EXHIBIT B-1
EXECUTION VERSION
AMENDMENT NO. 1
TO FISCAL AGENCY AGREEMENT
AMENDMENT NO. 1, dated as of June 3, 2003 (this "Amendment"), to the
Fiscal Agency Agreement (the "Fiscal Agency Agreement"), dated as of April 17,
1998, between THE REPUBLIC OF KOREA, as issuer (the "Issuer"), and THE BANK OF
NEW YORK, as fiscal agent (the "Fiscal Agent" , which term includes any
successor fiscal agent under the Fiscal Agency Agreement). Capitalized terms
used and not otherwise defined herein shall have the meanings assigned to them
in the Fiscal Agency Agreement.
RECITALS
WHEREAS, clause (b)(v) of the last sentence of Section 12 of the Fiscal
Agency Agreement provides that the Issuer and the Fiscal Agent may, without the
vote or consent of any holder of Securities of any Series, amend the Fiscal
Agency Agreement or the Securities of such Series in any manner which the Issuer
and the Fiscal Agent may determine and which shall not be inconsistent with the
provisions of the Securities of such Series and shall not adversely affect the
interest of any holder of Securities of any Series issued pursuant to the Fiscal
Agency Agreement (as determined by the Issuer in a certificate to be delivered
to the Fiscal Agent); and
WHEREAS, the Issuer has requested and the Fiscal Agent has agreed,
consistent with such clause (b)(v), to amend the Fiscal Agency Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1. Scope of Amendment. The provisions of this Amendment shall
apply only to the 4.25% Notes due 2013 (the "Notes") to be issued by the Issuer
on the date hereof, (b) any Securities issued in the future under the Fiscal
Agency Agreement, as amended by this Amendment, that form a single series with
the Notes, and (c) any other Securities issued in the future under the Fiscal
Agency Agreement, as amended by this Amendment, that are in their terms stated
to be subject to Section 13 thereof, and shall not modify or otherwise affect
the terms and conditions of any currently outstanding Securities under the
Fiscal Agency Agreement or any other Securities issued in the future under the
Fiscal Agency Agreement, as amended by this Amendment, that are not so stated as
subject to Section 13 thereof.
SECTION 2. Amendment to Section 12, Meetings and Amendments. Section 12
of the Fiscal Agency Agreement is hereby amended to change its title to
"Meetings and Amendments relating to Securities Other than Collective Action
Securities" and to insert the following sentence immediately after the title of
the Section: "The provisions of this Section 12 shall apply to the Securities of
each Series other than all Collective Action Securities (as defined below)."
SECTION 3. Renumbering of Sections 13, 14, 15, 16, 17 and 18. Sections
13,14, 15, 16, 17 and 18 of the Fiscal Agency Agreement are hereby renumbered as
Sections 14, 15, 16, 17, 18 and 19, respectively.
SECTION 4. Addition of Section 13. A new Section 13 is hereby added to
the Fiscal Agency Agreement, to read as follows:
"13. Meetings and Amendments Relating to Collective Action Securities.
The provisions of this Section 13 shall apply only to (a) the 4.25% Notes due
2013 (the "Notes") to be issued by the Issuer on June 3, 2003, (b) any
Securities issued after June 3, 2003 under this Agreement that form a single
series with the Notes, and (c) any other Securities issued after June 3, 2003
under this Agreement that are in their terms stated to be subject to this
Section 13 (collectively, the "Collective Action Securities").
(a) Calling of Meeting, Notice and Quorum. A meeting of holders of
the Securities of a Series may be called, as set forth below, at any time and
from time to time to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Agreement or
the Securities of such Series to be made, given or taken by holders of the
Securities of such Series or to modify, amend, supplement or waive the terms of
the Securities of such Series or this Agreement as hereinafter provided. The
Issuer may at any time call a meeting of holders of the Securities of a Series
for any such purpose to be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Issuer shall determine. Notice of every
meeting of holders of the Securities of a Series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given not less than 30 nor more than 60 days prior to the
date fixed for the meeting. In case at any time the holders of at least 10% in
aggregate principal amount of the Outstanding (as defined in subsection (f) of
this Section) Securities of a Series shall have requested the Fiscal Agent to
call a meeting of the holders of the Securities of such Series for any such
purpose, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, the Fiscal Agent shall call such meeting
for such purposes by giving notice thereof not less than 30 nor more than 60
days prior to the date fixed for the meeting.
To be entitled to vote at any meeting of holders of the Securities of a
Series, a person shall be a holder of Outstanding Securities of such Series or,
in the case of registered Securities of such Series, a person duly appointed by
an instrument in writing as proxy for such a holder. At any meeting of holders,
other than a meeting to discuss a Reserved Matter (as defined below), the
persons entitled to vote a majority of the aggregate principal amount of the
Outstanding Securities of a Series shall constitute a quorum, and at the
reconvening of any such meeting adjourned for a lack of a quorum, the persons
entitled to vote 25% of the aggregate principal amount of the Outstanding
Securities of such Series shall constitute a quorum for the taking of any action
set forth in the notice of the original meeting. At any meeting of holders held
to discuss a Reserved Matter, the persons entitled to vote 75% of the aggregate
principal amount of the Outstanding Securities of a Series shall constitute a
quorum, and at the reconvening of any such meeting adjourned for a lack of
quorum, the persons entitled to vote 75% of the aggregate principal amount of
the Outstanding Securities of such Series shall constitute a quorum for the
taking of any action set forth in the original meeting. The Fiscal Agent may
make such reasonable and customary regulations as it shall deem advisable for
any meeting of holders of Securities of a Series with respect to the proof of
the holding of bearer Securities of such Series and of the appointment of
proxies in respect of holders of registered Securities of such Series, the
record date for determining the registered owners of registered Securities of
such Series who are entitled to
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vote at such meeting (which date shall be set forth in the notice calling such
meeting hereinabove referred to and which shall be not less than 15 nor more
than 30 days prior to such meeting), the adjournment and chairmanship of such
meeting, the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meetings as it shall deem
appropriate.
(b) Non-Reserved Matters. (i) At any meeting of holders of the
Securities of a Series duly called and held as specified above, upon the
affirmative vote, in person or (in the case of registered owners of the
Securities of such Series) by proxy thereunto duly authorized in writing, of the
holders of not less than 66 2/3% of the aggregate principal amount of the
Securities of such Series then Outstanding represented at such meeting (or of
such other percentage as may be set forth in the text of the Securities of such
Series with respect to the action being taken), or (ii) with the written consent
of the owners of not less than 66 2/3% of the aggregate principal amount of the
Securities of such Series then Outstanding (or of such other percentage as may
be set forth in the text of the Securities of such Series with respect to the
action being taken), the Issuer and the Fiscal Agent may modify, amend,
supplement or waive the terms of the Securities of such Series or, insofar as
respects the Securities of such Series, this Agreement in any way, other than a
modification, amendment, supplement or waiver constituting a Reserved Matter (as
defined below), and the holders of the Securities of such Series may make, take
or give any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement or the Securities of such Series to
be made, given or taken by holders of the Securities of such Series, other than
a waiver or other action constituting a Reserved Matter.
(c) Reserved Matters. (i) At any meeting of holders of the Securities
of a Series duly called and held as specified above, upon the affirmative vote,
in person or (in the case of registered owners of the Securities of such Series)
by proxy thereunto duly authorized in writing, of the holders of not less than
75% of the aggregate principal amount of the Securities of such Series then
Outstanding (for the avoidance of doubt, not of only the Outstanding Securities
of such Series represented at such meeting but of all the Securities of such
Series Outstanding at that time), or (ii) with the written consent of the owners
of not less than 75% of the aggregate principal amount of the Securities of such
Series then Outstanding, the Issuer and the Fiscal Agent may make any
modification, amendment, supplement or waiver of this Agreement or the terms and
conditions of the Securities of such Series that would (A) change the due date
for the payment of the principal of (or premium, if any) or any installment of
interest on the Securities of such Series, (B) reduce the principal amount of
the Securities of such Series, the portion of such principal amount which is
payable upon acceleration of the maturity of such Securities, the interest rate
thereon or the premium payable upon redemption thereof, (C) change the coin or
currency in which or the required places at which payment with respect to
interest, premium or principal in respect of the Securities of such Series is
payable, (D) shorten the period during which the Issuer is not permitted to
redeem the Securities of such Series, or permit the Issuer to redeem the
Securities of such Series if, prior to such action, the Issuer is not permitted
to do so, (E) reduce the proportion of the principal amount of the Securities of
such Series the vote or consent of the holders of which is necessary to modify,
amend, supplement or waive this Agreement or the terms and conditions of the
Securities of such Series or to make, take or give any request, demand,
authorization, direction, notice, consent, waiver or other action provided
hereby or thereby to be made, taken or given, or change the definition of
"Outstanding" with respect to the Securities of such Series, (F)
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change the obligation of the Issuer to pay additional amounts with respect to
the Securities of such Series, (G) change the governing law provision of the
Securities of such Series, (H) change the courts to the jurisdiction of which
the Issuer has submitted, the Issuer's obligation to appoint and maintain an
Authorized Agent in the Borough of Manhattan, The City of New York, as set forth
in Section 16 hereof, or the Issuer's waiver of immunity, in respect of actions
or proceedings brought by any holder based upon the Securities of such Series,
as set forth in Section 16 hereof, (I) in connection with an exchange offer for
the Securities of such Series, amend any Event of Default (as defined in the
terms of the Securities of such Series), or (J) change the status of the
Securities of such Series, as set forth in the terms of the Securities of such
Series and as described under "Description of the Debt Securities--Status of
Debt Securities" in the prospectus, as amended by any prospectus supplement,
applicable to the Securities of such Series. Each of the actions set forth in
clauses (A) through (J) of the preceding sentence is referred to herein as a
"Reserved Matter."
(d) Non-Material Amendments. The Issuer and the Fiscal Agent may,
without the vote or consent of any holder of the Securities of a Series, amend
this Agreement or the Securities of such Series to (A) add to the covenants of
the Issuer for the benefit of the holders of the Securities or coupons, (B)
surrender any right or power conferred upon the Issuer, (C) secure the
Securities pursuant to the requirements of the Securities or otherwise, (D) cure
any ambiguity, or cure, correct, supplement or waive any defective provision
herein or therein or (E) amend this Agreement or the Securities of such Series
in any manner which the Issuer and the Fiscal Agent may determine and which
shall not be inconsistent with the Securities of such Series and shall not
adversely affect the interest of any holder of Securities of any Series (as
determined by the Issuer in a certificate to be delivered to the Fiscal Agent).
(e) Binding Nature of Amendments, Notice, Notations, etc. Any
instrument given by or on behalf of any holder of a Security of a Series in
connection with any consent to or vote for any modification, amendment or waiver
of, or supplement to, the terms of the Securities of such Series or this
Agreement or any request, demand, authorization, direction, notice, consent,
waiver or other action with respect to this Agreement or the Securities of such
Series will be irrevocable once given and will be conclusive and binding on all
subsequent holders of such Security or any Security issued directly or
indirectly in exchange or substitution therefor or in lieu thereof. Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action given or made with respect to the
Securities of a Series will be conclusive and binding on all holders of the
Securities of such Series, whether or not they have given such consent or cast
such vote, and whether or not notation of such modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action is made upon the Securities of such Series. Notice of any
modification or amendment of, supplement to, or request, demand, authorization,
direction, notice, consent, waiver or other action with respect to the
Securities of any Series or this Agreement (other than for purposes of curing
any ambiguity or of curing, correcting, supplementing or waiving any defective
provision hereof or thereof) shall be given to each holder of Securities of such
Series affected thereby, in all cases as provided in the Securities of such
Series.
Securities of any Series authenticated and delivered after the
effectiveness of any such modification, amendment, supplement, request, demand,
authorization, direction, notice,
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consent, waiver or other action may bear a notation in the form approved by the
Fiscal Agent and the Issuer as to any matter provided for in such modification,
amendment, supplement, request, demand, authorization, direction, notice,
consent, waiver or other action. New Securities of such Series modified to
conform, in the opinion of the Fiscal Agent and the Issuer, to any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action may be prepared by the Issuer,
authenticated by the Fiscal Agent (or any authenticating agent appointed
pursuant to Section 3 hereof) and delivered in exchange for Outstanding
Securities of such Series.
It shall not be necessary for the vote or consent of the holders of
Securities of a Series to approve the particular form of any proposed
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action, but it shall be sufficient if such vote
or consent shall approve the substance thereof.
(f) "Outstanding" Defined. For purposes of the provisions of this
Agreement and the Securities of any Series, any Security of such Series
authenticated and delivered pursuant to this Agreement shall, as of any date of
determination, be deemed to be "Outstanding", except:
(i) Securities theretofore canceled by the Fiscal Agent or delivered
to the Fiscal Agent for cancellation or held by the Fiscal Agent for
reissuance but not reissued by the Fiscal Agent;
(ii) Securities which have been called for redemption in accordance
with their terms or which have become due and payable at maturity or
otherwise and with respect to which monies sufficient to pay the principal
thereof (and premium, if any) and any interest thereon shall have been made
available to the Fiscal Agent; or
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to this
Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Securities of a Series are present at a meeting
of holders of Securities of such Series for quorum purposes or have consented to
or voted in favor or any request, demand, authorization, direction, notice,
consent, waiver, amendment, modification or supplement hereunder, Securities of
such Series owned, directly or indirectly, by the Issuer or any public sector
instrumentality of the Issuer shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Fiscal Agent shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver, amendment, modification or supplement, only Securities
of such Series which the Fiscal Agent knows to be so owned shall be so
disregarded. As used in this paragraph, "public sector instrumentality" means
The Bank of Korea, any department, ministry or agency of the Issuer or any
corporation, trust, financial institution or other entity majority-owned and
controlled by the Issuer or any of the foregoing, and "control" means the power,
directly or indirectly, through the ownership of voting securities or other
ownership interests or otherwise, to direct the management of or elect or
appoint a majority of the board of directors or other persons performing similar
functions in lieu of, or in addition to, the board of directors of a
corporation, trust, financial institution or other entity."
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SECTION 5. Amended Exhibits. Form of Registered Security and Form of
Bearer Security attached as Exhibit A and Exhibit B, respectively, to the Fiscal
Agency Agreement, are hereby deleted in their entirety and replaced by Exhibit A
and Exhibit B attached hereto, which, among other things, include provisions
relevant to the Collective Action Securities.
SECTION 6. Effectiveness. This Amendment shall become effective as of
the date hereof upon execution by the parties hereto.
SECTION 7. Applicable Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, except that
with respect to its authorization and execution by the Issuer, it shall be
governed by the law of the Issuer.
SECTION 8. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement.
SECTION 9. Amendment. Except as specifically amended or modified
hereby, the Fiscal Agency Agreement shall continue in full force and effect in
accordance with the provisions thereof. All references in any other agreement or
document to the Fiscal Agency Agreement shall, on and after the date hereof, be
deemed to refer to the Fiscal Agency Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized representatives, all as of the date first
above written.
THE REPUBLIC OF KOREA, as Issuer
By ______________________________
Name:
Title:
THE BANK OF NEW YORK, as Fiscal Agent
By ______________________________
Name:
Title:
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