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(b) transfers and additions to the insurance or guaranty reserves, the Direct Investment Fund established pursuant to section 235, and such other funds or reserves as the Corporation may establish, at such time and in such amounts as the Board may determine; and
(c) payment of dividends, on capital stock, which shall consist of and be paid from net earnings of the Corporation after payments, transfers, and additions under subsections (a) and
(b) hereof. Sec. 237.275 General Provisions Relating to Insurance Guaranty, and Financing Program.-(a) Insurance guaranties, and reinsurance 276 issued under this title shall cover investment made in connection with projects in any less developed friendly country or area with the government to which the President of the United States has agreed to institute a program for insurance, guaranties, or reinsurance.276
(b) The Corporation shall determine that suitable arrangements exist for protecting the interest of the Corporation in connection with any insurance, guaranty or reinsurance 276 issued under this title, including arrangements concerning ownership, use, and disposition of the currency, credits, assets, or investments on account of which payment under such insurance, guaranty, or reinsurance 276 is to be made, and right, title, claim, or cause of action existing in connection therewith.
(c) All guaranties issued prior to July 1, 1956, all guaranties issued under sections 202(b) and 413(b) of the Mutual Security Act of 1954, as amended, all guaranties heretofore issued pursuant to prior guaranty authorities repealed by the Foreign Assistance Act of 1969, and all insurance, reinsurance, 276 and guaranties issued pursuant to this title shall constitute obligations, in accordance with the terms of such insurance, reinsurance, 276 or guaranties, of the United States of America and the full faith and credit of the United States of America is hereby pledged for the full payment and performance of such obligations. (d) 277 FEES.
(1) IN GENERAL.-Fees may be charged for providing insurance, reinsurance, financing, and other services under this title in amounts to be determined by the Corporation. In the event fees charged for insurance, reinsurance, financing, or other services are reduced, fees to be paid under existing contracts for the same type of insurance, reinsurance, financing, or services and for similar guarantees issued under predecessor guarantee authority may be reduced.
(2) CREDIT TRANSACTION COSTS.-Project-specific transaction costs incurred by the Corporation relating to loan obligations or loan guarantee commitments covered by the provisions of
275 22 U.S.C. 2197. Sec. 237 was added by Sec. 105 of the FA Act of 1969.
Sec. 110(c) of the OPIC Amendments Act of 1988, S. 2757, enacted into law by reference in the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1989 (Public Law 100_461; 102 Stat. 2268) struck “and Guaranty" and inserted "Guaranty, and Financing”.
276 Sec. 2(4) of the OPIC Amendments Act of 1974 (Public Law 93–390) added the reference to reinsurance.
277 Sec. 105(a) of the Jobs Through Exports Act of 1992 (Public Law 102-549; 106 Stat. 3652) amended and restated subsec. (d). Previously it had been amended and restated by sec. 2(4)(D) of the OPIC Amendments Act of 1974 (Public Law 93-390).
the Federal Credit Reform Act of 1990, including the costs of project-related travel and expenses for legal representation provided by persons outside the Corporation and other similar expenses which are charged to the borrower, shall be paid out of the appropriate finance account established pursuant to section 505(b) of such Act.
(3) NONCREDIT TRANSACTION COSTS.-Fees paid for the project-specific transaction costs and other direct costs associated with services provided to specific investors or potential investors pursuant to section 234 (other than those covered in paragraph (2)), including financing, insurance, reinsurance, missions, seminars, conferences, and other preinvestment services, shall be available for obligation for the purposes for which they were collected, notwithstanding any other provision of
law. (e) No insurance, guaranty, or reinsurance 276 of any equity investment shall extend beyond twenty years from the date of issuance.
(f) Compensation for insurance, reinsurance, or guaranties issued under this title shall not exceed the dollar value, as of the date of the investment, of the investment made in the project with the approval of the Corporation plus interest, earnings, or profits actually accrued on such investment to the extent provided by such insurance, reinsurance, or guaranty, except that the Corporation may provide that (1) appropriate adjustments in the insured dollar value be made to reflect the replacement cost of project assets, and (2) compensation for a claim of loss under insurance of an equity investment may be computed on the basis of the net book value attributable to such equity investment on the date of loss.278 Notwithstanding the preceding sentence, the Corporation shall limit the amount of direct insurance and reinsurance issued by it under section 234 or 234A so that risk of loss as to at least 10 per centum of the total investment of the insured and its affiliates in the project is borne by the insured and such affiliates, except that limitation shall not apply to direct insurance or reinsurance of loans by banks or other financial institutions to unrelated parties and 279 (3) 280 compensation for loss due to business interruption may be computed on a basis to be determined by the Corporation which reflects amounts lost.
(g) No payment may be made under any guaranty, insurance or reinsurance 276 issued pursuant to this title for any loss arising out
278 The first sentence of subsec. (f) was amended and restated by sec, 6(a) of the OPIC Amendments Act of 1981 (Public Law 97-65; 95 Stat. 1023). Previous amendments to this sentence in subsec. (1) which are retained in the new text include the following: The word “reinsurance" was added by sec. 2(4)F) of Public Law 93–390; the basic language of clause (1) was added by sec. 5 of Public Law 95–268 (92 Stat. 215).
279 This sentence was added by sec. 2(4XG) of the OPIC Amendments Act of 1974 (Public Law 93-390). The phrase "except that limitation shall not apply to direct insurance or reinsurance of loans by banks or other financial institutions to unrelated parties” was added by sec. 5 of Public Law 95-268 (92 Stat. 215).
A sentence, as added by sec. 2(4G) of Public Law 93–390 and which previously appeared at this point, was struck out by sec. 6(b) of the OPIC Amendments Act of 1981 (Public Law 9765; 95 Stat. 1023). It formerly read as follows: "The preceding sentence shall not apply to the extent not permitted by State law.”.
280 Subpara. (3) as added by sec. 6(b) of the OPIC Amendments Act of 1985 (Public Law 99–
of fraud or misrepresentation for which the party seeking payment is responsible.
(h) Insurance, guaranties, or reinsurance 281 of a loan or equity investment of an eligible investor in a foreign bank, finance company, or other credit institution shall extend only to such loan or equity investment and not to any individual loan or equity investment made by such foreign bank, finance company, or other credit institution.
(i) Claims arising as a result of insurance, reinsurance 282 or guaranty operations under this title or under predecessor guaranty authority may be settled, and disputes arising as a result thereof may be arbitrated with the consent of the parties, on such terms and conditions as the Corporation may determine. Payment made pursuant to any such settlement, or as a result of an arbitration award, shall be final and conclusive notwithstanding any other provision of law.
(j) Each guaranty contract executed by such officer or officers as may be designated by the Board shall be conclusively presumed to be issued in compliance with the requirements of this Act.
(k) 283 In making a determination to issue insurance, guaranties, or reinsurance under this title, the Corporation shall consider the possible adverse effect of the dollar investment under such insurance, guaranty, or reinsurance upon the balance of payments of the United States.
(1) 284 (1) No payment may be made under any insurance or reinsurance which is issued under this title on or after the date of enactment of this subsection for any loss occurring with respect to a project, if the preponderant cause of such loss was an act by the investor seeking payment under this title, by a person possessing majority ownership and control of the investor at the time of the act, or by any agent of such investor or controlling person, and a court of the United States has entered a final judgment that such act constituted a violation under the Foreign Corrupt Practices Act of 1977.
(2) Not later than 120 days after the date of enactment of this subsection, the Corporation shall adopt regulations setting forth appropriate conditions under which any person convicted under the Foreign Corrupt Practices Act of 1977 for an offense related to a project insured or otherwise supported by the Corporation shall be suspended, for a period of not more than five years, from eligibility to receive any insurance, reinsurance, guaranty, loan, or other financial support authorized by this title.
281 Sec. 2(4X(I) of the OPIC Amendments Act of 1974 (Public Law 93–390) substituted the words“, guaranties, or reinsurance” in lieu of “or guaranties”.
282 Sec. 214XJ) of the OPIC Amendments Act of 1974 (Public Law 93–390) added the word “, reinsurance”.
283 Subsec. (k) was amended by sec. 2(4K) of the OPIC Amendments Act of 1974 (Public Law 93-390). It formerly read as follows: "(k) In making a determination to issue insurance or a guaranty under this title, the Corporation shall consider the possible adverse effect of the dollar investment under such insurance or guaranty upon the balance of payments of the United States".
284 Subsec. (1) was added by sec. 6 of Public Law 95–268 (92 Stat. 215); the subsec. became effective April 24, 1978.
(m) 285 (1) Before finally providing insurance, reinsurance, guarantees, or financing under this title for any environmentally sensitive investment in connection with a project in a country, the Corporation shall notify appropriate government officials of that country of
(A) all guidelines and other standards adopted by the International Bank for Reconstruction and Development and any other international organization relating to the public health or safety or the environment which are applicable to the project; and
(B) to the maximum extent practicable, any restriction under any law of the United States relating to public health or safety or the environment that would apply to the project if the
project were undertaken in the United States. The notification under the preceding sentence shall include a summary of the guidelines, standards, and restrictions referred to in subparagraphs (A) and (B), and may include any environmental impact statement, assessment, review, or study prepared with respect to the investment pursuant to section 239(g).
(2) Before finally providing insurance, reinsurance, guarantees, or financing for any investment subject to paragraph (1), the Corporation shall take into account any comments it receives on the project involved.
(3) On or before September 30, 1986, the Corporation shall notify appropriate government officials of a country of the guidelines, standards, and legal restrictions described in paragraph (1) that apply to any project in that country
(A) which the Corporation identifies as potentially posing major hazards to public health and safety or the environment; and
(B) for which the Corporation provided insurance, reinsurance, guarantees, or financing under this title before the date of enactment of this subsection and which is in the Corpora
tion's portfolio on that date. (n) 286 PENALTIES FOR FRAUD.—Whoever knowingly makes any false statement or report, or willfully overvalues any land, property, or security, for the purpose of influencing in any way the action of the Corporation with respect to any insurance, reinsurance, guarantee, loan, equity investment, or other activity of the Corporation under section 234 or any change or extension of any such insurance, reinsurance, guarantee, loan, equity investment, or activity, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
(0) 287 USE OF LOCAL CURRENCIES.—Direct loans or investments made in order to preserve the value of funds received in inconvertible foreign currency by the Corporation as a result of activities conducted pursuant to section 234(a) shall not be considered in determining whether the Corporation has made or has outstanding loans or investments to the extent of any limitation on obligations and equity investment imposed by or pursuant to this title. The provisions of section 504(b) of the Federal Credit Reform Act of 1990 shall not apply to direct loan obligations made with funds described in this subsection. Sec. 238.288 Definitions.-As used in this title
285 Subsec. (m) was added by sec. 4(b) of the OPIC Amendments Act of 1985 (Public Law 99– 204).
286 Sec. 105(b) of the Jobs Through Exports Act of 1992 (Public Law 102-549; 106 Stat. 3653) added subsec. (n).
287 Sec. 105(c) of the Jobs Through Exports Act of 1992 (Public Law 102-549; 106 Stat. 3653) added subsec. (o).
(a) the term “investment” includes any contribution or commitment 289 of funds, commodities, services, patents, processes, or techniques, in the form of (1) a loan or loans to an approved project, (2) the purchase of a share of ownership in any such project, (3) participation in royalties, earnings, or profits of any such project, and (4) the furnishing of commodities or services pursuant to a lease or other contract;
(b) the term "expropriation” includes, but is not limited to, any abrogation, repudiation, or impairment by a foreign government of its own contract with an investor with respect to a project, where such abrogation, repudiation, or impairment is not caused by the investor's own fault or misconduct, and materially adversely affects the continued operation of the project;
(c) the term “eligible investor” means: (1) United States citizens; (2) corporations, partnerships, or other associations including nonprofit associations, created under the laws of the United States any State or territory thereof, or the District of Columbia, 290 and substantially beneficially owned by United States citizens; and (3) foreign corporations, partnerships, or other associations wholly owned by one or more such United States citizens, corporations, partnerships, or other associations: Provided however, That the eligibility of such foreign corporation shall be determined without regard to any shares, in aggregate less than 5 per centum of the total issued and subscribed share capital, 291 held by other than the United States owners: Provided further, That in the case of any loan investment a final determination of eligibility may be made at the time the insurance or guaranty is issued; in all other cases, the investor must be eligible at the time a claim arises as well as the time the insurance or guaranty is issued; 292
(d) 292 the term “noncredit account revolving fund” means the account in which funds under section 236 and all funds from noncredit activities are held; and 293
(e) 292 the term “noncredit activities” means all activities of the Corporation other than its loan guarantee program under section 234(b) and its direct loan program under section 234(c); 293
288 22 U.S.C. 2198. Sec. 238 was added by sec. 105 of the FA Act of 1969.
289 The words "or commitment” were added by sec. 7 of the OPIC Amendments Act of 1981 (Public Law 97-65; 95 Stat. 1024).
290 Reference to the District of Columbia was added by sec. 17(a) of the OPIC Amendments Act of 1985 (Public Law 99-204).
291 The words “required by Law to be”, which appeared at this point were struck out by sec. 104(a) of the FA Act of 1971.
292 Sec. 106 of the Jobs Through Exports Act of 1992 (Public Law 102–549; 106 Stat. 3653): (1) struck out “and” at the end of subsec. (c); (2) redesignated subsec. (d) as subsec. (f); and (3) added new subsecs. (d) and (e).
293 So in original.