Euro Area Loan Facility (Amendment) Act 2013
Number 1 of 2013
EURO AREA LOAN FACILITY (AMENDMENT) ACT 2013
ARRANGEMENT OF SECTIONS
2. Amendment of section 2 of Act of 2011.
3. Insertion of Schedule to Act of 2011.
4. Short title.
Amendment to the Loan Facility Agreement of December 2012
Acts Referred to
Euro Area Loan Facility (Amendment) Act 2012
2012, No. 6
Euro Area Loan Facility Act 2010
2010, No. 7
European Financial Stability Facility and Euro Area Loan Facility (Amendment) Act 2011
2011, No. 25
Number 1 of 2013
EURO AREA LOAN FACILITY (AMENDMENT) ACT 2013
AN ACT TO FURTHER FACILITATE, IN THE PUBLIC INTEREST, THE FINANCIAL STABILITY OF THE EUROPEAN UNION AND THE SAFEGUARDING OF THE FINANCIAL STABILITY OF THE EURO AREA AS A WHOLE AND FOR THOSE PURPOSES—
(A) TO ENABLE EFFECT TO BE GIVEN, IN SO FAR AS IT RELATES TO THE STATE, TO THE AMENDMENT TO THE EUR 80 000 000 000 LOAN FACILITY AGREEMENT DONE IN BRUSSELS ON 19 DECEMBER 2012 AND IN ATHENS ON 18 DECEMBER 2012,
(B) TO PROVIDE FOR MATTERS RELATING TO SUBSEQUENT AMENDMENTS TO THE LOAN FACILITY AGREEMENT WHICH HAVE BEEN APPROVED BY DÁIL ÉIREANN PURSUANT TO ARTICLE 29.5.2° OF THE CONSTITUTION,
(C) TO AMEND THE EURO AREA LOAN FACILITY ACT 2010, AND
(D) TO PROVIDE FOR RELATED MATTERS.
[5th February, 2013]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.— In this Act—
“Act of 2011” means the European Financial Stability Facility and Euro Area Loan Facility (Amendment) Act 2011 ;
“Act of 2012” means the Euro Area Loan Facility (Amendment) Act 2012 .
Amendment of section 2 of Act of 2011.
2.— Section 2 of the Act of 2011 (as amended by the Act of 2012) is amended—
(a) by substituting the following for subsection (1):
“(1) The references to the Loan Facility Agreement in the Euro Area Loan Facility Act 2010 include—
(a) the Amendment to the Loan Facility Agreement of June 2011,
(b) the Amendment to the Loan Facility Agreement of February 2012,
(c) the Amendment to the Loan Facility Agreement of December 2012, and
(d) any subsequent amendments to the Loan Facility Agreement which have been approved by Dáil Éireann pursuant to Article 29.5.2° of the Constitution,
and that Act shall be construed accordingly.
(1A) Where Dáil Éireann has approved, pursuant to Article 29.5.2° of the Constitution, an amendment to the Loan Facility Agreement, the Minister for Finance shall, as soon as may be thereafter, cause notice of such approval to be published in Iris Oifigiúil.”,
(b) in subsection (2) by substituting the following for paragraph (b):
“(b) the Loan Facility Agreement, as amended by the amendments to which subsection (1) relates.”,
(c) in subsection (3) by inserting the following definition after the definition of “Amendment to the Loan Facility Agreement of February 2012” (inserted by the Act of 2012):
“ ‘Amendment to the Loan Facility Agreement of December 2012’ means the Amendment to the EUR 80 000 000 000 Loan Facility Agreement done in Brussels on 19 December 2012 and in Athens on 18 December 2012 entered into by—
(a) the Hellenic Republic as borrower and the Bank of Greece, as agent to the borrower, on the one part, and
(b) the other Member States of the Euro Area represented by the European Commission (acting as agent for those Euro Area Member States, other than the Federal Republic of Germany) and KfW (acting in the public interest, subject to the instructions of and with the benefit of the guarantee of the Federal Republic of Germany) as lenders on the other part,
the text of which (including the Annexes) is set out in Schedule 4;”.
Insertion of Schedule to Act of 2011.
3.— The Act of 2011 is amended by inserting after Schedule 3 (inserted by the Act of 2012) and as Schedule 4 the text set out in the Schedule to this Act.
4.— This Act may be cited as the Euro Area Loan Facility (Amendment) Act 2013.
Amendment to the Loan Facility Agreement of December 2012
Section 3 .
AMENDMENT TO THE
EUR 80 000 000 000
LOAN FACILITY AGREEMENT
THE FOLLOWING MEMBER STATES WHOSE
CURRENCY IS THE EURO:
KINGDOM OF BELGIUM, IRELAND,
KINGDOM OF SPAIN, FRENCH REPUBLIC,
ITALIAN REPUBLIC, REPUBLIC OF CYPRUS,
GRAND DUCHY OF LUXEMBOURG, REPUBLIC OF MALTA,
KINGDOM OF THE NETHERLANDS,
REPUBLIC OF AUSTRIA, PORTUGUESE
REPUBLIC, REPUBLIC OF SLOVENIA and
REPUBLIC OF FINLAND
KfW, acting in the public interest, subject to the instructions of and with the benefit of the guarantee of the Federal Republic of Germany,
THE HELLENIC REPUBLIC
THE BANK OF GREECE
as Agent to the Borrower
19 DECEMBER 2012
THIS AMENDMENT (the “Amendment”) TO THE EUR 80 000 000 000 LOAN FACILITY AGREEMENT DATED 8 MAY 2010
is made by and between:
(A)The following Member States whose currency is the euro: Kingdom of Belgium, Ireland, Kingdom of Spain, French Republic, Italian Republic, Republic of Cyprus, Grand Duchy of Luxembourg, Republic of Malta, Kingdom of the Netherlands, Republic of Austria, Portuguese Republic, Republic of Slovenia and Republic of Finland, represented by the European Commission (hereinafter referred to as the “Commission”) and KfW acting in the public interest, subject to the instructions of and with the benefit of the guarantee of the Federal Republic of Germany (hereinafter referred to as the “Lenders” and each, a “Lender”);
(B)The Hellenic Republic (hereinafter referred to as “Greece” or the “Borrower”), represented by the Minister of Finance; and
(C)The Bank of Greece acting as agent on behalf of the Borrower (hereinafter referred to as the “Borrower’s Agent”), represented by the Governor of the Bank of Greece.
(1)A EUR 80 000 000 000 Loan Facility Agreement dated 8 May 2010 (hereinafter referred to as the “Agreement”) has been made between the Lenders and the Hellenic Republic and the Bank of Greece. Loans amounting to EUR 52 900 000 000 have been disbursed and the undrawn amounts were cancelled in April 2012.
(2)A first Amendment to the Agreement was signed on 14 June 2011 in accordance with the conclusions of the Heads of State and Government of the Euro Area of 11 March 2011 that, in view of the commitments undertaken by Greece in the context of the adjustment programme, the interest rate on its loan would be adjusted by 100 basis points and the maturity of all loans will be increased to 7.5 years.
(3)A second Amendment to the Agreement was signed on 27 February 2012 in order to further extend the maturity of all Loans to 15 years and to reduce the interest rate margin to 150 basis points.
(4)On 27 November 2012, the Eurogroup stated that the Lenders had agreed to a lowering by 100 basis points of the interest rate charged to Greece on the loans provided in the context of the Greek Loan Facility. Member States under a full financial assistance programme will not be required to participate in the lowering of the interest rates for the period in which they receive themselves financial assistance. An extension of maturity of the loans by 15 years was also decided.
(5)The Lenders in all their functions, rights and obligations under this Agreement act through and are represented by the Commission. The Lenders have agreed to act in a coordinated manner and to channel communications to the Commission through the Eurogroup Working Group Chairman.
(6)The Federal Republic of Germany (“Germany”) has designated KfW as Lender on behalf of Germany for the purposes of the Agreement. Accordingly, references to KfW as Lender refer to KfW acting in the public interest, subject to the instructions of and with the benefit of the guarantee of Germany also for the purposes of this Amendment.
Now, therefore, the parties hereto have agreed as follows:
1.AMENDMENTS TO THE LOAN FACILITY AGREE-MENT
The Agreement, as amended on 14 June 2011 and on 27 February 2012, is hereby amended as follows:
(1)In Article 3, paragraph 3, point (d) shall be replaced by the following:
“the term of the requested Loan which may not exceed thirty years from the Disbursement Date of the Loan and the last day of which must be an Interest Payment Date (as defined below) (the “Term”); and”.
(2)In Article 5, paragraph 1, point (b) shall be replaced by the following:
“a margin equal to 50 basis points”.
(3)All other Articles remain unchanged.
2.GOVERNING LAW AND JURISDICTION
(1)This Amendment and any non-contractual obligations arising out of or in connection with it shall be governed by and shall be construed in accordance with English law.
(2)The parties undertake to submit any dispute which may arise relating to the legality, validity, interpretation or performance of this Amendment to the exclusive jurisdiction of the Court of Justice of the European Union.
(3)Judgements of the Court of Justice of the European Union shall be fully binding on and enforceable by the parties.
(4)The Lenders may enforce any judgement obtained from the Court of Justice of the European Union, or other rights against the Borrower in the courts of the country of the Borrower.
(5)The Borrower hereby irrevocably and unconditionally waives all immunity to which it is or may become entitled, in respect of itself or its assets, from legal proceedings in relation to this Amendment, including, without limitation, immunity from suit, judgement or other order, from attachment, arrest or injunction prior to judgement, and from execution and enforcement against its assets to the extent not prohibited by mandatory law.
3.ENTRY INTO FORCE AND ADDITIONAL PROVISIONS
(1)Following its signature by all parties, this Amendment shall enter into force on the date on which:
(a)the Lenders have received the official notification in the form of the Legal Opinion by the Legal Advisor to the State at the Ministry of Justice, Transparency and Human Rights and the Legal Advisor to the State at the Ministry of Finance in the form of Annex 1 that this Amendment has been duly executed on behalf of the Borrower and all of the Borrower’s obligations in relation to this Amendment are valid, binding and enforceable in accordance with their terms and nothing further is required to give effect to the same; and
(b)the Commission has received a written confirmation from the Eurogroup Working Group Chairman that all Lenders under their national laws are duly authorised to be bound under this Amendment,
on which date this Amendment shall enter into effect and be binding on and between the Borrower, the Borrower’s Agent and all Lenders. The Commission shall notify the Borrower, the Borrower’s Agent and the Lenders about the date of entry into force.
It is acknowledged and agreed that the authorisation of a Lender to be bound under this Amendment may be of provisional application in accordance with the national laws and legislation of the relevant Member State.
(2)The following transitional provisions shall apply:
(a)notwithstanding Article 1(2) of this Amendment, the margin equal to 150 basis points shall continue to apply in relation to amounts due to the Lenders that are under a full financial assistance programme by the EFSF or EFSM until (and including) the Interest Period during which the availability of financial assistance, as may be amended from time to time, expires. Should a Lender enter a full financial assistance programme by the ESM, EFSF or ESFM following the signature of this Agreement, the margin equal to 150 basis points shall apply in relation to amounts due to such a Lender from (but excluding) the Interest Period during which the Memorandum of Understanding concerning the assistance programme was signed; and
(b)the margin foreseen in Article 1(2) of this Amendment shall apply starting from (and including) the Interest Period which starts on 15 December 2012. In relation to all Interest Payment Dates that shall occur between 15 March 2013 and the entry into force of this Amendment, the difference between (i) the interest that the Borrower paid on any such Interest Payment Dates and (ii) the interest calculated by applying the margin as specified in Article 1(2) of this Amendment, shall be compensated to the Borrower through an equivalent reduction of the interest due on the next Interest Payment Date, provided that this Amendment enters into force at least thirty (30) calendar days prior to it. If this Amendment enters into force less than thirty (30) calendar days prior to an Interest Payment Date, the reduction shall occur on the following Interest Payment Date. If the amount of the reduction exceeds the interest due on a
single Interest Payment Date, the remaining part shall be compensated on the subsequent Interest Payment Date. The Commission shall advise the Lenders, the Borrower and the Borrower’s Agent about the reduction.
(3)The Scheduled Principal Repayments specified in the Acceptance Notices issued hitherto and in the Amendments to the Agreement dated 14 June 2011 and 27 February 2012 shall be modified and replaced by the Scheduled Principal Repayments as set out in the Annex 2 of this Amendment.
(4)Any additional operational costs incurred by the European Commission resulting from the implementation of this Amendment shall be covered by the Borrower.
4.EXECUTION OF THE AGREEMENT
This Amendment may be executed in any number of counterparts signed by one or more of the parties. The counterparts each form an integral part of the original Amendment and the signature of the counterparts shall have the same effect as if the signatures on the counterparts were on a single copy of the Amendment.
The Commission shall promptly after the signature of this Amendment supply conformed copies of the Amendment to each of the parties.
5.INTERPRETATION AND ANNEXES
(1)Unless otherwise defined in this Amendment or the context requires otherwise, capitalised terms used in the Amendment shall have the meaning given to them in the Agreement.
(2)The Annexes to this Amendment shall constitute an integral part hereof:
1.Form of Legal Opinion.
2.Amended Scheduled Principal Repayments.
3.List of Contacts.
Done in Brussels on 19 December 2012 and in Athens on 18 December 2012.
— signed —
Minister of Finance
The following Euro Area Member States
KINGDOM OF BELGIUM, IRELAND, KINGDOM OF SPAIN, FRENCH REPUBLIC, ITALIAN REPUBLIC, REPUBLIC OF CYPRUS, GRAND DUCHY OF LUXEMBOURG, REPUBLIC OF MALTA, KINGDOM OF THE NETHERLANDS, REPUBLIC OF AUSTRIA, PORTUGUESE REPUBLIC, REPUBLIC OF SLOVENIA and REPUBLIC OF FINLAND
— signed —
BANK OF GREECE
as the Borrower’s Agent
— signed —
Governor of the Bank of Greece
acting in the public interest, subject to the instructions of and with the benefit of the guarantee of the Federal Republic of Germany
— signed —
First Vice President
— signed —
FORM OF LEGAL OPINION
(official letterhead of the Legal Advisor to the State at the Ministry of Justice, Transparency and Human Rights and the Legal Advisor to the State at the Ministry of Finance)
To: European Commission
Re:Amendment dated [●] 2012 to the Loan Facility Agreement between certain Euro Area Member States and KfW (as Lenders) and the Hellenic Republic (as Borrower) and the Bank of Greece (as the Borrower’s Agent) signed on 8 May 2010, as amended on 14 June 2011 and on 27 February 2012 (the “Loan Facility Agreement”)
In our capacity as the Legal Advisor to the State at the Ministry of Justice, Transparency and Human Rights and the Legal Advisor to the State at the Ministry of Finance, we refer to the above referenced Amendment and its Annexes which constitute an integral part thereof (hereinafter together referred to as the “Amendment”) entered into between, amongs others, certain Euro Area Member States and KfW (hereinafter referred to as the “Lenders”) and the Hellenic Republic (hereinafter referred to as the “Borrower”) on [●] 2012.
We warrant that we are competent to issue this legal opinion in connection with the Amendment on behalf of the Borrower.
We have examined originals of the Amendment. We have also examined the relevant provisions of national and international law applicable to the Borrower and the Borrower’s Agent, the powers of signatories and such other documents as we have deemed necessary or appropriate. Furthermore, we have made such other investigations and reviewed such matters of law as we have considered relevant to the opinion expressed herein.
We have assumed (i) the genuineness of all signatures (except the Borrower and the Borrower’s Agent) and the conformity of all copies to originals, (ii) the capacity and power to enter into the Amendment of, and their valid authorisation and signing by, each party other than the Borrower and the Borrower’s Agent and (iii) the validity, binding effect and enforceability of the Amendment on each party under the laws of England.
Terms used and not defined in this opinion shall have the meaning set out in the Loan Facility Agreement and the Amendment.
This opinion is limited to Hellenic law as it stands at the date of this opinion.
Subject to the foregoing, we are of the opinion that:
1.With respect to the laws, regulations and legally binding decisions currently in force in the Hellenic Republic, the Borrower is by the execution of the Amendment by [insert name], Minister of Finance, validly and irrevocably committed to fulfil all of its obligations under it.
2.The Borrower’s execution, delivery and performance of the Amendment: (i) have been duly authorised by all necessary consents, actions, approvals and authorisations; and (ii) have not and will not violate any applicable regulation or ruling of any competent authority or any agreement or Treaty binding on it.
3.Nothing in this Amendment contravenes or limits the rights of the Borrower to make punctual and effective payment of any sum due for the principal, interest or other charges under the Amendment.
4.The Amendment is in proper legal form under Hellenic laws for enforcement against the Borrower and the Borrower’s Agent. The enforcement of the Amendment would not be contrary to mandatory provisions of Hellenic law, to the ordre public of the Hellenic Republic, to international treaties or to generally accepted principles of international law binding on the Borrower.
5.It is not necessary in order to ensure the legality, validity or enforceability of the Amendment that it be filed, recorded, or enrolled with any court or authority in the Hellenic Republic.
6.No taxes, duties, fees or other charges imposed by the Hellenic Republic or any taxing authority thereof or therein are payable in connection with the execution and delivery of the Amendment and with any payment or transfer of principal, interest, commissions and other sums due under the Amendment.
7.No exchange control authorisations are required and no fees or other commission are to be paid on the transfer of any sum due under the Amendment.
8.The signature of the Amendment by [insert name], Governor of the Bank of Greece legally and validly binds the Borrower’s Agent.
9.The choice of English law as governing law for the Amendment is a valid choice of law binding the Borrower in accordance with Hellenic law.
10.The Borrower has legally, effectively and irrevocably submitted to the exclusive jurisdiction of the Court of Justice of the European Union in connection with the Amendment and any judgement of this court would be conclusive and enforceable in the Hellenic Republic.
11.Neither the Borrower nor any of its property are immune on the grounds of sovereignty or otherwise from jurisdiction, attachment — whether before or after judgement — or execution in respect of any action or proceeding relating to the Amendment.
12.The execution of the Amendment has been made upon the provisions of [insert reference].
13.Under the Hellenic law no ratification from Parliament is required for this Amendment in order to be effective and binding [insert reference].
14.In conclusion, the Amendment has been duly executed on behalf of the Borrower and all the Borrower’s obligations in relation to the Amendment and the Loan Facility Agreement, as amended by the Amendment, are valid, binding and enforceable in accordance with their terms and nothing further is required to give effect to the same.
Legal Advisor to the State at the Ministry of Justice, Transparency and Human Rights and the Legal Advisor to the State at the Ministry of Finance
AMENDED SCHEDULED PRINCIPAL REPAYMENTS
The Scheduled Principal Repayments of the Loans shall take place on each Interest Payment Date as follows:
Interest Payment Dates
Principal Repayments (€)
LIST OF CONTACTS
For the Lenders and Commission:
Directorate General Economic and Financial Affairs — Unit L-4 “Lending, Borrowing, Accounting and Back Office”
Attention: Head of Unit
Fax: + 352 4301 33459
SWIFT BIC: [ ].
With copy to the ECB:
European Central Bank
60311 Frankfurt am Main, Germany
Attention: Head of Financial Operations Services Division
Fax: + 49 69 1344 6171
SWIFT BIC: [ ].
For the Borrower:
Ministry of Finance
General Accounting Office
37, E. Venizelos str.
101 65 Athens, Greece
Attention: 23rd Division
Fax: + 30 210 3338205
With copy to the Borrower’s Agent:
Bank of Greece.
21, E. Venizelos str.
102 50 Athens, Greece.
Attention: Government Financial Operations & Accounts Department.
Government Accounts Section.
Fax: + 30 210 3221007.
SWIFT BIC: [ ] ”.