prop · H703181 · 2020-06-10 00:00:00 — 40.To the extent that the Contributor may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment 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 the Contributor, its assets or its revenues, the Contributor agrees, to the extent legally possible, not to claim and hereby irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction. In witness, hereof the Parties hereto have executed this Contribution Agreement in four (4) original copies, two (2) for the Bank and two (2) for the Contributor. Upon possession by the Bank of two originals of the fully signed Contribution Agreement, this Contribution Agreement shall become effective as of the date of the last signature. Signed for and on behalf of Signed for and on behalf of This be applicable to and form an integral part of all Contribution Agreements for the in response to COVID-19 (the “Fund”) between EIB and the Contributors to the Fund. It is made pursuant to the Rules of and administration of the PPF (“Platform Rules”), as amended from time to time. The COVID-19 pandemic constitutes an unprecedented challenge with very severe socio-economic consequences. The objective of the Fund is to respond to the economic impact of the COVID-19 pandemic outbreak by ensuring that eligible entities and primarily SMEs in the participating Member States have sufficient liquidity available and access to finance to weather the rapidly unfolding crisis, and are able to continue their development in mid/long term. is designed to support final recipients that are considered (i) viable in the long term and (ii) able to meet a lender’s or other financial intermediaries’ requirements for commercial financing, were it not for the economic impact of the COVID-19 pandemic. is designed to be a high-risk, high-impact intervention of limited time. In accordance with Article 3.1 of the Platform Rules, any of Union and Commission can make to the Fund. In addition, other institutions of Union or institutions created by Member States of Union, can make also Contributions to the Fund. Operations shall be eligible for support under the Fund if they are in line with the eligibility criteria, as set out below and updated from time to time (“Eligible Operations”). shall operate, to the extent applicable, in accordance with EIB’s and EIF’s respective rules, policies, and procedures, save where otherwise provided in 12 below. In the case of EIB, the impact finance mandate framework, as further described in 12, below shall apply. For EIB’s operations, the Fund shall be used according to the general cross-cutting principles applicable to the EIB’s activities, as described in Article 2.1.2 of the Platform Rules. Types of operations: EIB, for the account of the Fund and EIF, in the context of the Fund, can guarantee or provide financing directly to final recipients (“Direct Operations” 1). Alternatively, EIB or EIF can guarantee or provide financing indirectly through financial intermediaries (“Indirect Operations”2) to eligible final beneficiaries – predominantly SMEs, but also Midcaps, Corporates and public entities providing essential services in particular in health, research, education sectors that could not be financed under existing products. Direct Operations concern direct financing/ guarantees by EIB to eligible 1Direct Operation is defined as a final recipient transaction entered into between EIB and final recipient. 2Indirect Operation is an operation carried out by EIB or EIF to provide finance to a Financial Intermediary covering directly or indirectly (via one or more sub-operations) a final recipient transaction. projects carried out by, among others, SMEs, Midcaps, Corporates and public entities. For Indirect Operations, EIB or EIF conclude agreements with financial intermediaries. Financial intermediaries (“Financial Intermediaries” or “FI”) may include counterparts such as commercial banks, financial institutions, guarantee institutions, leasing companies, venture capital and private equity funds, micro-finance institutions, National Promotional Banks/ Institutions, Special Purpose Vehicles (SPV), private credit funds, alternative lenders, crowd-lenders, guarantee societies etc. Eligible Operations will be primarily private sector intermediated operations, but can also include direct and intermediated operations targeted at public sector companies and entities in the area of health or health-research or providing essential services related to the health crisis. At the end of the investment period, beneficiaries of funding or guarantee from the Fund (“Eligible Beneficiaries”) shall amount to: a.Debt operations with SMEs as the final beneficiary will account for at least of EGF- supported financing. This can also be supported through securitization. b.Debt operations with non-SMEs as the final beneficiary will account for a maximum of of EGF-supported financing. Out of this, a maximum of 5 p.p. of EGF-supported financing can be used for debt operations with public sector companies and entities in the area of health or health-research or providing essential services related to the health crisis as final beneficiaries. c.Venture and growth capital (through the EIF) and venture debt with SMEs and mid-caps as final beneficiaries will account for a maximum of of EGF-supported financing. Specifically for operations supporting large corporates with more than 3000 employees as final beneficiaries, the following safeguards will apply: i)No equity investments ii)No ABS operations iii)Support available only for working capital and supply chain finance. iv)Financing only available through Financial Intermediaries with ‘skin in the game’ v)Exposure to individual large corporates limited to EUR 250m vi)Only loans in alignment with Communication from Commission regarding the temporary framework for State Aid measures to support the economy in the Covid- 19 outbreak, as amended or replaced from time to time, including regarding short loan maturities, in order to rule out strategic investment projects that could be interpreted as ‘industrial policy’. vii)Only for sectors that are in line with EIB long-term mission (innovation, environment, and SMEs support). viii)Further involve the Member States represented in transactions, complemented with higher reporting requirements. Without prejudice to 12.4 below, all operations shall undergo an ex-ante due diligence or equivalent process performed in accordance with EIB’s and EIF’s rules, policies and procedures, as applicable. Operations with FI (and final recipients) may be carried out in participating Member States, that is, Member States that have entered into Contribution Agreements with the EIB in relation to the Fund. The contributions of any given will be available for operations in all participating Member States, i.e. contributions will not be earmarked to support the operations in a given . Instead, deployment will be determined based on the need and demand relative to the impact of COVID- 19 and the related market situation. will make available additional financing in the context of the Fund in all contributing Member States, aiming for a geographic distribution that is proportionate to the economic impact of the crisis, the sizes of the economies and available national and European support instruments. By the end of the EGF signature period, will aim that its financing3: (i)for the three Member States having received the most financing understood as the support by the Fund, the cumulative financing (measured by signature amounts) does not exceed share of the total Fund’s financing (ii)for the 15 Member States having received the least financing understood as the support by the Fund, the cumulative financing (measured by signature amounts) exceeds share of the total Fund’s financing (iii)underlying financing structures that are by their nature multi-country (covering two or more Member States) are not included in the above rule (i). The concentration limit shall be periodically reviewed and may be adjusted to reflect the evolving impact of the crisis and market needs in the different Member States. change of the concentration limit would be subject to approval by . For indirect products where the Fund’s investment will be combined with third-party resources, Financial Intermediaries will be required to invest at least the portion of their instrument provided for investment by the Fund in participating Member States4. Operations may be submitted for approval to until (the “Investment Period”). will be established, provided that Member States accounting for at least of EIB capital have made appropriate commitments to ensure sufficient scale and geographical coverage of the Fund. The EIB on account of the Fund and the EIF in the context of the Fund shall sign operations within the timescales foreseen by State aid rules applicable to the specific product concerned. A prolongation by 6 months could take place subject to approval of the Contributors’ Committee in accordance with the voting rules set out for key strategic changes in 12.2 below5. further prolongation would be subject to unanimous approval within ”. At the end of the Investment Period, following a proposal from EIB, the Contributors’ Committee shall determine whether a reduction in the outstanding commitment of the Contributors is appropriate given the overall commitments at that time. may deploy financial structures in both funded (e.g. loans, equity and quasi-equity investments, risk participations, ABS purchases) and unfunded (e.g. guarantees) form. Appendixes A - E () provide examples of the products that may be used under the Fund indicating the products to be deployed by EIB and EIF respectively. 3The below proposal assumes participation of all EU Member States and the specific number may be adjusted in case not all EU Member States decide to contribute. 4Effectively, these intermediaries may also invest outside the contributing Member States, but the amount invested in the contributing Member states would need to be at least equal to the support received from the Fund for investment. 5For the avoidance of doubt, the reference to “Contributions Paid” in Article 5(8) of the Platform Rules shall be understood as the Contribution committed to the Fund by each Member State Additional products could be included subject to the approval of EIB’s Governing Bodies or respectively EIF’s Governing Bodies, including under applicable rules of delegation, and the approval of the Contributors’ in accordance with the voting rules set out in the Platform Rules or herein established. A results framework for the activities financed by the Fund shall be prepared by EIB (“Results Framework”). EIB shall report on the results of the Fund in accordance with the reporting framework described in Article 9.4 of the Platform Rules, except 9.4.1. (iv) as the financial reporting will not follow Platform Rules and shall instead be governed by the Contribution Agreement. For the avoidance of doubt, article 2.2 of the Platform rules does not apply to operations deployed by the EIF in the context of the Fund under the EIB/EIF Arrangement (“EIF Operations”), for which a separate reporting methodology will apply. Article 9.4 of the Platform Rules apply to EIF Operations except as further specified in the EIB/EIF Arrangement Agreement. EIB shall perform an evaluation of the Fund after the second anniversary of the end of its Investment Period. This evaluation will aim at making the Fund and the operations funded thereunder accountable to the Contributors and at promoting lessons learnt. The evaluation shall be shared with the Contributors’ Committee. All operations/ financing proposals are presented to the Contributors’ . It is foreseen that the Contributors’ Committee shall approve the allocation of funds: (a)For individual operations; (b)For multiple operations, based on global authorisations to be granted by the Contributors’ Committee within certain parameters. (c)For operations that do not fall within the envisaged global authorisations. In relation to the Article 5.5. of the Platform Rules, each Contributor to the Fund is entitled to designate a member that shall represent such Contributor in . The governance provisions regarding the approval of operations are set out in Section 12.2 below. A procedure for consultation of the Commission will be applied for operations deployed by EIB, adjusted to the specific nature of the Fund. Accelerated selection and assessment procedures for existing financial intermediaries may also apply. The payment of Contributions is governed by the Platform Rules and the terms of each Contribution Agreement. Contributions of Member States to the Fund will take the form of a guarantee. Member States may elect to make an Upfront Payment. In addition, EIB expects to provide a suitable level of liquidity into the structure to allow for timely payments of amounts due by Member States. The Contributors agree that the advances made available to the Contributors under their liquidity facility will be debited immediately to their respective Dedicated Register, the principal amount of such advances are re-payable on their relevant Advance Repayment Date (as indicated in the Contribution Agreement) and cannot be covered by utilisation of the liquidity facility and principal repayment of such advances are not included in the waterfall set out in article 10 below. The Contributors agree as well that: costs, and expenses incurred by EIB and EIF and relevant fees due to EIB and EIF, as detailed below, are payable by the Contributors and shall be paid in the following order: first, from any Proceeds and Recoveries in line with the waterfall included in article 10 below; and, second, if and to the extent that the Proceeds and Recoveries are not sufficient, any shortfall relating to: (i) interest accrued on the liquidity facilities made available by EIB to the Contributors, (ii) Legal, Auditors and similar Costs, (iii) FX hedging costs, (iv) negative interest on the Contributor Cash Balance and on cash disbursed by EIB and EIF, and (v) EIB Funding Costs, will be covered pro rata by the Contributors, in accordance with the indemnity provisions under the Contribution Agreement and within the limit of the Contribution of each Contributor and in aggregate the Total Contributions and according to the following principles: -(i) interest accrued on the liquidity facility made available from EIB to the Contributors: will be covered pro-rata by the Contributors who benefitted from the liquidity facility; -(ii) negative interest on the Contributor Cash Balance; will be covered pro-rata by the Contributors who made an Upfront Payment or an additional cash contribution; -(iii) Legal, Auditors and similar Costs, FX hedging costs, negative interest on cash disbursed by EIB and EIF and EIB Funding Costs: will be covered pro-rata by all Contributors; -(iv) No draw down under the liquidity facility will be allowed to cover the items set out above To operationally manage this, a portion of the total commitments will initially be reserved as a buffer to cover costs and expenses No recourse to the liquidity facility or the indemnity provisions under the Contribution Agreement will be allowed for Management Fees, and Recovery Fees, hence EIB has no recourse to the Contributors to cover shortfalls of Management Fees and Recovery Fees. Also, if any portion of Management Fees, and Recovery Fees remains unpaid under the waterfall when allocated at the end of each quarter, such unpaid amounts will roll over to the next quarter (and so forth) and will be due and payable in the following quarter (and so forth), following the same order of payment. Costs and Fees to be paid by the Contributors in accordance with the general principles above and the waterfall below Funding Cost shall comprise interest determined at the rate of: (i) EURIBOR 3 month for operations in EUR, or X-ibor 3 month for other operations, plus (ii) a spread (which can be a positive or negative number of basis points) calculated following EIB's standard pricing methodology recovering EIB's cost of funding on the capital markets and its administrative costs applicable to this type of operations; with (i) and (ii) in aggregate floored at zero. Management Fee: means from the signature date of the first Contribution Agreement until , the annual management fee which shall be paid by the Fund to the EIB and EIF (“Management Fee”) and shall be equal to up to 0.5 (up to zero point five) % of the aggregate of the Committed Amounts under the Transactions subject to an overall aggregate cap of two point five (2.5) % of Total Contributions. Committed Amounts mean the aggregate of the amounts committed by EIB or EIF in relation to operations signed by EIB or EIF for the account of the Fund which are outstanding (but excluding any outstanding defaulted amounts or cancelled amounts). The Committed Amounts shall not be reduced in the event that there has been any provisioning for losses or reduction in market value due to market value fluctuations of the relevant exposures. Such level of fees have been calculated on the basis of ensuring EIB cost coverage and EIF remuneration in line with statutory requirements. Fee shall be calculated as if all the Contributors had committed on the date of the first Contribution Agreement. Legal, Audit, Consultant and similar Expenses Include costs, fees and expenses of EIB and EIF external lawyers, auditors, consultants (including in the context of the structuring of and the transactions and operations performed in relation to the Fund) and similar costs, fees, and expenses (including costs, fees and expenses to cover investment fees and costs for the investment of the Cash Balance). EIB and EIF shall charge to the Fund a flat-fee recovery fee for operations that EIB or EIF needs to recover amounts or in case that it applies a restructuring. The recovery fee shall be calculated at the rate of of disbursed but not recovered amounts, subject to an overall aggregate cap of zero point five (0.5) % of Total Contributions cash flows received under a debt operation of the Fund (other than amounts qualifying as Recovery or Proceeds) that are classified as principal in accordance with EIB’s accounting policies shall be allocated to the reduction of the principal outstanding of the or, for EIF funded debt products, the funding line made available from EIB to EIF to perform funded operations of the Fund. means the loan/credit facility or facilities made available by the Bank to the Fund to provide financing for the underlying funded transactions. Proceeds mean any interest, fees, profits, and Recoveries received under the underlying transactions and, for equity transactions, any reflows (including restitution of commitment and distributions). Recoveries means moneys recovered from underlying transactions. Proceeds and Recoveries received under an operation of the Fund shall be allocated by the Bank acting on the account of the Fund at the end of each quarter 31 , 30 , , between the Contributors and the EIB and EIF as follows: (a)firstly, to EIB and EIF for Management Fees as apportioned to the quarter in accordance with ACT/360, and Recovery Fees (b)secondly, to EIB and EIF for EIB/EIF Legal Audit, Consultant and similar Expenses (c)thirdly, to EIB and EIF for FX hedging costs and foreclosure costs and for negative interest on EIB or EIF disbursed amounts, if any; (d)fourthly to the EIB for the aggregate interest accrued on the Contributor liquidity facilities (if any) made available by EIB and for the aggregate negative interest on the Contributor Cash Balances, pro rata to each other; (e)fifthly, to EIB for the accrued Funding Cost on the or funding line made available from EIB to EIF and/ or in the context of the Fund; (f)Sixthly, up to one (1.0) % of Total Contributions, to the Operational Expense Buffer; (g)Seventhly, to the reduction of the principal outstanding of (i) the or (ii) the funding line made available from EIB to EIF to perform funded operations by allocating (A) Proceeds and Recoveries generated by the transactions funded by the to the and (B) Proceeds and Recoveries generated by the transactions funded by the funding line made available from EIB to EIF to that funding line and (h)lastly, save for the paragraph immediately below, to each Contributor, pro rata to their Contribution and credited to their Dedicated Register (the “Contributor Share”). No Contributor Share will be distributed before the end of a period of ten years starting from the effective date of the first Contribution Agreement. After this period, any residual Contributor Share will be credited to each Contributor Dedicated Register, save for of that residual Contributor Share which will be retained by the EIB to cover for future expenses, costs and fees of EIB and EIF, in accordance with the waterfall. Except for interest accrued on the liquidity facilities, any amount not paid out of the waterfall on one quarterly payment date, unless otherwise paid under the Contribution Agreement, shall remain outstanding until there are sufficient funds to pay such amount on any subsequent quarterly payment date. Operational Expense Buffer means a buffer which shall be used to pay any shortfall in items (a) – (e)at the end of each quarter, in that order. The balance of the Operational Expense Buffer will be credited to the Contributors pro rata to their Contribution on the Dedicated Register after December 31st 2037. Payments relating to Demands Payments relating to Demands under the Guarantee Agreement, shall be treated as cash flows received under the relevant operation of the Fund, except for unfunded transactions, for which such proceeds shall be allocated to the payment of the demands made under these unfunded transactions (including the payment of any fees or costs linked thereto). If any mistakes or incorrect determinations (including as a result of inaccurate information provided final beneficiaries or other third parties) have been made by the EIB in relation to the calculation or allocation of any amounts under this Agreement, the parties agree that EIB shall, as soon as it becomes aware of such mistakes or incorrect determinations, rerun any such calculations or allocations in order to correct such mistakes or errors and when necessary, claw back any amounts unduly paid or distributed to any Contributor. The Fees and Waterfall sections might be discussed and revised at the first or subsequent Contributors’ Committees. Amendments to Fund Description Description may be amended from time to time, subject to approval of the Contributors’ in accordance with the voting rules set out in Article 5 (8) of the Platform Rules. EIB may, at its own discretion, amend the provisions of this Fund Description to the extent such amendments result from the change in EIB’s and EIF’s rules and policies or from the regulations applicable to EIB’s and EIF’s activities or from the decisions of EIB’s and EIF’s Governing Bodies (“Obligatory Amendments”). If one or more Contributors object(s) to the introduction of the Obligatory Amendments, these Contributors can engage into discussions with EIB regarding the Contribution Agreement they entered into with EIB, if the Obligatory Amendments: (i)prevent such Contributor(s) continuing to participate in the Fund in compliance with the laws and regulations applicable to it; (ii)require the Contributor(s) to increase the amount of their Contributions; or (iii)substantially increase their costs of further participation in the Fund.