Republic of Tunisia Loan Guarantees Issued Under Section 7034(o) of the Department of State, Foreign Operations, and Related Programs Appropriations Act of 2016-Standard Terms and Conditions, 50618-50620 [2016-18192]
Download as PDF
50618
Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Rules and Regulations
In accordance with the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., the
Chief Counsel for Regulation at the
Department of Commerce certified to
the Chief Counsel for Advocacy, Small
Business Administration, at the
proposed rule stage that this rule would
not have a significant economic impact
on a substantial number of small
entities. The factual basis for this
certification was published with the
proposed rule and is not repeated here.
No comments were received regarding
the certification or on the economic
impact of this rule more generally. As a
result, the conclusion in the
certification memorandum for the
proposed rule remains unchanged and a
final regulatory flexibility analysis is not
required and one has not been prepared.
Republic of Tunisia pursuant to Section
7034(o) of the Department of State,
Foreign Operations, and Related
Programs Appropriations Act, 2016.
DATES: Effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT: D.
Bruce McPherson, Office of General
Counsel, U.S. Agency for International
Development, Washington, DC 20523–
6601; tel. 202–712–1611, fax 202–216–
3058.
SUPPLEMENTARY INFORMATION: Pursuant
to Section 7034(o) of the Department of
State, Foreign Operations, and Related
Programs Appropriations Act, 2016
(Div. K, Pub. L. 114–113), the United
States of America, acting through the
U.S. Agency for International
Development, may issue certain loan
guarantees applicable to sums borrowed
by Banque Centrale de Tunisie, acting
on behalf of the Republic of Tunisia (the
‘‘Borrower’’), not exceeding an aggregate
total of U.S. $500 million in principal
amount. Upon issuance, the loan
guarantees shall ensure the Borrower’s
repayment of 100% of principal and
interest due under such loans, and the
full faith and credit of the United States
of America shall be pledged for the full
payment and performance of such
guarantee obligations.
This rulemaking document is not
subject to rulemaking under 5 U.S.C.
553 or to regulatory review under
Executive Order 12866 because it
involves a foreign affairs function of the
United States. The provisions of the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.) do not apply.
Dated: July 27, 2016.
Ronald K. Lorentzen,
Acting Assistant Secretary for Enforcement
and Compliance.
List of Subjects in 22 CFR Part 239
Foreign aid, Foreign relations,
Guaranteed loans, Loan programs—
foreign relations.
Classification
Executive Order 12866
It has been determined that this final
rule is not significant for purposes of
Executive Order 12866.
Paperwork Reduction Act
This final rule contains no new
collection of information subject to the
Paperwork Reduction Act, 44 U.S.C.
Chapter 35.
Executive Order 13132
This final rule does not contain
policies with federalism implications as
that term is defined in section 1(a) of
Executive Order 13132, dated August 4,
1999 (64 FR 43255 (August 10, 1999)).
Regulatory Flexibility Act
[FR Doc. 2016–18305 Filed 8–1–16; 8:45 am]
Authority and Issuance
BILLING CODE 3510–DS–P
Accordingly, part 239 is added to title
22, chapter II, of the Code of Federal
Regulations, to read as follows:
■
AGENCY FOR INTERNATIONAL
DEVELOPMENT
22 CFR Part 239
Republic of Tunisia Loan Guarantees
Issued Under Section 7034(o) of the
Department of State, Foreign
Operations, and Related Programs
Appropriations Act of 2016—Standard
Terms and Conditions
Agency for International
Development (USAID).
ACTION: Final rule.
Lhorne on DSK30JT082PROD with RULES
AGENCY:
This regulation prescribes the
procedures and standard terms and
conditions applicable to loan guarantees
to be issued for the benefit of the
SUMMARY:
VerDate Sep<11>2014
13:32 Aug 01, 2016
Jkt 238001
PART 239—REPUBLIC OF TUNISIA
LOAN GUARANTEES ISSUED UNDER
SECTION 7034(o) OF THE
DEPARTMENT OF STATE, FOREIGN
OPERATIONS, AND RELATED
PROGRAMS APPROPRIATIONS ACT
OF 2016
Sec.
239.1 Purpose.
239.2 Definitions.
239.3 The Guarantee.
239.4 Guarantee eligibility.
239.5 Non-impairment of the Guarantee.
239.6 Transferability of Guarantee; Note
Register.
239.7 Fiscal Agent obligations.
239.8 Event of Default; Application for
Compensation; payment.
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
239.9 No acceleration of Eligible Notes.
239.10 Payment to USAID of excess
amounts received by a Noteholder.
239.11 Subrogation of USAID.
239.12 Prosecution of claims.
239.13 Change in agreements.
239.14 Arbitration.
239.15 Notice.
239.16 Governing Law.
Appendix A to Part 239—Application for
Compensation
Authority: Section 7034(o) of the
Department of State, Foreign Operations, and
Related Programs Appropriations Act, 2016
(Div. K, Pub. L. 114–113)
§ 239.1
Purpose.
The purpose of the regulations in this
part is to prescribe the procedures and
standard terms and conditions
applicable to loan guarantees issued for
the benefit of the Borrower, pursuant
Section 7034(o) of the Department of
State, Foreign Operations, and Related
Programs Appropriations Act, 2016
(Div. K, Pub. L. 114–113). The loan
guarantees will be issued as provided
herein pursuant to the Loan Guarantee
Agreement, dated June 6, 2016, between
the United States of America and the
Republic of Tunisia (the ‘‘Loan
Guarantee Agreement’’). The loan
guarantee will apply to sums borrowed
during a period beginning on the date
that the Loan Guarantee Agreement
enters into force and ending thirty days
after such date, not exceeding an
aggregate total of five hundred million
United States Dollars (U.S.
$500,000,000) in principal amount. The
loan guarantees shall ensure the
Borrower’s repayment of 100% of
principal and interest due under such
loans. The full faith and credit of the
United States of America is pledged for
the full payment and performance of
such guarantee obligations.
§ 239.2
Definitions.
Wherever used in the standard terms
and conditions set out in this part:
Applicant means a Noteholder who
files an Application for Compensation
with USAID, either directly or through
the Fiscal Agent acting on behalf of a
Noteholder.
Application for Compensation means
an executed application in the form of
Appendix A to this part which a
Noteholder, or the Fiscal Agent on
behalf of a Noteholder, files with USAID
pursuant to § 239.8.
Borrower means Banque Centrale de
Tunisie, acting on behalf of Republic of
Tunisia.
Business Day means any day other
than a day on which banks in New
York, NY are closed or authorized to be
closed or a day which is observed as a
E:\FR\FM\02AUR1.SGM
02AUR1
Lhorne on DSK30JT082PROD with RULES
Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Rules and Regulations
Federal holiday in Washington, DC, by
the United States Government.
Date of Application means the date on
which an Application for Compensation
is actually received by USAID pursuant
to § 239.15.
Defaulted Payment means, as of any
date and in respect of any Eligible Note,
any Interest Amount and/or Principal
Amount not paid when due.
Eligible Note(s) means [a] Note[s]
meeting the eligibility criteria set out in
§ 239.4.
Fiscal Agency Agreement means the
agreement among USAID, the Borrower
and the Fiscal Agent pursuant to which
the Fiscal Agent agrees to provide fiscal
agency services in respect of the Note[s],
a copy of which Fiscal Agency
Agreement shall be made available to
Noteholders upon request to the Fiscal
Agent.
Fiscal Agent means the bank or trust
company or its duly appointed
successor under the Fiscal Agency
Agreement which has been appointed
by the Borrower with the consent of
USAID to perform certain fiscal agency
services for specified Eligible Note[s]
pursuant to the terms of the Fiscal
Agency Agreement.
Further Guaranteed Payments means
the amount of any loss suffered by a
Noteholder by reason of the Borrower’s
failure to comply on a timely basis with
any obligation it may have under an
Eligible Note to indemnify and hold
harmless a Noteholder from taxes or
governmental charges or any expense
arising out of taxes or any other
governmental charges relating to the
Eligible Note in the country of the
Borrower.
Guarantee means the guarantee of
USAID issued pursuant to this part and
Section 7034(o) of the Department of
State, Foreign Operations, and Related
Programs Appropriations Act, 2016
(Div. K, Pub. L. 114–113).
Guarantee Payment Date means a
Business Day not more than three (3)
Business Days after the related Date of
Application.
Interest Amount means for any
Eligible Note the amount of interest
accrued on the Principal Amount of
such Eligible Note at the applicable
Interest Rate.
Interest Rate means the interest rate
borne by an Eligible Note.
Loss of Investment means, in respect
of any Eligible Note, an amount in
United States Dollars equal to the total
of the:
(1) Defaulted Payment unpaid as of
the Date of Application,
(2) Further Guaranteed Payments
unpaid as of the Date of Application,
and
VerDate Sep<11>2014
13:32 Aug 01, 2016
Jkt 238001
(3) Interest accrued and unpaid at the
Interest Rate(s) specified in the Eligible
Note(s) on the Defaulted Payment and
Further Guaranteed Payments, in each
case from the date of default with
respect to such payment to and
including the date on which full
payment thereof is made to the
Noteholder.
Note[s] means any debt securities
issued by the Borrower.
Noteholder means the owner of an
Eligible Note who is registered as such
on the Note Register.
Note Register means the register of
Eligible Notes required to be maintained
by the Fiscal Agent.
Person means any legal person,
including any individual, corporation,
partnership, joint venture, association,
joint stock company, trust,
unincorporated organization, or
government or any agency or political
subdivision thereof.
Principal amount means the principal
amount of the Eligible Notes issued by
the Borrower. For purposes of
determining the principal amount of the
Eligible Notes issued by the Borrower,
the principal amount of each Eligible
Note shall be the stated principal
amount thereof.
USAID means the United States
Agency for International Development
or its successor.
§ 239.3
The Guarantee.
Subject to the terms and conditions
set out in this part, the United States of
America, acting through USAID,
guarantees to Noteholders the
Borrower’s repayment of 100 percent of
principal and interest due on Eligible
Notes. Under the Guarantee, USAID
agrees to pay to any Noteholder
compensation in United States Dollars
equal to such Noteholder’s Loss of
Investment under its Eligible Note;
provided, however, that no such
payment shall be made to any
Noteholder for any such loss arising out
of fraud or misrepresentation for which
such Noteholder is responsible or of
which it had knowledge at the time it
became such Noteholder. The Guarantee
shall apply to each Eligible Note
registered on the Note Register required
to be maintained by the Fiscal Agent.
§ 239.4
Guarantee eligibility.
(a) Eligible Notes only are guaranteed
hereunder. Notes in order to achieve
Eligible Note status:
(1) Must be signed on behalf of the
Borrower, manually or in facsimile, by
a duly authorized representative of the
Borrower;
(2) Must contain a certificate of
authentication manually executed by a
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
50619
Fiscal Agent whose appointment by the
Borrower is consented to by USAID in
the Fiscal Agency Agreement; and
(3) Shall be approved and
authenticated by USAID by either:
(i) The affixing by USAID on the
Notes of a guarantee legend
incorporating these Standard Terms and
Conditions signed on behalf of USAID
by either a manual signature or a
facsimile signature of an authorized
representative of USAID or
(ii) The delivery by USAID to the
Fiscal Agent of a guarantee certificate
incorporating these Standard Terms and
Conditions signed on behalf of USAID
by either a manual signature or a
facsimile signature of an authorized
representative of USAID.
(b) The authorized USAID
representatives for purposes of the
regulations in this part whose
signature(s) shall be binding on USAID
shall include the USAID Chief and
Deputy Chief Financial Officer,
Assistant Administrator and Deputy,
Bureau for Economic Growth,
Education, and Environment, Director
and Deputy Director, Office of
Development Credit, and such other
individual(s) designated in a certificate
executed by an authorized USAID
Representative and delivered to the
Fiscal Agent. The certificate of
authentication of the Fiscal Agent
issued pursuant to the Fiscal Agency
Agreement shall, when manually
executed by the Fiscal Agent, be
conclusive evidence binding on USAID
that an Eligible Note has been duly
executed on behalf of the Borrower and
delivered.
§ 239.5
Non-impairment of the Guarantee.
After issuance of the Guarantee, the
Guarantee will be an unconditional, full
faith and credit obligation of the United
States of America and will not be
affected or impaired by any subsequent
condition or event. This nonimpairment of the guarantee provision
shall not, however, be operative with
respect to any loss arising out of fraud
or misrepresentation for which the
claiming Noteholder is responsible or of
which it had knowledge at the time it
became a Noteholder. In particular and
without limitation, the Guarantee shall
not be affected or impaired by:
(a) Any defect in the authorization,
execution, delivery or enforceability of
any agreement or other document
executed by a Noteholder, USAID, the
Fiscal Agent or the Borrower in
connection with the transactions
contemplated by this Guarantee or
(b) The suspension or termination of
the program pursuant to which USAID
E:\FR\FM\02AUR1.SGM
02AUR1
50620
Federal Register / Vol. 81, No. 148 / Tuesday, August 2, 2016 / Rules and Regulations
is authorized to guarantee the Eligible
Notes.
with the original payment terms of such
Eligible Notes.
the address set forth in the Note
Register.
§ 239.6 Transferability of Guarantee; Note
Register.
§ 239.10 Payment to USAID of excess
amounts received by a Noteholder.
§ 239.16
A Noteholder may assign, transfer or
pledge an Eligible Note to any Person,
provided that such transfer is permitted
under applicable law and regulation,
including, without limitation, the Office
of Foreign Asset Control (OFAC)
regulations. Any such assignment,
transfer or pledge shall be effective on
the date that the name of the new
Noteholder is entered on the Note
Register required to be maintained by
the Fiscal Agent pursuant to the Fiscal
Agency Agreement. USAID shall be
entitled to treat the Persons in whose
names the Eligible Notes are registered
as the owners thereof for all purposes of
the Guarantee, and USAID shall not be
affected by notice to the contrary.
If a Noteholder shall, as a result of
USAID paying compensation under the
Guarantee, receive an excess payment, it
shall refund the excess to USAID.
§ 239.7
Fiscal Agent obligations.
Failure of the Fiscal Agent to perform
any of its obligations pursuant to the
Fiscal Agency Agreement shall not
impair any Noteholder’s rights under
the Guarantee, but may be the subject of
action for damages against the Fiscal
Agent by USAID as a result of such
failure or neglect. A Noteholder may
appoint the Fiscal Agent to make
demand for payment on its behalf under
the Guarantee.
§ 239.8 Event of Default; Application for
Compensation; payment.
Lhorne on DSK30JT082PROD with RULES
At any time after an Event of Default,
as this term is defined in an Eligible
Note, any Noteholder hereunder, or the
Fiscal Agent on behalf of a Noteholder
hereunder, may file with USAID an
Application for Compensation in the
form provided in Appendix A to this
part. USAID shall pay or cause to be
paid to any such Applicant any
compensation specified in such
Application for Compensation that is
due to the Applicant pursuant to the
Guarantee as a Loss of Investment not
later than the Guarantee Payment Date.
In the event that USAID receives any
other notice of an Event of Default,
USAID may pay any compensation that
is due to any Noteholder pursuant to the
Guarantee, whether or not such
Noteholder has filed with USAID an
Application for Compensation in
respect of such amount.
§ 239.9
No acceleration of Eligible Notes.
Eligible Notes shall not be subject to
acceleration, in whole or in part, by
USAID, the Noteholder or any other
party. USAID shall not have the right to
pay any amounts in respect of the
Eligible Notes other than in accordance
VerDate Sep<11>2014
13:32 Aug 01, 2016
Jkt 238001
§ 239.11
Subrogation of USAID.
In the event of payment by USAID to
a Noteholder under the Guarantee,
USAID shall be subrogated to the extent
of such payment to all of the rights of
such Noteholder against the Borrower
under the related Note.
§ 239.12
Change in agreements.
No Noteholder will consent to any
change or waiver of any provision of
any document contemplated by the
Guarantee without the prior written
consent of USAID.
§ 239.14
Arbitration.
Any controversy or claim between
USAID and any Noteholder arising out
of the Guarantee shall be settled by
arbitration to be held in Washington, DC
in accordance with the then prevailing
rules of the American Arbitration
Association, and judgment on the award
rendered by the arbitrators may be
entered in any court of competent
jurisdiction.
§ 239.15
Notice.
Any communication to USAID
pursuant to the Guarantee shall be in
writing in the English language, shall
refer to the Republic of Tunisia Loan
Guarantee Number inscribed on the
Eligible Note and shall be complete on
the day it shall be actually received by
USAID at the Office of Development
Credit, Bureau for Economic Growth,
Education and Environment, United
States Agency for International
Development, Washington, DC 20523–
0030. Other addresses may be
substituted for the above upon the
giving of notice of such substitution to
each Noteholder by first class mail at
PO 00000
Frm 00016
Fmt 4700
Sfmt 9990
The Guarantee shall be governed by
and construed in accordance with the
laws of the United States of America
governing contracts and commercial
transactions of the United States
Government.
Appendix A to Part 239—Application
for Compensation
Application for Compensation
United States Agency for International
Development
Washington, DC 20523
Prosecution of claims.
After payment by USAID to an
Applicant hereunder, USAID shall have
exclusive power to prosecute all claims
related to rights to receive payments
under the Eligible Notes to which it is
thereby subrogated. If a Noteholder
continues to have an interest in the
outstanding Eligible Notes, such a
Noteholder and USAID shall consult
with each other with respect to their
respective interests in such Eligible
Notes and the manner of and
responsibility for prosecuting claims.
§ 239.13
Governing law.
Ref: Guarantee dated as of ll, 20ll:
Gentlemen: You are hereby advised that
payment of $ll (consisting of $ll of
principal, $ll of interest and $ll in
Further Guaranteed Payments, as defined in
§ 239.2 of the Standard Terms and
Conditions of the above-mentioned
Guarantee) was due on llll, 20l, on
$ll Principal Amount of Notes issued by
Banque Centrale de Tunisie, acting on behalf
of the Republic of Tunisia (the ‘‘Borrower’’)
held by the undersigned. Of such amount
$ll was not received on such date and has
not been received by the undersigned at the
date hereof. In accordance with the terms and
provisions of the above-mentioned
Guarantee, the undersigned hereby applies,
under § 239.8 of said Guarantee, for payment
of $ll, representing $ll, the Principal
Amount of the presently outstanding Note(s)
of the Borrower held by the undersigned that
was due and payable on ll and that
remains unpaid, and $ll, the Interest
Amount on such Note(s) that was due and
payable by the Borrower on ll and that
remains unpaid, and $ll in Further
Guaranteed Payments,1 plus accrued and
unpaid interest thereon from the date of
default with respect to such payments to and
including the date payment in full is made
by you pursuant to said Guarantee, at the rate
of l% per annum, being the rate for such
interest accrual specified in such Note. Such
payment is to be made at [state payment
instructions of Noteholder].
All capitalized terms herein that are not
otherwise defined shall have the meanings
assigned to such terms in the Standard Terms
and Conditions of the above-mentioned
Guarantee.
By: lllllllllllllllllll
Gayle Girod,
Assistant General Counsel
Office of the General Counsel
U.S. Agency for International Development
July 27, 2016.
[FR Doc. 2016–18192 Filed 8–1–16; 8:45 am]
BILLING CODE P
1 In the event the Application for Compensation
relates to Further Guaranteed Payments, such
Application must also contain a statement of the
nature and circumstances of the related loss.
E:\FR\FM\02AUR1.SGM
02AUR1
Agencies
[Federal Register Volume 81, Number 148 (Tuesday, August 2, 2016)]
[Rules and Regulations]
[Pages 50618-50620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18192]
=======================================================================
-----------------------------------------------------------------------
AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 239
Republic of Tunisia Loan Guarantees Issued Under Section 7034(o)
of the Department of State, Foreign Operations, and Related Programs
Appropriations Act of 2016--Standard Terms and Conditions
AGENCY: Agency for International Development (USAID).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This regulation prescribes the procedures and standard terms
and conditions applicable to loan guarantees to be issued for the
benefit of the Republic of Tunisia pursuant to Section 7034(o) of the
Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2016.
DATES: Effective August 1, 2016.
FOR FURTHER INFORMATION CONTACT: D. Bruce McPherson, Office of General
Counsel, U.S. Agency for International Development, Washington, DC
20523-6601; tel. 202-712-1611, fax 202-216-3058.
SUPPLEMENTARY INFORMATION: Pursuant to Section 7034(o) of the
Department of State, Foreign Operations, and Related Programs
Appropriations Act, 2016 (Div. K, Pub. L. 114-113), the United States
of America, acting through the U.S. Agency for International
Development, may issue certain loan guarantees applicable to sums
borrowed by Banque Centrale de Tunisie, acting on behalf of the
Republic of Tunisia (the ``Borrower''), not exceeding an aggregate
total of U.S. $500 million in principal amount. Upon issuance, the loan
guarantees shall ensure the Borrower's repayment of 100% of principal
and interest due under such loans, and the full faith and credit of the
United States of America shall be pledged for the full payment and
performance of such guarantee obligations.
This rulemaking document is not subject to rulemaking under 5
U.S.C. 553 or to regulatory review under Executive Order 12866 because
it involves a foreign affairs function of the United States. The
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do
not apply.
List of Subjects in 22 CFR Part 239
Foreign aid, Foreign relations, Guaranteed loans, Loan programs--
foreign relations.
Authority and Issuance
0
Accordingly, part 239 is added to title 22, chapter II, of the Code of
Federal Regulations, to read as follows:
PART 239--REPUBLIC OF TUNISIA LOAN GUARANTEES ISSUED UNDER SECTION
7034(o) OF THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED
PROGRAMS APPROPRIATIONS ACT OF 2016
Sec.
239.1 Purpose.
239.2 Definitions.
239.3 The Guarantee.
239.4 Guarantee eligibility.
239.5 Non-impairment of the Guarantee.
239.6 Transferability of Guarantee; Note Register.
239.7 Fiscal Agent obligations.
239.8 Event of Default; Application for Compensation; payment.
239.9 No acceleration of Eligible Notes.
239.10 Payment to USAID of excess amounts received by a Noteholder.
239.11 Subrogation of USAID.
239.12 Prosecution of claims.
239.13 Change in agreements.
239.14 Arbitration.
239.15 Notice.
239.16 Governing Law.
Appendix A to Part 239--Application for Compensation
Authority: Section 7034(o) of the Department of State, Foreign
Operations, and Related Programs Appropriations Act, 2016 (Div. K,
Pub. L. 114-113)
Sec. 239.1 Purpose.
The purpose of the regulations in this part is to prescribe the
procedures and standard terms and conditions applicable to loan
guarantees issued for the benefit of the Borrower, pursuant Section
7034(o) of the Department of State, Foreign Operations, and Related
Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113). The loan
guarantees will be issued as provided herein pursuant to the Loan
Guarantee Agreement, dated June 6, 2016, between the United States of
America and the Republic of Tunisia (the ``Loan Guarantee Agreement'').
The loan guarantee will apply to sums borrowed during a period
beginning on the date that the Loan Guarantee Agreement enters into
force and ending thirty days after such date, not exceeding an
aggregate total of five hundred million United States Dollars (U.S.
$500,000,000) in principal amount. The loan guarantees shall ensure the
Borrower's repayment of 100% of principal and interest due under such
loans. The full faith and credit of the United States of America is
pledged for the full payment and performance of such guarantee
obligations.
Sec. 239.2 Definitions.
Wherever used in the standard terms and conditions set out in this
part:
Applicant means a Noteholder who files an Application for
Compensation with USAID, either directly or through the Fiscal Agent
acting on behalf of a Noteholder.
Application for Compensation means an executed application in the
form of Appendix A to this part which a Noteholder, or the Fiscal Agent
on behalf of a Noteholder, files with USAID pursuant to Sec. 239.8.
Borrower means Banque Centrale de Tunisie, acting on behalf of
Republic of Tunisia.
Business Day means any day other than a day on which banks in New
York, NY are closed or authorized to be closed or a day which is
observed as a
[[Page 50619]]
Federal holiday in Washington, DC, by the United States Government.
Date of Application means the date on which an Application for
Compensation is actually received by USAID pursuant to Sec. 239.15.
Defaulted Payment means, as of any date and in respect of any
Eligible Note, any Interest Amount and/or Principal Amount not paid
when due.
Eligible Note(s) means [a] Note[s] meeting the eligibility criteria
set out in Sec. 239.4.
Fiscal Agency Agreement means the agreement among USAID, the
Borrower and the Fiscal Agent pursuant to which the Fiscal Agent agrees
to provide fiscal agency services in respect of the Note[s], a copy of
which Fiscal Agency Agreement shall be made available to Noteholders
upon request to the Fiscal Agent.
Fiscal Agent means the bank or trust company or its duly appointed
successor under the Fiscal Agency Agreement which has been appointed by
the Borrower with the consent of USAID to perform certain fiscal agency
services for specified Eligible Note[s] pursuant to the terms of the
Fiscal Agency Agreement.
Further Guaranteed Payments means the amount of any loss suffered
by a Noteholder by reason of the Borrower's failure to comply on a
timely basis with any obligation it may have under an Eligible Note to
indemnify and hold harmless a Noteholder from taxes or governmental
charges or any expense arising out of taxes or any other governmental
charges relating to the Eligible Note in the country of the Borrower.
Guarantee means the guarantee of USAID issued pursuant to this part
and Section 7034(o) of the Department of State, Foreign Operations, and
Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113).
Guarantee Payment Date means a Business Day not more than three (3)
Business Days after the related Date of Application.
Interest Amount means for any Eligible Note the amount of interest
accrued on the Principal Amount of such Eligible Note at the applicable
Interest Rate.
Interest Rate means the interest rate borne by an Eligible Note.
Loss of Investment means, in respect of any Eligible Note, an
amount in United States Dollars equal to the total of the:
(1) Defaulted Payment unpaid as of the Date of Application,
(2) Further Guaranteed Payments unpaid as of the Date of
Application, and
(3) Interest accrued and unpaid at the Interest Rate(s) specified
in the Eligible Note(s) on the Defaulted Payment and Further Guaranteed
Payments, in each case from the date of default with respect to such
payment to and including the date on which full payment thereof is made
to the Noteholder.
Note[s] means any debt securities issued by the Borrower.
Noteholder means the owner of an Eligible Note who is registered as
such on the Note Register.
Note Register means the register of Eligible Notes required to be
maintained by the Fiscal Agent.
Person means any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, or government or any
agency or political subdivision thereof.
Principal amount means the principal amount of the Eligible Notes
issued by the Borrower. For purposes of determining the principal
amount of the Eligible Notes issued by the Borrower, the principal
amount of each Eligible Note shall be the stated principal amount
thereof.
USAID means the United States Agency for International Development
or its successor.
Sec. 239.3 The Guarantee.
Subject to the terms and conditions set out in this part, the
United States of America, acting through USAID, guarantees to
Noteholders the Borrower's repayment of 100 percent of principal and
interest due on Eligible Notes. Under the Guarantee, USAID agrees to
pay to any Noteholder compensation in United States Dollars equal to
such Noteholder's Loss of Investment under its Eligible Note; provided,
however, that no such payment shall be made to any Noteholder for any
such loss arising out of fraud or misrepresentation for which such
Noteholder is responsible or of which it had knowledge at the time it
became such Noteholder. The Guarantee shall apply to each Eligible Note
registered on the Note Register required to be maintained by the Fiscal
Agent.
Sec. 239.4 Guarantee eligibility.
(a) Eligible Notes only are guaranteed hereunder. Notes in order to
achieve Eligible Note status:
(1) Must be signed on behalf of the Borrower, manually or in
facsimile, by a duly authorized representative of the Borrower;
(2) Must contain a certificate of authentication manually executed
by a Fiscal Agent whose appointment by the Borrower is consented to by
USAID in the Fiscal Agency Agreement; and
(3) Shall be approved and authenticated by USAID by either:
(i) The affixing by USAID on the Notes of a guarantee legend
incorporating these Standard Terms and Conditions signed on behalf of
USAID by either a manual signature or a facsimile signature of an
authorized representative of USAID or
(ii) The delivery by USAID to the Fiscal Agent of a guarantee
certificate incorporating these Standard Terms and Conditions signed on
behalf of USAID by either a manual signature or a facsimile signature
of an authorized representative of USAID.
(b) The authorized USAID representatives for purposes of the
regulations in this part whose signature(s) shall be binding on USAID
shall include the USAID Chief and Deputy Chief Financial Officer,
Assistant Administrator and Deputy, Bureau for Economic Growth,
Education, and Environment, Director and Deputy Director, Office of
Development Credit, and such other individual(s) designated in a
certificate executed by an authorized USAID Representative and
delivered to the Fiscal Agent. The certificate of authentication of the
Fiscal Agent issued pursuant to the Fiscal Agency Agreement shall, when
manually executed by the Fiscal Agent, be conclusive evidence binding
on USAID that an Eligible Note has been duly executed on behalf of the
Borrower and delivered.
Sec. 239.5 Non-impairment of the Guarantee.
After issuance of the Guarantee, the Guarantee will be an
unconditional, full faith and credit obligation of the United States of
America and will not be affected or impaired by any subsequent
condition or event. This non-impairment of the guarantee provision
shall not, however, be operative with respect to any loss arising out
of fraud or misrepresentation for which the claiming Noteholder is
responsible or of which it had knowledge at the time it became a
Noteholder. In particular and without limitation, the Guarantee shall
not be affected or impaired by:
(a) Any defect in the authorization, execution, delivery or
enforceability of any agreement or other document executed by a
Noteholder, USAID, the Fiscal Agent or the Borrower in connection with
the transactions contemplated by this Guarantee or
(b) The suspension or termination of the program pursuant to which
USAID
[[Page 50620]]
is authorized to guarantee the Eligible Notes.
Sec. 239.6 Transferability of Guarantee; Note Register.
A Noteholder may assign, transfer or pledge an Eligible Note to any
Person, provided that such transfer is permitted under applicable law
and regulation, including, without limitation, the Office of Foreign
Asset Control (OFAC) regulations. Any such assignment, transfer or
pledge shall be effective on the date that the name of the new
Noteholder is entered on the Note Register required to be maintained by
the Fiscal Agent pursuant to the Fiscal Agency Agreement. USAID shall
be entitled to treat the Persons in whose names the Eligible Notes are
registered as the owners thereof for all purposes of the Guarantee, and
USAID shall not be affected by notice to the contrary.
Sec. 239.7 Fiscal Agent obligations.
Failure of the Fiscal Agent to perform any of its obligations
pursuant to the Fiscal Agency Agreement shall not impair any
Noteholder's rights under the Guarantee, but may be the subject of
action for damages against the Fiscal Agent by USAID as a result of
such failure or neglect. A Noteholder may appoint the Fiscal Agent to
make demand for payment on its behalf under the Guarantee.
Sec. 239.8 Event of Default; Application for Compensation; payment.
At any time after an Event of Default, as this term is defined in
an Eligible Note, any Noteholder hereunder, or the Fiscal Agent on
behalf of a Noteholder hereunder, may file with USAID an Application
for Compensation in the form provided in Appendix A to this part. USAID
shall pay or cause to be paid to any such Applicant any compensation
specified in such Application for Compensation that is due to the
Applicant pursuant to the Guarantee as a Loss of Investment not later
than the Guarantee Payment Date. In the event that USAID receives any
other notice of an Event of Default, USAID may pay any compensation
that is due to any Noteholder pursuant to the Guarantee, whether or not
such Noteholder has filed with USAID an Application for Compensation in
respect of such amount.
Sec. 239.9 No acceleration of Eligible Notes.
Eligible Notes shall not be subject to acceleration, in whole or in
part, by USAID, the Noteholder or any other party. USAID shall not have
the right to pay any amounts in respect of the Eligible Notes other
than in accordance with the original payment terms of such Eligible
Notes.
Sec. 239.10 Payment to USAID of excess amounts received by a
Noteholder.
If a Noteholder shall, as a result of USAID paying compensation
under the Guarantee, receive an excess payment, it shall refund the
excess to USAID.
Sec. 239.11 Subrogation of USAID.
In the event of payment by USAID to a Noteholder under the
Guarantee, USAID shall be subrogated to the extent of such payment to
all of the rights of such Noteholder against the Borrower under the
related Note.
Sec. 239.12 Prosecution of claims.
After payment by USAID to an Applicant hereunder, USAID shall have
exclusive power to prosecute all claims related to rights to receive
payments under the Eligible Notes to which it is thereby subrogated. If
a Noteholder continues to have an interest in the outstanding Eligible
Notes, such a Noteholder and USAID shall consult with each other with
respect to their respective interests in such Eligible Notes and the
manner of and responsibility for prosecuting claims.
Sec. 239.13 Change in agreements.
No Noteholder will consent to any change or waiver of any provision
of any document contemplated by the Guarantee without the prior written
consent of USAID.
Sec. 239.14 Arbitration.
Any controversy or claim between USAID and any Noteholder arising
out of the Guarantee shall be settled by arbitration to be held in
Washington, DC in accordance with the then prevailing rules of the
American Arbitration Association, and judgment on the award rendered by
the arbitrators may be entered in any court of competent jurisdiction.
Sec. 239.15 Notice.
Any communication to USAID pursuant to the Guarantee shall be in
writing in the English language, shall refer to the Republic of Tunisia
Loan Guarantee Number inscribed on the Eligible Note and shall be
complete on the day it shall be actually received by USAID at the
Office of Development Credit, Bureau for Economic Growth, Education and
Environment, United States Agency for International Development,
Washington, DC 20523-0030. Other addresses may be substituted for the
above upon the giving of notice of such substitution to each Noteholder
by first class mail at the address set forth in the Note Register.
Sec. 239.16 Governing law.
The Guarantee shall be governed by and construed in accordance with
the laws of the United States of America governing contracts and
commercial transactions of the United States Government.
Appendix A to Part 239--Application for Compensation
Application for Compensation
United States Agency for International Development
Washington, DC 20523
Ref: Guarantee dated as of __, 20__:
Gentlemen: You are hereby advised that payment of $__
(consisting of $__ of principal, $__ of interest and $__ in Further
Guaranteed Payments, as defined in Sec. 239.2 of the Standard Terms
and Conditions of the above-mentioned Guarantee) was due on ____,
20_, on $__ Principal Amount of Notes issued by Banque Centrale de
Tunisie, acting on behalf of the Republic of Tunisia (the
``Borrower'') held by the undersigned. Of such amount $__ was not
received on such date and has not been received by the undersigned
at the date hereof. In accordance with the terms and provisions of
the above-mentioned Guarantee, the undersigned hereby applies, under
Sec. 239.8 of said Guarantee, for payment of $__, representing $__,
the Principal Amount of the presently outstanding Note(s) of the
Borrower held by the undersigned that was due and payable on __ and
that remains unpaid, and $__, the Interest Amount on such Note(s)
that was due and payable by the Borrower on __ and that remains
unpaid, and $__ in Further Guaranteed Payments,\1\ plus accrued and
unpaid interest thereon from the date of default with respect to
such payments to and including the date payment in full is made by
you pursuant to said Guarantee, at the rate of _% per annum, being
the rate for such interest accrual specified in such Note. Such
payment is to be made at [state payment instructions of Noteholder].
---------------------------------------------------------------------------
\1\ In the event the Application for Compensation relates to
Further Guaranteed Payments, such Application must also contain a
statement of the nature and circumstances of the related loss.
---------------------------------------------------------------------------
All capitalized terms herein that are not otherwise defined
shall have the meanings assigned to such terms in the Standard Terms
and Conditions of the above-mentioned Guarantee.
By:--------------------------------------------------------------------
Gayle Girod,
Assistant General Counsel
Office of the General Counsel
U.S. Agency for International Development
July 27, 2016.
[FR Doc. 2016-18192 Filed 8-1-16; 8:45 am]
BILLING CODE P