25.405—Form of guaranty.
(a)
The Guaranty that will be attached to the
Private Loan Note on the Closing Date shall be in
the following form (except that the bracketed
words shall be deleted if the conditions specified
in § 25.404(b) shall have occurred):
For Value Received, the Defense Security
Assistance Agency of the Department of Defense
(“DSAA”), hereby guarantees to (Name of Lender)
(“Lender”), incorporated under the laws of (U.S.
State or other U.S. jurisdiction) or if not so
incorporated or organized, then the principal
place of doing business is (U.S. location,
address, and zip code), under the authority of
Section 24 of the Arms Export Control Act, as
amended (“Act”), the due and punctual payment of
ninety percent (90%) of amounts due: (1) on the
promissory note (“Note”) in the principal amount
of up to $___ dated ___ issued to the Lender by
the Government of (Name of Borrower) (“Borrower”)
pursuant to the Loan Agreement between the Lender
and the Borrower dated the __th day of ___
(“Agreement”); and (2) the Lender from the
Borrower pursuant to the Agreement.
This Guaranty is a guaranty of payment covering
all political and credit risks of nonpayment,
including any nonpayment arising out of any claim
which the Borrower may now or hereafter have
against any person, corporation, or other entity
(including without limitation, the United States,
the Lender, and any supplier of defense items) in
connection with any transaction, for any reason
whatsoever. This Guaranty shall inure to the
benefit of and shall be
enforceable by the Lender and any Permitted
Guaranty Holder (as hereinafter defined). This
Guaranty shall not be impaired by any law,
regulation or decree of the Borrower now or
hereafter in effect which might in any manner
change any of the terms of the Note or Agreement.
The obligation of DSAA hereunder shall be binding
irrespective of the irregularity, invalidity or
unenforceability under any laws, regulations or
decrees of the Borrower of the Note, the Agreement
or other instruments related thereto.
DSAA hereby waives diligence, demand, protest,
presentment and any requirement that the Lender
exhaust any right or power to take any action
against the Borrower and any notice of any kind
whatsoever other than the demand for payment
required to be given to DSAA hereunder in the
event of default on a payment due under the
Note.
In the event of failure of the Borrower to make
payment, when and as due, of any installment of
principal or interest under the Note, the DSAA
shall make payment immediately to the Lender upon
demand to the DSAA after the Borrower's failure to
pay has continued for 10 calendar days. The amount
payable under this Guaranty shall be ninety
percent (90%) of the amount of the overdue
installment of principal and interest, plus ninety
percent (90%) of any and all late charges and
interest thereon as provided in the Agreement.
Upon payment by DSAA to the Lender, the Lender
will assign to DSAA, without recourse or warranty,
ninety percent (90%) of all of its rights in the
Note and the Agreement with respect to such
payment.
In the event of a default under the Agreement
or the Note by the Borrower and so long as this
Guaranty is in effect and the DSAA is not in
default hereunder:
(i) The Lender or other Permitted Guaranty
Holder shall not accelerate or reschedule payment
of the principal or interest on the Note or any
other note of the Borrower guaranteed by DSAA
except with the written approval of DSAA; and
(ii) The Lender or other Permitted Guaranty
Holder shall, if so directed by DSAA, invoke the
default provisions of the Agreement.
Subject to the limitations set forth below, the
Lender's rights under this Guaranty may be
assigned to any “Permitted Guaranty Holder,” that
is: (1) An individual domiciled in the United
States; (2) a corporation incorporated, chartered
or otherwise organized in the United States; or
(3) a partnership or other juridical entity doing
business in the United States. In the event of
such assignment DSAA shall be promptly notified.
The Lender will not agree to any material
amendment of the Agreement or Note or consent to
any material deviation from the provisions thereof
without the prior written consent of DSAA.
Permitted Guaranty Holders shall be severally
bound by, and shall be severally entitled to, the
rights and obligations of the Lender under the
Note, the Agreement, and this Guaranty. The Lender
shall maintain a current, accurate written record
of the names, addresses, amount of financial
interest in the Note and Agreement, and date of
acquisition of such interest of each Permitted
Guaranty Holder and shall furnish DSAA a copy of
such record on its demand without charge. No
assignment by the Lender or by any Permitted
Guaranty Holder shall be effective for purposes of
this Guaranty unless and until so recorded by the
Lender.
The total amount of this Guaranty shall not at
any time exceed ninety percent (90%) of the
outstanding principal, unpaid accrued interest and
arrearages, if any, under the Agreement and the
Note, including any portion of the Note, or any
derivative of the Note or any portion of the
Note.
This Guaranty shall cease to be effective with
respect to the guaranteed amount of the total
amount of the Note (the “Guaranteed Loan Amount”)
or with respect to the guaranteed amount of any
portion of the Note (the “Guaranteed Loan Portion
Amount”) [or with respect to the amount of any
derivative or derivatives of the Note or any
portion of the Note equal, or in the aggregate
equal, in principal amount to the total amount of
the Note or such portion of the Note, as the case
may be, which amount of such derivative or
derivatives is equal to the respective Guaranteed
Loan Amount or Guaranteed Loan Portion Amount, as
the case may be (the “Guaranteed-Amount
Equivalent”)] to the extent that (1) the
Guaranteed Loan Amount or the respective
Guaranteed Loan Portion Amount [or the respective
Guaranteed-Amount Equivalent], as the case may be,
is at any time separated from the unguaranteed
amount of the total amount of the Note or the
unguaranteed amount of the respective portion of
the Note [or the amount of such derivative or
derivatives of the Note which is not the amount
which is equal to the Guaranteed Loan Amount or
Guaranteed Loan Portion Amount, as the case may
be], in any way, (a) directly, or (b) through the
issuance of participation shares of, or undivided
ownership or other equity interests in, the Note,
or any portion of the Note, or any derivative of
the Note or any portion of the Note, which have an
exclusive or preferred claim to the Guaranteed
Loan Amount or the respective Guaranteed Loan
Portion Amount [or the respective
Guaranteed-Amount Equivalent], as the case may be
[or (c) through the issuance of notes, bonds or other debt instruments or
obligations which are collateralized or otherwise
secured by a pledge of, or security interest in,
the Note, or any portion of the Note or any
derivative of the Note or any portion of the Note,
which has an exclusive or preferred claim to the
Guaranteed Loan Amount or the respective
Guaranteed Loan Portion Amount or the respective
Guaranteed-Amount Equivalent, as the case may be];
or (2) any holder of the Note, or any portion of
the Note, or any derivative of the Note or any
portion of the Note, as the case may be, having
claim to payment made on the Note, receives more
than ninety percent of any payment due to such
holder from payments made under this Guaranty at
any time during the term of the Note or the
Agreement.
This Guaranty is fully and freely transferable
to any Permitted Guaranty Holder, except that it
shall cease to be effective with respect to the
Agreement or the Note, or any portion of the Note,
or any derivative of the Note or any portion of
the Note, to the extent that the Agreement or the
Note, or the respective portion of the Note, or
the respective derivative of the Note or any
portion of the Note, as the case may be, is used
to provide significant support for any
non-registered obligation.
The full faith and credit of the United States
is pledged to the performance of this Guaranty. No
claim which the United States may now or hereafter
have against the Lender or any Permitted Guaranty
Holder for any reason whatsoever shall affect in
any way the right of the Lender or any Permitted
Guaranty Holder to receive full and prompt payment
of any amount otherwise due under this Guaranty.
The United States represents and warrants that (a)
it has full power, authority and legal right to
execute, deliver and perform this Guaranty, (b)
this Guaranty has been executed in accordance with
and pursuant to the terms and provisions of
section 24 of the Act, the provisions of the
Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1988, under the
hearing “Foreign Military Sales Debt Reform,” and
title 31, part 25, of the Code of Federal
Regulations, (c) this Guaranty has been duly
executed and delivered by a duly authorized
representative of DSAA, and (d) this Guaranty
constitutes the valid and legally binding
obligations of the United States, enforceable in
accordance with the terms hereof.
Any notice, demand, or other communication
hereunder shall be deemed to have been given if in
writing and actually delivered to the Comptroller,
DSAA, the Pentagon, Washington, DC 20301-2800, or
the successor, or such other place as may be
designated in writing by the Comptroller, DSAA or
the successor thereof.
By acceptance of the Note, the Lender agrees to
the terms and conditions of this Guaranty.
Dated:
By:
Director, DSAA.
(b)
The obligations of DSAA under the Guaranty
are expressly limited to those obligations
contained in the form of Guaranty set forth in
paragraph (a) of this section. Any provisions of
any agreement relating to the Private Loan
purporting to create obligations on the part of
DSAA which are inconsistent with the terms of the
Guaranty or any other provision of this part be
unenforceable against DSAA.