in connection with any claim or dispute in relation to the Contracts and this Agreement and any judgement thereof shall be fully enforceable in the Republic of Slovenia in accordance with its terms.

ARTICLE 6

Legal Regime of the Agreement

6.01 Applicable Law
    This Agreement and its formation, construction and validity shall be governed by the French law.
     
    6.02 Jurisdiction
    The parties hereto submit to the exclusive jurisdiction of the Court of Justice of the European Communities (hereinafter called the “Court”) and all disputes concerning this Agreement shall be submitted to such Court.
    The decision of the Court shall be conclusive and shall be accepted as such by the parties without restriction or reservation.
    The parties to this Agreement hereby waive any immunity from or right to object to the jurisdiction of the Court.

ARTICLE 7

Final Clauses

7.01 Notices
    Notices and other communications given hereunder shall be sent to the respective addresses set out below, except that notices relating to litigation whether pending or threatened shall be sent to the address mentioned under 2) below where HSZ and the Republic of Slovenia elect domicile:

– for the Republic of Slovenia:      1) Ministry of Finance
                                     Župančičeva 3
                                     1502 Ljubljana
                                     Republic of Slovenia
                                     2) Embassy of the Republic
                                     of Slovenia
                                     179, Avenue Luise
                                     Brussels,
 
– for the Bank:                      100 Boulevard Konrad Adenauer
                                     L-2950 Luxembourg
                                     Grand-Duchy of Luxembourg
 
– for HSZ:                           1) Kolodvorska 11,
                                     1000 Ljubljana
                                     Republic of Slovenia
                                     2) Embassy of the Republic
                                     of Slovenia
                                     179, Avenue Luise
                                     Brussels,
                                     Belgium

Each party may, by notice to the other, change its addresses as set out above, provided that the addresses in 2) above may only be changed to another address within the European Union.
     
    7.02 Form of Notice
    Notices and other communications, for which fixed periods are laid down in this Agreement 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.
     
    7.03 Recitals and Annexes
    The Recitals and Annexes form part of this Agreement.
    The following Annexes are attached hereto:
    Annex I – Decision of the Board of Directors of HSZ.
    Annex II – Authorisation by the Parliament of the Republic of Slovenia.
    Annex III – List of amounts of principal outstanding as of 31 December 2003.
     
    IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed in four originals in the English language.
    Each page hereof, except this page, has been initialled on behalf of the Republic of Slovenia by Mrs. Maja Košak, Advisor to the Government, on behalf of the Bank by Mr. Gian Domenico Spota, Principal Counsel and on behalf of HSZ by Mr. Blaz Miklavcic, General Manager and Mr. Andrej Godec, Deputy General Manager.