Zakon o ratifikaciji Poroštvene pogodbe med Republiko Slovenijo in Evropsko investicijsko banko (avtoceste IX) (MPEIBAC)

1.01

The Guarantor acknowledges and expressly confirms that it is fully aware of, and accepts, the terms, conditions and clauses of the Finance Contract, a copy of which, as signed by the parties thereto, has been delivered to the Guarantor by the Bank.

1.02

Terms defined in the Finance Contract shall have the same meaning in this Guarantee Agreement. References herein to Articles, Paragraphs, Recitals, Schedules and Annexes are, save if explicitly stipulated otherwise, references respectively to articles and paragraphs of, recitals, schedules and annexes to, this Guarantee Agreement. Furthermore, it is expressly agreed that references herein to the Finance Contract shall not be construed, in any circumstances, as affecting the unconditional and irrevocable nature of the present Guarantee.

Additionally, in this Guarantee Agreement: 

“Guarantee” has the meaning given to it in Article 2.01.

“Guaranteed Sums” has the meaning given to it in Article 2.01.

2.01

The Guarantor, as surety and by way of this cautionnement solidaire, hereby irrevocably, unconditionally and jointly and severally guarantees to the Bank entirely the full, punctual and irrevocable performance of all the monetary obligations of the Borrower under the Finance Contract and irrevocably and unconditionally undertakes to pay to the Bank all sums which the Bank may claim under the Finance Contract including in respect of principal monies, interest without any limitation, interest on overdue payments, fees, indemnities, 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 (each amount so guaranteed being a “Guaranteed Sum” and together the a “Guaranteed Sums”) up to a maximum amount of EUR 174,000,000.00 (one hundred and seventy four million euros) (the “Guarantee”).

2.02

If the Borrower fails to pay any sum on the due date, as well as in the event of the Borrower being involved in proceedings of any kind whatsoever (other than in respect of the validity of any monetary obligation of the Borrower underthe Finance Contract) which are likely to affect its payment obligations towards the Bank under the Finance Contract, the Guarantor waives the right to invoke the benefit of the term and undertakes, upon simply being notified to do so by the Bank in the form set out in Schedule 1 (the “Demand”), to pay the Bank forthwith the full amount of the sums owed by the Borrower due to it.

2.03

The Guarantor undertakes to promptly furnish information to the Bank on legislation or the regulatory framework affecting the Borrower, which may have an impact on the implementation of the Finance Contract.

2.04

The Guarantor shall ensure, until all the Guaranteed Sums have been fully paid or discharged, that the Guarantee provided under this Guarantee Agreement complies with the EU Treaty provisions on state aid and the secondary legislation relating thereto.

2.05

The Guarantor represents and warrants that:

(i) it has full capacity and powers to execute and perform the Guarantee Agreement;

(ii) all necessary action to authorise its execution and performance of the Guarantee have been taken;

(iii) its execution and performance of the Guarantee do not conflict with its constitutional documents or any regulation or law applicable to it;

(iv)it is fully aware of the Borrower’s general financial situation and that it has sufficient information to assess the same as well as the existence and the preservation of other guarantees do not constitute an essential condition (condition essentielle et déterminante) of the Guarantor’s decision to enter into this Agreement;

(v) no litigation, arbitration or administrative proceedings against the Guarantor has been started or, to its knowledge, threatened, which have or, if adversely determined, are reasonably likely to have a material adverse effect or might affect its ability to perform its obligations under the Guarantee;

(vi)under the laws of its jurisdiction, the claims of the Bank against it under this Guarantee Agreement will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by reason of any bankruptcy, insolvency, liquidation or other similar laws of general application; and

(vii) the obligations of the Guarantor under or in connection with the Guarantee constitute its legally valid and binding obligations and are enforceable against it in accordance with its terms.

For avoidance of doubt, the above declarations, warranties and undertakings are continuing declarations, warranties and declarations and shall hence remain true and correct as long as this Guarantee is and remains in force.

3.01

The Bank may call and enforce the Guarantee in the event that the Borrower fails to fulfil all or part of the obligations guaranteed pursuant to Article 2.01 above by issuing a Demand under this Guarantee Agreement after having made a demand for the relevant payment from the Borrower pursuant to the Finance Contract. Evidence of such demand to the Borrower shall be attached to the Demand. The Demand shall be made in writing, stating that the Borrower has not performed or fulfilled its payment obligations under the Finance Contract, whether on a Payment Date, upon demand for early repayment or otherwise, in respect of all or part of the Guaranteed Sums and specifying the amount due and payable under the Guarantee. The Demand (together with the attachments) shall constitute conclusive evidence.

Acceleration of all or part of the Loans covered by the Finance Contract shall be fully effective against the Guarantor once such acceleration has been declared by the Bank; this shall, for the avoidance of doubt, include cases where proceedings of any kind whatsoever (other than in respect to the validity of any monetary obligation of the Borrower underthe Finance Contract), which are likely to affect the payment obligations of the Borrower towards the Bank under the Loan Agreement, have been initiated against the Borrower.

The Guarantee under this Guarantee Agreement shall remain in full force until all Guaranteed Sums have been fully and unconditionally paid or discharged.

3.02

The payment by the Guarantor shall fall due on the fifteenth (15^th) Business Day following the date of the Demand.

3.03

The Guarantor undertakes to pay to the Bank on a simple Demand, the sums due, up to the amount stated in Article 2.01, without any restriction, deduction or condition and without the Bank having to provide specific justifications to back up its request other than the reason for calling this Guarantee and expressly releases the Bank from any obligation to send a prior formal notice to it and/or undertake any formality involving a protest for non-payment.

3.04

In the event of the Bank making a 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 (including inter alia indemnities, such as the indemnity under Article 10 of the Finance Contract).

3.05

All payments made by the Guarantor under the Guarantee shall reduce pro tanto amounts owed by the Borrower to the Bank.

4.01

The Guarantor hereby irrevocably and unconditionally waives the benefit of discussion (other than in relation to the validity of any monetary obligation of the Borrower underthe Finance Contract) and the benefit of division, attachment or sale provided for in Article 2021 of the Luxembourg civil code (hereinafter the “Civil Code”) and Article 2026 of the Civil Code respectively, and of the recourse before payment provided for in Articles 2032 and 2039 of the Civil Code. The Guarantor further waives the benefit of Article 2037 of the Civil Code, pursuant to which the Guarantor is discharged of any obligation if, due to the creditor, subrogation in the rights and guarantees of the creditor in favour of the Guarantor becomes impossible.

4.02

The Guarantor hereby irrevocably and expressly waives, until all monies due by the Borrower have been irrevocably and unconditionally paid to the Bank and discharged in full, any right of recourse, right, action and claim (including, for the avoidance of doubt, by way of set-off or by way of provisional measures such as “saisie-arrêt conservatoire”) that it may have, whether by way of subrogation or directly or of any other nature, against the Borrower further to an enforcement of the Guarantee by any means whatsoever (including, in particular by not limited to, the right of recourse the Guarantor may have against any such entity under the terms of article 2028 et seq. of the Civil Code and including the rights arising for the Guarantor under articles 1253, 1271 et seq., and 2039 of the Civil Code.

4.03

The Guarantor hereby waives irrevocably any objection or exception in law (other than in relation to the validity of any monetary obligation of the Borrower underthe Finance Contract) to the total or partial enforcement of this Guarantee Agreement and to refuse or delay the performance of its obligations under the Guarantee and/or any payment to be made under the Guarantee. It undertakes to perform its obligations upon Demand by the Bank in accordance with Article 3.01. In particular, the Guarantor may not avail itself of any renewal, extension or prorogation of the Finance Contract or of any amendment to the Finance Contract made in accordance with the provisions of Article 8 below, or of the invalidity, irregularity, ineffectiveness or lack of enforceability of any individual provisions of the Finance Contract nor of any amendment of the Borrower’s articles of association, including in case of merger or demerger. The Bank shall not be obliged to prove that it has initiated proceedings against the Borrower.

4.04

If the Finance Contract is declared invalid by a court, the Guarantor acknowledges to remain, on the same terms and conditions as referred to above, as Guarantor in respect of all financial and pecuniary obligations for which the Borrower is still liable to the Bank following such declaration.

4.05

If a payment made to the Bank by or on behalf of the Borrower is held to be invalid for any reason whatsoever (other than due to the invalidity of any monetary obligation of the Borrower underthe Finance Contract), including among others by reason of the incapacity of the person having made such payment, the Guarantor hereby waives the right to invoke such a fact to object to a payment claim from the Bank.

4.06 

The Guarantee is in addition to any other rights, which the Bank has, or may have, against the Borrower or any other entity which becomes the legal and/or universal successor of the Borrower in relation to or in connection with the transactions contemplated by the Finance Contract or against the Guarantor.

4.07

The Guarantor accepts and acknowledges that the Bank will not be required to proceed or enforce any rights against the Borrower or any other entity which becomes the legal and/or universal successor of the Borrower in relation to or in connection with the transactions contemplated by the Finance Contract before making a claim under the Guarantee.

5.01

Any settlement or discharge given by the Bank to the Guarantor in respect of the Guarantor's obligations under this Guarantee Agreement or any other agreement reached between the Bank and the Guarantor in relation to it shall be, and be deemed always to have been, void if any act on the faith of which the Bank gave the Guarantor that settlement or discharge or entered into that agreement is subsequently avoided by or in pursuance of any provision of law. As a result the Bank’s right to serve a Demand and to recover from the Guarantor to the full extent of this Guarantee Agreement at any time shall not be prejudiced or affected.

5.02

If a payment made to the Bank in respect of a Guaranteed Sum is avoided, set aside, clawed back or revoked or must be restored in pursuance of any provision of law or of any enactment relating to the insolvency, liquidation or administration (or other proceedings of a similar nature) of the person by whom such amount was paid, for the purposes of this Guarantee Agreement such amount shall be regarded as not having been paid and the Guarantor shall not be discharged in respect of such payment.

7.01

The Guarantor shall inform the Bank forthwith of any fact or event likely to affect the performance of its obligations under this Guarantee Agreement.

7.02

The Guarantor shall notify the Bank of the completion of the procedures necessary in the Republic of Slovenia for the entry into force of the Guarantee Agreement.

8.01

The Bank may agree any modification of the Finance Contract that has the effect of improving or strengthening the position of the Bank vis-à-vis the Borrower without increasing the obligations of the Guarantor; any such modification shall be notified to the Guarantor.

8.02

Any other modification of the Finance Contract shall be conditional upon the prior written consent of the Guarantor, which shall not be withheld unless the Guarantor reasonably considers that its obligations thereunder would be materially increased or extended thereby.

10.01

The legal relations between the parties to this Guarantee Agreement, its formation and validity shall be governed by the laws of the Grand Duchy of Luxembourg.

10.02

The place of performance of this Guarantee Agreement is the head office of the Bank.

10.03

The parties hereto submit to the exclusive jurisdiction of the Court of Justice of the European Union and all disputes arising under or in connection with the Guarantee Agreement shall be submitted to such court.

The decision of the Court of Justice of the European Union shall be conclusive and shall be accepted as such by the parties without restriction or reservation.

10.04 

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 Union.

10.05

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.

10.06

This Guarantee Agreement shall enter into force on the date when the Bank issues a written notice to the Guarantor confirming that the Bank has received a written notice pursuant to Article 7.02 of this Guarantee Agreement and a legal opinion issued by a duly authorised officer of the Attorney General’s Office of the Guarantor in the form and substance satisfactory to the Bank as set out in Annex II.

10.07

The Guarantor may not transfer, novate or otherwise assign in any manner whatsoever all or part of its rights and obligations under this Agreement without the prior written consent of the Bank.

10.08

All payments made by the Guarantor under this Agreement must be calculated and made without set-off or counterclaim and without any deduction or withholding for or on account of tax unless a tax deduction is required by law. If a tax deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any tax deduction) leaves an amount equal to the payment which would have been due if no tax deduction had been required.

10.09

Any amendments and modifications to this Agreement are subject to the prior written consent of the Bank and the Guarantor.

10.10

If any provision of this Agreement is held invalid or unforceable, and unless the invalidity or enforceability thereof does substantial violence to the underlying intent and sense of the remainder of this Agreement, such invalidity or unforceability shall not affect in any way the validity or enforceability of any other provisions of the Agreement except the invalidated or unenforceable provision.

10.11

This Agreement represents the entire understanding of the Parties with respect to the subject matter herein covered and all prior agreements and understandings are hereby replaced and superseded in their entirety by the provisions of this Agreement.

11.01

Notices and other communications given hereunder shall be sent to the respective address set out below:

– for the Guarantor:

International 

Finance Department

Ministry of Finance

Župančičeva 3

1502 Ljubljana

Slovenia

Fax: 00386 1 369 6689

– for the Bank:

Operations OPS/MA-3/SI 

HR W. BALK.

European Investment Bank

100 Boulevard 

Konrad Adenauer

L-2950 Luxembourg

Grand Duchy of Luxembourg

Fax: 00352 4379 67487

Each party may, by notice to the other, change its addresses as set out above.

11.02

Notices and other communications, for which fixed periods are laid down in this Guarantee 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.

11.03

The Recitals forms part of this Guarantee Agreement. 

The following Schedule and Annexes is attached hereto:

Schedule 1

Form of Demand

Annex I

Certified English translation of the relevant provisions of the Slovenian Law on the guarantee.

Annex II

Template of legal opinion of a duly authorised officer of the Attorney General’s Office of the Guarantor on this Guarantee Agreement

Ljubljana, 18 April 2016 

Signed for and on behalf of 

REPUBLIC 

OF SLOVENIA

Luxembourg, 21 March 2016 

Signed for and on behalf of 

EUROPEAN 

INVESTMENT BANK 

 

The Minister 

of Finance 

Dušan Mramor (s)

 

The Head 

of Division 

Massimo Novo (s)

 

The Deputy Head of Division 

Jean-Marc 

Martin (s)