[Federal Register: September 23, 2005 (Volume 70, Number 184)]
[Rules and Regulations]
[Page 56101-56104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23se05-22]
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Part VI
Agency for International Development
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22 CFR Part 231
Arab Republic of Egypt Loan Guarantees Issued Under the Emergency
Wartime Supplemental Appropriations Act of 2003--Standard Terms and
Conditions; Final Rule
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AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 231
Arab Republic of Egypt Loan Guarantees Issued Under the Emergency
Wartime Supplemental Appropriations Act of 2003--Standard Terms and
Conditions
AGENCY: Agency for International Development (USAID).
ACTION: Final rule.
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SUMMARY: This regulation prescribes the procedures and standard terms
and conditions applicable to loan guarantees issued for the benefit of
the Arab Republic of Egypt pursuant to the Emergency Wartime
Supplemental Appropriations Act of 2003.
EFFECTIVE DATE: September 23, 2005.
FOR FURTHER INFORMATION CONTACT: Christopher F.D. Ryder, Office of the
General Counsel, U.S. Agency for International Development, 1300
Pennsylvania Ave., Washington, DC 20523-6601; tel. 202-712-4775, fax
202-216-3055.
SUPPLEMENTARY INFORMATION: Pursuant to the Emergency Wartime
Supplemental Appropriations Act of 2003 (Pub. L. 108-11), the United
States of America, acting through the U.S. Agency for International
Development, may issue loan guarantees applicable to sums borrowed by
the Arab Republic of Egypt (the ``Borrower'') from time to time between
September 23, 2005 and September 30, 2005, not exceeding an aggregate
total of $2 billion in principal amount. The loan guarantees shall
insure 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.
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 231
Foreign aid, Foreign relations, Loan programs-foreign relations.
Authority and Issuance
Accordingly, a new part 231 is added to Title 22, Chapter II, of
the Code of Federal Regulations, as follows:
PART 231--ARAB REPUBLIC OF EGYPT LOAN GUARANTEES ISSUED UNDER THE
EMERGENCY WARTIME SUPPLEMENTAL APPROPRIATIONS ACT OF 2003, PUBLIC
LAW 108-11--STANDARD TERMS AND CONDITIONS
Sec.
231.01 Purpose.
231.02 Definitions.
231.03 The Guarantee.
231.04 Guarantee Eligibility.
231.05 Non-impairment of the Guarantee.
231.06 Transferability of Guarantee; Note Register.
231.07 Fiscal Agent Obligations.
231.08 Event of Default; Application for Compensation; Payment.
231.09 No acceleration of Eligible Notes.
231.10 Payment to USAID of excess amounts received by a Noteholder.
231.11 Subrogation of USAID.
231.12 Prosecution of claims.
231.13 Change in agreements.
231.14 Arbitration.
231.15 Notice.
231.16 Governing law.
Authority: Emergency Wartime Supplemental Appropriations Act,
2003, Pub. L. 108-11, chapter 5, title I, ``Economic Support Fund'',
para. (2).
Sec. 231.01 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 Arab Republic of Egypt
(``Borrower''), pursuant to the Emergency Wartime Supplemental
Appropriations Act of 2003, Public Law 108-11. The loan guarantees will
apply to sums borrowed from time to time between September 23, 2005 and
September 30, 2005, not exceeding an aggregate total of two billion
United States Dollars ($2,000,000,000) in principal amount. The loan
guarantees shall insure 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. The loan guarantees will be
issued pursuant to a Loan Guarantee Commitment Agreement between the
Borrower and the United States dated September 12, 2005.
Sec. 231.02 Definitions.
Wherever used in the standard terms and conditions set out in this
part:
(a) USAID means the United States Agency for International
Development or its successor.
(b) Eligible Note(s) means [a] Note[s] meeting the eligibility
criteria set out in Sec. 231.04.
(c) Noteholder means the owner of an Eligible Note who is
registered as such on the Note Register of Eligible Notes required to
be maintained by the Fiscal Agent.
(d) Borrower means the Arab Republic of Egypt.
(e) 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.
(f) 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.
(g) 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.
(h) Principal Amount means the principal amount of any Eligible
Notes issued by the Borrower. For purposes of determining the principal
amount of any Eligible Notes issued by the Borrower, the principal
amount of each Eligible Note shall be the stated principal amount
thereof.
(i) Interest Rate means the interest rate borne by an Eligible
Note.
(j) Loss of Investment respecting any Eligible Note means an amount
in 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.
(k) 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.
231.08.
(l) 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.
(m) Date of Application means the date on which an Application for
Compensation is actually received by USAID pursuant to Sec. 231.15.
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(n) 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 federal holiday in Washington, DC, by the United States
Government.
(o) Guarantee means the guarantee of USAID pursuant to this part
231 and the Emergency Wartime Supplemental Appropriations Act of 2003,
Public Law 108-11.
(p) Guarantee Payment Date means a Business Day not more than three
(3) Business Days after the related Date of Application.
(q) 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.
(r) Note[s] means any debt securities issued by the Borrower.
(s) 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.
(t) 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.
Sec. 231.03 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 this Guarantee, USAID agrees to
pay to any Noteholder compensation in 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. This Guarantee shall apply to each Eligible
Note registered on the Note Register required to be maintained by the
Fiscal Agent.
Sec. 231.04 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,
Agriculture and Trade, 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. 231.05 Non-impairment of the Guarantee.
The full faith and credit of the United States of America is
pledged to the performance of this Guarantee. The Guarantee shall be
unconditional, and 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 is authorized to guarantee the Eligible Notes. 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.
Sec. 231.06 Transferability of Guarantee; Note Register.
A Noteholder may assign, transfer or pledge an Eligible Note to any
Person. 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 this Guarantee and USAID shall not be affected by
notice to the contrary.
Sec. 231.07 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 this 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 this Guarantee.
Sec. 231.08 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 three (3) Business Days after the Date of Application. 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 a Guarantee, whether or not such Noteholder has filed with USAID an
Application for Compensation in respect of such amount.
Sec. 231.09 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
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Eligible Notes other than in accordance with the original payment terms
of such Eligible Notes.
Sec. 231.10 Payment to USAID of excess amounts received by a
Noteholder.
If a Noteholder shall, as a result of USAID paying compensation
under this Guarantee, receive an excess payment, it shall refund the
excess to USAID.
Sec. 231.11 Subrogation of USAID.
In the event of payment by USAID to a Noteholder under this
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. 231.12 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. 231.13 Change in agreements.
No Noteholder will consent to any change or waiver of any provision
of any document contemplated by this Guarantee without the prior
written consent of USAID.
Sec. 231.14 Arbitration.
Any controversy or claim between USAID and any noteholder arising
out of this 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. 231.15 Notice.
Any communication to USAID pursuant to this Guarantee shall be in
writing in the English language, shall refer to the Arab Republic of
Egypt 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, Agriculture
and Trade, 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. 231.16 Governing law.
This 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 231--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. 231.02(f) of the
Standard Terms and Conditions of the above-mentioned Guarantee) was
due on ------------, 20----, on $-------- principal amount of Notes
issued by the Arab Republic of Egypt (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. 231.08 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].
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\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.
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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.
[Name of Applicant]
By:--------------------------------------------------------------------
Name:
Title:
Dated:
Dated: September 21, 2005.
Christopher F.D. Ryder,
Attorney Advisor.
[FR Doc. 05-19122 Filed 9-22-05; 8:45 am]
BILLING CODE 6116-01-P