Amendment to Guarantee Agreement between the Kingdom of Belgium, the Republic
of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of
Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain,
the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the
Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg,
the Republic of Hungary, Malta, the Kingdom of the Netherlands, the Republic of
Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic
of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of
Sweden, the United Kingdom of Great Britain and Northern Ireland and European
Investment Bank concerning loans to be made by the European Investment Bank in
favour of investment projects in the African, Caribbean and Pacific States and
in the Overseas Countries and Territories
1. A new Recital 4 is added as follows:
On 16 November 2010 the Board of Directors of the Bank decided to increase
the current overall limit of public-sector exposure limit for own-resources
lending under the Cotonou II Mandate from 60% to 80% and to assume the full
commercial risk on each individual private sector operation from own-resources
with a systematic carve-out of the political risk by the Member States´
Guarantee.
2. The numbering of the Recitals shall be amended accordingly.
3. Recital 8 shall read as follows:
The Guarantors and the Bank intend that, where the Guarantors are subrogated
to the rights and remedies of the Bank in relation to any Loan, the Bank shall,
if so requested by the Guarantors, administer and manage the Loan Agreement
which has gone into default in accordance with the terms and conditions of the
the Cotonou II Arrears Administration Agreement (as defined below). of 31 March
2009 concluded between the Bank and the Guarantors governing the procedures for
payment and reimbursements under the Member States guarantee in favour of the
Bank (the “Cotonou II Arrears Administration Agreement”).
4. The definition of Adequately Secured Loan Agreement
(“ASLA”) shall read as follows:
“Adequately Secured Loan Agreement (“ASLA”)” means any Loan
Agreement concluded between the Bank and private sector Borrowers within the
Cotonou Framework for which in the Bank’s opinion there is an adequate security
covering for credit risks and which the Bank, exercising its discretion,
declares to qualify as such in writing to the Guarantors. ASLAs so defined.
According to Article 2.03, ASLAs, shall only be covered by this Guarantee as
regards Political Risks as defined in Annex 3.
5. The definition of the Cotonou II Arrears Administration Agreement shall be
deleted in section A of “Definitions”.
6. The “Loan-loss Cover Account” or “LLCA” definition shall read as follows:
“Loan-loss Cover Account” or “LLCA”
means the account in
euros constituted by the Bank in the name of the Guarantors, which shall be
funded from the income resulting from the application of risk-pricing on EIB
Financing Operations, excluding ASLAs as defined above, and which shall be
managed in accordance with the provisions of the Cotonou II Arrears
Administration Agreement.
7. Section B of “Definitions” shall read as follows:
| Term |
Recital, Article or Annex |
| Arbitral tribunal |
Section 4 of Annex 3 |
| Association Decision |
Recital 1 |
| binding |
Section 4 of Annex 3 |
| enforceable |
Section 4 of Annex 3 |
| Cotonou Framework |
Recital 5 |
| Cotonou Internal Agreement II |
Recital 1 |
| Cotonou II Arrears Administration Agreement |
Recital 8 |
| Cotonou Partnership Agreement II |
Recital 1 |
| Political Risks |
Article 2.03 |
| Project |
Section 4 of Annex 3 |
| Project Agreement |
Section 4 of Annex 3 |
| Relevant Party |
Section 4 of Annex 3 |
8. Article 1.04 shall read as follows:
The obligations of the Guarantors under this Guarantee shall continue until
payment is made in full of the Guaranteed Sums.
9. Article 2.03 shall read as follows:
However, for ASLAs, this Guarantee may only be called upon whenever, because
of the occurrence of one of the events defined in Annex 3 (hereafter a
“Political Risk”):
(i) a Guaranteed Debtor is unable to pay, or the Bank is unable to receive, a
Guaranteed Sum on its due date; or
(ii) a Third-Party Guarantor is prevented from collecting amounts which are
due to it in respect of a Guaranteed Sum, provided that:
(a) any demand for payment made by a Third-Party Guarantor on account of a
payment that it has made on behalf of a Guaranteed Debtor must have been
presented to the Bank at the latest 2 years from (xx) the specified contractual
final repayment date under the relevant agreement or (yy) in case of early
repayment, whether voluntary or obligatory, of the relevant Loan, the due date
of that early repayment; and
(b) this Guarantee is limited to the amount which the Bank or, as the case
may be, the Third-Party Guarantor could have recovered but for the occurrence of
a Political Risk.
10. Article 3.01 shall read as follows:
The Guarantors shall pay to the Bank the amounts demanded by the Bank in
euros. The amounts demanded by the Bank shall take into account any funds which
are capable of being applied by the Bank from the LLCA in respect of unpaid
Guaranteed Sums. The LLCA shall be managed in accordance with the provisions of
the Cotonou II Arrears Administration Agreement and the terms and conditions
laid down by the Bank’s governing bodies from time to time.
11. Article 4.03 shall read as follows:
The Bank shall provide to the Guarantors twice a year by 31 January and 31
July respectively:
(i) an information sheet, in the form of Annex 4, containing information,
effective as of 31 December and 30 June on the Loan Agreements (including ASLAs)
covered by the present Guarantee; and
(ii) the prudential limits, in the form of Annex 5, as defined in accordance
with the principles and guidelines laid down by the Bank’s governing bodies from
time to time, as most recently approved on 16 November 2010.
12. Article 5.04 shall read as follows:
The Guarantors and the Bank agree to apply the Cotonou II Arrears
Administration Agreement to all recovery actions initiated by the Bank in
respect of Loan Agreements covered by this Guarantee.
13. Article 6.02 shall read as follows:
The Guarantors will indemnify the Bank for all taxes and expenses incurred by
the Bank in seeking recovery of Guaranteed Sums, in accordance with the Cotonou
II Arrears Administration Agreement.
14. Annex 5 shall read as follows:
