prop · H703181 · 2020-06-10 00:00:00 — 1.3Subject to 5.1, the Guaranteed Contribution of the Guarantor is equal to the value set out next to the Guarantor's name in Schedule 1 to this Guarantee Agreement. The Guarantee Contribution of the Guarantor is equal to the percentage set out next to the Guarantor's name in Schedule 2 to this Guarantee Agreement. 1.4The cumulative total value of any or all Demanded Amounts and Additional Demanded Amounts (as defined by 1.6 and 1.7 respectively) on the Guarantor may never exceed the Guaranteed Contribution of the Guarantor. The Guarantor shall not be liable to pay an amount in excess of its Guaranteed Contribution. 1.5The obligations of the Guarantor under this Guarantee Agreement and of other Guarantors under their respective Guarantee Agreements are several only. 1.6A Demand under this Guarantee may be made by the Commission at any time before or after a scheduled interest payment or a scheduled principal payment or other amount is due (together the “Amount ”) under Borrowings, if: (i)the Union (for whatsoever reason) has not received in full a scheduled payment as and when due under a from a of Union being financed by Borrowings or it is notified by such or becomes aware following an event of default under the that such will not or will not be able to make payment in full of a scheduled payment under such a as and when due; and (ii)an Amount is, has been or will be due under Borrowings. In such an event, the Commission shall at its sole discretion determine an amount to be called from the Guarantors (“Amount of the Call”), up to a maximum of the Amount , to ensure that the Union has sufficient resources to make the necessary payment. In determining the Amount of the Call, the Commission shall draw any amount, which may be zero, that the Commission considers in its sole discretion, having regard inter alia to the total contingent liabilities of the Union (including under the Balance of Payment Facility) and the sustainability of the Union budget, that may be available under the own resources ceiling for payment appropriations. The Commission shall make on all Guarantors. The Demands shall be pro rata to the relative share of each Guarantor in the Guarantee Contribution . specify the Amount , the extent to which amounts under the own resources ceiling for payment appropriations have been drawn and the Amount of the Call and shall request in writing the Guarantor to transfer an amount equal to its Guarantee Contribution of the Amount of the Call (such amount being the “Demanded Amount”), in cleared funds to the account referred to in 1.9. The Demanded Amount shall comply with 1.4. The Guarantor unconditionally and irrevocably guarantees to the Commission the due and punctual payment of the Demanded Amount on demand and the Guarantor shall transfer the Demanded Amount in accordance with the terms of such Demand. The transfer shall occur within ten (10) Business Days. As per the , the referred to in 1.6(i) shall within two (2) Business Days of the Demand being made notify to the Commission its ability to meet the Demand. 1.7In the event that any one or more of the Guarantors does not pay its Demanded Amount or the referred to in 1.6(i) has notified its inability to meet the Demand or has failed to notify its ability (the unpaid amount being the "Additional Shortfall"), the Commission shall make a further Demand (or Demands) (such Demand(s) being the “Additional Demand(s)”) on the other Guarantors to pay their Adjusted Payment Contribution of the Additional Shortfall(s) (the “Additional Demanded Amount”). For the purpose of this 1.67, the Adjusted Payment Contribution of a Guarantor means the Guarantee Contribution of each Guarantor adjusted on a pro rata pari passu basis the non-paying Guarantor(s), however, being excluded such that its/their Adjusted Payment Contribution is equal to zero for this purpose such that the aggregate of the Adjusted Payment Contribution of the remainder of the Guarantors is equal to 100 per cent. The Commission shall make on all Guarantors pro rata to the relative share of each of the other Guarantors in the Guarantee Contribution , as adapted so as to not take into account the relative share of the Guarantor having failed to honour its duty. shall specify the Additional Shortfall and shall request in writing the Guarantor to transfer an amount equal to Additional Demanded Amount, in cleared funds to the account referred to in 1.9. The Additional Demanded Amount shall comply with 1.4. The Guarantor unconditionally and irrevocably guarantees to the Commission the due and punctual payment of the Additional Demanded Amount on demand and the Guarantor shall transfer the Additional Demanded Amount in accordance with the terms of such Additional Demand. The transfer shall occur within ten (10) Business Days or such time such that sufficient funds have been paid to the account specified in 1.9 to permit payment in full the Amount on the scheduled date of payment or, in the event of such an Additional Demand being made by the Commission after the scheduled date of payment, prior to the expiry of the grace period for non-payment of such amount set out in the Borrowings (in each case provided that the Additional Demand is made more than five (5) Business Days prior to the scheduled due date of the required payment, and, if this is not the case, such Additional Demand shall be paid no later than the fifth (5th) Business following the date of receipt of such Additional Demand). This 1.7 shall apply cumulatively mutatis mutandis if one or more Guarantors do not pay their respective Adjusted Contribution of an Additional Shortfall. 1.8Following a Demand or Additional Demand, the Commission shall initiate recovery proceedings in respect of the and, if applicable, the Guarantee Agreement. The Commission shall reimburse the Guarantor from amounts recovered by the Commission in respect of the or Guarantee Agreements. For amounts recovered following a Demand or an Additional Demand on the Guarantor, the Commission shall by notice request payment details of the Guarantor and upon their receipt reimburse the Guarantor within ten (10) Business Days for any amount provided under the respective Demand or Additional Demand. In the case of a recovery in several instalments, the Guarantor will be reimbursed in proportion to the Guarantor’s contribution to the Shortfall or Additional Shortfall. In such a case, priority will be given to repay Additional Demands and only once fully satisfied will Demands be satisfied. 1.9Payments under this Guarantee Agreement shall be made to the account as identified in each Demand. 1.10The Guarantor is not entitled to set-off or deduct any amounts owed to it by the Union from any payments due by the Guarantor under this Guarantee Agreement. The obligations of the Guarantor herein contained shall constitute and be continuing obligations notwithstanding any settlement of account or other matter or thing whatsoever and shall not be considered satisfied by any intermediate payment or satisfaction of all or any of the Union's obligations under or in respect of any Borrowings and shall continue in full force and effect for so long as and until all sums due from the Union in respect of the Borrowings have been paid, and all other actual or contingent obligations of the Union thereunder or in respect thereof have been satisfied, in full provided that each Guarantor shall only be liable for its Guaranteed Contribution. The obligations of the Guarantor herein contained shall not be discharged, impaired or otherwise affected by: 2.2.1Indulgence, Waivers or Consents: time or other indulgence or any waiver or consent being granted or agreed to be granted to the Union or to the Commission in respect of any of its obligations under or in respect of any Borrowings and/or ; 2.2.2Amendment: any amendment, novation, supplement, extension, (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature) or replacement, waiver or release of, any obligation of the Union under or in respect of any Borrowings or any security or other guarantee or indemnity in respect thereof including without limitation any extension of or any increase of the obligations of the Union in respect of any Borrowings or the addition of any new obligations for the Union provided that none of the foregoing shall result in any increase of the Guarantor's liability under this Guarantee Agreement; or The Guarantor undertakes that its obligations hereunder will at all times rank pari passu with all other present and future, direct, unconditional, unsubordinated and unsecured obligations of such Guarantor. 2.4Subrogation of Guarantor’s Rights Acknowledging that this Guarantee Agreement does not guarantee the repayment of a , the Guarantor acknowledges that it is not entitled to any rights of subrogation. 3.1The Commission shall inform the General of the Council of Union of the signature of the Guarantee Agreement. 3.2The Commission shall report to the Guarantors on the outstanding claims under and liabilities under Borrowings on a quarterly basis. 3.3The Commission shall immediately notify the Guarantors of becoming aware of any event that may reasonably be expected to result in a call under the Guarantee Agreement. 4.BENEFIT OF THE GUARANTEE AGREEMENT The Guarantor shall honour this Guarantee Agreement on demand. The Guarantor shall not be entitled to assign or transfer all or any of their rights, benefits and obligations hereunder. 5.REDUCTION AND EXPIRY OF THE GUARANTEE 5.1From 31st , should a Commission report referred to in 3.2 provide that the outstanding liabilities under Borrowings is less than 000 000 000, the Guaranteed Contributions from Guarantors shall irrevocably be reduced on a pro rata pari passu basis so that the total Guaranteed Contributions from Guarantors is equal to the outstanding liabilities under Borrowings. From its date of application, this 5.1 shall apply to each report. 5.2Subject to 5.3, this Guarantee Agreement shall expire on the date (the "Expiration Date") which is the earlier of (i) the date when all Borrowings have been irrevocably paid in full, no further Borrowings may be issued under Council Regulation (EU) 2020/672 and any and all obligations of the Guarantor have been fully and irrevocably paid and (ii) 31st . 5.3In the event of any Demand or Additional Demand under this Guarantee Agreement, the obligation of the Commission to reimburse the Guarantor from amounts recovered in line with 1.8 shall continue until there is a reimbursement in full notwithstanding the occurrence of the Expiration Date. 6.INTERPRETATION IN CONFORMITY AND PARTIAL INVALIDITY All provisions hereof shall be interpreted, in case of doubt, so that they are in conformity with the governing law. If at any time any provision hereof is or becomes illegal, invalid or unenforceable under the governing law, the legality, validity or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. All notices, demands and other communications to the Guarantor hereunder shall be made in writing (by letter or fax or e-mail) and shall be sent to the Guarantor at: [Guarantor's address] +[number] [name or department] With a copy to: +[number] [name or department] or, in relation to the Guarantor, to such other address or fax number or for the attention of such other person or department as the Guarantor has notified to the Commission in the prescribed for the giving of notices. notice, demand or other communication sent in accordance with 7.1 (Address for notices) shall be effective upon actual receipt by the Guarantor; provided that any such notice, demand or other communication which would otherwise take effect after 4.00 p.m. on any particular day or on a day which is not a Business not take effect until 10.00 a.m. on the immediately succeeding Business . In this Guarantee Agreement: "Business " shall mean a day on which commercial banks and foreign exchange markets are open or required to be open for business in . All references in this Guarantee Agreement to an agreement, instrument or other document shall be construed as a reference to that agreement, instrument or other document as the same may be amended, supplemented, restated, extended, replaced or novated from time to time. This Guarantee Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and shall be construed in accordance with European Union law, supplemented if necessary by the Luxembourgish law. The Court of of Union, in accordance with Article 272 of the Treaty on the Functioning of Union, shall have exclusive jurisdiction to settle any dispute (a "Dispute"), arising out of or in connection with this Guarantee Agreement (including a dispute relating to the existence, validity or termination of this Guarantee Agreement or any non-contractual obligation arising out of or in connection with this Guarantee Agreement) or the consequences of its nullity. All and terms stipulated herein have been duly noted and approved by [•][in line with •1] and the Commission. This Guarantee Agreement shall enter into force upon the date of signature by the last Party. Done in two originals, one for the Guarantor and for the Commission. EXECUTED as a guarantee 1Reference to national legal base for signature if necessary for the Guarantor . by [NAME OF THE MEMBER STATE] [DATE OF SIGNATURE] EXECUTED as a guarantee [DATE OF SIGNATURE] Amount (EUR) 6 383 820 000 2 252 890 750 4 406 976 250 3 183 786 000 1 441 199 500 25 000 000 000 (the relative shares of Member States in the total Gross National Income of the Union, as resulting from the column (1) of Table 3 of Part A “Introduction and financing of the general budget of the Union”, of the revenue part of the budget for 2020 set out in the general budget of Union for the financial year 2020, as adopted on ) Guarantor's Contribution in response to COVID-19 First Demand Guarantee Agreement the Acceding Guarantors acceding from time to time 2019/20:181 Bilaga 7 The Original Guarantors and the Acceding Guarantors acceding from time to time of the first part, and with its seat at 98-100, , L-2950 Luxembourg- Kirchberg, Grand Duchy of , acting for the account of the Fund hereinafter collectively referred to as the "Guarantors" and each a "Guarantor" hereinafter referred to as the "Beneficiary" of the second part. FIRST DEMAND GUARANTEE ............................................................................................... DEMANDS AND PAYMENTS .................................................................................................. INDEPENDENT PAYMENT OBLIGATION .............................................................................. AUTONOMY OF THE FIRST DEMAND GUARANTEE........................................................... PLACE OF PERFORMANCE................................................................................................. RECITALS, SCHEDULES AND ................................................................................ FORM OF DEMAND NOTICE............................................................................................................. FORM OF ACCESSION NOTICE....................................................................................................... MAXIMUM INITIAL INDIVIDUAL AMOUNTS .................................................................................... (a)This first demand guarantee agreement is entered into in the context of the contribution agreements entered into or to be entered into between Member States of Union and for the purpose of establishing the in response to COVID-19 (the "Fund"). European Union institutions, or institutions created by Member States of Union, may also contribute to the Fund. (b)Pursuant to transactions carried out for the account of the Fund by the Beneficiary for the purpose of implementing the Fund's objectives with one or more counterparties (each a "Counterparty"), the Beneficiary will enter into guarantees, financing arrangements in the form of loans, facilities or other finance agreements, equity investments or other transactions (including the EIB/EIF Arrangement), such transactions being entered into in accordance with the terms and conditions (and in particular the governance and decision process) of the Fund (the "Transactions"). (c)As part of the Transactions, the Beneficiary has entered or will enter into a back-to-back arrangement with ("EIF") for the account of the Fund pursuant to which coverage will be provided to the EIF in relation to its role under the program for transactions relating to the Fund in accordance with the Fund Description and for the purpose of implementing the Fund's objectives (the "EIB/EIF Arrangement"). (d)The Guarantors hereby grant an autonomous first demand guarantee (garantie autonome à première demande) in favour of the Beneficiary (the "First Demand Guarantee") pursuant to this guarantee agreement (the "Guarantee Agreement"). (e)An initial group of EU Member States has each entered into a contribution agreement and such Member States will grant this Guarantee as Original Guarantors. time, other Member States intend to enter into a contribution agreement with in the context of the Fund and will accede to this Guarantee as Acceding Guarantors. European Union institutions or institutions created by Member States of Union will accede to this Guarantee if they contribute to the Fund. (f)At any point in time, this Guarantee Agreement shall apply as an autonomous first demand guarantee obligation between the Guarantors then party to this Guarantee Agreement and the Beneficiary, in accordance with the terms hereof. (g)The parties to this Guarantee Agreement expressly agree that any reference in this Guarantee Agreement to the Transactions, the Transaction Terms or any exposure thereunder shall under no circumstances be construed as affecting the independent, autonomous, unconditional and irrevocable nature of the First Demand Guarantee granted pursuant to this Guarantee Agreement. NOW THEREFORE it is hereby agreed as follows: In this Guarantee Agreement, unless a contrary indication appears: (a)any reference to: (i)the "Guarantors", the "Beneficiary" and the "Counterparty" shall be construed to include its and any subsequent successors in title, permitted assigns and permitted transferees; (ii)this "First Demand Guarantee", this "Guarantee Agreement" or any other agreement or instrument is a reference to such agreement or instrument as amended, novated, supplemented, extended or restated from time to time; (iii)a "person" includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether having separate legal personality or not); (iv)a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; (v)a reference to a legal provision is a reference to that provision as amended or re- enacted; and (vi)save as otherwise provided, a time of day is a reference to time; (b)references to Articles, Recitals and Schedules are, save if explicitly stipulated otherwise, references respectively to articles of, recitals and schedules to this Guarantee Agreement; (c)Articles and Schedules headings are for ease of reference only and shall not impact the interpretation of this Guarantee Agreement; (d)words importing the singular shall include the plural form and vice versa; and (e)a term used in any notice given under or in connection with this First Demand Guarantee or this Guarantee Agreement has the same meaning as ascribed to it in this Guarantee Agreement. In this Guarantee Agreement: "Accession Date" has the meaning ascribed to such term in Article 8.1(c). "Accession Notice" has the meaning ascribed to such term in Article 8.1(b). "Acceding Guarantor" has the meaning ascribed to such term in Article 8.1(a). "Business " means any day other than a Saturday or a Sunday (a) where the Beneficiary is open for business in , and (b) where referring to a payment in EUR, a TARGET Settlement . "Counterparty" has the meaning ascribed to such term in Recital (b) and shall include EIF in its capacity as counterparty of the Beneficiary under the EIB/EIF Arrangement. "Demand" has the meaning ascribed to such term in Article 1.2. "Demand Notice" has the meaning ascribed to such term in Article 1.2. "Effectiveness Period" has the meaning ascribed to such term in Article 3.1. "EIB/EIF Arrangement" has the meaning ascribed to such term in Recital (c). "EIF" means . "EUR" or "euro" means the lawful currency of the Member States of Union which adopt or have adopted it as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of Union or their succeeding treaties. "Fund" has the meaning ascribed to such term in Recital (a). "Guarantor" has the meaning ascribed to such term in the description of the parties in the preamble, and shall include, as of each Accession Date, each Acceding Guarantor who has adhered to this Guarantee Agreement with effect on such Accession Date. "Maximum Guarantee Amount" has the meaning ascribed to such term in Article 1.1. "Maximum Initial Individual Amount" means the maximum amount for which each Guarantor may be liable under this Guarantee and which is set out for each Guarantor in Schedule D, as such Schedule will be updated with the accession of Acceding Guarantors by notification to all Guarantors by the Beneficiary. "Maximum Individual Amount" means for each Guarantor, (i) initially, at the time of signing this Agreement as Original Guarantor or acceding thereto as Acceding Guarantor, the amount of the Maximum Initial Individual Amount and then (ii) from time to time, the amount under (i) as reduced (or increased, but never to an amount higher than the Maximum Initial Individual Amount) in accordance with the terms of this Guarantee Agreement. "Original Guarantor" means a Guarantor that has entered into this Agreement on the date of this Agreement. "Payment Period" has the meaning ascribed to such term in Article 1.2. "TARGET Settlement " means any day on which TARGET2 (the Trans-European Automated Real-time Gross Settlement Express Transfer system) is open for the settlement of payments in euro. "Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same). "Termination Date" has the meaning ascribed to such term in Article 3.1. "Transaction" and "Transactions" has the meaning ascribed to such terms in Recital (b) and includes the EIB/EIF Arrangement. "Transaction Terms" means the terms and conditions of the Transaction as approved in accordance with the terms of the Fund for inclusion of the Transaction into the Fund. (a)The Guarantors hereby irrevocably and unconditionally undertake to pay to the Beneficiary, on the Beneficiary's first written demand, and in accordance with the conditions set out here below, all sums which the Beneficiary may claim hereunder up to a maximum amount constituted for each of them by its Maximum Individual Amount and collectively by the sum total of all Maximum Individual Amounts (together the "Maximum Guarantee Amount"). (b)Subject to Article 0 and without prejudice to Article 8.2 hereunder, the Maximum Individual Amount for each Guarantor shall be reduced by the sums paid by it pursuant to and in accordance with this Article 1.