prop · H703181 · 2020-06-10 00:00:00 — (a)Subject to Article 3, any demand made by the Beneficiary to the Guarantors under this Guarantee Agreement (each, a "Demand") shall be made by way of a written notification addressed by the Beneficiary to the Guarantors and their agent in the form set out in Schedule A (each a “Demand Notice”), sent in accordance with the provisions set forth in Article 6 below, it being understood that: (1)the Beneficiary shall indicate in the Demand Notice (i) the Transaction with reference to which the Demand is made or (ii) that it relates to the EIB/EIF Arrangement, but shall otherwise be under no obligation to provide the Guarantors with any additional document nor to support its claim with any other justification or evidence; (2)the payment obligation of the Guarantors under this Guarantee Agreement is not subject to the accuracy or the merit of any statement, declaration or information contained in any Demand Notice. (b)The Beneficiary shall make a Demand under this Guarantee on all Guarantors for the total amount of such Demand, indicating the pro rata allocation of the amount between the Guarantors on the basis of their portion in the Maximum Guarantee Amount. (c)The Guarantors shall make the payment requested in the Demand Notice within 5 (five) Business Days as from the date of dispatch (included) as set out in the Demand Notice (the "Payment Period") and in the currency as requested within the Demand Notice. (d)The Beneficiary is entitled to request the payment of any amount in one or several instalments. (e)There shall be no limit on the number of Demands under this Guarantee. Each Guarantor expressly acknowledges that each Demand made in accordance with this Agreement generates an independent payment obligation toward the Beneficiary up to its Maximum Individual Amount. Autonomy of the First Demand Guarantee 2.1Autonomy of the First Demand Guarantee The parties to this Guarantee Agreement expressly agree that this First Demand Guarantee is an independent, unconditional and irrevocable first demand guarantee (garantie autonome à première demande), autonomous from any contractual or non-contractual relation existing or which may exist between the Guarantors, the Beneficiary, the Counterparty and any other person, which cannot be construed in any circumstances and for whatever reason as a surety (cautionnement) within the meaning of article 2011 of the Civil Code or as any other accessory obligation or contract (obligation ou contrat accessoire). (a)Each Guarantor hereby expressly waives any right it has, or may have, which might reduce or extinguish its payment obligations under this Guarantee Agreement whether by way of set-off, lien, defence or otherwise. (b)Each Guarantor acknowledges that it cannot raise any objection, ground or plea of any kind, in particular based on a Transaction or the Transaction Terms, to refuse or delay the performance of its obligations under this Guarantee Agreement and/or any payment to be made by it under this Guarantee Agreement. (c)In particular, but without limitation, each Guarantor acknowledges that its obligations to make payments hereunder are independent from: (i)the validity, regularity and/or enforceability of a Transaction and the rights and obligations of the Counterparty thereunder; (ii)any absence of action by the Beneficiary against a Counterparty to enforce the Beneficiary’s rights under a Transaction; (iii)any waiver or consent given by the Beneficiary with respect to any provisions governing a Transaction; (iv)the occurrence of any event whatsoever which could prevent a Counterparty from performing any of its obligations, including its payment obligations, under a Transaction, including in relation to the opening of any voluntary or judicial insolvency proceedings in any jurisdiction or any payment moratorium or similar measure or measure of similar effect applicable to a Counterparty under any applicable law; (v)the existence or absence of payments under Demands made to or payments thereunder by other Guarantors under the present Guarantee Agreement; (vi)any other circumstances which might otherwise constitute a legal discharge of or a defence for the Guarantors. (d)Therefore, no Guarantor shall, in particular but without limitation, be entitled to challenge any demand of payment under this Guarantee Agreement nor raise any objection, defence, exception, deduction, withholding, lien, right of set-off or counterclaim resulting from or related to: (i)any provisions governing a Transaction; (ii)any relationship between the Beneficiary and a Counterparty, the Guarantor and a Counterparty, or the Guarantor and the Beneficiary; (iii)any change in the legal and/or financial situation of a Counterparty (including any merger, demerger or other form of legal or corporate reorganisation); (iv)any negligence or omission by the Beneficiary, except in case of wilful misconduct or gross negligence; (v)any payment moratorium or similar measure or measure of similar effect applicable to a Counterparty under any applicable law; or (vi)any arrangement or agreement between the Beneficiary and a Counterparty including any grant of time, indulgence, waiver or concession, cure period or delay or forbearance, or any termination, amendment, variation, novation, replacement or supplement (including any change in the purpose of, or any increase in, or extension of, Transaction Terms) which may be granted to a Counterparty under a Transaction. The First Demand Guarantee granted pursuant to this Guarantee Agreement is in addition to any other rights, remedies or security, which the Beneficiary has, or may have, against any other person, including against a Counterparty, whether provided for by law or otherwise. Each Guarantor hereby expressly accepts and acknowledges that the Beneficiary will not be required to proceed against or enforce any other rights, security or claim payment from any other person before making a claim under this Guarantee Agreement. Term of the First Demand Guarantee This First Demand Guarantee shall take effect on the date of execution of this Guarantee Agreement and expire on the earlier of (the "Termination Date"): (a)the date on which the aggregate of all payments irrevocably made by the Guarantors under this Guarantee Agreement amounts to the Maximum Guarantee Amount; or (b)subject to any extension agreed in writing by the Beneficiary and the Guarantors. Without prejudice to Article 0 below, the Beneficiary may issue a Demand under this Guarantee Agreement at any time as from the date of execution of this Guarantee Agreement up to a date falling 3 (three) calendar months after the occurrence of the Termination Date (the "Effectiveness Period"). Notwithstanding anything to the contrary in this Guarantee Agreement, if any payment made by a Guarantor to the Beneficiary or any discharge given by the Beneficiary is avoided or reduced as a result of any insolvency or any similar event, the liability of the Guarantor shall continue or be reinstated (as the case may be) as if the payment, discharge, avoidance or reduction, had not occurred; and the Beneficiary shall be entitled to recover the value or amount of that security or payment from the Guarantor as if the payment, discharge, avoidance or reduction had not occurred. If any amount under this Agreement is not paid on the date it is due then such unpaid amount shall bear interest at the rate of €STR plus a spread of two per cent () floored at zero calculated on a daily basis which interest shall accrue from the date when payment was due until the date of actual payment of such unpaid amount. For this purpose €STR means the euro short-term rate administered by (or any other person which takes over the administration of that rate) displayed (before any correction, recalculation or republication by the administrator) on page EUROSTR of the screen (or any replacement page which displays that rate). payment to be made by the Guarantors under this Guarantee Agreement shall be made in EUR. notice, request or other communication to be given or made under this Guarantee Agreement shall be in writing and delivered by mail, fax, e-mail or secure website to the respective party’s address specified below with a copy to its agent or at such other address as such party notifies in writing to the other party from time to time: As set out in Schedule C Transfer and Continuing Obligations Rights and/or obligations of the Guarantors under this Guarantee Agreement cannot be transferred or assigned in any way whatsoever to any third parties without the prior written consent of the Beneficiary. (a)A of Union, a European Union institution, or an institution created by Member States of Union, which is not an Original Guarantor shall accede to this Guarantee Agreement as Acceding Guarantor (an "Acceding Guarantor") at the time of execution of its Contribution Agreement in the context of the Fund. (b)For the purpose of acceding to this Guarantee Agreement, each Acceding Guarantor shall give an accession notice by way of a written notification addressed by it or its agents to the Beneficiary and to all then existing Guarantors in the form set out in Schedule B (each an “Accession Notice”), sent in accordance with the provisions set forth in Article 6 above. (c)The accession by the Acceding Guarantor to the present Guarantee Agreement shall be effective on the date set out in the Accession Notice (the "Accession Date"). (d)The Beneficiary and the then existing Guarantors authorise, acknowledge and agree in advance to the accession from time to time of an Acceding Guarantor to the present Guarantee Agreement. From the Accession Date, the Acceding Guarantor will adhere to, and be bound in all respects by, this Guarantee Agreement and will accordingly be entitled to all rights and subject to all obligations imposed on the Guarantors hereunder. If at the time of entering into the Contribution Agreement the Acceding Guarantor indemnifies any other Guarantors in relation to payments made in respect of any prior Demands under this Guarantee Agreement in accordance with the provisions of the Contribution Agreement, the Maximum Individual Amount of the Acceding Guarantor shall be reduced by any amount thus paid to other Guarantors in accordance with the Contribution Agreement. The Maximum Individual Amount of the other Guarantors shall be increased by the amount of such payments received from the Acceding Guarantor in respect of Demands paid to the Beneficiary prior to such Acceding Guarantor acceding to this Guarantee Agreement. For the avoidance of doubt, the Maximum Individual Amount of any Guarantor shall never be increased to an amount higher than the Maximum Initial Individual Amount. If at any time any provision of this Guarantee Agreement is or becomes illegal, invalid or unenforceable in any respect, or this Guarantee Agreement is or becomes ineffective in any respect, under the laws of any jurisdiction, such illegality, invalidity, unenforceability or ineffectiveness shall not affect: (a)the legality, validity or enforceability in that jurisdiction of any other provision of this Guarantee Agreement or the effectiveness in any other respect of this First Demand Guarantee in that jurisdiction; or (b)the legality, validity or enforceability in other jurisdictions of that or any other provision of this Guarantee Agreement or the effectiveness of this First Demand Guarantee under the laws of such other jurisdictions. No failure or delay or single or partial exercise by the Beneficiary in exercising any of its rights or remedies under this Guarantee Agreement shall be construed as a waiver of such right or remedy and the Beneficiary shall not be liable for any such failure, delay or single or partial exercise of any such right and remedy. The Beneficiary may set off any matured obligation due from a Guarantor under this Guarantee Agreement against any matured obligation (whether or not matured) owed by the Beneficiary to that Guarantor, regardless of the place of payment, booking branch or currency of either obligation. If either obligation is unliquidated or unascertained, the Beneficiary may set off in an amount estimated by it in good faith to be the amount of that obligation. provision of this Guarantee Agreement may only be amended with the prior written consent of the Beneficiary and the Guarantors. Waiver of Sovereign Immunity To the extent that a Guarantor may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgement or otherwise) or other legal process and to the extent that such immunity (whether or not claimed) may be attributed in any such jurisdiction to such Guarantor or its assets or revenues, such Guarantor agrees, to the extent legally possible, not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction. This Guarantee Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by the laws of . The place of performance of this Guarantee Agreement is the seat of the Beneficiary in . The Parties shall endeavour to settle amicably any dispute or complaint relating to the interpretation, application or fulfilment of this Guarantee Agreement. For the purposes of any dispute arising in relation to this Guarantee Agreement, the Parties hereby submit to the jurisdiction of the Court of of Union. 15.1Recitals, Schedules and The recitals and following Schedules form an integral part of this Guarantee Agreement. Form of Demand Notice Form of Accession Notice Maximum Initial Individual Amounts This Guarantee Agreement has been signed by each Original Guarantor in two originals, in the English language, and the Beneficiary shall sign each original and return one original to each Original Guarantor. The Beneficiary shall produce a conformed copy showing signatures of all Original Guarantors. Signed for and on behalf of [Member State]]1 [position]] 1Each Guarantor shall include the following formula in handwriting before its signature: "Agreed that [Member State] commits by way of this Guarantee Agreement to pay an amount up to the [relevant Maximum Initial Individual Amount for the , in letters and figures]": Signed for and on behalf of THE EUROPEAN INVESTMENT BANK FORM OF DEMAND NOTICE [ON THE LETTERHEAD OF THE BENEFICIARY] To : [GUARANTOR] CC: [Agent of the Guarantor] Guarantee agreement in relation to the (the “Guarantee Agreement”) Terms not otherwise defined shall bear the same meaning as ascribed to them in the Guarantee Agreement. This letter constitutes a Demand Notice under the Guarantee Agreement. In accordance with the provisions of Article 1.2 of the Guarantee Agreement, we hereby demand the payment of an amount of [EUR []] (the “Requested Amount”). For information purposes only, subject to the provisions of Article 1.2 of the Guarantee Agreement, we inform you that the present Demand Notice relates to [reference to the Transaction / EIB/EIF Arrangement]. Article 14 of the Guarantee Agreement shall apply to this Demand Notice as if set out in full herein. FORM OF ACCESSION NOTICE [ON THE LETTERHEAD OF THE ACCEDING GUARANTOR] (the "Bank") CC:[all existing Guarantors at the time of this Accession Notice] [address] Guarantee agreement in relation to the (the “Guarantee Agreement”) Terms not otherwise defined shall bear the same meaning as ascribed to them in the Guarantee Agreement. We refer to Article 8.1 of the Guarantee Agreement and to the contribution agreement entered into between [Acceding Guarantor] and the Bank for the purpose of establishing the in response to COVID-19. The Maximum Initial Individual Amount for [Acceding Guarantor] is […]. This letter constitutes an Accession Notice under the Guarantee Agreement, as enclosed in 1 hereto. We hereby notify the Bank and all existing Guarantors on the date hereof that, in accordance with the provisions of Article 8.1 of the Guarantee Agreement, we hereby accede to the Guarantee Agreement. We hereby agree to become a Guarantor and to be bound in all respects by the terms of the Guarantee Agreement and be entitled to all rights and subject to all obligations imposed on the Guarantors thereunder. Our administrative details are as follows: Article 14 of the Guarantee Agreement shall apply to this Accession Notice as if set out in full herein. This Accession Notice has been signed and dispatched in two (2) originals in the English language. Signed for and on behalf of Signed for acceptance for and on behalf of [ACCEDING GUARANTOR] THE EUROPEAN INVESTMENT BANK [position]] 2The Acceding Guarantor shall include the following formula in handwriting before its signature: "Agreed that [Acceding Guarantor] commits by way of this Accession Notice to pay an amount up to the [relevant Maximum Initial Individual Amount for the Acceding Guarantor, in letters and figures]": FIRST DEMAND GUARANTEE AGREEMENT This Schedule will be prepared and notified by the Beneficiary to Guarantors in due course. Until such notification details have been made available to the Guarantors, the Parties agree that the EIB will continue to communicate with the EU Member States through its usual channel of communication for purposes of the Fund. MAXIMUM INITIAL INDIVIDUAL AMOUNTS This Schedule lists all EU Member States and their respective Maximum Initial Individual Amount, without prejudice to the fact that an EU will only become a Guarantor and will only be bound by the Guarantee Agreement if and as of the date it has entered into or acceded to the Guarantee Agreement. Maximum Initial Individual Amount (EUR) 1,301,381,075.35 51,251,027.24 221,760,580.47 658,926,592.31 4,694,854,717.77 20,724,666.58 164,731,513.30 352,996,758.77 2,816,912,866.59 4,694,854,717.77 106,745,508.42 4,694,854,717.77 32,306,439.71 26,836,898.10 43,975,174.39 32,946,554.21 209,795,625.13 12,297,410.06 1,301,381,075.35 646,011,646.53 1,142,170,471.73 227,486,335.61 164,731,513.30 70,083,139.60 75,487,280.34 371,158,331.96 863,337,361.61 in respect of the PAN-EUROPEAN GUARANTEE FUND IN RESPONSE TO COVID-19 This contribution agreement (the “Contribution Agreement”) is entered into between: the Kingdom of , (the “Contributor”), on the one hand, and with its seat at 98-100, , L-2950 , Grand Duchy of , (the “Bank”), on the other hand, (the Contributor and the Bank each referred to as a “Party” and together as the “Parties”). (A)The Member States of Union have agreed to establish the (the “Fund”). (B)Each contributor to the Fund shall enter into an undertaking to make contributions to the Fund on similar terms and conditions through their respective contribution agreements. (C)Each contributor to the Fund has entered into (or will accede to) the first demand guarantee agreement (the “Guarantee Agreement”) with the Bank in relation to Transactions entered into by the Bank for the account of the Fund (including the back-to-back arrangement with ("EIF")). (D)shall enter into a separate arrangement with the EIF in connection with Transactions entered into by EIF in the context of the Fund. (E)The intention of the Parties is that in relation to all exposures to Transactions of EIB for the account of the Fund and/or EIF in the context of the Fund and the EIB/EIF Arrangement, all credit, market and other risks are assumed by and will be ultimately borne by the Fund and by the contributors and not by the Bank or the EIF. Consistently, the Bank will act in relation to Transactions for the account of the Fund. shall provide a dedicated internal funding line to the Bank as administrator of the Fund for the purposes of providing liquidity to and treasury for the Fund. (F)to be entered into by EIB and/or EIF in the context of the EIB/EIF Arrangement is subject to the approval of the Fund’s Contributors’ Committee as further described in the Fund Description. The Parties have agreed as follows: 1.In this Contribution Agreement: “Advance” means as defined in 2, paragraph III A. "Acceding Guarantor" means as defined in paragraph 17. “Additional Contributor” means as defined in paragraph 17. “Adjusted ” means the percentage set out against the name of each contributor to the Fund calculated by reference to the Total Contributions and the shareholding of each contributor in the capital of the Bank but adjusted such that at all times, the aggregate of Adjusted is equal to . In the event of an Additional Contributor, the Adjusted be re-calculated accordingly and communicated to the contributors. “Adjustment Payments” means as defined in paragraph 17. “Business ” means any day other than a Saturday or Sunday (a) where the Bank is open for business in and (b) where referring to a payment in euro or the determination of EURIBOR, is also a TARGET2 Business . “Cash Balance” means any sums held in cash by the Bank on behalf of the contributors in relation to the Fund. “Claim Event” means, in relation to a Transaction, one or more of the following events or occurrences (as applicable): (a)in relation to a Transaction which is a funded debt transaction that the Bank has not received any amount paid by it and/or due to it (whether principal, interest, commissions, fees, charges, indemnities, expenses or any other incidental charges in respect of such Transaction); (b)in relation to a Transaction which is a funded risk participation or a contingent loan transaction (i) that the Bank has not received any amount due to it or (ii) that the Bank has not received any amount scheduled or planned or expected to be paid to it, where such non payment to the Bank resulted from the limited recourse nature of such Transaction or for other reasons intrinsic to the nature of such Transaction (in each case whether such amounts relate to principal, interest, commissions, fees, charges, indemnities, expenses or any other incidental charges in respect of such Transaction); (c)in relation to a Transaction which is an unfunded transaction relating to an underlying debt transaction, (i) that the Bank has not received any amount due to it or (ii) that the Bank has received a demand for payment (in each case whether the amounts due or demanded or paid relate to principal, interest, commissions, fees, charges, indemnities, expenses or any other incidental charges in respect of such Transaction); (d)(d) that a Transaction has been subject to a restructuring or similar process which reduces any of the amounts payable to the Bank in relation to such Transaction (whether principal, interest, commissions, fees, charges, indemnities, expenses or any other incidental charges in respect of such Transaction); (e)in relation to a Transaction which is an equity type operation that upon exit or disposal the net proceeds received by the Bank is less than the sum of (i) the amount invested or lent by the Bank and (ii) the Bank's cost of funding such Transaction; (f)in relation to a Transaction which has not fully matured, repaid in full or been disposed of by , that the aggregate amount received or recovered by the Bank in respect of such Transaction is less than the sum of (i) the amount invested or lent by the Bank and (ii) the Bank's cost of funding such Transaction; (g)in relation to operations deployed by EIF in the context of the Fund under the EIB/EIF Arrangement that (i) there has been a claim event in relation to such operation as defined for the purpose of the EIB/EIF Arrangement or (ii) as at the Bank has not been repaid in full in relation to any liquidity advance and any interest accrued thereon under the EIB/EIF Arrangement; or (h)such other event or circumstance specially designated as a “Claim Event” in relation to the relevant Transaction at the time the Transaction was approved for the purposes of the Fund.