JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES Debt Securities Unconditionally and Irrevocably Guaranteed as to Payment of Principal and Interest by JAPAN UNDERWRITING AGREEMENT
EXHIBIT 5.C.
JAPAN FINANCE CORPORATION FOR MUNICIPAL ENTERPRISES
$1,000,000,000
Debt Securities
Unconditionally and Irrevocably Guaranteed as to
Payment of Principal and Interest by
Payment of Principal and Interest by
JAPAN
May 10, 2007
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto.
hereto of the Underwriters named in
Schedule II hereto.
Ladies and Gentlemen:
1. Introductory. Japan Finance Corporation for Municipal Enterprises (“Issuer”) proposes to
sell to the underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting
as representatives (the “Representatives”), the principal amount of its debt securities identified
in Schedule I hereto (the “Securities”), to be unconditionally and irrevocably guaranteed as to
payment of principal thereof, interest thereon and any additional amounts thereof by Japan, as
Guarantor of the Securities (“Japan”), and to be issued under a fiscal agency agreement (the
“Fiscal Agency Agreement”) to be dated as provided in Schedule I hereto among Issuer, Japan, and
the fiscal agent, principal paying agent and transfer agent (the “Fiscal Agent”) and the U.S.
representative of the Fiscal Agent (the “U.S. Representative”) identified in Schedule I hereto. If
the firm or firms listed in Schedule II hereto include only the firm or firms listed as
“Representatives” in Schedule I hereto, then the terms “Underwriters” and “Representatives” as used
herein shall each be deemed to refer to such firm or firms.
2. Representations and Warranties of Issuer and Japan. Issuer and Japan severally represent
and warrant to and agree with the several Underwriters that:
(a) Issuer and Japan have filed with the Securities and Exchange Commission (the
“Commission”) Registration Statement No. 333-123757, which has become effective, for the
registration under the Securities Act of 1933, as amended (the “Act”), of the Securities.
Issuer and Japan propose to file with the Commission pursuant to Rule 424(b) under the Act
(“Rule 424(b)”) a supplement to the form of prospectus included in Registration Statement
No. 333-123757, relating to the Securities and the plan of distribution thereof, a copy of
the proposed form of which has been furnished to the Representatives. Registration
Statement No. 333-123757, including the exhibits thereto and the information incorporated
by reference therein, as amended at the date of this Agreement, is hereinafter called the
“Registration Statement”. The prospectus included in
Registration Statement No. 333-123757, including all information incorporated by
reference therein, is hereinafter called the “Base Prospectus”. The supplemented form of
prospectus relating to the Securities, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the “Final Prospectus”. The prospectus supplement included in the Final
Prospectus is hereinafter called the “Prospectus Supplement.” Any preliminary form of the
Final Prospectus which has heretofore been filed pursuant to Rule 424(b) is hereinafter
called a “Preliminary Final Prospectus”. Any reference herein to the Registration
Statement, Base Prospectus, the Final Prospectus, any Preliminary Final Prospectus, or any
amendment or supplement thereto, shall be deemed to refer to and include the information
contained in any annual report (an “Annual Report”) on Form 18-K or amendment thereto of
Issuer or Japan under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
which is incorporated therein by reference.
(b) The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and neither Issuer nor Japan is the
subject of a pending proceeding under Section 8A of the Act in connection with the offering
of the Securities.
(c) The Registration Statement, the Final Prospectus and each amendment or supplement
thereto relevant to the Securities, as of their respective effective or issue dates,
conformed or will conform, as the case may be, in all respects with the applicable
requirements of the Act, including the rules and regulations of the Commission thereunder,
and neither such Registration Statement nor the Final Prospectus nor any amendment or
supplement thereto, as of their respective effective or issue dates, contained or will
contain, as the case may be, any untrue statement of a material fact or omitted or will
omit, as the case may be, to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; provided, however, that
neither Issuer nor Japan makes any representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto relevant to the Securities in reliance upon and in
conformity with information furnished in writing to Issuer or Japan by or on behalf of any
Underwriter through the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus. Each Underwriter hereby
furnishes to Issuer and Japan in writing through the Representatives specifically for use
with reference to such Underwriter in the preparation of the Registration Statement and the
Final Prospectus, or any amendment thereof or supplement thereto relevant to the
Securities, the statements in the Final Prospectus specified in Schedule I hereto.
(d) For the purposes of this Agreement, the “Applicable Time” is 9:30 A.M. (New York
time) on May 9, 2007; the Preliminary Final Prospectus which includes the preliminary
prospectus supplement dated May 8, 2007 (the “Latest Preliminary Final Prospectus”),
together with the term sheet dated May 9, 2007 which contains the final terms of the
Securities and which has been prepared by Issuer in the form previously agreed to between
Issuer and the Representatives (the “Term Sheet”; the Latest Preliminary Final Prospectus
and the Term Sheet are hereinafter collectively referred to as the “Pricing Disclosure
Package”), as of the Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to
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make the statements therein, in the light of the circumstances under which they were
made, not misleading; the Term Sheet, as of its issue date and at all subsequent times
through the completion of the offer and sale of the Securities or until any earlier date
that Issuer notified or notifies the Representatives as described in Section 5(a)(vii),
does not conflict with the information contained in the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus; and the Term Sheet,
as of the Applicable Time, did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided, however, that
neither Issuer nor Japan makes any representations or warranties as to the information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in
conformity with information furnished in writing to Issuer or Japan by or on behalf of any
Underwriter through the Representatives specifically for use in connection with the
preparation of the Pricing Disclosure Package. Each Underwriter hereby furnishes to Issuer
and Japan in writing through the Representatives specifically for use with reference to
such Underwriter in the preparation of the Pricing Disclosure Package, the statements in
the Pricing Disclosure Package specified in Schedule I hereto.
(e) (i) At the earliest time that Issuer, Japan or another offering participant made
a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) and (ii) as of the
date hereof, neither Issuer nor Japan was or is an “ineligible issuer” as defined in Rule
405 under the Act, without taking into account of any determination by the Commission
pursuant to such Rule that it is not necessary that Issuer or Japan be considered an
“ineligible issuer”.
(f) Each of Issuer and Japan represents, warrants and undertakes to the Underwriters
that it has not issued and will not issue, without the prior consent of the stabilizing
manager, any communication to which MAR 2.3.5(1) of the price stabilizing rules made under
section 144(1) of the Financial Services and Markets Xxx 0000 of the United Kingdom applies
unless that communication adequately discloses that stabilizing action may take place in
relation to such issue and complies with MAR 2.3.5(1)(a)-(e) of those rules.
Notwithstanding the above, it is agreed that the foregoing representations, warranties and
agreements of Issuer in this Section shall not extend to the information set forth in the portions
of the Base Prospectus under the caption “Japan” and, if so specified in Schedule I hereto, the
portions of the Latest Preliminary Final Prospectus and of the Final Prospectus under the
additional caption or captions specified in Schedule I hereto, or to information incorporated by
reference from Japan’s Annual Report on Form 18-K.
3. Purchase, Sale and Delivery of Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and conditions herein set
forth, Issuer agrees to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from Issuer, at the purchase price set forth in Schedule I hereto (which shall
include accrued interest or amortization, if any, on the Securities), the respective principal
amounts of Securities set forth opposite the names of the Underwriters in Schedule II hereto.
Issuer will deliver the Securities to the Representatives for the accounts of the
Underwriters, and the Representatives will make payment of the purchase price set forth in
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Schedule I hereto, either by wire transfer to an account or accounts designated by Issuer or
by certified or official bank check or checks drawn to the order of Issuer, in each case in the
settlement funds specified in Schedule I hereto, at the office (in the case of payment by bank
check(s)), on the date and at the time specified in Schedule I hereto, or at such other time not
later than seven full business days thereafter as the Representatives, Issuer and Japan determine,
such date and time being herein referred to as the “Closing Date”. Certificates for the Securities
will be in fully registered form, in the authorized denominations specified in Schedule I hereto.
Certificates for Securities issued in registered form will be registered in authorized
denominations and in such names as the Representatives request. The Securities will be made
available for checking and packaging by the Representatives at the office specified in Schedule I
hereto of the Fiscal Agent at least twenty-four hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Securities for sale to the public as set forth in the Final Prospectus. The Securities are
exempt from the requirement for registration under the Securities and Exchange Law of Japan (Law
No. 25 of 1948), as amended (the “Securities and Exchange Law”), and are subject to the Special
Taxation Measures Law of Japan (Law No. 26 of 1957), as amended (the “Tax Law”). Each Underwriter
represents and agrees that: (i) except where permitted under (ii) below, it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or sell the Securities in
Japan or to, any person resident in Japan, including any corporation or entity organized under the
laws of Japan; and (ii) it has not, directly or indirectly, offered or sold and will not (a) as
part of its distribution at any time and (b) otherwise until forty days after the date of issue,
directly or indirectly offer or sell the Securities to any person other than a Gross Recipient (as
hereinafter defined). A “Gross Recipient” is (i) a beneficial owner that is not an individual
resident of Japan or a Japanese corporation for Japanese tax purposes, (ii) a Japanese financial
institution, designated in Article 0-0, Xxxxxxxxx (19) of the Cabinet Order relating to the Tax Law
(Cabinet Order No. 43 of March 31, 1957, as amended) (the “Cabinet Order”) that will hold the
Securities for its own proprietary account, or (iii) an individual resident of Japan or a Japanese
corporation whose receipt of interest on the Securities will be made through a payment handling
agent in Japan as defined in Article 0-0, Xxxxxxxxx (2) of the Cabinet Order.
5. Covenants of Issuer and Japan; Certain Additional Representations and Covenants relating
to Issuer Free Writing Prospectuses.
(a) Issuer and Japan severally covenant and agree with the several Underwriters that:
(i) Issuer and Japan will advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement, the Base Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, so long as delivery of a prospectus relating to the
Securities by an Underwriter or dealer may be required under the Act, and will not effect
such amendment or supplementation, whether by filing an amendment pursuant to the Act, the
Exchange Act or otherwise, without the consent of the Representatives. Subject to the
foregoing sentence, Issuer and Japan (A) will cause the Final Prospectus to be promptly
transmitted for filing with the Commission pursuant to Rule 424(b) or will otherwise cause
the Final Prospectus to be promptly filed with the Commission pursuant to said Rule, (B)
will cause an amendment to the most recent Annual Report of Issuer to be filed with the
Commission containing any exhibits required, in connection with the Securities, pursuant to
the Act, including but not limited to an opinion of counsel for Issuer and Japan as to the
validity of the Securities and guarantee thereof and a list of the
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Underwriters’ names and addresses, and (C) will cause the Term Sheet and all other
material (if any) required to be filed by Issuer or Japan with the Commission pursuant to
Rule 433(d) under the Act (“Rule 433(d)”) to be promptly transmitted for filing with the
Commission pursuant to said Rule or will otherwise cause the Term Sheet and such other
material (if any) to be promptly filed with the Commission pursuant to the said Rule.
Issuer and Japan will promptly advise the Representatives (A) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424(b), (B) when such amendment
to the most recent Annual Report shall have been filed with the Commission, (C) when any
amendment to the Registration Statement relating to the Securities shall have become
effective, (D) of any request by the Commission for any amendment (relevant to the
Securities) of the Registration Statement, or amendment of or supplement to the Final
Prospectus, or for any additional information, (E) of the institution by the Commission of
any stop order proceedings suspending the effectiveness of the Registration Statement or of
any examination pursuant to Section 8(e) of the Act concerning the Registration Statement,
and (F) when Issuer or Japan becomes the subject of a proceeding under Section 8A of the
Act in connection with the offering of the Securities. Issuer and Japan will use their best
efforts to prevent the issuance of any such stop order referred to in clause (E) above and
to obtain as soon as possible its lifting, if issued.
(ii) Issuer and Japan have given the Representatives notice of any filing of an
Annual Report of Issuer or Japan or an amendment thereto made within 48 hours prior to the
Applicable Time; Issuer and Japan will give the Representatives notice of Issuer’s or
Japan’s intention to make any such filing from the Applicable Time to the Closing Date and
will furnish the Representatives with copies of any such document a reasonable amount of
time prior to such proposed filing and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(iii) If at any time when a prospectus relating to the Securities (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered
under the Act, any event occurs as a result of which any Preliminary Final Prospectus or
Final Prospectus as then amended or supplemented would include an untrue statement of a
material fact, or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement any Preliminary Final Prospectus or Final
Prospectus to comply with the Act, Issuer and Japan promptly will prepare and file with the
Commission, subject to the first sentence of subparagraph (i) of this paragraph (a),
whether by filing documents pursuant to the Act, the Exchange Act or otherwise, an
amendment or supplement, which will correct such statement or omission or an amendment or
supplement which will effect such compliance.
(iv) Issuer and Japan will furnish to the Representatives copies of the Registration
Statement and each amendment thereto which shall become effective on or prior to the
Closing Date (one of which will include all exhibits), and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, any Preliminary Final
Prospectus and the Final Prospectus, and all amendments and supplements to such documents,
in each case as soon as available and in such reasonable quantities as the Representatives
request.
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(v) Issuer and Japan will use their best efforts to arrange for the qualification of
the Securities, including the guarantee thereof, for sale under the laws of such
jurisdictions as the Representatives may reasonably designate and to continue such
qualifications in effect so long as required for the distribution of the Securities;
provided, however, that in connection therewith Issuer shall not be required to qualify as
a foreign corporation and neither Issuer nor Japan shall be required to file a general
consent to the service of process in any such jurisdiction.
(vi) If specified in Schedule I hereto, Issuer and Japan will make prompt application
for the listing of the Securities on the New York Stock Exchange and for the registration
thereof under the Exchange Act, or for the listing of the Securities on the London Stock
Exchange or on the Luxembourg Stock Exchange, and will use their best efforts to cause such
listing and/or registration to be granted, subject only to the issue of the Securities, on
or prior to the Closing Date.
(vii) If at any time following issuance of an “issuer free writing prospectus” as
defined in Rule 433(h) under the Act relating to the Securities (an “Issuer Free Writing
Prospectus”) (including the Term Sheet) any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the Registration
Statement, the Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus or
would include an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, Issuer and Japan will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and furnish without
charge to each Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; provided, however, that this covenant shall
not apply to any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to Issuer and Japan
by or on behalf of any Underwriter through the Representatives expressly for use therein.
(b) Issuer covenants and agrees with the several Underwriters that:
(i) Issuer will pay all expenses in connection with the preparation, issuance,
execution, authentication and delivery of the Securities, the printing of this Agreement
and the Fiscal Agency Agreement, the preparation, printing and filing of the Registration
Statement, any Preliminary Final Prospectus, any Issuer Free Writing Prospectus (including
the Term Sheet), the Final Prospectus and any amendments or supplements thereto, and the
furnishing of copies of each thereof to the Underwriters, if New York Stock Exchange,
London Stock Exchange and/or Luxembourg Stock Exchange listing is specified in Schedule I
hereto, any listing of the Securities on the New York Stock Exchange, London Stock Exchange
and/or Luxembourg Stock Exchange and any registration thereof under the Exchange Act, and
any rating of the Securities made upon the request of Issuer by investment rating agencies
(including any fees charged for such rating). Issuer will pay all expenses authorized by it
(including reasonable fees and disbursements of counsel) incurred in connection with the
qualification of the Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives may reasonably
designate and the printing of memoranda relating thereto. Issuer will pay all fees and
expenses of the legal counsels for
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Issuer and the Underwriters in connection with the issuance and offering of the
Securities, the fees and expenses of the Fiscal Agent and other agents named in the Fiscal
Agency Agreement and the cost and expenses in connection with tombstone advertisement (if
any).
(ii) For its first full fiscal year commencing after the date of this Agreement and
as soon as practicable after the termination of such fiscal year, Issuer will (A) file an
earnings statement with the Commission as part of its Annual Report on Form 18-K in
accordance with the procedures set forth in the no-action letter, dated August 3, 1994, of
the Commission regarding Japan, the Japan Development Bank, the Export-Import Bank of
Japan, Issuer, and the Metropolis of Tokyo or (B) otherwise make available to the holders
of the Securities an equivalent earnings statement.
(iii) Issuer will pay to the Representatives, on behalf of the Underwriters, on the
Closing Date, the sum specified in Schedule I, in lieu of reimbursement of any of the
Underwriters’ expenses (including any costs and expenses mentioned in Section 5(b)(i) paid
by Underwriters and Underwriters’ out-of-pocket expenses, if any).
(c) Japan covenants and agrees with the several Underwriters that:
(i) It will guarantee unconditionally and irrevocably the payment of the principal
of, interest on and any additional amounts of the Securities, and it will cause its
guarantee in substantially the form set forth as an exhibit to the Fiscal Agency Agreement
to be endorsed on each Security and to be validly executed on behalf of Japan.
(ii) For its first full fiscal year commencing after the date of this Agreement and
as soon as practicable after the termination of such fiscal year, Japan will (A) file a
statement of revenues and expenditures of Japan with the Commission as part of its Annual
Report on Form 18-K in accordance with the procedures set forth in the no-action letter,
dated August 3, 1994, of the Commission regarding Japan, the Japan Development Bank, the
Export-Import Bank of Japan, Issuer, and the Metropolis of Tokyo or (B) otherwise make
available to the holders of the Securities an equivalent statement of revenues and
expenditures of Japan.
(d) Each of Issuer and Japan severally represents and warrants and agrees with the several
Underwriters that, unless it has obtained or obtains the prior consent of the Representatives, it
has not made and will not make any offer relating to the Securities that would constitute an Issuer
Free Writing Prospectus. Each Underwriter severally represents and warrants and agrees with Issuer,
Japan and the Representatives that, unless it has obtained or obtains the prior consent of Issuer,
Japan and the Representatives, it has not made and will not make any offer relating to the
Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act
relating to the Securities, required to be filed with the Commission; provided, however, that,
prior to the preparation of the Term Sheet, the Issuer, Japan and the Representative gave their
prior consent to the Underwriters to use the information with respect to the final terms of the
Securities in communications conveying information relating to the offering thereof to investors.
Issuer and Japan have complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus (including the Term Sheet) and “issuer
information” as defined in said Rule, including timely filing thereof with the Commission or
retention thereof where required and legending thereof.
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6. Conditions of Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Securities will be subject to the accuracy of the
representations and warranties on the part of Issuer and Japan herein, to the accuracy of the
statements of officials of Issuer and Japan made pursuant to the provisions hereof, to the
performance by Issuer and Japan of their obligations hereunder and to the following additional
conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been instituted, or to the knowledge of Issuer, Japan or the Representatives, shall be
contemplated by the Commission; the Final Prospectus shall have been filed or transmitted
for filing with the Commission in accordance with Section 5(a)(i) hereof not later than
5:00 P.M. New York City time on the business day following the date of this Agreement; and
the Term Sheet and all other material (if any) required to be filed by Issuer or Japan with
the Commission pursuant to Rule 433(d) shall have been filed with the Commission or
transmitted for filing with the Commission by the time applicable to such filing pursuant
to said Rule.
(b) Subsequent to the date hereof, there shall not have occurred (i) any change, or
any development involving a prospective change, in or affecting particularly the business
or properties of Issuer or the financial, political or economic condition of Japan which,
in the judgment of the Representatives, materially impairs the investment quality of the
Securities, or (ii) (A) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or London Stock Exchange, (B) a general moratorium
on commercial banking activities in the United States, New York or Japan declared by either
Federal or New York State authorities or by Japanese authorities, or (C) the engagement by
the United States or Japan in hostilities which have resulted in the declaration, on or
after the date hereof, of a national emergency or war; provided that the effect of any such
event specified in this subsection (ii), in the judgment of the Representatives, after
consultation with Issuer and Japan, would materially adversely affect the marketing of the
Securities.
(c) The Representatives shall have received an opinion of Nagashima Ohno &
Tsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect
that:
(i) Issuer is a public corporation validly existing under the laws of Japan,
with power and authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) All Japanese governmental approvals have been obtained which are
required for the valid authorization, issue and sale of the Securities and for the
performance of Issuer’s obligations hereunder and under the Securities and the
Fiscal Agency Agreement;
(iii) The Fiscal Agency Agreement has been duly authorized, executed and
delivered by Issuer and Japan, and constitutes a valid and legally binding
obligation of Issuer and Japan in accordance with its terms;
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(iv) The Securities have been duly authorized, and, assuming that they have
been executed on behalf of Issuer by either the signature or the facsimile
signature of the individual specified in the Fiscal Agency Agreement to act on
behalf of Issuer, and assuming that they have been duly authenticated by the Fiscal
Agent, have been duly issued and delivered by Issuer and constitute valid and
legally binding obligations of Issuer in accordance with their terms entitled to
the benefits provided by the Fiscal Agency Agreement;
(v) The guarantee of the Securities by Japan has been duly authorized and
validly made in accordance with The Constitution and laws of Japan, and constitutes
the valid, binding, irrevocable and unconditional general obligation of Japan in
accordance with its terms, for the payment and performance of which the full faith
and credit of Japan has been pledged; and such guarantee ranks 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;
(vi) This Agreement has been duly authorized, executed and delivered by
Issuer and Japan;
(vii) The statements in the Latest Preliminary Final Prospectus (as of the
Applicable Time), Final Prospectus and any amendment or supplement thereto relating
to the Securities and the guarantee thereof by Japan and to the Fiscal Agency
Agreement are correct insofar as matters of Japanese law are concerned; and
(viii) All matters of Japanese law relating to Issuer and its business and
all other statements with respect to or involving Japanese law set forth in the
Registration Statement, the Latest Preliminary Final Prospectus (as of the
Applicable Time), the Final Prospectus and any amendment or supplement thereto, are
correctly set forth therein.
In rendering such opinion, such counsel may rely as to all matters governed by United
States or New York law upon the opinion of Xxxxxxxx & Xxxxxxxx LLP, United States counsel
for the Underwriters referred to below. And with respect to the matters referred to in
paragraph (iii) through (v) above, such counsel may state they are expressing no opinion as
to the enforceability of the obligations.
In addition, the Representatives shall have received a letter of such counsel, dated
the Closing Date, to the effect that, based on a review of documents and their
participation in the preparation of the Registration Statement, the Pricing Disclosure
Package, the Final Prospectus and any amendment or supplement thereto relevant to the
Securities, they have no reason to believe that (i) any part of the Registration Statement,
when such part became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) the Pricing Disclosure Package, as of the
Applicable Time, contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (iii) the Final Prospectus, as of the date
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of the Prospectus Supplement, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; it being
understood that such counsel need not (a) assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, any
post-effective amendment thereto, the Final Prospectus or the Pricing Disclosure Package,
except for those made under the caption “Description of the Debt Securities and Guarantee”
in the Base Prospectus and under the caption “Description of the Bonds and Guarantee” in
the Prospectus Supplement insofar as they relate to provisions of documents therein
described, or (b) express any opinion or belief as to the financial statements or any
financial or statistical data included or required to be included in the Registration
Statement, any post-effective amendment thereto, the Final Prospectus or the Pricing
Disclosure Package.
(d) The Representatives shall have received an opinion of Xxxxxxxx & Xxxxxxxx LLP,
United States counsel for the Underwriters, dated the Closing Date, with respect to the
Securities, governmental approvals, the guarantee of the Securities by Japan, the Fiscal
Agency Agreement, this Agreement and other related matters as the Representatives may
reasonably require, and Issuer and Japan shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, such counsel may rely as to all matters governed by Japanese law
upon the opinion of Japanese counsel for Issuer and Japan referred to above.
In addition, the Representatives shall have received a letter of such counsel, dated
the Closing Date, to the effect that, nothing that came to such counsel’s attention in the
course of their review has caused them to believe that (i) any part of the Registration
Statement, when such part became effective, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Pricing Disclosure Package, as of
the Applicable Time, contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (iii) the Base Prospectus, as supplemented
by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any
untrue statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel need not (a) assume any
responsibility for the accuracy, completeness or fairness of the statements contained in
the Registration Statement, any post-effective amendment thereto, the Base Prospectus, the
Prospectus Supplement or the Pricing Disclosure Package, except for those made under the
captions “Description of the Debt Securities and Guarantee” and “United States Taxation” in
the Base Prospectus and under the captions “Description of the Bonds and Guarantee”,
“Taxation — Additional United States Taxation Considerations” and “Underwriting” in the
Prospectus Supplement insofar as they relate to provisions of the Securities, the guarantee
thereof, the Fiscal Agency Agreement and this Agreement therein described or insofar as
they relate to provisions of United States Federal tax law therein described, or (b)
express any opinion or belief as to the financial statements or other financial data
derived from accounting records contained in the
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Registration Statement, any post-effective amendment thereto, the Base Prospectus, the
Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of the Governor or a Senior
Executive Director of Issuer, dated the Closing Date, in which such officer, to the best of
his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true
and correct, and Issuer has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; and
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted and are
pending or are contemplated by the Commission.
(f) The Representatives shall have received a certificate of the Minister of Finance
or Acting Minister of Finance or any Vice Minister of Finance of Japan, dated the Closing
Date, in which he, to the best of his knowledge after reasonable investigation, shall state
that:
(i) The representations and warranties of Japan in this Agreement are true
and correct, and Japan has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Date; and
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been instituted and are
pending or are contemplated by the Commission.
Issuer and Japan will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request.
7. Limitation of Liability. If the sale of the Securities provided for herein is not
consummated because any condition to the Underwriters’ obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of Issuer or Japan to perform any
agreement herein or comply with any provision hereof, Issuer shall have no liability to the
Representatives and the other Underwriters except that (i) Issuer shall reimburse the
Representatives and the other Underwriters upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of United States counsel) that shall have been incurred by the
Representatives and the other Underwriters in connection with the proposed purchase and sale of the
Securities and (ii) the respective obligations of Issuer, Japan and the Underwriters pursuant to
Section 8 hereof shall remain in effect.
8. Indemnification.
(a) Issuer and Japan each will indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of the Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such controlling
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person may become subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or any amendment or supplement
thereto relevant to the Securities, or any Issuer Free Writing Prospectus (including the Term
Sheet) or any “issuer information” filed or required to be filed pursuant to Rule 433(d), or arise
out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading; and will reimburse
each Underwriter and each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that neither Issuer
nor Japan will be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents in reliance upon and in conformity with
written information furnished to either Issuer or Japan by or on behalf of any Underwriter through
the Representatives specifically for use therein pursuant to Section 2(c) hereof. This indemnity
agreement will be in addition to any liability which Issuer or Japan may otherwise have.
(b) Each Underwriter severally will indemnify and hold harmless Issuer, each of its officers
who have signed the Registration Statement and Japan against any losses, claims, damages or
liabilities to which Issuer, any such officer or Japan may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Base Prospectus, any Preliminary Final
Prospectus, the Final Prospectus, or any amendment or supplement thereto relevant to the
Securities, or any Issuer Free Writing Prospectus (including the Term Sheet) or arise out of or are
based upon the omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information furnished
to Issuer or Japan by or on behalf of such Underwriter through the Representatives specifically for
use therein pursuant to Section 2(c) hereof; and will reimburse Issuer, any such officer or Japan
for any legal or other expenses reasonably incurred by Issuer, any such officer or Japan in
connection with investigating or defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under this Section. In case
any such action is brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so to assume the
-12-
defense thereof, the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of investigation. The indemnifying
party shall not be liable for any settlement of any such action effected without its consent, but
if settlement is made with the consent of the indemnifying party, such indemnifying party shall
indemnify and hold harmless the indemnified party against any loss or liability by reason of such
settlement. In any such action brought against Japan, the defense of which shall be assumed by any
Underwriter or Underwriters, Japan may, at its option, elect by notice to such Underwriter or
Underwriters to direct that any defense based on sovereign immunity, which would otherwise be
available to it, shall not be asserted in such action, and each Underwriter agrees, upon receipt of
any such notice, not to assert such defense. Such an election not to have such defense asserted
shall not release any Underwriter from the indemnity agreement on the part of such Underwriter
contained in this Section.
(d) If recovery is not available under the foregoing indemnification provisions of this
Section, for any reason other than as specified therein, the parties entitled to indemnification by
the terms thereof shall be entitled to contribution to liabilities and expenses, except to the
extent that contribution is not permitted under Section 11(f) of the Act. In determining the amount
of contribution to which the respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the Securities (taking into account
the portion of the proceeds of the offering realized by each), the parties’ relative knowledge and
access to information concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. Issuer and Japan, on the one hand, and the
Underwriters, on the other hand, agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose). No Underwriter or person controlling such Underwriter
shall be obligated to make contribution hereunder which in the aggregate exceeds the total public
offering price of the Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling persons have otherwise
been required to pay in respect of the same claim or any substantially similar claim. The
Underwriters’ obligations to contribute are several in proportion to their respective underwriting
obligations and not joint.
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Securities hereunder and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the
total principal amount of the Securities, as set forth in Schedule II hereto, the Representatives
may make arrangements satisfactory to Issuer and Japan for the purchase of such Securities by other
persons, including any of the Underwriters, but if no such arrangements are made by the Closing
Date the non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder as set forth in Schedule II hereto, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed to purchase. If any Underwriter
or Underwriters so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur is more than 10% of the total principal amount of Securities,
as set forth in Schedule II hereto, and arrangements satisfactory to the Representatives and to
Issuer and Japan for the purchase of such Securities by other persons shall not be made within
thirty-six hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or Issuer or Japan, except for the expenses
-13-
to be paid by Issuer pursuant to Section 5(b)(i) hereof and the continuation of the respective
obligations of Issuer, Japan and the Underwriters pursuant to Section 8 hereof. As used in this
Agreement, the term “Underwriter” includes any person substituted for a defaulting Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its
default.
10. Representations and Indemnities to Survive Delivery. The respective indemnities,
agreements, representations, warranties and other statements of Issuer, its officers and Japan and
of the several Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter or Issuer, its officers or Japan or any controlling person of any
Underwriter, and will survive delivery of and payment for the Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives at the
address specified in Schedule I hereto; or, if sent to Issuer or Japan, will be addressed to the
Authorized Agent in the United States for Issuer, as specified in Schedule I hereto and to the
Authorized Agent in the United States for Japan, as specified in Schedule I hereto; provided,
however, that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or
telegraphed to such Underwriter at its address appearing in the list of Underwriters’ names and
addresses furnished to Issuer and Japan for the purpose of communications hereunder.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the controlling persons and officers referred to in
Section 8 hereof, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with the offering of the Securities for sale to the public as set forth
in the Final Prospectus, and any action under this Agreement taken by the Representatives jointly
or by the firm first listed in Schedule I hereto as being one of the Representatives will be
binding upon all the Underwriters.
14. 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.
15. Jurisdiction of Courts of New York and Japan. Issuer hereby appoints the U.S.
Representative, as its authorized agent (the “Process Agent”) upon which process may be served in
any action by any Underwriter, or by any person controlling such Underwriter, arising out of or
based upon this Agreement which may be instituted in any State or Federal court in The City of New
York, and Issuer expressly accepts the jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable as long as any of the Securities remain outstanding
unless and until the appointment of a successor Fiscal Agent or U.S. Representative as Issuer’s
Process Agent and such successor’s acceptance of such appointment shall have occurred. 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 or appointments in full force and effect as aforesaid.
Service of process upon the Process Agent and written notice of such service mailed or delivered to
Issuer, in Tokyo, Japan shall be deemed in every respect effective service of process
-14-
upon Issuer. Notwithstanding the foregoing, any action by an Underwriter arising out of or
based upon this Agreement may be instituted by any Underwriter 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 upon this Agreement 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 a true copy of this Agreement into evidence shall be
conclusive and final evidence of such waiver.
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us the enclosed duplicate hereof, whereupon it will become a binding agreement among
Issuer, Japan and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||||
| JAPAN FINANCE CORPORATION FOR | JAPAN | |||||||
| MUNICIPAL ENTERPRISES | ||||||||
By
|
/s/ Xxxxxxx Xxxxxx | By | /s/ Xxxxxxx Xxxxxxx | |||||
| Xxxxxxx Xxxxxx | Xxxxxxx Xxxxxxx | |||||||
| Senior Executive Director | Duly Authorized Representative of Japan | |||||||
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
confirmed and accepted as of the date first above
written.
X.X. XXXXXX SECURITIES LTD.
For itself and for each of the Representatives and the Underwriters
By
|
/s/ Xxxxxxx X. Xxxx | |||
| Authorized Signatory |
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SCHEDULE I
Representative(s):
|
BNP Paribas | |
| X.X. Xxxxxx Securities Ltd. | ||
| Mizuho International plc |
Title, Purchase Price and Description of Securities:
Title: 5.00% Guaranteed Bonds due May 16, 2017
Principal amount: $1,000,000,000
Purchase price (including accrued interest or amortization, if applicable): $991,280,000
Redemption provisions: At the option of Issuer, if Additional Amounts are payable pursuant
to the Fiscal Agency Agreement
Forms and denominations: Fully registered form in denominations of $100,000 and integral
multiples thereof
Other provisions: Not applicable
Date of Fiscal Agency Agreement: May 10, 2007
Fiscal Agent, and Principal Paying Agent and Transfer Agent: The Bank of Tokyo-Mitsubishi UFJ,
Ltd., London Branch
U.S. Representative of the Fiscal Agent: Union Bank of California, N.A.
Statements in the Registration Statement and the Final Prospectus furnished by the Underwriters for
purposes of Section 2(c): Last paragraph of text on the cover page of the Final Prospectus,
the seventh paragraph on page S-3 of the Final Prospectus, and the fourth and fifth paragraphs
under the caption “Underwriting” in the Final Prospectus
Statements in the Pricing Disclosure Package furnished by the Underwriters for purposes of Section
2(d): Last paragraph of text on the cover page of the Preliminary Final Prospectus, the
seventh paragraph on page S-3 of the Preliminary Final Prospectus, and the fourth and fifth
paragraphs under the caption “Underwriting” in the Preliminary Final Prospectus
Representations, warranties and agreements of Issuer pursuant to Section 2 also shall not extend to
the information set forth in the portions of the Latest Preliminary Final Prospectus and of
the Final Prospectus under the following additional caption(s): “Recent Developments—Japan”
Type of settlement funds: Same-day Funds
Closing Date, Time and Location: May 16, 2007, 10:00 a.m. New York City time at the offices of
Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Otemachi First Square,
East 00X, 0-0, Xxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx, 000-0000.
Office of Fiscal Agent for checking and packaging of Securities: 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx,
Xxx Xxxx, 00000
New York Stock Exchange listing: Not applicable
London Stock Exchange listing: Yes
Luxembourg Stock Exchange listing: Not applicable
Underwriters’ expense reimbursement pursuant to Section 5(b)(iii): $195,000
Notices to
Representatives or
Underwriters:
|
BNP Paribas | |
| 00 Xxxxxxxx Xxxxxx | ||
| Xxxxxx XX0 0XX | ||
| X.X. Xxxxxx Securities Ltd. | ||
| 000 Xxxxxx Xxxx | ||
| Xxxxxx XX0X 0XX | ||
| Attention: Syndicate Desk | ||
| Tel no: x00 000 000 0000 | ||
| Mizuho International plc | ||
| Xxxxxxx Xxxxx | ||
| Xxx Xxxxxx Xxxxxx | ||
| Xxxxxx XX0X 0XX | ||
| Attention: Xxxxx Xxxxxxxx, Managing Director, Legal Services |
||
| Tel no: x00 000 000 0000 | ||
| Fax no: x00 000 000 0000 | ||
Authorized Agent in the
United States for
Issuer:
|
Xxxxxx X. Xxxxxxx | |
| Xxxxxxx & Associates | ||
| 000 Xxxxxxx Xxxxxx, Xxxxx 000, X.X. Xxx 000 | ||
| Xxxxxx, Xxxxxxxx 00000 | ||
Authorized Agents in
the United States for
Japan:
|
Xxxxxxx Xxxxxxx and Kenya Ozawa | |
| Ministry of Finance, Government of Japan | ||
| New York Representative Xxxxxx | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Akihiro Ino | ||
| Embassy of Japan | ||
| 0000 Xxxxxxxxxxxxx Xxxxxx, X.X. | ||
| Xxxxxxxxxx X.X. 00000 |
-2-
SCHEDULE II
| Principal Amount | ||||
| Underwriters | of Securities | |||
BNP Paribas |
$ | 327,300,000 | ||
X.X. Xxxxxx Securities Ltd. |
$ | 327,400,000 | ||
Mizuho International plc |
$ | 327,300,000 | ||
Citigroup Global Markets Limited |
$ | 3,000,000 | ||
Credit Suisse Securities (Europe) Limited |
$ | 3,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 3,000,000 | ||
Xxxxxxx Xxxxx International |
$ | 3,000,000 | ||
Xxxxxx Xxxxxxx & Co. International plc |
$ | 3,000,000 | ||
Nomura International plc |
$ | 3,000,000 | ||
Total |
$ | 1,000,000,000 | ||
