prop · H703181 · 2020-06-10 00:00:00 — Management of the EIB, in particular in case of a change in this strategy before the term of the investment horizon determined by the Bank, in case of premature withdrawals of a Fund Outstanding Balance or termination of the Platform or of an individual Fund. shall assume no responsibility for the consequences of events beyond its control, such as force majeure, a war, a riot, terrorist acts, IT failures, measures taken by public or foreign authorities or consequences of changes to the laws of or a foreign country. shall not be liable for the correctness of information received from third parties and on which it relies for the management of the Fund Outstanding Balance. Similarly, the Bank shall not be held liable for inaccurate financial information provided to the Contributors on the basis of information provided by third parties. The responsibility of examining the expediency of investments in relation to current tax, duty and currency legislation remains with the Contributors. may manage the Fund Outstanding Balance without regard to the tax situation of the Contributor and shall assume no liability in this respect. If any claims are made by or against the Bank, related to these Platform Rules or the services provided thereunder, each Contributor agrees to provide the Bank with all assistance reasonably requested. offers no guarantee of any kind regarding investment success, which each Contributor expressly accepts. shall maintain its recordings in the relevant accounts of the Platform exclusively in euros. shall prepare the annual audited and consolidated financial statements for the Platform in euros. The consolidated financial statements shall be drawn up on the basis of cash receipts and disbursements except for the investments of Fund Outstanding Balances which shall be reported on a fair value basis. The financial statements shall comprise: (i)a consolidated statement of account movements of the Funds under the Platform; and (ii)individual statements for each Fund including the breakdown of all movements with value dates and including an overview of the Fund Outstanding Balances and an overview of fees charged. The financial year of each Fund is the calendar year. Once they have been audited in accordance with Article 10 of these Platform Rules, the financial statements shall be approved, in line with financial statement approval procedures generally applied by EIB to third party mandates. Whenever it shall be necessary for purposes of preparation or presentation of financial statements to determine the value of any currency in terms of another currency, the valuation shall be made by the Bank, using the same principles as the Bank applies for its own resources operations. 9.3.2Investment of Fund Outstanding Balance Whenever it shall be necessary for purposes of preparation or presentation of financial statements to determine the fair value of investments of the Fund or the Platform Outstanding Balance in comparison to the cost of investments, the valuation shall be made by the Bank, using the same principles as the Bank applies for its own resources operations. shall provide each Contributor with the following reports: 9.4.1Reporting at the Fund level: (i)annual operations progress reports: providing a status update on operations, summary of operational highlights and issues over the reporting period, results report on the Fund level and financial status; (ii)bi-annual operations progress update: providing information on new operations approved, financial resources and disbursements status, and the project pipeline; (iii)operations completion reports: providing a fully-fledged information on operation including results and financial aspects; and (iv)annual audited and consolidated financial statements. Measurable results shall be reported against the Result Framework developed for each Fund, and shall be based on the existing result measurement tools used at the EIB[1] (). Such Results Framework, which may be revised by the Bank from time to time in consultation with the Contributors, shall be used for reporting and evaluation purposes. [1]measures the results of its operations through the 3 PA and ReM frameworks (inside and outside the EU respectively) and the logical framework covers both lending and technical assistance operations. These are based on a 3 pillar methodology, which is designed to show how EIB inputs (e.g. loan, technical advice) generate outputs (e.g. an electricity transmission line, a training programme), which enable outcomes (e.g. improved access to energy, improved institutional capacity) and, over time, lead to impact (e.g. development of economic infrastructure, regional integration). In addition, qualitative information shall be provided on important aspects of, among others, sustainability, ownership, broader economic impact, as frequent as appropriate. Limited additional reporting may be agreed with any Contributor to a Fund on a bilateral basis and may be subject to extra fees. 9.4.2Reporting at the Platform level The EIB shall issue a consolidated Annual Contributors Report that shall highlight activities and achievements across the Bank’s Funds portfolio, providing visibility to the Contributors and each of the Funds to which they contribute. In the context of review of the Platform activities (and for the first time in ), the Bank shall provide the Contributors with an evaluation report analysing the impact of operations financed by the Funds under the Platform in the beneficiary countries. The consolidated financial statements with respect to the Platform shall be subject to external auditing and the costs of such audit shall be borne by the Platform. The individual account statements shall not be subject to external audit but shall be covered under the external audit of the Platform’s consolidated financial statements. The Platform shall be managed in accordance with the Bank’s usual criteria and procedures, including appropriate control measures. 11.1 Termination of a Fund and of the Platform The Platform and the Funds under the Platform shall remain in force so long as there remain funds, commitments or investments with respect to the Platform and the Funds. shall not specify a termination date but may be terminated at any time by adecision of the relevant Fund’s Contributors’ Committee made with the unanimous consent of the Contributors and, if appropriate, after consultation of the EIB’s Governing Bodies. 11.2 Payment of the Fund Outstanding Balance upon termination of a Fund Upon a decision of the relevant Contributors’ Committee, in view of the termination of a Fund, the following provisions shall apply with respect to the Fund Outstanding Balance of that Fund: (i)the Bank shall forthwith cease all activities relating to such corresponding amounts, except those incidental to the orderly realisation, conservation and preservation of such amounts and the settlement of the direct or contingent obligations to which they may be subject; (ii)in case where the Fund Outstanding Balance is positive, the Bank shall discuss with Contributors as to possible uses of the funds available from the Fund Outstanding Balance and not yet committed into an operation at the time of termination, with a view to integrate such funds in other Funds or as otherwise agreed with the Contributors. The remaining funds, if any, may as well be returned to the Contributors, if so requested in the decision on termination of the Fund; (iii)the Bank shall establish individual account statements for the Fund being terminated for covering the period from the last annual consolidated financial statements till the date of termination, which shall be subject to the audit procedure referred to in Article 10 of these Platform Rules; and (iv)in case where the Fund Outstanding Balance is equal to zero, the Bank may send to the Contributors an invoice corresponding to any remaining costs incurred, pro-rata their respective Contributions Paid. STANDARD OF CARE AND LIABILITY 12.1 Standard of Care shall, in accordance with its internal policies and procedures, take all appropriate measures to prevent corrupt, fraudulent, collusive, coercive and obstructive practices in connection with the use of the Funds’ proceeds, and include provisions in its agreements with beneficiaries to give full effect to the relevant Bank guidelines on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism. 12.2 acting as for its own resources and operations When acting as Administrator of the Platform, the Bank shall exercise the same degree of care and diligence as for its own resources and operations. Each Contributor acknowledges and agrees that the obligations of the Bank, as Administrator, are to be performed on a best endeavour basis only (“obligation de moyens”). shall administer the Platform as it deems appropriate, in all respects in accordance with these Platform Rules and its internal policies and procedures. The relevant policies and procedures are available on the website of the Bank. may adopt new internal procedures and policies as it deems appropriate, which shall be applicable to these Platform Rules to the extent compatible with them. 12.3 acting in specific circumstances In certain circumstances, the Bank may, with the relevant Contributors’ approval expressed in a form separately agreed upon by the Bank and the relevant Contributor, carry out operations, under an individual Fund, that present a level of risk that can normally not be undertaken and borne by the EIB with its own resources. Therefore, the internal policies and procedures of the Bank shall not apply to these operations. In these specific circumstances, the Bank shall implement ad hoc policies and procedures in accordance with the level of risk inherent to, and the nature of, the contemplated operations. Such ad hoc policies shall always be consistent with the relevant Bank’s guidelines on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism. shall communicate those ad hoc policies and procedures to the relevant Contributors to the extent practically possible before the holding of a Contributors’ Committee to decide on the contemplated operation, as the case may be and, if not practically possible, promptly after the decision to launch the contemplated operation has been made. 12.4 Liability limited to gross negligence and wilful misconduct Unless otherwise provided for in these Platform Rules and or in the relevant Contribution Agreement, the Bank shall only be liable in the case of gross negligence (“faute lourde”) or wilful misconduct (“faute dolosive”). 12.5 Force majeure and disturbance of business shall not be liable for any losses caused by abnormal or unforeseeable circumstances, force majeure, riot, war or natural events or due to other occurrences which are beyond the control of the Bank (for instance, strike, lock-out, traffic hold-ups, administrative acts of domestic or foreign authorities or courts, as well as interruptions of telecommunications system or other similar events). Nothing in these Platform Rules shall require the Bank to take any action which, in the opinion of the Bank acting in good faith, is not possible or would be in contravention of any applicable law, regulation, market custom or practice. shall not be liable for any delays in the performance of its obligations under these Platform Rules arising from compliance with duties flowing from applicable laws and regulations. Each Contributor acknowledges and accepts that it has only recourse to the Contributions Paid allocated to the relevant Fund, in accordance with the account statement to be established by the Bank in relation to each Fund and subject to the deduction of any applicable fees, costs, losses, and charges. Each Contributor expressly acknowledges and accepts that once all the Contributions Paid of the relevant Fund have been realised (that is, if upon termination of the relevant Fund, all the Contributions Paid, subject to the deduction of any applicable fees, costs, losses, and charges, have been redeemed on a pro rata basis), it is not entitled to take any further steps against the Bank to recover any further sums due (if any) and the right to receive any such sum shall be extinguished. Each Contributor accepts not to attach or otherwise seize the assets of the Fund, if at all possible. AMENDMENTS AND ORDER OF PRECEDENCE may, at any time and in consultation with Contributors, amend the provisions of these Platform Rules. shall inform the Contributors indicating the provisions it intends to modify or add as well as the content thereof. In proposing amendments to the provisions of the Platform Rules, the Bank shall assess the potential impact of those amendments on existing Funds and inform the Contributors thereof. The amendments shall be deemed approved by the Contributors if they have not addressed a written objection to the Bank within 15 Business Days of dispatch of the notification by the Bank regarding the amendments. If one or more Contributors object(s) to the amendments proposed, these Contributors are entitled to terminate the Contribution Agreement they entered into with the Bank with immediate effect within the timeframe set out above and to ask for the refund of the portion not invested into operations, if any, and subject to the deduction of any applicable fees, costs, losses, and charges, of their Contribution Paid if the amendments proposed by the Bank: (i)prevent such Contributor to continue to participate to the Platform in compliance with the laws and regulations applicable to it; (ii)impose on the Contributors to increase the amount of their Contributions; or (iii)substantially increase the costs of participation in the Platform. A Contributor willing to terminate the Contribution Agreement pursuant to the termination process described above shall give evidence to the Bank and the other Contributors in the Fund that it is affected by an event listed under items (i)-(iii) above. If an amendment to the provisions of the Platform Rules has a negative impact on one or more Funds, the relevant Contributors’ Committees shall decide whether to continue the affected Funds or to terminate them in accordance with Article 11.1 of these Platform Rules. Each Contributor acknowledges and agrees that technical amendments (such as, but not limited to, correction of drafting errors, numbering of Articles in the Platform Rules or cross- or external references in the Platform Rules) and amendments that do not affect the substance of any provisions of these Platform Rules may be made unilaterally by the Bank. shall immediately inform the Contributors of those technical or minor amendments. 13.2 Order of precedence In the event of any inconsistency or conflict between the terms of the Platform Rules, a Contribution Agreement and those of the corresponding Fund Description, the following order of priority shall apply: (i)the Contribution Agreement (as between the Bank and the relevant Contributor); (ii)the Fund Description; and (iii)the Platform Rules. In the event that there is more than one Contribution Agreement between the Bank and a Contributor in relation to the same Fund, then in the event of any inconsistency or conflict between the two, the later shall prevail as between the Bank and that Contributor. If, at any time, any of the provisions under these Platform Rules is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Platform Rules nor of such provisions under the law of any other jurisdiction shall in any way be affected or impaired thereby. DISPUTE RESOLUTION AND GOVERNING 15.1 Amicable resolution of disputes The parties having agreed to these Platform Rules shall endeavour to settle amicably any dispute or complaint relating to the interpretation, application or fulfilment of these Platform Rules. For the purposes of any dispute arising in relation to these Platform Rules, the parties hereby submit to the jurisdiction of the Court of of Union. These Platform Rules are governed by, and shall be construed in accordance with, the laws of the Grand-Duchy of . RECEIPT OF THIRD PARTY FINANCING With a view to reinforcing complementarities and coordination with other parties’ activities that are in line with the objectives and guiding principles of the Platform, (other countries, International Financial Institutions, funds, foundations, private and banking entities etc.) the Contributors’ may authorize Third Party Financing in relation to that Fund. Capitalised terms used in this and not otherwise defined herein shall have the meaning given to such terms in the Platform Rules to which this is attached. Article 1 Third Party Financing Third Parties may contribute funds to a Fund under the Platform subject to the approval by the Bank and to the unanimous approval by the Contributors’ . Once approved as eligible resources for the relevant Fund, Third Party Financing is subject to the special terms and conditions set forth in this . The approval of Third Party Financing does not result in the Third Party acquiring the status of Contributor and does not give the right to the Third Party concerned to be represented in the Contributors’ and to participate in its meetings, written procedures or in any governance structure of the relevant Fund. shall act as an intermediary with respect to Third Party Financing. In this respect, Third Party Financing shall not be recognized as Contributions in the Fund’s financial statements. Article 2 Third Party Agreement Subject to the approval of the Bank’s Governing Bodies and the Contributors’ , the Bank may sign, in its role of Administrator, an agreement with the relevant Third Party (the “Third Party Agreement”) specifying the name of the Third Party (including name of the contact person), nature of the Third Party Financing, applicable rules and its use. The use of the Third Party Financing shall be in line with the general purposes of the Platform and the related Fund, and for the operations approved as indicated in the Third Party Agreement. Article 3 Amount and Payment Modalities of Third Party Financing The Third Party Agreement shall in principle include the total amount and payment modalities of the Third Party Financing. When such elements are not included in the Third Party Agreement at the time of the signature, the Contributors’ shall be separately informed about the precise amount and payment modalities of the Third Party Financing under the Third Party Agreement, as soon as practically possible. Funds shall be committed exclusively in euros. Article 4 Rules Applicable to Third Party Financing Proposals for potential operations funded from the Third Party Financing shall be submitted for approval to the Bank’s Governing Bodies and the Contributors’ shall be informed about the approved operations. The Third Party Financing shall be governed by the terms and conditions specified in the Third Party Agreement, including the use of such funds, reporting obligations, payment modalities, visibility, dispute settlement. Article 12 of the Platform Rules shall apply with respect to Third Party Financing. Article 5 for Third Party Financing shall open a separate account in its accounting books for each Fund under which Third Party Financing has been approved. This account shall be called “Fund [] – Financing from Third Party” for the receipt of the Third Party Financing, the disbursement of the monies and the Bank’s fees, and any potential remuneration as indicated in the Third Party Agreement. Article 7 of the Platform Rules shall apply with respect to Third Party Financing. Article 6 Financial Reporting shall provide financial reporting to substantiate the use of the Third Party Financing in accordance with the Article 9 of the Platform Rules. Movements from the separate account opened for Third Party Financing may be subject to a separate external audit in accordance with the provisions of the Article 10 of the Platform Rules. shall ensure that the Contributors’ is comprehensively informed on an annual basis with respect to all operations and activities financed from Third Party Financing. The assets constituting the Platform Outstanding Balance from time to time which are under treasury management by the EIB (the “Platform’s Assets”) shall be managed in accordance with the principles of sound financial management and following appropriate rules in accordance with the principles laid down in Section I below. These assets shall be invested at the risk of the Contributors according to the guidelines as set out in Section II below. In this document, “” means the pooled investment portfolio established by the EIB by the Deed Poll of 1 2009 as supplemented and amended from time to time and as defined in the corresponding Information Memorandum. Section I - Principles Relating to the Platform Outstanding Balance 1.The EIB shall manage Platform’s Assets in accordance with the following principles: (i)The risk exposure taken on the Platform’s Assets shall be limited to the capital invested and returns earned thereon. (ii)While executing transactions on behalf of the Platform, the EIB shall apply the same standards of due diligence and care it normally applies when managing its own treasury portfolios or its other mandates. While purchasing securities at any time, either on the primary market or the secondary market, the EIB shall guarantee equal treatment among the different portfolios under management. In this context, it shall not purchase securities of the same issue at the same time on more advantageous conditions for its own account or for the account of any other portfolio under management. (iii)Management of the assets shall be based on the best practice of the asset management industry and on the traditional rules applied in financial activities. Management shall comply with the risk limitations set out under these Guidelines. Particular care shall need to be taken to ensure that the managed assets provide sufficient liquidity in relation to the commitments to which the assets must respond, while still optimizing the return that is compatible with maintaining a high-degree of security and stability over long-term. (iv)The EIB shall not be authorized to enter into speculative transactions or to borrow from the market to cover any liquidity gap. Unforeseen cash payments that are not sufficiently covered by cash holdings shall be covered adequately by the sale of assets. Reverse repo and collateralised securities lending transactions are authorised at the discretion of the EIB subject to the limitations set out in these Guidelines. (v)A performance index, taken as a benchmark shall be defined by the EIB and shall be in line with the existing benchmark used for other third-party portfolios. (vi)All investments need to respect the limits set out hereto. (vii)In accordance with the operational cash flow forecast, the EIB shall take the necessary measures to manage the placement of the Platform’s Assets in order to execute all payments in a timely . (viii)Securities transactions shall be based on the principle of “delivery versus payment”; delivery and payment to clearing systems are authorized. (ix)The sale of assets is authorized, among others, if the securities no longer correspond to the criteria set out hereto or with a view to balancing the maturity profile or enhancing overall portfolio performance. (x)The EIB shall regularly supervise the continuous respect of the limits set out hereto. 2.Funds’ Assets may be invested in EUR. Hedging instruments may be considered if relevant and cost-efficient. Section II: Guidelines