Zakon o ratifikaciji Garancijske pogodbe med Republiko Slovenijo in Evropsko investicijsko banko (Avtoceste VIII) (MGPEIA8)

THIS AGREEMENT IS MADE BETWEEN:
    The Republic of Slovenia, acting through the Ministry of Finance, represented by Mr. Andrej Bajuk, 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 Luxembourg, represented by Mr. Thomas Hackett, Director General, and by Mr. Manfredi Tonci Ottieri, Associate Director,
    hereinafter called: the “Bank"
    of the second part.
     
    WHEREAS:
     
    – By an agreement (hereinafter called the "Finance Contract") signed on 30 November 2006 in Luxembourg and on 18 December 2006 in Ljubljana between the Bank and Družba za avtoceste v Republiki Sloveniji, DARS, d.d. (hereinafter called ”the Borrower”), the Bank has agreed to establish in favour of the Borrower a credit in an amount of EUR 300,000,000.00 (three hundred million euros) to undertake a project concerning the construction of five new motorway sections, namely (i) Sentvid-Koseze, (ii) Vrba-Peracica, (iii) Ponikve-Hrastje, (iv) Pluska-Ponikve and (v) Slivnica-Drazenci, as more particularly described in the Technical Description set out in Schedule A.1 of the Finance Contract.
    – The obligations of the Bank under the Finance Contract are conditional upon the execution, delivery by the Guarantor and continuing operation of a guarantee of performance by the Borrower of its financial obligations under the Finance Contract (hereinafter this “Guarantee Agreement”) and the delivery of a favourable legal opinion thereon.
    – Execution of this Guarantee Agreement has been authorised by the Parliament of the Republic of Slovenia and a certified English translation of the relevant provisions of the relevant law is attached hereto as Annex I.
    – A duly authorised officer of the office of the Attorney General of the Guarantor will issue a legal opinion on this Guarantee Agreement in the form satisfactory to the Bank.
    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 thereto, has been 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.
    2.02 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 Project.

ARTICLE 3

Enforcement of guarantee

3.01 Demand may be made under this Guarantee Agreement as soon as the Borrower has not performed all or part of the obligations guaranteed pursuant to Article 2.01 of this Guarantee Agreement.
    3.02 The Guarantor hereby waives irrevocably any objection or exception in law to the total or partial enforcement of this Guarantee Agreement. It undertakes to perform its obligations upon first written demand by the Bank whenever such 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 Agreement. 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 Agreement, 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 tenth Business Day following that on which demand is made.
    For the purpose of this Guarantee Agreement “Business Day” means a day on which banks are open for business in Luxembourg and Ljubljana.
    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.

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 Guarantor shall inform the Bank forthwith of any fact or event likely to jeopardise the performance of its obligations under this Guarantee Agreement.
    5.02 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.

ARTICLE 6

Modification of the Finance Contract

6.01 The Bank may agree to and shall notify the Guarantor of amendments made to the Finance Contract which do not increase the amounts payable by the Borrower thereunder.
    The Bank may grant 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. Any such extension of time shall be notified to the Guarantor.
    Any modifications in the Finance Contract other than those referred to in the previous two 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 this Guarantee Agreement

8.01 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.
    8.02 The place of performance of this Guarantee Agreement is the head office of the Bank.
    8.03 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 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 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 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 5.02 of this Guarantee Agreement and a legal opinion issued by a duly authorised officer of the Attorney General’s Office of the Guarantor in form and substance satisfactory to the Bank.

ARTICLE 9

Final Clauses

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

  – for the Guarantor:       Ministry of Finance
                             Župančičeva 3
                             1502 Ljubljana
                             Slovenia
  – for the Bank:            100 Boulevard Konrad Adenauer
                             L-2950 Luxembourg
                             Grand Duchy of Luxembourg.
  Each party may, by notice to the other, change its addresses
  as set out above.

9.02 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.
    9.03 The Recitals forms part of this Guarantee Agreement.
    The following Annex is attached hereto:
    Annex I Certified English translation of the relevant provisions of the Slovenian Law on the guarantee.
    IN WITNESS WHEREOF the parties hereto have caused this Guarantee Agreement to be executed in three originals in the English language.
    This Guarantee Agreement has been initialled on behalf of the Guarantor by Mr. Andrej Kavčič, Undersecretary, and on behalf of the Bank by Mr. Matteo Rivellini, Legal Counsel.

This 30th day of November 2006, at Luxembourg.
This 19th day of December 2006, at Ljubljana.