Zakon o ratifikaciji Garancijske pogodbe med Republiko Slovenijo in Evropsko investicijsko banko za projekt slovenskih avtocest/II (MGPEIBSA)

EUROPEAN INVESTMENT BANK FI N°0.2102
    SLOVENIA HIGHWAYS PROJECT II

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

Ljubljana, 11th June 1998

Luxembourg, 17th June 1998

This agreement is made between:
    The Republic of Slovenia, represented by Mr Valter Reščič, State Secretary,
    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 Luxembourg, represented by Mr Fridolin Weber-Krebs, Director General, and Mr Alessandro Morbilli, Director General,
    hereinafter called: “THE BANK”,
    of the second part.
    WHEREAS:
    – The Council of the European Union, pursuant to Council Decision 97/256/EC of 14 April 1997, invited THE BANK to propose a substantial pre-accession support facility.
    – The Board of Governors of THE BANK has taken note of this decision and authorised on 26 January 1998 the granting of loans from its own resources to the countries of Central and Eastern Europe which have applied to the European Union.
    – Pursuant to the “Framework Agreement between the Republic of Slovenia and European Investment Bank governing EIB activites in Slovenia” signed by the Republic of Slovenia on 1 December 1997 and by the Bank on 15 December 1997 (hereinafter referred to as the “Framework Agreement”), the government of the Republic of Slovenia has acknowledged that the financing under this Finance Contract falls within the scope of application of the Framework Agreement.
    – THE BANK has been requested to grant credit to Druzba za avtoceste v Republiki Sloveniji (DARS) d.d., a public company wholly owned by the Republic of Slovenia and incorporated with limited liability under Slovene law (hereinafter called “THE BORROWER”) for the purpose of financing a project (hereinafter called “THE PROJECT”) comprising the construction of 20.2 km of motorways on the section Sentjakob – Blagovica along the Slovenian East-West road corridor (E57) which is included in the priority corridors of the Trans-European Road Networks for Central and Eastern Europe, as more particularly described in the Technical Description set out in Schedule A of the FINANCE CONTRACT defined below.
    – By an agreement (hereinafter called “THE FINANCE CONTRACT”) dated 5 March 1998 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 ECU 130 000 000 (one hundred and thirty million ecus).
    – The obligations of THE BANK under THE FINANCE CONTRACT are conditional upon the prior or simultaneous execution and delivery by the Republic of Slovenia (hereinafter called “THE GUARANTOR”) 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.
    – The Attorney-General of THE GUARANTOR will issue an opinion in the form satisfactory to THE BANK.
    – THE GUARANTOR hereby acknowledges that the financing under THE FINANCE CONTRACT falls within the scope of the application of the Framework Agreement.
    – Mr. Valter Reščič, State Secretary, is duly authorised in the form set out in Annex I to sign this agreement (hereinafter called “the Guarantee Agreement”) on behalf of THE GUARANTOR.
    – Execution of this Guarantee Agreement has been authorised by the Parliament of the Republic of Slovenia (Annex II).
    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 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;
    c) to ensure that THE BORROWER will undertake to purchase goods, procure services and works for THE PROJECT, so far as appropriate and to the satisfaction of THE BANK, by international tender open on equal terms to nationals of all countries. However, exporters of goods that are, at the date of the award of the tender, the object of definitive anti-dumping duties imposed by the Council of the European Union shall normally be excluded from the award of the tender to the extent that the tender concerns such goods.

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.
    5.04 THE GUARANTOR will deliver, immediately upon the entry into force of the instrument of ratification by the Parliament of the Republic of Slovenia, evidence satisfactory to THE BANK that the Guarantee Agreement has entered into effect.

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

Taxes, Charges and Expenses

7.01 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 8

Legal regime of the Agreement

8.01 Applicable Law
     The legal relations between the parties to this Agreement, its formation and validity shall be governed by the laws of the Grand Duchy of Luxembourg.
    8.02 Performance
     The place of performance of this Agreement is the head office of THE BANK.
    8.03 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.
    8.04 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.
    8.05 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.
    8.06 Entry into effect
     This Agreement shall enter into effect upon the entry into force of the instrument of ratification by the Parliament of the Republic of Slovenia.

ARTICLE 9

Final Clauses

9.01 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
                           1502 Ljubljana
                           Slovenia;
                     2)    Embassy of the Republic of Slovenia
                           179, Avenue Louise
                           B – 1050 Bruxelles
– 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 European Community.
    9.02 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.
    9.03 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  –  Resolution of the Parliament
             of the Republic of Slovenia

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 GUARANTOR by Mrs Meta Bole, State Undersecretary and on behalf of THE BANK by Mr Eric Gällstad, Counsel.

SCHEDULE A

THE ECU

The ecu is the same as the ecu that is used as the unit of account of the European Communities, and which is at present comprised of the specific amounts of the currencies of 12 of the Member States of the European Community shown below.
    Pursuant to Council Regulation (EC) No. 3320/94 of 22nd December 1994, the composition of the ecu basket is as follows:

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

Changes to the ecu may be made by the European Communities, in which event references to the ecu shall be read accordingly (see Information).
    If THE BANK should consider that the ecu (see Payment in Euros and Information, hereafter) 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 BORROWER. 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.
    Payment in Euros
    Upon substitution of the ecu by the Euro, all payments due in ecus under this Contract shall be made in Euros at the rate of one Euro for one ecu. The substitution of the ecu by the Euro shall not have the effect of bringing about the payment in component currencies referred to in the preceding paragraph.
    Information
    Article 109G of the EC Treaty, as introduced by the Treaty on European Union, provides that the currency composition of the ecu basket shall not be changed. From the start of the third stage of European economic and monetary union, the value of the ecu as against the currencies of the Member States participating in the third stage will be irrevocably fixed and the ecu will become a currency in its own right.
    The European Council at the Madrid Summit in December 1995 decided that the name of that new currency will be the Euro. Consequently, references to the ecu shall apply to the Euro. In the case of contracts denominated by reference to the official ecu basket of the European Community, in accordance with the Treaty as confirmed by the European Council at the Madrid Summit in December 1995 and implemented by Council Regulation (EC) No. 1103/97 of 17th June 1997, substitution of the ecu by the Euro will be made at the rate of one to one.