Commission Implementing Decision of 11 September 2014 on the model of funding agreement for the contribution of the European Regional Development Fund and the European Agricultural Fund for Rural Development to joint uncapped guarantee and securitisation financial instruments in favour of small and medium-sized enterprises (2014/660/EU)

Article 1 U.K. Definitions and Interpretation

1.1.

Wherever used in this Agreement, the following terms shall have the meanings opposite them:

‘Business Day’

means any working day on which the Managing Authority's public services and the EIF are open for business in [Member State place of business] and Luxembourg;

‘Commitment Period’

means the period during which [NAME OF MEMBER STATE] may commit the MS Contribution from the [NAME OF MEMBER STATE] budget to the EIF for the purposes of the Dedicated Window[s]. The Commitment Period shall expire on 31 December 2016;

‘Compartment’

has the meaning set out in Recital 11;

‘COSME Financial Instruments’

has the meaning set out in Recital 5;

‘COSME Regulation’

has the meaning set out in Recital 5;

‘CPR’

has the meaning set out in Recital 3;

‘Dedicated Window[s]’

has the meaning set out in Recital 8;

‘Dedicated Window[s] Account[s]’

means any separate account[s] (i) opened by the EIF in its name at a commercial bank, on behalf of the Managing Authority and (ii) managed on behalf of the Managing Authority in accordance with Article 13 of this Funding Agreement;

‘Delegation Agreement[s]’

has the meaning set out in Recital 7;

‘Designated Service’

means the European Commission's service entrusted with the indirect management of the [COSME Financial Instruments] [AND/OR] [H2020 Financial Instruments]; for the purpose of this Funding Agreement, respectively DG [ENTR AND/OR RTD] of the European Commission or the successor[s] thereto;

‘EAFRD’

means the European Agricultural Fund for Rural Development;

‘EIF’

has the meaning set out in the Preamble;

‘EIF Activity’

means the obligations and tasks to be carried out by the EIF under this Funding Agreement;

‘EIF Contribution’

means the aggregate amount of financial resources committed by the EIF (including under mandates from EIB but excluding other ESIF resources and resources from the COSME Financial Instrument and the H2020 Financial Instrument) in relation to the Compartment as provided in Article 12;

‘ERDF’

means the European Regional Development Fund;

‘EU Contribution’

means the aggregate amount of any financial resources committed or paid, as the case may be, by the European Commission to the Compartment;

‘Euro Account’

means an account denominated in Euro, which is part of the Dedicated Window[s] Account[s];

‘Evaluation’

means any evaluation or assessment referred to in Article 18 to be carried out in respect of the Dedicated Window[s], with the exclusion of the evaluation provided for in Article 57(3) of the CPR;

‘Exit Policy’

means the procedure for the distribution of the liquidation proceeds of the Dedicated Window[s] following termination of this Funding Agreement, and in particular (i) the calculation of the balance of the Dedicated Window[s] Account[s] with reference to the MS Contribution after deduction of applicable Management Costs and Fees, (ii) the return of the net balance of the Dedicated Window[s] Account[s] to the Managing Authority and (iii) the closure of Dedicated Window[s] Account[s] [Procedure shall be further contractually specified];

‘Final Recipient’

means an SME receiving New Debt Finance under a Transaction;

‘Financial Intermediary’

means financial entities such as a bank, financial institution, fund, entity implementing a guarantee scheme, mutual guarantee organisation, micro-finance institution, leasing company or any other legal person or entity selected by the EIF in accordance with the conditions set out in this Funding Agreement, for an Operation with the objective of implementing the Dedicated Window[s]; for the avoidance of doubt, the definition of Financial Intermediary (i) includes also financial entities selected as financial sub-intermediaries by a Financial Intermediary, if applicable; and (ii) does not include counter-parties selected by the EIF for the purposes of asset management carried out by the EIF or, as regards Option 2 in case of true-sale securitisation, the beneficiary of the Guarantee Agreement;

‘Financial Regulation’

means Regulation (EU, Euratom) No 966/2012, together with its rules of application (Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union(1) as they may be amended, supplemented or modified from time to time;

‘Force Majeure’

means any unforeseeable exceptional situation or event beyond the Parties' control, which prevents either of them from fulfilling any of their obligations under this Funding Agreement, which was not attributable to error or negligence on their part or on the part of their subcontractors and which could not have been avoided by the exercise of appropriate and reasonable due diligence. Any default of a service, defect in equipment or material or delays in making them available, unless they stem directly from a relevant case of force majeure, as well as labour disputes or strikes or financial difficulties cannot be invoked as force majeure;

‘Funding Agreement’

means this Funding Agreement as may be amended, supplemented or modified from time to time;

‘Guarantee Agreement’

means the Operational Agreement and, in case of true-sale securitisation within Option 2, the guarantee agreement entered into between the EIF and a beneficiary in connection with an Operation;

‘H2020 Financial Instruments’

has the meaning set out in Recital 6;

‘H2020 Regulation’

has the meaning set out in Recital 6;

‘Implementation Period’

means the period during which the EIF may commit any part of the MS Contribution to Operations under the Dedicated Window[s]. The Implementation Period shall expire on 31 December 2016, with the exclusion of Repayments and Revenues, which may be committed until the winding-up of the Dedicated Window[s];

‘Implementation Strategy’

means the policy of the EIF concerning the allocation of Operations as set out in Article 4.6;

‘Internal Control’

means a process applicable at all levels of management and designed to provide reasonable assurance of achieving the following objectives:

(a)

effectiveness, efficiency and economy of operations;

(b)

reliability of reporting;

(c)

safeguarding of assets and information;

(d)

prevention, detection, correction and follow-up of fraud and irregularities;

(e)

adequate management of the risks relating to the legality and regularity of the financial operations, taking into account the multiannual character of programmes as well as the nature of the payments concerned;

‘Investors' Board’

means the steering committee of the Dedicated Window[s] set forth in Article 10;

‘Leverage Effect’

means, where relating to this Funding Agreement, the ratio between the New Debt Finance to be provided to Final Recipients under the Dedicated Window[s] and the corresponding MS Contribution or, where relating to a particular Operational Agreement, the ratio between the New Debt Finance to be provided to Final Recipients under such Operational Agreement and the corresponding MS Contribution;

‘Management Costs and Fees’

means as set out in Article 14;

‘Managing Authority’

has the meaning set out in the Preamble;

‘Milestone’

means each of the milestones under Article 39(5) of the CPR as set out in Article 7;

‘MS Contribution’

means the MS Contribution Committed or the MS Contribution Paid or both, as the case may be;

‘MS Contribution Committed’

means the aggregate amount of any commitment appropriations under the budget of the [ERDF Operational Programme] [and the EAFRD rural development programme] in respect of the Dedicated Window[s];

‘MS Contribution Paid’

means the aggregate amount of any financial resources from the [ERDF Operational Programme] [and the EAFRD rural development programme] paid by the Managing Authority in relation to the Dedicated Window[s] including Revenues and Repayments;

‘New Debt Finance’

means the new loans, leases or guarantees to Final Recipients originated by the Financial Intermediary no later than 31 December 2023 pursuant to the terms and conditions set out in the Operational Agreements;

‘Non-Euro Account’

means an account denominated in a currency rather than in Euro, which is part of the Dedicated Window[s] Account[s];

‘OLAF’

means the European Anti-Fraud Office;

‘Operation’

means the set of activities carried out [by the EIF and a Financial Intermediary] [for Option 1] AND/OR [by the EIF, a Financial Intermediary and other parties] [Option 2] , as further specified in Annex 1, with the objective of implementing the Dedicated Window[s];

‘Operational Agreement’

means the agreement(s) entered into between [the EIF and a Financial Intermediary setting out terms and conditions of an Operation] [for Option 1] AND/OR [the EIF and the Financial Intermediary for the origination of New Debt Finance] [Option 2] ;

‘Option 1’

means as set out under Article 5(i);

‘Option 2’

means as set out under Article 5(ii);

‘Option 3’

means as set out under Article 5(ii);

‘Payment Request’

means the payment request referred to in Article 11.3;

‘Penalties’

means contractual penalties set out in Article 7 which are payable by a Financial Intermediary pursuant to an Operational Agreement and subject to applicable law;

‘Repayments’

means amounts resulting from guarantees released, and amounts recovered under the Dedicated Window[s];

‘Revenues’

means any revenues, including guarantee fees and interest on amounts on fiduciary accounts, paid to the Dedicated Window[s] Account[s] under the Dedicated Window[s], including any such amounts arising in the context of the Exit Policy;

‘Secretariat’

means the secretariat to the Investors' Board set out in Article 10;

‘Single Dedicated National Programme’

means as set out in Recital 9;

‘SME’

means a micro (including individual entrepreneurs/self-employed persons), small and medium enterprise as defined in the Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises(2);

‘SME Initiative’

has the meaning set out in Recital 1;

‘Termination Event’

means any of the events referred to in Article 25.5;

‘Terms of Reference’

means the open call for expression of interest prepared by the EIF;

‘Transaction’

means the loan, lease or guarantee transaction giving rise to New Debt Finance, entered into between a Financial Intermediary (or a sub-level Financial Intermediary) and a Final Recipient;

‘Treasury Asset Management’

means the treasury management of the MS Contribution Paid, as further set out in Article 13;

‘Union Emblem’

means the logo of the European Union representing twelve yellow stars on a blue background.

1.2.

In this Agreement, unless the context otherwise requires,

(a)

headings are for convenience only and do not affect the construction or the interpretation of any provisions of this Funding Agreement;

(b)

words importing the singular include the plural and vice versa;

(c)

a reference to an article, section, part or schedule is a reference to that article, section, part of, or schedule to this Funding Agreement.

(1)

OJ L 362, 31.12.2012, p. 1.

(2)

OJ L 124, 20.5.2003, p. 36.