EXHIBIT B
FISCAL AGENCY AGREEMENT
AMONG
JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
JAPAN
AND
[NAME OF FISCAL AGENT]
Fiscal Agent
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Dated as of _______, _____
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[Title of Securities]
This FISCAL AGENCY AGREEMENT (this "Agreement"), is made as of _____, ____,
in New York, New York, United States of America, among JAPAN FINANCE CORPORATION
FOR MUNICIPAL ENTERPRISES ("Issuer"), JAPAN and [NAME OF FISCAL AGENT], a
corporation organized and existing under the laws of _________, as Fiscal Agent.
1. FORMS AND DENOMINATIONS. (a) Issuer has agreed to issue
[currency]________ (_______ [currency]) principal amount of its [title of
securities] (collectively, the "Securities", or each, a "Security"). The
Securities are issuable only in fully registered form, without coupons, in
denominations of [________] and any integral multiple thereof, substantially in
the form set forth in Exhibit A-1 or A-2 hereto.
(b) Japan will unconditionally and irrevocably guarantee the payment of the
principal of and interest on the Securities, such guarantee of each Security to
be evidenced by a guarantee in the form annexed as Exhibit B hereto, executed by
the facsimile signature of the Minister of Finance of Japan or the facsimile of
the official seal of the Minister of Finance of Japan or of another duly
authorized representative of Japan. Japan agrees that each Security
authenticated and delivered in accordance with the provisions hereof shall bear
such guarantee.
(c) The Securities shall initially be issued in the form of (1) one or more
fully registered global securities registered in the name of Cede & Co., as the
nominee of The Depository Trust Company, New York ("DTC") (the "DTC Global
Securities"), and (2) one fully registered global security registered in the
name of [NAME OF COMMON DEPOSITORY NOMINEE, if any], as the nominee of [NAME OF
COMMON DEPOSITORY], as common depositary for Euroclear Bank S.A./N.V. as
operator of the Euroclear System ("Euroclear") and Clearstream Banking, societe
anonyme ("Clearstream, Luxembourg") (the "International Global Security", and
together with the DTC Global Securities, the "Global Securities" and each, a
"Global Security"). The DTC Global Securities will be substantially in the form
attached as Exhibit A-1, and the International Global Security will be
substantially in the form attached as Exhibit A-2, in either case with such
changes as may be agreed between Issuer and the Fiscal Agent, as defined in
Section 2(a).
(d) So long as Cede & Co., as nominee of DTC, is the registered holder of
the DTC Global Securities and subject to applicable law, DTC or its nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by the DTC Global Securities for all purposes under this Agreement
and such Securities. Likewise, so long as [NAME OF COMMON DEPOSITORY NOMINEE, if
any], as the nominee of [NAME OF COMMON DEPOSITORY], as common depositary for
Euroclear and Clearstream, Luxembourg, is the registered holder of the
Securities represented by the International Global Security and subject to
applicable law, [NAME OF COMMON DEPOSITORY NOMINEE, if any], will be considered
the sole owner or holder of the Securities represented by the International
Global Security for all purposes under this Agreement and such Securities.
Except as set forth below, owners of beneficial interests in the Global
Securities will not, except in the limited circumstances described in Section 5,
be entitled to have the Securities represented by the Global Securities
registered in their names, will not receive or be entitled to receive Securities
in definitive registered form and will not be considered owners or holders
thereof under this Agreement or such Securities. The Securities in definitive
registered form, if any, will be substantially in the form attached as Exhibit
A-1 or A-2, as applicable, with the appropriate changes thereto, consistent with
the provisions of this Agreement, as may be agreed between Issuer and the Fiscal
Agent. Neither Issuer nor the Fiscal
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Agent will have any responsibility or liability for any aspect of the records
relating to or payments made by DTC, Euroclear or Clearstream, Luxembourg
(together, the "Clearing Systems") on account of beneficial ownership interests
in the Global Securities or for maintaining, supervising or reviewing any
records of the Clearing Systems relating to such beneficial ownership interests.
2. FISCAL AGENT; OTHER AGENTS. (a) Issuer and Japan hereby appoint [NAME OF
FISCAL AGENT], at present having its office in [name of location], as fiscal
agent of Issuer and Japan in respect of the Securities upon the terms and
subject to the conditions herein set forth, and [NAME OF FISCAL AGENT], hereby
accepts such appointment. [NAME OF FISCAL AGENT] and its successor or successors
as such fiscal agent qualified or appointed in accordance with Section 8 hereof,
are herein called the "Fiscal Agent". The Fiscal Agent shall have the powers and
authority granted to and conferred upon it in the Securities and hereby and such
further powers and authority to act on behalf of Issuer and Japan as Issuer and
Japan may hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in the Securities are
subject to and governed by the terms and provisions hereof. Issuer and Japan
reserve the right to appoint, at their discretion, agents (one or more "Agents",
or each, an "Agent") for the payment of principal of and interest on the
Securities or for the transfer and exchange of Securities at such place or
places as Issuer may determine. Issuer shall notify the Fiscal Agent of the
appointment of any such Agent.
(b) In compliance with Japanese tax laws and the practices of tax
authorities in Japan, Issuer hereby appoints the Fiscal Agent as its agent for
(i) arranging the preparation and submission of all necessary forms and claims
(including the interest receipt confirmations and the claims for exemption to be
submitted to the competent Japanese tax authority) in relation to Issuer's
Japanese withholding tax obligations and (ii) making the necessary payments to
the Japanese tax authorities in accordance with operating procedures to be
agreed between Issuer and the Fiscal Agent. The Fiscal Agent shall be
responsible only for performing such obligations as are expressly provided for
in the operating procedures, which operating procedures shall stipulate
obligations approved by the Japanese tax authorities, and no implied obligations
on the part of the Fiscal Agent shall be read into this Agreement or the
operating procedures. The operating procedures may be amended from time to time
to reflect any changes in Japanese tax laws and the practices of tax authorities
in Japan.
3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. (a) The Securities will
be executed on behalf of Issuer with either the signature or the facsimile
signature of the Governor of Issuer or a duly authorized agent of Issuer. The
guarantee of Japan will bear the facsimile signature of the Minister of Finance
of Japan or the facsimile of the official seal of the Minister of Finance of
Japan or of another duly authorized representative of Japan. Issuer and Japan
may, respectively, adopt and use either the signature or the facsimile signature
of any person who shall have been such Governor or such agent of Issuer or such
Minister of Finance or such representative of Japan, notwithstanding the fact
that when any Security shall be authenticated and delivered, he shall have
ceased to be such Governor or such agent of Issuer or such Minister of Finance
or such representative of Japan.
(b) The Fiscal Agent is authorized, upon receipt of Securities duly
executed on behalf of Issuer and bearing the duly executed guarantee of Japan as
herein provided, together with a written order or orders to authenticate and
deliver Securities in a stated aggregate principal amount, to authenticate such
Securities, and to deliver said Securities to or upon the order of Issuer signed
by the Governor of Issuer or such person's attorney in fact. Thereafter, the
Fiscal Agent is
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authorized to authenticate and deliver Securities in accordance with the
provisions therein or hereinafter set forth. The aggregate principal amount of
Securities to be issued and outstanding at any time, whether in the form of the
Global Securities or Securities in definitive registered form issued in exchange
for a Global Security in accordance with Section 5, shall not exceed
[currency]________, plus the aggregate principal amount of any additional
Securities issued by Issuer in accordance with Section 9 of this Agreement.
(c) The Securities shall be dated the date of their authentication by the
Fiscal Agent, except as otherwise provided in Sections 5(a), 5(c) and 5(h) in
connection with the Securities authenticated and delivered upon transfer or
exchange or in lieu of the Global Securities.
4. PAYMENT, REDEMPTION AND CANCELLATION. (a) Subject to the following
provisions, Issuer will pay to the Fiscal Agent the amounts at the times, and
for the purposes, set forth herein and in the Securities. Issuer hereby
authorizes and directs the Fiscal Agent from funds so paid to it, to make or
cause to be made payment of principal of and interest on the Securities as set
forth herein and in accordance with the text of the Securities and the
requirements of applicable law.
(b) Subject to Sections 4(c) and 4(l), the Fiscal Agent will arrange
directly or with any other Agent for the payment from funds furnished by Issuer
of the principal of and interest on the Securities in immediately available
funds by [currency] check, or by transfer to a [currency] account
maintained by the payee or, additionally or alternatively, in such other manner
as may be set forth or provided for in the text of the Securities.
Notwithstanding the foregoing, Issuer may pay to an Agent specifically
designated for the purpose funds for the payment of principal of and interest on
the Securities under an agreement with respect to such funds containing
substantially the same terms and conditions set forth in this Section 4(b) and
in Sections 4(c), 4(d), 4(e), 4(f), 4(g), 4(l) and 7(b) of this Agreement; and
the Fiscal Agent shall have no responsibility with respect to any funds so paid
by Issuer to any such Agent.
(c) In compliance with Japanese tax laws and the practices of tax
authorities in Japan, in respect of any interest payment on the DTC Global
Securities hereunder, the Fiscal Agent shall act in accordance with the
Compliance Procedures for International Securities Offerings by Japanese Issuers
-- Securities Held Through DTC (the "DTC Procedures"), and, in respect of any
interest payment on the International Global Security, the Fiscal Agent shall
act in accordance with the IPMA Operating Manual on "Japanese Withholding Tax on
Certain Eurobond Issues" (the "Manual") dated 24th June, 1998. Except as
otherwise provided in this Agreement, the Fiscal Agent shall be responsible only
for performing such services as are specifically provided for in the DTC
Procedures, the Manual, or such other procedures actually known by the Fiscal
Agent, as applicable and as may be amended or modified and communicated to the
Fiscal Agent from time to time.
(d) If and so long as payments of interest may be made without deduction or
withholding for or on account of Japanese tax only upon receipt of duly executed
certifications, claims for exemption, notifications or other documentation ("Tax
Documentation"), the Fiscal Agent shall (i) collect the required Tax
Documentation from holders and clearing organizations, (ii) review the Tax
Documentation, and sign any required confirmations, and (iii) promptly deliver
the Tax Documentation (directly or through the relevant Agent, in the case of
Tax Documentation collected by such Agent) to Issuer or, at Issuer's request,
the relevant Japanese District Tax Office.
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The Fiscal Agent may rely on the information provided in Tax Documentation
(including, where relevant, supporting documentation) in the absence of actual
knowledge that such information is incorrect. The Fiscal Agent shall furnish
forms of certifications to holders of the Securities upon request, and shall use
reasonable endeavors to assist holders in claiming available exemptions, but
shall not be liable for a holder's failure to qualify for such an exemption.
(e) If a holder of the Securities satisfies the requirements for claiming
an exemption from Japanese withholding tax after the date on which an amount in
respect of such tax is withheld and before the date on which the tax is actually
paid to the Japanese tax authorities, then Issuer and the Fiscal Agent shall, to
the extent it is possible to do so, pay the amount withheld (after the deduction
of reasonable costs, including amounts in respect of changes in foreign exchange
rates) to the holder.
(f) Under procedures agreed with Issuer, the Fiscal Agent shall deliver tax
certifications and related confirmations signed by or on behalf of Issuer,
together with payment of any applicable withholding taxes, to the relevant
Japanese District Tax Office on or before the date on which such taxes are
required under Japanese law or administrative practice to be paid.
(g) The Fiscal Agent shall retain copies of Tax Documentation for a period
of five years from the date as prescribed by law and shall make such
documentation available for inspections by Issuer and any relevant tax
authorities in Japan upon reasonable request.
(h) The Fiscal Agent shall open an account entitled "Japan Finance
Corporation for Municipal Enterprises Fiscal Agency Account" in which all monies
paid for the service of the Securities shall be carried.
(i) The Fiscal Agent shall not be under any liability for interest on any
monies at any time received by it pursuant to any of the provisions of this
Agreement or of the Securities except such as it pays on similar deposits or as
may be agreed on by the Fiscal Agent and Issuer and Japan.
(j) In case Issuer shall elect to redeem Securities, in whole but not in
part, and Issuer determines and certifies to the Fiscal Agent immediately prior
to the giving of the notice of the redemption that, as a result of any change
in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of Japan (or any political subdivision or taxing
authority of Japan) affecting any present or future taxes, duties, assessments
or governmental charges of whatever nature imposed or levied by or on behalf of
Japan, or any authority therein or thereof having power to tax ("Taxes"), or any
change in official position regarding the application or interpretation of these
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after _______, ____, Issuer is, or on the
next interest payment date would be, required to pay any additional amounts as
may be necessary in order that the net amounts received by any beneficial owner
of the Securities after withholding or deduction for or on account of any Taxes
shall equal the respective amounts of principal and interest which would have
been receivable by such beneficial owner in respect of the Securities in the
absence of such withholding or deduction, that cannot be avoided by measures
reasonably available to Issuer, the Fiscal Agent shall cause to be published on
behalf of Issuer at Issuer's cost irrevocable notice of intention to redeem the
Securities on the date therein designated, and stating that on said redemption
date there will become and be due and payable upon each Security so to be
redeemed the redemption price
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payable upon such redemption in the lawful money of [name of country], at the
place or places specified in such notice, and that from and after such
redemption date interest thereon will cease to accrue; provided that no notice
of redemption shall be given earlier than ninety (90) days prior to the earliest
date on which Issuer would be obligated to make the withholding if a payment in
respect of the Securities were then due. Prior to the publication and mailing of
any notice of redemption of the Securities pursuant to the foregoing, Issuer
will deliver to the Fiscal Agent an opinion of independent counsel of recognized
standing or an opinion of a tax consultant of recognized standing to the effect
that the circumstances referred to above exist. The Fiscal Agent shall accept
such opinion of counsel or tax opinion, as the case may be, as sufficient
evidence of the satisfaction of the conditions precedent described above, in
which event it shall be conclusive and binding on the registered holders of the
Securities. Such notice shall be published in a daily newspaper in the English
language of general circulation in The City of New York [and in a daily
newspaper in the English language of general circulation in [name of location
outside the U.S.]], at least once prior to the redemption date, such publication
to be not less than thirty (30) days nor more than sixty (60) days prior to the
redemption date, provided that for so long as the Securities are held in
book-entry form such notices may be given by delivery of the relevant notice to
DTC, Euroclear, and Clearstream Luxembourg, for communication by them to their
respective participants in substitution for publication in any such newspaper.
In case, by reason of the temporary or permanent suspension of the publication
or general circulation of any newspaper or by reason of any other cause, it
shall be impossible or impracticable to publish such notice in the manner herein
provided, then such method of publication in lieu thereof as shall be approved
by the Fiscal Agent shall constitute a sufficient publication of such notice.
Such notice shall also be sent by the Fiscal Agent by mail, postage prepaid, not
less than thirty (30) days nor more than sixty (60) days prior to the redemption
date to the registered holders of all the Securities, at the addresses of such
holders as they shall appear in the register maintained by the Fiscal Agent; but
no failure to mail such notice to such registered holders nor any defect therein
nor failure to receive the same shall affect the validity and effectiveness of
the call and redemption of any Securities so to be redeemed.
(k) All Securities surrendered for payment, redemption, registration of
transfer or exchange shall be promptly cancelled by the Fiscal Agent or such
other person as may be designated by Issuer. All cancelled Securities which were
surrendered to anyone other than the Fiscal Agent shall be delivered by such
other person (including any transfer agent) to the Fiscal Agent. All cancelled
Securities held by the Fiscal Agent shall be destroyed by the Fiscal Agent, and
the Fiscal Agent shall furnish to Issuer and Japan a certificate with respect to
such destruction. Issuer and Japan shall be entitled to have their
representatives present at the time of any such destruction but no notice of
such destruction need be furnished prior thereto.
(l) In the event that Securities in definitive registered form are issued,
the Fiscal Agent shall make or cause to be made payment of principal of and
interest on any such Securities directly to registered holders of such
Securities in whose names such Securities were registered at the close of
business on the related record date for such payment. Payments will be made in
immediately available funds by wire transfer or by check mailed to the addresses
of such holders as they appear on the register maintained by the Fiscal Agent;
provided, however, that the final payment on any Security in definitive
registered form will be made only upon surrender of such Security in definitive
registered form at the office of the Fiscal Agent or any other duly appointed
Agent on a payment date that is a business day in the place of surrender. The
Fiscal Agent shall provide notice of such final payment to registered holders
mailed not later than the fifteen days before such final payment.
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5. EXCHANGE AND REPLACEMENT OF SECURITIES. (a) The Fiscal Agent is hereby
authorized from time to time in accordance with the provisions of the Securities
and of this Section to authenticate and deliver to the registered holder
thereof:
(i) Global Securities or Securities in definitive registered form, as
the case may be, in exchange for or in lieu of Global Securities or
Securities in definitive registered form, as the case may be, which become
mutilated, destroyed, stolen or lost; and
(ii) Global Securities or Securities in definitive registered form, as
the case may be, of authorized denominations in exchange for a like
aggregate principal amount of Global Securities or Securities in definitive
registered form, as the case may be, of other authorized denominations.
All Securities so authenticated by the Fiscal Agent shall bear the
guarantee of Japan in the form herein provided for.
Each Security authenticated and delivered upon any transfer or in exchange
for or in lieu of the whole or any part of any Security shall carry all rights
to interest accrued and unpaid and to accrue which were carried by the whole or
such part of such Security and shall be so dated that neither gain nor loss of
interest shall result from such transfer, exchange or substitution.
(b) Subject to subsection (c) of this Section, no service charge shall be
made for any such transfer, exchange or registration of transfer or exchange of
Securities, but Issuer, Japan or the Fiscal Agent (and any other Agent appointed
by Issuer pursuant to Section 2 of this Agreement) may require payment of a sum
sufficient to cover any transfer, stamp or other tax or other governmental
charge required to be paid in connection therewith.
(c) In case any Security certificate shall at any time become mutilated or
destroyed or stolen or lost then, provided that such Security, or evidence of
the destruction, theft or loss thereof (together with the indemnity hereinafter
referred to and such other documents as may be required in the premises) shall
be delivered to the Fiscal Agent or in the case of Security in definitive
registered form, delivered to either the Fiscal Agent or any transfer agent, a
replacement Security of like tenor and principal amount and bearing the
guarantee of Japan in the form herein provided for, will be issued by Issuer
and, at its request, authenticated and delivered by the Fiscal Agent, in
exchange for the Security so mutilated, or in lieu of the Security destroyed or
stolen or lost; and provided further that, in the case of destroyed, stolen or
lost Securities, Issuer, Japan, the Fiscal Agent and any transfer agent shall
have received evidence satisfactory to them that such Securities were destroyed,
stolen or lost, and shall also have received an indemnity satisfactory to each
of them. All expenses and reasonable charges associated with procuring any
indemnity and with the preparation, authentication and delivery of a replacement
Security shall be borne by the holder of the Security mutilated, destroyed,
stolen or lost. Upon the issuance of any replacement Security under this Section
5(c), Issuer, Japan, the Fiscal Agent or any transfer agent may require the
payment of a sum sufficient to cover any transfer, stamp or other tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Fiscal Agent) connected
therewith. In case such mutilated, destroyed, stolen or lost Security has become
or is about to become due and payable, Issuer in its discretion may, instead of
issuing a new Security, pay or cause to be paid such Security.
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Every replacement Security issued pursuant to this Section 5(c) in exchange
for or in lieu of any mutilated, destroyed, stolen or lost Security shall
constitute a contractual obligation of Issuer guaranteed by Japan, whether or
not the mutilated, destroyed, stolen or lost Security shall be at any time
enforceable by anyone (but, for the avoidance of doubt, shall not constitute an
issuance of Securities in excess of the maximum aggregate principal amount set
forth in Section 3(b) of this Agreement). Any replacement Security delivered
pursuant to this Section 5(c) shall be so dated that neither gain nor loss of
interest shall result from such replacement.
(d) Issuer will promptly make available to the Fiscal Agent a reasonable
supply of Securities in definitive registered form and will issue or cause to be
issued Securities in definitive registered form upon registration of transfer
of, or exchange for, Securities represented by the DTC Global Securities if (i)
DTC (a) notifies Issuer that it is unwilling or unable to continue as depositary
for such DTC Global Security or (b) ceases to be a clearing agency registered
under the United States Securities Exchange Act of 1934 at a time when it is
required to be, and in either such case (a) or (b) a successor is not appointed
by Issuer within 90 days after receiving such notice or becoming aware that DTC
is no longer so registered.
(e) Issuer will promptly make available to the Fiscal Agent a reasonable
supply of Securities in definitive registered form and will issue or cause to be
issued Securities in definitive registered form upon registration of transfer
of, or exchange for, Securities represented by the International Global Security
if Euroclear or Clearstream, Luxembourg is closed for business for a continuous
period of 14 days (other than by reason of legal holidays) or announces an
intention permanently to cease business.
(f) Issuer may also at any time in its sole discretion determine not to
have any of the Securities represented by the Global Securities and, in such
event, will issue or cause to be issued Securities in definitive registered form
upon registration of transfer of, or in exchange for, Securities represented by
Global Securities.
(g) Issuer shall bear the costs and expenses of printing or preparing any
Securities in definitive registered form issued pursuant to Section 5(d), 5(e)
and 5(f) above.
(h) Upon any such issuance pursuant to Section 5(d), 5(e) and 5(f) above of
Securities in definitive registered form in exchange for all the Securities
represented by any Global Security, the Fiscal Agent shall receive the relevant
Global Securities from the custodian for DTC or the common depositary for
Euroclear and Clearstream, Luxembourg, as the case may be, shall cancel such
Global Securities and shall reduce the holdings of the registered holder of such
Global Securities on the register to nil and shall receive Securities in
definitive registered form from Issuer. The Fiscal Agent shall have at least 30
days from the date of its receipt of Securities in definitive registered form,
Global Securities submitted for exchange, registration information and delivery
information, whichever is latest, to authenticate and deliver such Securities in
definitive registered form in an aggregate principal amount equal to and in
exchange for the DTC, Euroclear or Clearstream, Luxembourg participants'
beneficial interests in the Securities represented by the relevant Global
Securities as of the record date for such exchange, as directed by DTC,
Euroclear or Clearstream, Luxembourg, as the case may be. Such Securities in
definitive registered form shall be registered in such names and in such
denominations of [currency; amount] and integral multiples thereof, and
delivered as DTC, Euroclear or Clearstream, Luxembourg, pursuant to instructions
from direct or indirect participants, shall direct. All Securities represented
by Securities in definitive registered form issued in exchange for Securities
represented by the relevant
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Global Securities shall be valid obligations of Issuer guaranteed by Japan, the
holders of which shall be entitled to the same benefits under this Agreement as
the holders of the Global Securities. Exchanges of Global Securities for
Securities in definitive registered form as described in this subsection (h)
shall be made without charge to DTC, Euroclear, Clearstream, Luxembourg or the
common depositary.
(i) Unless the DTC Global Securities are presented by an authorized
representative of DTC to Issuer, the Fiscal Agent or their respective agents for
registration of transfer, exchange or payment, and any replacement DTC Global
Securities are registered in the name of a nominee of DTC, and any payment is
made to such nominee, any transfer, pledge or other use of the DTC Global
Securities for value or otherwise shall be wrongful since the registered holders
of the DTC Global Securities have an interest in the Securities evidenced by the
DTC Global Securities.
(j) Neither the Fiscal Agent nor any transfer agent will be required to (i)
exchange or register the transfer of any Security selected for redemption; or
(ii) exchange or register the transfer of any Security for the period from the
record date preceding the due date for any payment to the payment date with
respect to such Security.
6. REGISTRATION AND TRANSFER. (a) The Fiscal Agent shall maintain, as agent
of Issuer for the purpose, at its office in [name of location], a register (i)
registering and maintaining a record of the aggregate holdings of all DTC Global
Securities and the International Global Security, (ii) registering transfers
between holders of the Global Securities, (iii) registering and maintaining a
record of the aggregate holdings of all definitive registered Securities, (iv)
registering transfers between holders of the definitive registered Securities
and (v) registering and maintaining a record of any further issues of Securities
pursuant to Section 9 of this Agreement and any subsequent transfers thereof. In
addition, the Fiscal Agent will (i) maintain and promptly update the respective
Schedules to the DTC Global Securities and the International Global Security,
and (ii) ensure that the sum of the respective aggregate principal amounts shown
by the latest entry in the respective Schedules to the DTC Global Securities and
the International Global Security does not exceed [currency; amount], plus the
aggregate principal amount of any additional Securities issued by Issuer in
accordance with Section 9 of this Agreement, at any one time. Upon presentation
for the purpose at the said office of the Fiscal Agent of any Security duly
endorsed by, or accompanied by delivery of a written instrument of transfer in
form approved by the Fiscal Agent duly executed by, the registered holder of the
Security, or the registered holder's attorney thereunto duly authorized in
writing, such Security shall be transferred upon such register and a new
Security, bearing the guarantee of Japan in the form herein provided for, shall
be authenticated and delivered in the name of the transferee. Transfers and
exchanges of Securities shall be subject to such reasonable regulations as may
be prescribed by Issuer.
Upon presentation for transfer or exchange of any Security in definitive
form at any office of any transfer agent accompanied by a written instrument of
transfer in a form approved by the Fiscal Agent duly executed by the registered
holder or such registered holder's attorney duly authorized in writing, such
Security and written instrument shall be forwarded to the office of the Fiscal
Agent. In addition, any transfer agent shall provide to Fiscal Agent such
information as the Fiscal Agent may reasonably require in connection with the
delivery by such transfer agent of Securities in the definitive form in exchange
for other Securities.
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(b) When book-entry interests in Securities are to be transferred from the
account of a DTC participant holding a beneficial interest in a DTC Global
Security to the account of a Euroclear or Clearstream, Luxembourg accountholder
wishing to purchase a beneficial interest in an International Global Security,
on the settlement date, the custodian of the DTC Global Security, initially
[NAME OF DTC CUSTODIAN], will instruct the Fiscal Agent to:
o decrease the amount of Securities registered in the name of the
nominee of DTC and evidenced by the DTC Global Securities; and
o increase the amount of Securities registered in the name of the
nominee of the common depositary for Euroclear and Clearstream,
Luxembourg, and evidenced by the International Global Security.
Book-entry interests will be delivered free of payment to Euroclear or
Clearstream, Luxembourg as the case may be, for credit to the relevant
accountholder on the first business day following the settlement date.
(c) When book-entry interests in the Securities are to be transferred from
the account of a Euroclear or Clearstream, Luxembourg accountholder to the
account of a DTC participant wishing to purchase a beneficial interest in a DTC
Global Security, on the settlement date, the common depositary for Euroclear and
Clearstream, Luxembourg, initially [NAME OF COMMON DEPOSITORY], will:
o transmit appropriate instructions to the custodian of the DTC Global
Security, initially [NAME OF DTC CUSTODIAN], who will in turn deliver
such book-entry interests free of payment to the relevant account of
the DTC participants; and
o instruct the Fiscal Agent to:
o decrease the amount of Securities registered in the name of the
nominee of the common depositary for Euroclear and Clearstream,
Luxembourg, and evidenced by the International Global Security;
and
o increase the amount of Securities registered in the name of the
nominee of DTC and evidenced by the DTC Global Securities.
7. CONDITIONS OF FISCAL AGENT'S OBLIGATIONS. Each of the Fiscal Agent and
any other Agent appointed under Section 2 herein accepts its obligations herein
set forth, upon the terms and conditions hereof, including the following, to all
of which the rights hereunder of the holders from time to time of the Securities
shall be subject:
(a) Compensation and Indemnification. Issuer agrees promptly to pay the
Fiscal Agent the compensation agreed upon with Issuer for all services rendered
by the Fiscal Agent hereunder and to reimburse the Fiscal Agent for its
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred,
after prior general consultation with Issuer, in connection with the services
rendered hereunder. Issuer also agrees to indemnify each of the Fiscal Agent and
any other Agent appointed under Section 2 hereof for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith, arising out of
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or in connection with its acting as such Fiscal Agent or such other Agent
hereunder, as well as the reasonable costs and expenses of defending against any
claim or liability in the premises.
(b) Agent for Issuer and Japan. In acting under this Agreement and in
connection with the Securities, each of the Fiscal Agent and any other Agent is
acting solely as agent of Issuer and of Japan, and does not assume any
obligation or relationship of agency or trust, for or with any of the owners or
holders of the Securities, except that all funds held by the Fiscal Agent or any
other Agent for payment of principal of or interest on the Securities shall be
held in trust, but need not be segregated from other funds except as required by
law, and shall be applied as set forth herein and in the Securities; provided,
however, that monies held in respect of any Security remaining unclaimed at the
end of two years after such principal or interest shall have become due and
payable (whether upon any interest payment date, at maturity, upon call for
redemption or otherwise) shall be repaid to Issuer or Japan, whichever deposited
such monies, as provided and in the manner set forth in the Securities, and,
upon such repayment, the aforesaid trust shall terminate.
(c) Counsel. Each of the Fiscal Agent and any other Agent may consult with
counsel satisfactory to it and to Issuer and to Japan, and the opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken or thing suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
(d) Documents. Each of the Fiscal Agent and any other Agent shall be
protected and shall incur no liability for or in respect of any action taken or
omitted or anything suffered by it in reliance without negligence, willful
misconduct or bad faith upon any Security, instruction, notice, direction,
consent, certificate, affidavit, statement, cablegram or other paper or document
reasonably believed by it to be genuine and to have been delivered or signed by
the proper parties.
(e) Certain Transactions. Each of the Fiscal Agent and any other Agent, or
any officer, director or employee thereof, may become the owner of, or acquire
any interest in, any Securities, with the same rights as if it were not the
Fiscal Agent or such other Agent or such officer, director or employee, as the
case may be, and may engage or be interested in any financial or other
transaction with Issuer or Japan, and may act for, or as depositary, trustee or
agent for, any holders of the Securities or other obligations of Issuer or
Japan, or any committee or body of such holders, as freely as if it were not the
Fiscal Agent or such other Agent or such officer, director or employee, as the
case may be.
(f) Instructions. Instructions concerning the operation of the provisions
of this Agreement and the duties to be carried out by the Fiscal Agent or any
other Agent hereunder may from time to time be issued by Issuer and Japan, and
the Fiscal Agent or such other Agent shall at all times comply with all such
instructions as are for the time being in force.
(g) Reports and Inspection. The Fiscal Agent shall furnish to Issuer and
Japan such reports as may be required by the instructions of Issuer and Japan.
Each of Issuer and Japan may, whenever it deems it necessary, inspect any
Securities held by the Fiscal Agent, any books of registration and transfer, and
any other books and records maintained by the Fiscal Agent hereunder.
(h) Forwarding of Notices. If the Fiscal Agent shall receive any notice or
demand addressed to Issuer or Japan by the holder of a Security pursuant to the
provisions of the Securities, the Fiscal Agent shall promptly forward copies of
such notice or demand to both Issuer and Japan.
-11-
(i) Statements. The recitals contained herein and in the Securities shall
be taken as statements of Issuer or Japan, as the case may be, and neither the
Fiscal Agent nor any other Agent assumes any responsibility for the correctness
of the same, except that the Fiscal Agent and other Agents shall be responsible
for the correctness of its representations (if any) in the Certificate of
Authentication on each Security.
8. RESIGNATION OR TERMINATION AND APPOINTMENT OF SUCCESSOR. (a) Issuer and
Japan agree, for the benefit of the holders from time to time of the Securities,
that there shall at all times be a Fiscal Agent hereunder which shall be or
which shall have a representative which is a bank or trust company organized and
doing business under the laws of the United States of America or the State of
New York, in good standing and having an established place of business in the
Borough of Manhattan, The City of New York, and authorized under such laws to
exercise corporate trust powers, until all the Securities authenticated and
delivered hereunder (i) shall have been delivered to the Fiscal Agent for
cancellation or (ii) shall have become due and payable and monies sufficient to
pay the principal of and interest on the Securities shall have been made
available for payment and either paid or returned to Issuer or Japan as provided
herein and in the Securities (such date being herein referred to as the "Agency
Maintenance Termination Date").
(b) Subject to the provisions of this Section 8, Issuer and Japan may at
any time and from time to time vary or terminate the appointment of the Fiscal
Agent or any other Agent or appoint any additional Agents pursuant to Section 2
hereof for any or all of the purposes stated herein; provided, however, that
until the Agency Maintenance Termination Date, Issuer and Japan will at all
times maintain an office or agency in the Borough of Manhattan, The City of New
York, where Securities may be surrendered for payment and where Securities may
be surrendered for registration of transfer or exchange, as provided in the
Securities, and where notices and demands to or upon Issuer and Japan in respect
of Securities and this Agreement may be served, and further provided, if
European Council Directive 2003/00.XX or any other Directive implementing the
conclusions of the ECOFIN Council meeting of November 26-27, 2000 is brought
into force, the issuer will ensure that it maintains a paying agent in an EU
Member State that will not be obliged to withhold or deduct tax pursuant to such
Directive. Issuer and Japan will give prompt written notice to the Fiscal Agent
of the appointment or termination of any such agent and of the location and any
change in the location of any such office or agency and shall give notice
thereof to holders of Securities by prompt publication at least once in a daily
newspaper in the English language of general circulation in The City of New York
[and in a daily newspaper in the English language of general circulation in
[name of location outside the United States]], provided that for so long as the
Securities are held in book-entry form such notices may be given by delivery of
the relevant notice to DTC, Euroclear, and Clearstream Luxembourg, for
communication by them to their respective participants in substitution for
publication in any such newspaper.
(c) Subject to the provisions of this subsection (c), (i) the Fiscal Agent
or any other Agent may at any time resign as such agent by giving written
notice, mailed to Issuer and to Japan in accordance with Section 15 hereof, of
such intention on its part, specifying the date on which its desired resignation
shall become effective, provided that Issuer and Japan shall agree to such
resignation, and (ii) the Fiscal Agent or any other Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed on
behalf of Issuer and Japan and specifying such removal and the date when it
shall become effective. Any resignation or removal of the Fiscal Agent or any
other Agent shall take effect upon the appointment by Issuer and Japan, by an
instrument in writing, of a successor Fiscal Agent (which shall meet the
qualifications
-12-
prescribed in Section 8(a) hereof) or successor of any other Agent and the
acceptance of such appointment by such successor. Upon its resignation or
removal, the Fiscal Agent or such Agent shall be entitled to the payment by
Issuer of its compensation for the services theretofore rendered hereunder and
to the reimbursement by Issuer of all reasonable out-of-pocket expenses
theretofore incurred in connection with the performance of its duties hereunder.
(d) In case at any time the Fiscal Agent or any other Agent shall resign,
or shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if an order of
any court shall be entered approving any petition filed by or against it under
the provisions of Chapter 7 or 11 of Title 11 of the United States Code or under
the provisions of any similar legislation, or if a receiver or custodian of it
or of all or any substantial part of its property shall be appointed or if any
public officer shall have taken charge or control of the Fiscal Agent or any
other Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Fiscal Agent (qualified as aforesaid)
or successor of any other Agent shall be appointed by Issuer and Japan, by an
instrument in writing, filed with the successor Fiscal Agent or successor of
such other Agent, as the case may be. Upon the appointment as aforesaid of a
successor Fiscal Agent or successor of any other Agent and acceptance by such
successor Fiscal Agent or successor of such other Agent, as the case may be, of
such appointment, the Fiscal Agent or such other Agent so superseded shall cease
to be such Fiscal Agent or such other Agent hereunder.
(e) Any successor Fiscal Agent or successor of any other Agent appointed
hereunder shall execute, acknowledge and deliver to its predecessor and to
Issuer and Japan an instrument accepting such appointment hereunder, and
thereupon such successor Fiscal Agent or such successor of any other Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Fiscal Agent or any other
Agent, as the case may be, hereunder, and such predecessor, upon payment to it
of its charges and disbursements then unpaid, shall thereupon become obligated
to transfer, deliver and pay over, and such successor Fiscal Agent or such
successor of any other Agent shall be entitled to receive, all monies,
securities or other property on deposit with or held by such predecessor, as
Fiscal Agent or any other Agent hereunder, as the case may be. Issuer and Japan
shall give notice of the appointment of a successor Fiscal Agent or successor of
any other Agent to holders of Securities by prompt publication at least once in
a daily newspaper in the English language of general circulation in The City of
New York [and in a daily newspaper in the English language of general
circulation in [name of location outside the United States]], provided that for
so long as the Securities are held in book-entry form such notices may be given
by delivery of the relevant notice to DTC, Euroclear, and Clearstream
Luxembourg, for communication by them to their respective participants in
substitution for publication in any such newspaper.
(f) Any corporation or bank into which the Fiscal Agent or any other Agent
may be merged or converted, or any corporation or bank with which the Fiscal
Agent or any other Agent may be consolidated, or any corporation or bank
resulting from any merger, conversion or consolidation to which the Fiscal Agent
or any other Agent shall be a party, or any corporation or bank to which the
Fiscal Agent or any other Agent shall sell or otherwise transfer all or
substantially all of the assets and business of the Fiscal Agent or such Agent,
as the case may be, provided that it shall be qualified as aforesaid, shall be
the successor Fiscal Agent or successor of
-13-
any other Agent, as the case may be, under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
9. FURTHER ISSUES. Issuer may from time to time, without notice to or the
consent of the registered holders of the Securities, create and issue further
securities ranking pari passu with the Securities in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
such further securities or except for the first payment of interest following
the issue date of such further securities) and so that such further securities
shall be consolidated and form a single series with the Securities and shall
have the same terms as to status, redemption or otherwise as the Securities. Any
further securities shall be issued with the benefit of an agreement supplemental
to this Agreement.
10. PAYMENT OF STAMP TAXES AND OTHER DUTIES. Issuer will pay all stamp
taxes and other duties, if any, to which this Agreement or the original issuance
of the Securities shall be subject.
11. INFORMATION AVAILABLE TO HOLDERS OF SECURITIES. The Fiscal Agent shall
make available to the holder of any Security upon request such information as
may be contained in its records relating to the performance by Issuer and Japan
of their obligations under the Securities and the guarantee thereof and
hereunder.
12. AMENDMENT. This Agreement may be modified or amended by Issuer, Japan,
the Fiscal Agent and any transfer agent, without the consent of the holder of
any Security, for the purpose of adding to the covenants of Issuer or Japan for
the benefit of such holders, surrendering any right or power conferred upon
Issuer or Japan, securing the Securities pursuant to the requirements of the
Securities or otherwise, curing any ambiguity, or curing, correcting or
supplementing any defective provision contained herein, or in any manner which
Issuer, Japan, the Fiscal Agent and any transfer agent may mutually deem
necessary or desirable, which shall not be inconsistent with any Security and
which shall not adversely affect in any material respect the interest of the
holders of the Securities.
13. GOVERNING LAW. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of New York except with respect to its
authorization and execution by Issuer and Japan and any other matters required
to be governed by the laws of Japan, which shall be governed by the laws of
Japan.
14. APPOINTMENT OF AGENT FOR SERVICE. Issuer hereby appoints the Fiscal
Agent as its authorized agent (the "Authorized Agent") upon which process may be
served in any action arising out of or based on this Agreement or the Securities
which may be instituted in any State or Federal court in The City of New York by
the Fiscal Agent or the holder of any Security and Issuer expressly accepts the
jurisdiction of any such court in respect of any such action. Such appointment
shall be irrevocable until the Agency Maintenance Termination Date unless and
until a successor Fiscal Agent has been appointed as Issuer's Authorized Agent
for such purpose and such successor Fiscal Agent shall have accepted such
appointment. Issuer will take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent at the address indicated in Section 15 hereof, or at such other
address in the Borough of Manhattan, The City of New York, as may be the main
office of the Fiscal Agent at the time of such service, and written notice of
such service to Issuer (mailed or delivered to Issuer at
-14-
its address as provided in Section 15 hereof) shall be deemed in every respect
effective service of process upon Issuer. Notwithstanding the foregoing, any
action arising out of or based on the Securities may also be instituted by the
holder of a Security in any competent court in Japan. Issuer hereby waives
irrevocably any immunity to which it might otherwise be entitled in any action
arising out of or based on this Agreement or the Securities which may be
instituted as provided in this Section in any State or Federal court in The City
of New York or in any competent court in Japan. This waiver is intended to be
effective upon execution of this Agreement without any further act by Issuer
before any such court, and introduction of this Agreement into evidence shall be
final and conclusive evidence of such waiver.
15. NOTICES. Any notices pursuant to, or communications with respect to,
this Agreement shall be deemed to have been given when delivered in person, when
deposited in the mail as first class registered or certified air mail, postage
prepaid, or when sent by telecopy or telex or communicated by telephone
(subject, in the case of communication by telephone, to confirmation dispatched
within twenty-four hours by telecopy or telex), in the case of Issuer, to Japan
Finance Corporation for Municipal Enterprises, [ISSUER'S ADDRESS], telecopy no.:
__________, in the case of Japan, to 1-1, Xxxxxxxxxxxx 0-xxxxx, Xxxxxxx-xx,
Xxxxx 000-0000, Xxxxx, telecopy no.: 00-0000-0000, Attention: Ministry of
Finance, Financial Bureau, and, in the case [NAME OF FISCAL AGENT], as Fiscal
Agent, to [FISCAL AGENT'S ADDRESS], telecopy no.: __________, Attention:
___________; or such other address as shall be specified in writing by the party
in question to the other parties hereto.
16. SUCCESSORS AND ASSIGNS. This Agreement and the Securities and the
guarantee and all covenants and agreements by Issuer and Japan herein and in the
Securities and in the guarantee shall be binding upon any successors or assigns
to Issuer and upon Japan, regardless of any such succession or assignment.
17. COUNTERPARTS. This Agreement may be executed in separate counterparts,
and by each party separately on a separate counterpart, each such counterpart,
when so executed and delivered, to be an original. Such counterparts shall
together constitute but one and the same instrument.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
JAPAN FINANCE CORPORATION FOR
MUNICIPAL ENTERPRISES
By
------------------------------
Name:
Title:
JAPAN
By
------------------------------
Name:
Title: Duly Authorized
Representative of
Japan
[NAME OF FISCAL AGENT]
By
------------------------------
Name:
Title: Authorized Officer
-00-
XXXXXXX X-0
(FORM OF DTC GLOBAL SECURITY)
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered holder hereof,
Cede & Co. or such other entity, has an interest herein.
UNLESS AND UNTIL THIS GLOBAL SECURITY IS EXCHANGED FOR THE INDIVIDUAL SECURITIES
REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
INTEREST PAYMENTS ON THIS SECURITY WILL BE SUBJECT TO JAPANESE WITHHOLDING TAX
UNLESS THE HOLDER ESTABLISHES THAT THIS SECURITY IS HELD BY OR FOR THE ACCOUNT
OF A HOLDER THAT IS NOT AN INDIVIDUAL RESIDENT OF JAPAN OR A JAPANESE
CORPORATION FOR JAPANESE TAX PURPOSES OR IS A DESIGNATED JAPANESE FINANCIAL
INSTITUTION DESCRIBED IN ARTICLE 6 OF THE SPECIAL TAXATION MEASURES LAW OF
JAPAN.
INTEREST PAYMENTS ON THIS SECURITY TO AN INDIVIDUAL RESIDENT OF JAPAN OR A
JAPANESE CORPORATION NOT DESCRIBED IN THE PRECEDING PARAGRAPH WILL BE SUBJECT TO
DEDUCTION IN RESPECT OF JAPANESE INCOME TAX AT A RATE OF 15 PER CENTUM OF THE
AMOUNT SPECIFIED IN SUBPARAGRAPHS (A) OR (B) BELOW, AS APPLICABLE:
(A) IF INTEREST IS PAID TO AN INDIVIDUAL RESIDENT OF JAPAN OR TO A JAPANESE
CORPORATION (EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) BELOW), THE AMOUNT OF
SUCH INTEREST; OR
(B) IF INTEREST IS PAID TO A PUBLIC CORPORATION, A FINANCIAL INSTITUTION OR A
SECURITIES COMPANY THROUGH A JAPANESE PAYMENT HANDLING AGENT, AS PROVIDED
IN ARTICLE 0-0, XXXXXXXXX 6 OF THE SPECIAL TAXATION MEASURES LAW OF JAPAN,
THE AMOUNT OF SUCH INTEREST MINUS THE AMOUNT PROVIDED IN THE CABINET ORDER
RELATING TO SAID PARAGRAPH 6.
No. R_____________ ___________
-0-
XXXXX FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
[Title of Security]
1. JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES (herein called
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of __________ [currency] on ________,
_____, and to pay to the Registered Holder (as defined in paragraph 3) of this
DTC Global Security interest on said principal sum from ________, _____ or from
the most recent interest payment date to which interest has been paid or duly
provided for, [semi-annually] [annually] in arrears on ________ [and _______ ],
in each year, commencing ________, _____, at the rate of _________ per centum
(___%) per annum, until payment of said principal sum has been made or duly
provided for. The interest so payable on any ________, together with any
Additional Amounts (as defined in paragraph 2) payable as set out herein, will
be paid to the person in whose name this DTC Global Security is registered at
the close of business on the first day, in each case, of the month in which such
interest payment occurs, whether or not such day is a business day. Whenever it
is necessary to compute any amount of accrued interest with respect to the
Securities (as defined in paragraph 3) for a period of less than one full year,
other than with respect to regular annual interest payments, interest will be
computed on the basis of the actual number of days in the period and a year of
365 days or, if falling in a leap year, 366 days.
Payments on this DTC Global Security will be made in accordance with any
laws, regulations or administrative practices applicable to Issuer and any
paying agent(s) in respect thereof, including the requirements applicable under
Japanese tax law. Except as described in paragraph 6 herein, payment of the
principal of and interest on this DTC Global Security shall be made in
immediately available funds in the lawful money of [name of country] as at the
time of payment is legal tender for the payment of public and private debts.
Payments of principal of this DTC Global Security shall be made upon surrender
of this DTC Global Security at the office of the Fiscal Agent (as defined in
paragraph 3) in [name of city], or, subject to applicable laws and regulations,
at such other place or places as are designated by Issuer, which, for the
purposes of this DTC Global Security, shall include the main office of [NAME OF
FISCAL AGENT] in the Borough of Manhattan, The City of New York, by [currency]
check, or by wire transfer to [currency] account maintained by the payee, and
payments of interest on this DTC Global Security shall be made, in accordance
with the foregoing and subject to applicable laws and regulations, by check
mailed on or before the due date for such payment to the Registered Holder
hereof at the address of the Registered Holder listed in the Security Register
(as defined in paragraph 9) or, upon written notice to the Fiscal Agent by such
Registered Holder no later than the record date for such payment, by wire
transfer to an account of the Registered Holder.
In the Fiscal Agency Agreement (as defined in paragraph 3), Issuer and
Japan have agreed that until the date on which the Securities (as defined in
paragraph 3) shall have been delivered to the Fiscal Agent for cancellation, or
become due and payable and monies sufficient to pay the principal of and
interest on all of the Securities shall have been made available for payment and
either paid or returned to Issuer or Japan as provided herein (the "Agency
Maintenance Termination Date"), Issuer and Japan will at all times maintain an
office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented or surrendered for payment.
-2-
2. (a) All payments of principal and interest by Issuer in respect of this
DTC Global Security will be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of Japan, or any
authority therein or thereof having power to tax ("Taxes"), unless the
withholding or deduction of such Taxes is required by law. In that event, Issuer
will pay such additional amounts ("Additional Amounts") as may be necessary in
order that the net amounts received by any beneficial owner of this DTC Global
Security after such withholding or deduction shall equal the respective amounts
of principal and interest which would have been receivable in respect of this
DTC Global Security in the absence of such withholding or deduction, except that
no such Additional Amounts shall be payable with respect to this DTC Global
Security;
(i) to, or to a third party on behalf of, any beneficial owner of this
DTC Global Security that is a non-resident of Japan or a non-Japanese
corporation and is liable for such Taxes in respect of this DTC Global
Security by reason of such beneficial owner's having some connection with
Japan other than the mere holding of, or the enforcement of its rights
under, this DTC Global Security; or
(ii) to, or to a third party on behalf of, any beneficial owner of
this DTC Global Security that would otherwise be exempt from any such
withholding or deduction but that fails to comply with any applicable
requirement to provide the Exemption Information (as defined in paragraph
2(b)) to the Fiscal Agent (as defined in paragraph 3), or whose Exemption
Information is not duly communicated through the Participant (as defined in
paragraph 2(b)) and the relevant international clearing organization to the
Fiscal Agent; or
(iii) to, or to a third party on behalf of, any beneficial owner of
this DTC Global Security that is for Japanese tax purposes treated as a
resident of Japan or a Japanese corporation (except for (A) a Designated
Financial Institution (as defined in paragraph 2(b)) that complies with the
requirement to provide the Exemption Information or to submit a Claim for
Exemption and (B) a resident of Japan or a Japanese corporation that duly
notifies the Fiscal Agent of its status as exempt from Taxes to be withheld
or deducted by Issuer by reason of such resident or Japanese corporation
receiving interest on this DTC Global Security through a payment handling
agent in Japan appointed by it);
(iv) more than 30 days after the Relevant Date (as defined in this
paragraph 2(a)), except to the extent that any beneficial owner of this DTC
Global Security would have been entitled to such Additional Amounts for
payment at the expiration of such 30-day period;
(v) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to European Council
Directive 2003/48/EC or any other Directive implementing the conclusions of
the ECOFIN Council meeting of November 26-27, 2000 on the taxation of
savings income or any law implementing or complying with, or introduced in
order to conform to, such Directive; or
(vi) to, or to a third party on behalf of, a beneficial owner of this
DTC Global Security who would have been able to avoid such withholding or
deduction
-3-
by presenting this DTC Global Security to another paying agent in a Member
State of the European Union.
As used herein, the "Relevant Date" means the date on which such payment
first becomes due, except that, if the amount of the moneys payable has not been
received by the Fiscal Agent on or prior to such due date, it means the date on
which, the full amount of such moneys having been so received, notice to that
effect shall have been duly published as set forth in paragraph 7.
(b) For the purpose of sub-paragraphs (ii) and (iii) above:
(i) where this DTC Global Security is held through a certain
participant of an international clearing organization or a certain
financial intermediary (each, a "Participant"), in order to receive
payments free of withholding or deduction by Issuer for, or on account of
Taxes, if the relevant beneficial owner of this DTC Global Security is (A)
a non-resident of Japan or a non-Japanese corporation or (B) a Japanese
financial institution falling under certain categories prescribed by the
Special Taxation Measures Law (Law No. 26 of 1957, as amended), and the
cabinet order (Cabinet Order No. 43 of March 31, 1957, as amended)
thereunder (together with ministerial ordinances and other regulations
thereunder, the "Law") (a "Designated Financial Institution"), all in
accordance with the Law, such beneficial owner shall, at the time of
entrusting a Participant with the custody of this DTC Global Security,
provide certain information prescribed by the Law to enable the Participant
to establish that such beneficial owner is exempted from the requirement
for Taxes to be withheld or deducted (the "Exemption Information") and
advise the Participant if such beneficial owner ceases to be so exempted;
and
(ii) where this DTC Global Security is not held by a Participant, in
order to receive payments free of withholding or deduction by Issuer for,
or on account of, Taxes, if the relevant beneficial owner of this DTC
Global Security is (A) a non-resident of Japan or a non-Japanese
corporation or (B) a Designated Financial Institution, all in accordance
with the Law, such beneficial owner shall on or prior to each time on which
it receives interest, submit to the Fiscal Agent a claim for exemption from
withholding tax (Hikazei Tekiyo Shinkokusho) (a "Claim for Exemption") in
the form obtainable from the Fiscal Agent stating, among other things, the
name and address of such beneficial owner, the title of this DTC Global
Security, the relevant interest payment date, the amount of interest and
the fact that such beneficial owner is qualified to submit the Claim for
Exemption, together with the documentary evidence showing that such
beneficial owner is a non-resident of Japan or a non-Japanese corporation
or a Designated Financial Institution.
Any reference in this DTC Global Security or the guarantee of Japan in the
form provided in the Fiscal Agency Agreement to principal or interest shall be
deemed also to refer to any Additional Amount which may be payable under this
paragraph 2.
3. This DTC Global Security is one of a duly authorized issue of securities
of Issuer (herein called the "Securities"), issued in accordance with the Fiscal
Agency Agreement (the "Fiscal Agency Agreement"), dated as of ________, _____,
entered into by and among Issuer, Japan and [NAME OF FISCAL AGENT] as Fiscal
Agent, with respect to the Securities, copies of
-4-
which Fiscal Agency Agreement are on file and available for inspection at the
office of the Fiscal Agent at [address]. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
[currency; amount] outstanding at any one time (which amount may be increased as
provided in the Fiscal Agency Agreement). The Securities are issuable only as
fully registered Securities without coupons in denominations of [currency;
amount] and any integral multiple thereof. In acting under the Fiscal Agency
Agreement, the Fiscal Agent is acting solely as agent for Issuer and Japan and
does not assume any obligation or relationship of agency or trust for or with
the Registered Holder of this DTC Global Security except as specifically
described below. As used herein, the term "Registered Holder" of a Security
means the person in whose name such Security is registered in the Security
Register (as defined in paragraph 9).
Notwithstanding any other provision of the Fiscal Agency Agreement or this
DTC Global Security, this DTC Global Security may be transferred to, or
exchanged for Securities in definitive registered form registered in the name
of, a person other than DTC, a nominee of DTC or a successor of DTC or its
nominee if (i) DTC (a) notifies Issuer that it is unwilling or unable to
continue as depositary for such DTC Global Security or (b) ceases to be a
clearing agency registered under the United States Securities Exchange Act of
1934 at a time when it is required to be, and in either such case (a) or (b) a
successor depositary is not appointed by Issuer within 90 days after receiving
such notice or becoming aware that DTC is no longer so registered or (ii) Issuer
in its sole discretion, instructs the Fiscal Agent in writing that a Global
Security shall be so transferable and exchangeable. Securities in definitive
registered form issued in exchange for this DTC Global Security will be
registered in such names as an authorized representative of DTC, pursuant to
instructions that direct or indirect Participants in DTC shall request, and
issued in denominations of [currency; amount] and integral multiples thereof.
4. This DTC Global Security is subject to retirement or redemption as
hereinafter provided. Redemption of this DTC Global Security pursuant to this
paragraph 4 shall be made upon the notice, in the manner and with the effect
hereinafter set forth.
5. In order to provide for the payment of principal of and interest on the
Securities as the same shall become due, Issuer does hereby agree to pay to the
Fiscal Agent at its office in [location], in [currency], the amounts set forth
below in this paragraph, to be held in trust and applied by the Fiscal Agent as
hereinafter set forth:
(a) Issuer shall pay to the Fiscal Agent [semi-annually] [annually] on a
date not later than each [semi-annual] [annual] interest payment date (or such
other date when interest is payable, as provided in paragraph 8(b)) an amount
sufficient to pay the interest becoming due on all Securities on such interest
payment date, and the Fiscal Agent shall apply the amounts so paid to it to the
payment of such interest on such interest payment date.
(b) On a date not later than the redemption or maturity date (or such other
date when principal is payable as provided in paragraph 8(b)) of this DTC Global
Security, Issuer shall pay to the Fiscal Agent an amount which, together with
any monies then held by the Fiscal Agent and available for the purpose, shall be
equal to the entire amount of principal and interest to be due on such
redemption or maturity date on the Securities called for redemption or then
outstanding.
(c) As early as practicable on each relevant payment date, the Fiscal Agent
shall pay from the funds paid to it by Issuer, or procure the payment of, the
[currency] amount due in respect of Securities represented by this DTC Global
Security by check or by wire transfer of same day funds for value on the due
date for payment to the Registered Holder thereof for payment pro rata to the
owners of beneficial ownership interests in the Securities represented by this
DTC Global Security in accordance with DTC's settlement procedures.
-5-
(d) Any monies paid to the Fiscal Agent for the payment of principal of or
interest on any Securities and remaining unclaimed at the end of two years after
such principal or interest shall have become due and payable (whether at
maturity, upon any interest payment date, upon call for redemption or otherwise)
shall be repaid to Issuer or Japan, whichever deposited such monies, and upon
such repayment the aforesaid trust shall terminate with respect to such monies
and all liability of the Fiscal Agent with respect to such monies shall
thereupon cease, without, however, limiting in any way the unconditional
obligation of Issuer (subject, however, to any applicable statute of limitations
or prescription) to pay principal of and interest on this DTC Global Security.
6. The Securities (including this DTC Global Security) may be redeemed for
cash at the option of Issuer in whole, but not in part, on not more than sixty
(60) days' and not less than thirty (30) days' irrevocable notice to the
Registered Holders of the Securities, at a redemption price for each Security
equal to the principal amount thereof, together with accrued interest to the
date fixed by Issuer for redemption and any Additional Amounts, if Issuer
determines and certifies to the Fiscal Agent immediately prior to the giving of
the notice that, as a result of any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of Japan (or any
political subdivision or taxing authority of Japan) affecting any Taxes, or any
change in official position regarding the application or interpretation of these
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after ________, _____, Issuer is, or on
the next interest payment date would be, required to pay any Additional Amounts
for the Securities that cannot be avoided by measures reasonably available to
Issuer; provided that no notice of redemption shall be given earlier than ninety
(90) days prior to the earliest date on which Issuer would be obligated to make
the withholding if a payment in respect of the Securities were then due. Prior
to the publication and mailing of any notice of redemption of the Securities
pursuant to the foregoing, Issuer will deliver to the Fiscal Agent an opinion of
independent counsel of recognized standing or an opinion of a tax consultant of
recognized standing to the effect that the circumstances referred to above
exist. The Fiscal Agent shall accept such opinion of counsel or tax opinion, as
the case may be, as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Registered Holders of the Securities.
Notice of intention to redeem the Securities, specifying the redemption
date and the place or places where the redemption price will be paid, shall be
given by publication at least once in a daily newspaper in the English language,
of general circulation in The City of New York and in a daily newspaper in the
English language of general circulation in London, England, at least once prior
to the redemption date, such publication to be not less than thirty (30) days
nor more than sixty (60) days prior to the redemption date, provided that for so
long as the Securities are held in book-entry form such notices may be given by
delivery of the relevant notice to DTC, Euroclear and Clearstream, Luxembourg,
for communication by them to their respective Participants in substitution for
publication in any such newspaper. In case, by reason of the temporary or
permanent suspension of the publication or general circulation of any newspaper
or by reason of any other cause, it shall be impossible or impracticable to
publish such notice in the manner herein provided, then such method of
publication in lieu thereof as shall be approved by the Fiscal Agent shall
constitute a sufficient publication of such notice. Such notice shall also be
sent by the Fiscal Agent by mail, postage prepaid, not less than thirty (30)
days nor more than sixty (60) days prior to the redemption date to the
Registered Holders of all the Securities, at the addresses of such Registered
Holders as they shall appear in the Security Register (as defined in paragraph
9); but no failure to mail such notice to such Registered Holders nor any defect
therein nor failure to receive
-6-
the same shall affect the validity and effectiveness of the call and redemption
of any Securities so to be redeemed. Notice having been so given, the Securities
so called for redemption shall become due and payable on the redemption date so
designated at the redemption price, and upon surrender thereof the Securities
will be paid at the redemption price together with all accrued interest (unless
the redemption date is a date for the payment of interest) in [currency] (except
as described in paragraph 6 herein), at the place or places specified in such
notice. From and after the redemption date, if monies for the redemption of all
the Securities to be redeemed, shall have been available at the office of the
Fiscal Agent for redemption on the redemption date, the Securities so called for
redemption shall cease to bear interest and the only right of the Registered
Holders of the Securities shall be to receive payment of the redemption price in
accordance with the terms of such Securities.
7. This DTC Global Security will become void unless presented for payment
within a period of ten years from the Relevant Date (as defined in paragraph 2).
8. (a) In the event of a default by Issuer (i) in the payment when due of
principal of or interest on any of the Securities and the continuance of such
default for a period of thirty (30) days, or (ii) in the performance of any
other covenant contained in the Securities and the continuance of such default
for a period of ninety (90) days after written notice thereof to Issuer from the
Registered Holder of this DTC Global Security shall have been received by the
Fiscal Agent, then in any such case the principal amount of this DTC Global
Security shall, at the option of and upon written demand to the Fiscal Agent at
said office by the Registered Holder hereof, mature and become due and payable
upon the date that such written demand is received by the Fiscal Agent, unless
prior to such date Issuer shall have cured all such defaults in respect of all
the Securities. Any amount of interest or principal so in default in respect of
this DTC Global Security shall bear interest (if, and to the extent permitted by
law) at the rate specified in the title of this DTC Global Security until such
default shall have been cured.
(b) If a date for payment of principal or interest on this DTC Global
Security falls on a day that is not a Business Day, then the related payment of
principal, premium, if any, or interest may be made on the next succeeding
business day as if made on the date the payment was due and no interest will
accrue in respect of such delay. In this paragraph, "Business Day" means any day
on which commercial banks and foreign exchange markets settle payments and are
open for general business (including dealings in foreign exchange and foreign
currency deposits) in: (a) the relevant place of payment and (b) The City of New
York, London and Tokyo.
9. The transfer of this DTC Global Security is registrable on the Security
Register (as herein defined) upon surrender of this DTC Global Security for
registration at the office of the Fiscal Agent duly endorsed by, or accompanied
by a written instrument of transfer in a form approved by the Fiscal Agent duly
executed by, the Registered Holder hereof or such Registered Holder's attorney
duly authorized in writing. Issuer, Japan and the Fiscal Agent may deem and
treat the Registered Holder hereof as the absolute owner hereof (notwithstanding
any notice of ownership or writing hereon made by anyone) for the purpose of
receiving payment hereon and for all other purposes, whether or not this DTC
Global Security shall be overdue. Upon surrender of this DTC Global Security by
an authorized representative of DTC, for registration of transfer, Issuer shall
execute, and the Fiscal Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities, of any
authorized denominations and of a like aggregate principal amount, and
registered in such name or names as may be requested by an authorized
representative of DTC, dated the date of authentication thereof and bearing the
guarantee of Japan in the form provided in the Fiscal Agency Agreement. Issuer
covenants that,
-7-
until the Agency Maintenance Termination Date, it will at all times maintain in
the Borough of Manhattan, The City of New York, an office or agency for the
transfer and registration of transfers, as aforesaid, of Securities and where
notices and demands to or upon Issuer or Japan in respect of the Securities and
the Fiscal Agency Agreement may be served. Issuer has appointed the Fiscal Agent
as its agent for such purpose. Issuer has also agreed to cause to be kept at the
office of the Fiscal Agent in London a register (the register maintained in such
office being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, Issuer shall provide
for such registration of transfers.
In the manner and subject to the limitations provided in the Fiscal Agency
Agreement, Securities may be exchanged for a like aggregate principal amount of
Securities of authorized denominations bearing the guarantee of Japan in the
form provided in the Fiscal Agency Agreement. Issuer covenants that until the
Agency Maintenance Termination Date, it will at all times maintain an office or
agency in the Borough of Manhattan, The City of New York, where Securities may
be surrendered in exchange for Securities in other authorized denominations in
accordance with the terms hereof and of the Fiscal Agency Agreement. Issuer has
appointed the Fiscal Agent as its agent for such purpose.
Neither the Fiscal Agent nor any transfer agent will be required to (i)
exchange or register the transfer of any Security selected for redemption; or
(ii) exchange or register the transfer of any Security for the period from the
record date preceding the due date for any payment to the payment date with
respect to such Security.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of Issuer guaranteed by Japan
evidencing the same debt, and entitled to the same benefits, as the Securities
surrendered upon such registration of transfer or exchange. Any new DTC Global
Security delivered pursuant to this paragraph 9 shall be so dated that neither
gain nor loss of interest shall result from such registration or exchange.
No service charge shall be made for any such transfer, exchange or
registration of transfer or exchange of Securities, but Issuer, Japan or the
Fiscal Agent (and any other agent appointed by Issuer pursuant to Section 2 of
the Fiscal Agency Agreement) may require payment of a sum sufficient to cover
any transfer, stamp or other tax or other governmental charge required to be
paid in connection therewith.
10. In case this DTC Global Security shall at any time become mutilated or
destroyed or stolen or lost then, provided that this DTC Global Security, or
evidence of the destruction, theft or loss thereof (together with the indemnity
hereinafter referred to and such other documents or proof as may be required in
the premises) shall be delivered to the Fiscal Agent, a replacement DTC Global
Security of like tenor and principal amount and bearing the guarantee of Japan
in the form provided in the Fiscal Agency Agreement will be issued by Issuer
and, at its request, authenticated and delivered by the Fiscal Agent, in
exchange for the DTC Global Security so mutilated, or in lieu of the DTC Global
Security destroyed or stolen or lost; and provided further that, in the case of
destroyed, stolen or lost Securities, Issuer, Japan and the Fiscal Agent shall
have received evidence satisfactory to them that such Securities were destroyed,
stolen or lost, and shall also have received an indemnity satisfactory to each
of them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a replacement
DTC Global Security shall be borne by the Registered Holder of the DTC Global
Security mutilated, destroyed, stolen or lost. Upon the issuance of any
replacement DTC Global
-8-
Security under this paragraph 10, Issuer, Japan or the Fiscal Agent may require
the payment of a sum sufficient to cover any transfer, stamp or other tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Fiscal Agent) connected
therewith. In case such mutilated, destroyed, stolen or lost DTC Global Security
has become or is about to become due and payable, Issuer in its discretion may,
instead of issuing a new DTC Global Security, pay or cause to be paid such DTC
Global Security.
Every replacement DTC Global Security issued pursuant to this paragraph 10
in exchange for or in lieu of any mutilated, destroyed, stolen or lost DTC
Global Security shall constitute an original additional contractual obligation
of Issuer guaranteed by Japan, whether or not the mutilated, destroyed, stolen
or lost DTC Global Security shall be at any time enforceable by anyone. Any
replacement DTC Global Security delivered pursuant to this paragraph 10 shall be
so dated that neither gain nor loss of interest shall result from such
replacement.
The provisions of this paragraph 10 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, stolen or lost Securities.
11. Subject to paragraph 13, Issuer hereby certifies and declares that all
acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this DTC Global Security and
its guarantee by Japan, and to constitute the same the valid obligations of
Issuer and of Japan, respectively, in accordance with their terms, have been
done and performed and have happened in due and strict compliance with the
applicable laws of Japan.
12. The Fiscal Agency Agreement may be modified or amended by Issuer,
Japan, the Fiscal Agent and the Transfer Agent, and the terms and conditions of
the Securities may be modified or amended by Issuer and Japan, without the
consent of the Registered Holder of any DTC Global Security for the purpose of
adding to the covenants of Issuer or Japan for the benefit of the Registered
Holders, surrendering any right or power conferred upon Issuer or Japan,
securing the Securities pursuant to the requirements of the Securities or
otherwise, curing any ambiguity, or curing, correcting or supplementing any
defective provision therein, or in any manner which Issuer, Japan, the Fiscal
Agent and the Transfer Agent may mutually deem necessary or desirable, which, in
the case of the Fiscal Agency Agreement, shall not be inconsistent with the
Securities, and which shall not adversely affect the interests of the Registered
Holders of the Securities in any material respect, to all of which each
Registered Holder of any DTC Global Security shall, by acceptance thereof,
consent.
13. This DTC Global Security shall not become valid or obligatory for any
purpose unless and until this DTC Global Security has been authenticated by
[NAME OF FISCAL AGENT], or its successor, as Fiscal Agent.
14. This DTC Global Security shall be governed by, and interpreted in
accordance with, the laws of the State of New York except with respect to its
authorization and execution by Issuer and any other matters required to be
governed by the laws of Japan.
15. As more fully set forth in the Fiscal Agency Agreement, Issuer has
appointed [NAME OF AGENT] as its authorized agent upon which process may be
served in any action arising out of or based on the Securities or the Fiscal
Agency Agreement which may be instituted in
-9-
any State or Federal court in The City of New York by the Registered Holder of
this DTC Global Security, and Issuer hereby expressly accepts the jurisdiction
of any such court in respect of such action. Such appointment shall be
irrevocable until the Agency Maintenance Termination Date, unless and until a
successor Fiscal Agent shall have been appointed by Issuer as its authorized
agent for such purpose and such successor Fiscal Agent shall have accepted such
appointment. Notwithstanding the foregoing, any action arising out of or based
on the Securities may be instituted by the Registered Holder of this DTC Global
Security in any competent court in Japan. Issuer hereby waives irrevocably any
immunity to which it might otherwise be entitled in any action based on the
Securities which may be instituted by the Registered Holder of any DTC Global
Security in any State or Federal court in The City of New York or in any
competent court in Japan. This waiver is intended to be effective upon execution
of this DTC Global Security without any further act by Issuer before any such
court, and introduction of this DTC Global Security into evidence shall be final
and conclusive evidence of such waiver.
-10-
IN WITNESS WHEREOF, Issuer has caused this DTC Global Security to be
executed with the signature of the Governor or a duly authorized agent of Issuer
in Tokyo, Japan or the facsimile signature of the Governor or a duly authorized
agent of Issuer in Xxx Xxxx xx Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of
America.
Dated: ________, _____
JAPAN FINANCE CORPORATION FOR
MUNICIPAL ENTERPRISES
By
-------------------------------
Name:
Governor or
Duly Authorized Agent of Issuer
-11-
Form of Certificate of Authentication
This is one of the Securities within referred to. The undersigned hereby
represents that it has not authenticated Securities in excess of an aggregate
principal amount of [currency; amount] (other than Securities issued in exchange
for and upon the cancellation of a like aggregate principal amount of other
Securities, and Securities issued in lieu of destroyed, stolen or lost
Securities).
THE BANK OF TOKYO-MITSUBISHI,
LTD., LONDON BRANCH
as Fiscal Agent
By
------------------------------
Authorized Signatory
SCHEDULE TO THE DTC GLOBAL SECURITY
JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
[TITLE OF SECURITY]
Initial Principal Additional Principal Aggregate Principal Authorization
Amount Amount Amount
----------------- -------------------- ------------------- -------------
----------------- -------------------- ------------------- -------------
-------------------- ------------------- -------------
-------------------- ------------------- -------------
EXHIBIT A-2
(FORM OF INTERNATIONAL GLOBAL SECURITY)
UNLESS AND UNTIL THIS GLOBAL SECURITY IS EXCHANGED FOR THE INDIVIDUAL SECURITIES
REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
INTEREST PAYMENTS ON THIS SECURITY WILL BE SUBJECT TO JAPANESE WITHHOLDING TAX
UNLESS THE HOLDER ESTABLISHES THAT THIS SECURITY IS HELD BY OR FOR THE ACCOUNT
OF A HOLDER THAT IS NOT AN INDIVIDUAL RESIDENT OF JAPAN OR A JAPANESE
CORPORATION FOR JAPANESE TAX PURPOSES OR IS A DESIGNATED JAPANESE FINANCIAL
INSTITUTION DESCRIBED IN ARTICLE 6 OF THE SPECIAL TAXATION MEASURES LAW OF
JAPAN.
INTEREST PAYMENTS ON THIS SECURITY TO AN INDIVIDUAL RESIDENT OF JAPAN OR A
JAPANESE CORPORATION NOT DESCRIBED IN THE PRECEDING PARAGRAPH WILL BE SUBJECT TO
DEDUCTION IN RESPECT OF JAPANESE INCOME TAX AT A RATE OF 15 PER CENTUM OF THE
AMOUNT SPECIFIED IN SUBPARAGRAPHS (A) OR (B) BELOW, AS APPLICABLE:
(A) IF INTEREST IS PAID TO AN INDIVIDUAL RESIDENT OF JAPAN OR TO A JAPANESE
CORPORATION (EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) BELOW), THE AMOUNT OF
SUCH INTEREST; OR
(B) IF INTEREST IS PAID TO A PUBLIC CORPORATION, A FINANCIAL INSTITUTION OR A
SECURITIES COMPANY THROUGH A JAPANESE PAYMENT HANDLING AGENT, AS PROVIDED
IN ARTICLE 0-0, XXXXXXXXX 6 OF THE SPECIAL TAXATION MEASURES LAW OF JAPAN,
THE AMOUNT OF SUCH INTEREST MINUS THE AMOUNT PROVIDED IN THE CABINET ORDER
RELATING TO SAID PARAGRAPH 6.
No. R_____________ _________
-0-
XXXXX FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
[TITLE OF SECURITY]
1. JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES (herein called
"Issuer"), for value received, hereby promises to pay to TOKYOTRUST NOMINEES
LIMITED, or registered assigns, the principal sum of __________ [currency] on
________, _____, and to pay to the Registered Holder (as defined in paragraph 3)
of this International Global Security interest on said principal sum from
________, _____ or from the most recent interest payment date to which interest
has been paid or duly provided for, [semi-annually] [annually] in arrears on
________ in each year, commencing ________, _____, at the rate of ________ per
centum (___%) per annum, until payment of said principal sum has been made or
duly provided for. The interest so payable on any ________, together with any
Additional Amounts (as defined in paragraph 2) payable as set out herein, will
be paid to the person in whose name this International Global Security is
registered at the close of business on the first day, in each case, of the month
in which such interest payment occurs, whether or not such day is a business
day. Whenever it is necessary to compute any amount of accrued interest with
respect to the Securities (as defined in paragraph 3) for a period of less than
one full year, other than with respect to regular annual interest payments,
interest will be computed on the basis of the actual number of days in the
period and a year of 365 days or, if falling in a leap year, 366 days.
Payments on this International Global Security will be made in accordance
with any laws, regulations or administrative practices applicable to Issuer and
any paying agent(s) in respect thereof, including the requirements applicable
under Japanese tax law. Payment of the principal of and interest on this
International Global Security shall be made in immediately available funds in
the lawful money of [name of country] as at the time of payment is legal tender
for the payment of public and private debts. Except as described in paragraph 5
herein, payments of principal of this International Global Security shall be
made upon surrender of this International Global Security at the office of the
Fiscal Agent (as defined in paragraph 3) in [name of city], or, subject to
applicable laws and regulations, at such other place or places as are designated
by Issuer, by [currency] check, or by wire transfer to an account maintained by
the payee, and payments of interest on this International Global Security shall
be made, in accordance with the foregoing and subject to applicable laws and
regulations, by check mailed on or before the due date for such payment to the
Registered Holder hereof at the address of the Registered Holder listed in the
Security Register (as defined in paragraph 9) or, upon written notice to the
Fiscal Agent by such Registered Holder no later than the record date for such
payment, by wire transfer to an account of the Registered Holder.
In the Fiscal Agency Agreement (as defined in paragraph 3), Issuer and
Japan have agreed that until the date on which the Securities (as defined in
paragraph 3) shall have been delivered to the Fiscal Agent for cancellation, or
become due and payable and monies sufficient to pay the principal of and
interest on all of the Securities shall have been made available for payment and
either paid or returned to Issuer or Japan as provided herein (the "Agency
Maintenance Termination Date"), Issuer and Japan will at all times maintain an
office or agency in the Borough of Manhattan, The City of New York, where
Securities may be presented or surrendered for payment.
2. (a) All payments of principal and interest by Issuer in respect of this
International Global Security will be made without withholding or deduction for,
or on account of,
-2-
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of Japan, or any authority
therein or thereof having power to tax ("Taxes"), unless the withholding or
deduction of such Taxes is required by law. In that event, Issuer will pay such
additional amounts ("Additional Amounts") as may be necessary in order that the
net amounts received by any beneficial owner of this International Global
Security after such withholding or deduction shall equal the respective amounts
of principal and interest which would have been receivable in respect of this
International Global Security in the absence of such withholding or deduction,
except that no such Additional Amounts shall be payable with respect to this
International Global Security;
(i) to, or to a third party on behalf of, any beneficial owner of this
International Global Security that is a non-resident of Japan or a
non-Japanese corporation and is liable for such Taxes in respect of this
International Global Security by reason of such beneficial owner's having
some connection with Japan other than the mere holding of, or the
enforcement of its rights under, this International Global Security; or
(ii) to, or to a third party on behalf of, any beneficial owner of
this International Global Security that would otherwise be exempt from any
such withholding or deduction but that fails to comply with any applicable
requirement to provide the Exemption Information (as defined in paragraph
2(b)) to the Fiscal Agent (as defined in paragraph 3), or whose Exemption
Information is not duly communicated through the Participant (as defined in
paragraph 2(b)) and Euroclear Bank S.A./N.V. as operator of the Euroclear
System ("Euroclear") or Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") to the Fiscal Agent; or
(iii) to, or to a third party on behalf of, any beneficial owner of
this International Global Security that is for Japanese tax purposes
treated as a resident of Japan or a Japanese corporation (except for (A) a
Designated Financial Institution (as defined in paragraph 2(b)) that
complies with the requirement to provide the Exemption Information or to
submit a Claim for Exemption and (B) a resident of Japan or a Japanese
corporation that duly notifies the Fiscal Agent of its status as exempt
from Taxes to be withheld or deducted by Issuer by reason of such resident
or Japanese corporation receiving interest on this International Global
Security through a payment handling agent in Japan appointed by it);
(iv) more than 30 days after the Relevant Date (as defined in this
paragraph 2(a)), except to the extent that any beneficial owner of this
International Global Security would have been entitled to such Additional
Amounts for payment at the expiration of such 30-day period;
(v) where such withholding or deduction is imposed on a payment to an
individual and is required to be made pursuant to European Council
Directive 2003/48/EC or any other Directive implementing the conclusions of
the ECOFIN Council meeting of November 26-27, 2000 on the taxation of
savings income or any law implementing or complying with, or introduced in
order to conform to, such Directive; or
-3-
(vi) to, or to a third party on behalf of, a beneficial owner of this
International Global Security who would have been able to avoid such
withholding or deduction by presenting this Security to another paying
agent in a Member State of the European Union.
As used herein, the "Relevant Date" means the date on which such payment
first becomes due, except that, if the amount of the moneys payable has not been
received by the Fiscal Agent on or prior to such due date, it means the date on
which, the full amount of such moneys having been so received, notice to that
effect shall have been duly published as set forth in paragraph 6.
(b) For the purpose of sub-paragraphs (ii) and (iii) above:
(i) where this International Global Security is held through a certain
participant of Euroclear or Clearstream, Luxembourg or a certain financial
intermediary (each, a "Participant"), in order to receive payments free of
withholding or deduction by Issuer for, or on account of Taxes, if the
relevant beneficial owner of this International Global Security is (A) a
non-resident of Japan or a non-Japanese corporation or (B) a Japanese
financial institution falling under certain categories prescribed by the
Special Taxation Measures Law (Law No. 26 of 1957, as amended), and the
cabinet order (Cabinet Order No. 43 of March 31, 1957, as amended)
thereunder (together with ministerial ordinances and other regulations
thereunder, the "Law") (a "Designated Financial Institution"), all in
accordance with the Law, such beneficial owner shall, at the time of
entrusting a Participant with the custody of this International Global
Security, provide certain information prescribed by the Law to enable the
Participant to establish that such beneficial owner is exempted from the
requirement for Taxes to be withheld or deducted (the "Exemption
Information") and advise the Participant if such beneficial owner ceases to
be so exempted; and
(ii) where this International Global Security is not held by a
Participant, in order to receive payments free of withholding or deduction
by Issuer for, or on account of, Taxes, if the relevant beneficial owner of
this International Global Security is (A) a non-resident of Japan or a
non-Japanese corporation or (B) a Designated Financial Institution, all in
accordance with the Law, such beneficial owner shall on or prior to each
time on which it receives interest, submit to the Fiscal Agent a claim for
exemption from withholding tax (Hikazei Tekiyo Shinkokusho) (a "Claim for
Exemption") in the form obtainable from the Fiscal Agent stating, among
other things, the name and address of such beneficial owner, the title of
this International Global Security, the relevant interest payment date, the
amount of interest and the fact that such beneficial owner is qualified to
submit the Claim for Exemption, together with the documentary evidence
showing that such beneficial owner is a non-resident of Japan or a
non-Japanese corporation or a Designated Financial Institution.
Any reference in this International Global Security or the guarantee of
Japan in the form provided in the Fiscal Agency Agreement to principal or
interest shall be deemed also to refer to any Additional Amount which may be
payable under this paragraph 2.
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3. This International Global Security is one of a duly authorized issue of
securities of Issuer (herein called the "Securities"), issued in accordance with
the Fiscal Agency Agreement (the "Fiscal Agency Agreement"), dated as of
________, _____, entered into by and among Issuer, Japan and [NAME OF FISCAL
AGENT], as Fiscal Agent, with respect to the Securities, copies of which Fiscal
Agency Agreement are on file and available for inspection at the office of the
Fiscal Agent. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to [currency; amount] outstanding at any
one time (which amount may be increased as provided in the Fiscal Agency
Agreement). The Securities are issuable only as fully registered Securities
without coupons in denominations of [currency; amount] and any integral multiple
thereof. In acting under the Fiscal Agency Agreement, the Fiscal Agent is acting
solely as agent for Issuer and Japan and does not assume any obligation or
relationship of agency or trust for or with the Registered Holder of this
International Global Security except as specifically described below. As used
herein, the term "Registered Holder" of a Security means the person in whose
name such Security is registered in the Security Register (as defined in
paragraph 9).
Notwithstanding any other provision of the Fiscal Agency Agreement or this
International Global Security, this International Global Security may be
transferred to, or exchanged for Securities in definitive registered form
registered in the name of, a person other than a common depositary for Euroclear
and Clearstream, Luxembourg, a nominee of a common depositary for Euroclear and
Clearstream, Luxembourg or successor of a common depositary for Euroclear and
Clearstream, Luxembourg or its nominee if Euroclear or Clearstream, Luxembourg
notifies Issuer that it is unwilling or unable to continue as depositary for
such International Global Security and a successor depositary is not appointed
by Issuer within 90 days after receiving such notice or becoming aware that
Euroclear or Clearstream, Luxembourg is no longer so registered, or Issuer, in
its sole discretion, instructs the Fiscal Agent in writing that the
International Global Security shall be so transferable and exchangeable.
Securities in definitive registered form issued in exchange for this
International Global Security will be registered in such names as an authorized
representative of the common depositary for Euroclear and Clearstream,
Luxembourg, pursuant to instructions from direct and indirect Participants in
Euroclear or Clearstream, Luxembourg, shall request, and issued in denominations
of [currency; amount] and integral multiples thereof.
4. This International Global Security is subject to retirement or
redemption as hereinafter provided. Redemption of this International Global
Security pursuant to this paragraph 4 shall be made upon the notice, in the
manner and with the effect hereinafter set forth.
5. In order to provide for the payment of principal of and interest on the
Securities as the same shall become due, Issuer does hereby agree to pay to the
Fiscal Agent at its office in [location] in [currency] the amounts set forth
below in this paragraph, to be held in trust and applied by the Fiscal Agent as
hereinafter set forth:
(a) Issuer shall pay to the Fiscal Agent [semi-annually] [annually] on a
date not later than each [semi-annual] [annual] interest payment date (or such
other date when interest is payable, as provided in paragraph 8(b)) an amount
sufficient to pay the interest becoming due on all Securities on such interest
payment date, and the Fiscal Agent shall apply the amounts so paid to it to the
payment of such interest on such interest payment date.
(b) On a date not later than the redemption or maturity date (or such other
date when principal is payable as provided in paragraph 8(b)) of this
International Global Security, Issuer shall pay to the Fiscal Agent an amount
which, together with any monies then held by the
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Fiscal Agent and available for the purpose, shall be equal to the entire amount
of principal and interest to be due on such redemption or maturity date on the
Securities called for redemption or then outstanding, and the Fiscal Agent shall
apply such amount to the payment of principal of and interest on such Securities
in accordance with the terms thereof.
(c) As early as practicable on each relevant payment date, the Fiscal Agent
shall from funds paid to it by Issuer pay, or procure the payment of, the
[currency] amount due in respect of Securities represented by this International
Global Security by check or by wire transfer of same day funds for value on the
due date for payment to the Registered Holder of this International Global
Security for payment pro rata to the owners of beneficial ownership interests in
the Securities represented by this International Global Security in accordance
with Euroclear and Clearstream's settlement procedures.
(d) Any monies paid to the Fiscal Agent for the payment of principal of or
interest on any Securities and remaining unclaimed at the end of two years after
such principal or interest shall have become due and payable (whether at
maturity, upon any interest payment date, upon call for redemption or otherwise)
shall be repaid to Issuer or Japan, whichever deposited such monies, and upon
such repayment the aforesaid trust shall terminate with respect to such monies
and all liability of the Fiscal Agent with respect to such monies shall
thereupon cease, without, however, limiting in any way the unconditional
obligation of Issuer (subject, however, to any applicable statute of limitations
or prescription) to pay principal of and interest on this International Global
Security.
6. The Securities (including this International Global Security) may be
redeemed for cash at the option of Issuer in whole, but not in part, on not more
than sixty (60) days' and not less than thirty (30) days' irrevocable notice to
the Registered Holders of the Securities, at a redemption price for each
Security equal to the principal amount thereof, together with accrued interest
to the date fixed by Issuer for redemption and any Additional Amounts, if Issuer
determines and certifies to the Fiscal Agent immediately prior to the giving of
the notice that, as a result of any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of Japan (or any
political subdivision or taxing authority of Japan) affecting any Taxes, or any
change in official position regarding the application or interpretation of these
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after ________, _____, Issuer is, or on
the next interest payment date would be, required to pay any Additional Amounts
for the Securities that cannot be avoided by measures reasonably available to
Issuer; provided that no notice of redemption shall be given earlier than ninety
(90) days prior to the earliest date on which Issuer would be obligated to make
the withholding if a payment in respect of the Securities were then due. Prior
to the publication and mailing of any notice of redemption of the Securities
pursuant to the foregoing, Issuer will deliver to the Fiscal Agent an opinion of
independent counsel of recognized standing or an opinion of a tax consultant of
recognized standing to the effect that the circumstances referred to above
exist. The Fiscal Agent shall accept such opinion of counsel or tax opinion, as
the case may be, as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Registered Holders of the Securities.
Notice of intention to redeem the Securities, specifying the redemption
date and the place or places where the redemption price will be paid, shall be
given by publication at least once in a daily newspaper in the English language,
of general circulation in The City of New York and in a daily newspaper in the
English language of general circulation in London, England, at least
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once prior to the redemption date, such publication to be not less than thirty
(30) days nor more than sixty (60) days prior to the redemption date, provided
that for so long as the Securities are held in book-entry form such notices may
be given by delivery of the relevant notice to DTC, Euroclear and Clearstream,
Luxembourg, for communication by them to their respective Participants in
substitution for publication in any such newspaper. In case, by reason of the
temporary or permanent suspension of the publication or general circulation of
any newspaper or by reason of any other cause, it shall be impossible or
impracticable to publish such notice in the manner herein provided, then such
method of publication in lieu thereof as shall be approved by the Fiscal Agent
shall constitute a sufficient publication of such notice. Such notice shall also
be sent by the Fiscal Agent by mail, postage prepaid, not less than thirty (30)
days nor more than sixty (60) days prior to the redemption date to the
Registered Holders of all the Securities, at the addresses of such Registered
Holders as they shall appear in the Security Register (as defined in paragraph
9); but no failure to mail such notice to such Registered Holders nor any defect
therein nor failure to receive the same shall affect the validity and
effectiveness of the call and redemption of any Securities so to be redeemed.
Notice having been so given, the Securities so called for redemption shall
become due and payable on the redemption date so designated at the redemption
price, and upon surrender thereof the Securities will be paid at the redemption
price together with all accrued interest (unless the redemption date is a date
for the payment of interest) in [currency], at the place or places specified in
such notice. From and after the redemption date, if monies for the redemption of
all the Securities to be redeemed, shall have been available at the office of
the Fiscal Agent for redemption on the redemption date, the Securities so called
for redemption shall cease to bear interest and the only right of the Registered
Holders of the Securities shall be to receive payment of the redemption price in
accordance with the terms of such Securities.
7. This International Global Security will become void unless presented for
payment within a period of ten years from the Relevant Date (as defined in
paragraph 2).
8. (a) In the event of a default by Issuer (i) in the payment when due of
principal of or interest on any of the Securities and the continuance of such
default for a period of thirty (30) days, or (ii) in the performance of any
other covenant contained in the Securities and the continuance of such default
for a period of ninety (90) days after written notice thereof to Issuer from the
Registered Holder of this International Global Security shall have been received
by the Fiscal Agent, then in any such case the principal amount of this
International Global Security shall, at the option of and upon written demand to
the Fiscal Agent at said office by the Registered Holder hereof, mature and
become due and payable upon the date that such written demand is received by the
Fiscal Agent, unless prior to such date Issuer shall have cured all such
defaults in respect of all the Securities. Any amount of interest or principal
so in default in respect of this International Global Security shall bear
interest (if, and to the extent permitted by law) at the rate specified in the
title of this International Global Security until such default shall have been
cured.
(b) If a date for payment of principal or interest on this International
Global Security falls on a day that is not a Business Day, then the related
payment of principal, premium, if any, or interest may be made on the next
succeeding business day as if made on the date the payment was due and no
interest will accrue in respect of such delay. For purposes of this paragraph
8(b), "Business Day" means any day on which commercial banks and foreign
exchange markets settle payments and are open for general business (including
dealings in foreign exchange and foreign currency deposits) in: (a) the relevant
place of payment and (b) the City of New York, London and Tokyo.
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9. The transfer of this International Global Security is registrable on the
Security Register (as herein defined) upon surrender of this International
Global Security for registration at the office of the Fiscal Agent duly endorsed
by, or accompanied by a written instrument of transfer in a form approved by the
Fiscal Agent duly executed by, the Registered Holder hereof or such Registered
Holder's attorney duly authorized in writing. Upon surrender of this
International Global Security for registration of transfer by the Registered
Holder hereof, Issuer shall execute, and the Fiscal Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities, of any authorized denominations and of a like aggregate
principal amount, and registered in such name or names as may be requested by
the Registered Holder hereof, dated the date of authentication thereof and
bearing the guarantee of Japan in the form provided in the Fiscal Agency
Agreement. Issuer, Japan and the Fiscal Agent may deem and treat the Registered
Holder hereof as the absolute owner hereof (notwithstanding any notice of
ownership or writing hereon made by anyone) for the purpose of receiving payment
hereon and for all other purposes, whether or not this International Global
Security shall be overdue. Issuer covenants that, until the Agency Maintenance
Termination Date, it will at all times maintain in London an office or agency
for the registration and registration of transfers, as aforesaid, of Securities
and where notices and demands to or upon Issuer or Japan in respect of the
Securities and the Fiscal Agency Agreement may be served. Issuer has appointed
the Fiscal Agent as its agent for such purpose and has agreed to cause to be
kept at the office of the Fiscal Agent in London a register (the register
maintained in such office being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
Issuer shall provide for such registration of transfers.
In the manner and subject to the limitations provided in the Fiscal Agency
Agreement, Securities may be exchanged for a like aggregate principal amount of
Securities of authorized denominations bearing the guarantee of Japan in the
form provided in the Fiscal Agency Agreement. Issuer covenants that until the
Agency Maintenance Termination Date, it will at all times maintain an office or
agency in London where Securities may be surrendered in exchange for Securities
in other authorized denominations in accordance with the terms hereof and of the
Fiscal Agency Agreement. Issuer has appointed the Fiscal Agent as its agent for
such purpose.
Neither the fiscal agent nor any transfer agent will be required to (i)
exchange or register the transfer of any Security selected for redemption; or
(ii) exchange or register the transfer of any Security for the period from the
record date preceding the due date for any payment to the payment date with
respect to such Security.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of Issuer guaranteed by Japan
evidencing the same debt, and entitled to the same benefits, as the Securities
surrendered upon such registration of transfer or exchange. Any new
International Global Security delivered pursuant to this paragraph 9 shall be so
dated that neither gain nor loss of interest shall result from such registration
or exchange.
No service charge shall be made for any such transfer, exchange or
registration of transfer or exchange of Securities, but Issuer, Japan or the
Fiscal Agent (and any other agent appointed by Issuer pursuant to Section 2 of
the Fiscal Agency Agreement) may require payment of a sum sufficient to cover
any transfer, stamp or other tax or other governmental charge required to be
paid in connection therewith.
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10. In case this International Global Security shall at any time become
mutilated or destroyed or stolen or lost then, provided that this International
Global Security, or evidence of the destruction, theft or loss thereof (together
with the indemnity hereinafter referred to and such other documents or proof as
may be required in the premises) shall be delivered to the Fiscal Agent, a
replacement International Global Security of like tenor and principal amount and
bearing the guarantee of Japan in the form provided in the Fiscal Agency
Agreement will be issued by Issuer and, at its request, authenticated and
delivered by the Fiscal Agent in exchange for the International Global Security
so mutilated, or in lieu of the International Global Security destroyed or
stolen or lost; and provided further that, in the case of destroyed, stolen or
lost Securities, Issuer, Japan and the Fiscal Agent shall have received evidence
satisfactory to them that such Securities were destroyed, stolen or lost, and
shall also have received an indemnity satisfactory to each of them. All expenses
and reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a replacement International Global
Security shall be borne by the Registered Holder of the International Global
Security mutilated, destroyed, stolen or lost. Upon the issuance of any
replacement International Global Security under this paragraph 10, Issuer, Japan
or the Fiscal Agent may require the payment of a sum sufficient to cover any
transfer, stamp or other tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Fiscal Agent) connected therewith. In case such mutilated, destroyed, stolen or
lost International Global Security has become or is about to become due and
payable, Issuer in its discretion may, instead of issuing a new International
Global Security, pay or cause to be paid such International Global Security.
Every replacement International Global Security issued pursuant to this
paragraph 10 in exchange for or in lieu of any mutilated, destroyed, stolen or
lost International Global Security shall constitute an original additional
contractual obligation of Issuer guaranteed by Japan, whether or not the
mutilated, destroyed, stolen or lost International Global Security shall be at
any time enforceable by anyone. Any replacement International Global Security
delivered pursuant to this paragraph 10 shall be so dated that neither gain nor
loss of interest shall result from such replacement.
The provisions of this paragraph 10 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, stolen or lost Securities.
11. Subject to paragraph 13, Issuer hereby certifies and declares that all
acts, conditions and things required to be done and performed and to have
happened precedent to the creation and issuance of this International Global
Security and its guarantee by Japan, and to constitute the same the valid
obligations of Issuer and of Japan, respectively, in accordance with their
terms, have been done and performed and have happened in due and strict
compliance with the applicable laws of Japan.
12. The Fiscal Agency Agreement may be modified or amended by Issuer,
Japan, the Fiscal Agent and the Transfer Agent, and the terms and conditions of
the Securities may be modified or amended by Issuer and Japan, without the
consent of the Registered Holder of any International Global Security for the
purpose of adding to the covenants of Issuer or Japan for the benefit of the
Registered Holders, surrendering any right or power conferred upon Issuer or
Japan, securing the Securities pursuant to the requirements of the Securities or
otherwise, curing any ambiguity, or curing, correcting or supplementing any
defective provision therein, or in any manner which Issuer, Japan, the Fiscal
Agent and the Transfer Agent may mutually deem necessary or
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desirable, which, in the case of the Fiscal Agency Agreement, shall not be
inconsistent with the Securities, and which shall not adversely affect the
interests of the Registered Holders of the Securities in any material respect,
to all of which each Registered Holder of any International Global Security
shall, by acceptance thereof, consent.
13. This International Global Security shall not become valid or obligatory
for any purpose unless and until this International Global Security has been
authenticated by [NAME OF FISCAL AGENT], or its successor, as Fiscal Agent.
14. This International Global Security shall be governed by, and
interpreted in accordance with, the laws of the State of New York except with
respect to its authorization and execution by Issuer and any other matters
required to be governed by the laws of Japan.
15. As more fully set forth in the Fiscal Agency Agreement, Issuer has
appointed [NAME OF AGENT] as its authorized agent upon which process may be
served in any action arising out of or based on the Securities or the Fiscal
Agency Agreement which may be instituted in any State or Federal court in The
City of New York by the Registered Holder of this International Global Security,
and Issuer hereby expressly accepts the jurisdiction of any such court in
respect of such action. Such appointment shall be irrevocable until the Agency
Maintenance Termination Date, unless and until a successor Fiscal Agent shall
have been appointed by Issuer as its authorized agent for such purpose and such
successor Fiscal Agent shall have accepted such appointment. Notwithstanding the
foregoing, any action arising out of or based on the Securities may be
instituted by the Registered Holder of this International Global Security in any
competent court in Japan. Issuer hereby waives irrevocably any immunity to which
it might otherwise be entitled in any action based on the Securities which may
be instituted by the Registered Holder of this International Global Security in
any State or Federal court in The City of New York or in any competent court in
Japan. This waiver is intended to be effective upon execution of this
International Global Security without any further act by Issuer before any such
court, and introduction of this International Global Security into evidence
shall be final and conclusive evidence of such waiver.
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IN WITNESS WHEREOF, Issuer has caused this International Global Security to
be executed with the signature of the Governor or a duly authorized agent of
Issuer in Tokyo, Japan or the facsimile signature of the Governor or a duly
authorized agent of Issuer in Xxx Xxxx xx Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx
Xxxxxx of America.
Dated: ________, _____
JAPAN FINANCE CORPORATION FOR
MUNICIPAL ENTERPRISES
By
-------------------------------
Name:
Governor or
Duly Authorized Agent of Issuer
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Form of Certificate of Authentication
This is one of the Securities within referred to. The undersigned hereby
represents that it has not authenticated Securities in excess of an aggregate
principal amount of [currency; amount] (other than Securities issued in exchange
for and upon the cancellation of a like aggregate principal amount of other
Securities, and Securities issued in lieu of destroyed, stolen or lost
Securities).
THE BANK OF TOKYO-MITSUBISHI,
LTD., LONDON BRANCH
as Fiscal Agent
By
------------------------------
Authorized Signatory
SCHEDULE TO THE INTERNATIONAL GLOBAL SECURITY
JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
[TITLE OF SECURITY]
Initial Principal Additional Principal Aggregate Principal Authorization
Amount Amount Amount
----------------- -------------------- ------------------- -------------
----------------- -------------------- ------------------- -------------
-------------------- ------------------- -------------
-------------------- ------------------- -------------
EXHIBIT B
(FORM OF GUARANTEE FOR SECURITY)
GUARANTEE BY JAPAN
Japan hereby unconditionally and irrevocably guarantees to the holder of
the within Security due and punctual payment of the principal of said Security,
interest thereon and any Additional Amounts as defined in paragraph 2 of said
Security, according to the tenor of said Security, as and when the same shall
become due and payable; waives any requirement that the holder of said Security,
in the event of any default in such payment by Japan Finance Corporation for
Municipal Enterprises, first make demand upon or seek to enforce remedies
against Japan Finance Corporation for Municipal Enterprises before demanding
payment under, or seeking to enforce, this guarantee; covenants that this
guarantee will not be discharged except by complete performance of the
obligations contained in said Security and this guarantee; and covenants that
the guarantee herein contained shall be a general obligation of Japan, for the
performance of which the full faith and credit of Japan is hereby pledged and
shall rank pari passu in right of payment with all other general obligations of
Japan without any preference one above the other by reason of priority of date
of issue, currency of payment or otherwise.
This guarantee shall not be valid or obligatory for any purpose until the
within Security has been authenticated by [NAME OF FISCAL AGENT], or its
successor as Fiscal Agent duly appointed by Japan Finance Corporation for
Municipal Enterprises and Japan for such purpose.
This guarantee shall be governed by, and interpreted in accordance with,
the laws of the State of New York except with respect to its authorization and
execution by Japan and any other matters required to be governed by the laws of
Japan.
Dated: ________, _____
JAPAN
By
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Minister of Finance
