United Nations Treaty Series/Volume 318/1/4611

AGREEMENT, dated July 11, 1958, between Japan {hereinafter called the Guarantor) and International Bank for Reconstruction and Development (hereinafter called the Bank).

Whereas by an agreement of even date herewith between the Bank and The Japan Development Bank (hereinafter called the Borrower), which agreement and the schedules therein referred to are hereinafter called the Loan Agreement,^[2] the Bank has agreed to make to the Borrower a loan in various currencies equivalent to thirty-three million dollars ($33,000,000), on the terms and conditions set forth in the Loan Agreement, but only on condition that the Guarantor agree to guarantee the obligations of the Borrower in respect of such loan as hereinafter provided; and

Whereas the Guarantor, in consideration of the Bank's entering into the Loan Agreement with the Borrower, has agreed so to guarantee such obligations of the Borrower;

Now therefore the parties hereto hereby agree as follows:

Section 1.01. The parties to this Guarantee Agreement accept all the provisions of Loan Regulations No. 4 of the Bank dated June 15, 1956,^[2] subject, however, to the modifications thereof set forth in Schedule 3^[3] to the Loan Agreement (said Loan Regulations No. 4 as so modified being hereinafter called the Loan Regulations), with the same force and effect as if they were fully set forth herein.

Section 1.02. Wherever used in this Guarantee Agreement, unless the context shall otherwise require, the several terms defined in the Loan Agreement shall have the respective meanings therein set forth.

Section 2.01. Without limitation or restriction upon any of the other covenants on its part in this Agreement contained, the Guarantor hereby unconditionally guarantees, as primary obligor and not as surety merely, the due and punctual payment of the principal of, and the interest and other charges on, the Loan, the principal of and interest on the Bonds, and the premium, if any, on the prepayment of the Loan or the redemption of the Bonds, all as set forth in the Loan Agreement and in the Bonds.

Section 3.01. It is the mutual intention of the Guarantor and the Bank that no other external debt shall enjoy any priority over the Loan by way of a lien on governmental assets. To that end, the Guarantor undertakes that, except as the Bank shall otherwise agree, if any lien shall be created on any assets of the Guarantor as security for any external debt, such lien will ipso facto equally and ratably secure the payment of the principal of, and interest and other charges on, the Loan and the Bonds, and that in the creation of any such lien express provision will be made to that effect; provided, however, that the foregoing provisions of this Section shall not apply to (i) any lien created on property, at the time of purchase thereof, solely as security for the payment of the purchase price of such property; (ii) any lien on commercial goods to secure a debt maturing not more than one year after the date on which it is originally incurred and to be paid out of the proceeds of sale of such commercial goods; or (iii) any lien arising in the ordinary course of banking transactions to secure a debt maturing not more than one year after the date on which it is originally incurred.

The term "assets of the Guarantor" as used in this Section includes assets of the Guarantor or of any agency of the Guarantor.

The Guarantor further undertakes that, within the limits of its constitutional powers, it will make the foregoing undertaking effective with respect to liens on the assets of any of its political subdivisions and their agencies, including local governing authorities.

Section 3.02. (a) The Guarantor and the Bank shall cooperate fully to assure that the purposes of the Loan will be accomplished. To that end, each of them shall furnish to the other all such information as it shall reasonably request with regard to the general status of the Loan. On the part of the Guarantor, such information shall include information with respect to financial and economic conditions in the territories of the Guarantor and the international balance of payments position of the Guarantor.

​(b) The Guarantor and the Bank shall from time to time exchange views through their representatives with regard to matters relating to the purposes of the Loan and the maintenance of the service thereof. The Guarantor shall promptly inform the Bank of any condition which interferes with, or threatens to interfere with, the accomplishment of the purposes of the Loan or the maintenance of the service thereof.

(c) The Guarantor shall afford all reasonable opportunity for accredited representatives of the Bank to visit any part of the territories of the Guarantor for purposes related to the Loan.

Section 3.03. The principal of, and interest and other charges on, the Loan and the Bonds shall be paid without deduction for, and free from, any taxes or fees imposed under the laws of the Guarantor or laws in effect in its territories; provided, however, that the provisions of this Section shall not apply to taxation of, or fees upon, payments under any Bond to a holder thereof other than the Bank when such Bond is beneficially owned by an individual or corporate resident of the Guarantor.

Section 3.04. This Agreement, the Loan Agreement and the Bonds shall be free from any taxes or fees that shall be imposed under the laws of the Guarantor or laws in effect in its territories on or in connection with the execution, issue, delivery or registration thereof.

Section 3.05. The principal of, and interest and other charges on, the Loan and the Bonds shall be paid free from all restrictions imposed under the laws of the Guarantor or laws in effect in its territories.

Section 3.06. The Guarantor will not take any action which would prevent or interfere with the performance by the Borrower of any of the covenants, agreements and obligations of the Borrower in the Loan Agreement contained and will take or cause to be taken all action necessary or appropriate to enable the Borrower to perform such covenants, agreements and obligations.

Section 4.01. The Guarantor shall endorse, in accordance with the provisions of the Loan Regulations, its guarantee on the Bonds to be executed and delivered by the Borrower. The Minister of Finance of the Guarantor and such person or persons as he shall designate in writing are designated as the authorized representatives of the Guarantor for the purposes of Section 6.12 (b) of the Loan Regulations.

Section 5.01. The following addresses are specified for the purposes of Section 8.01 of the Loan Regulations:

​For the Guarantor:

Minister of Finance

Ministry of Finance

3-2, Kasumigaseki, Chiyoda-ku

Tokyo, Japan

Alternative address for cablegrams and radiograms:

Minister of Finance

Okurasho, Tokyo

For the Bank:

International Bank for Reconstruction and Development

1818 H Street, N.W.

Washington 25, D. C.

United States of America

Alternative address for cablegrams and radiograms

Intbafrad

Washington, D. C.

Section 6.02. The Minister of Finance of the Guarantor is designated for the purposes of Section 8.03 of the Loan Regulations.

In witness whereof, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Guarantee Agreement to be signed in their respective names and delivered in the District of Columbia, United States of America, as of the day and year first above written.

International Bank for Reconstruction and Development
1818 H Street, N.W.
Washington 25, D. C.

Gentlemen:

With reference to the Guarantee Agreement^[4] of even date between the Government of Japan and your Bank, we have pleasure in confirming the following matters of agreed understanding between us:

1. As regards Article III, Section 3.01, that:

(a) there is existing legislation consistent with the Japanese Constitution which enables the Government of Japan to control the external borrowings of its agencies, its political subdivisions and their agencies, and of the Bank of Japan so as to oblige them to obtain the consent of the Government of Japan to any external borrowing and to the terms thereof whether as to security or otherwise;

(b) the Government of Japan will make the undertaking contained in Section 3.01 effective with respect to liens on the assets of the Bank of Japan.

2. As regards Section 3.06, that the Government of Japan will not permit any political subdivision of Japan or any agency of the Government of Japan or of any such political subdivision to take any such action as is therein referred to.

Very truly yours,

AGREEMENT, dated July 11, 1958, between International Bank for Reconstruction and Development (hereinafter called the Bank) and The Japan Development Bank (hereinafter called the Borrower).

Section 1.01. The parties to this Loan Agreement accept all the provisions of Loan Regulations No. 4 of the Bank dated June 15, 1956,^[5] subject, however, to the modifications thereof set forth in Schedule 3^[6] to this Agreement (said Loan Regulations No. 4 as so modified being hereinafter called the Loan Regulations), with the same force and effect as if they were fully set forth herein.

Section 1.02. Unless the context shall otherwise require, the following terms shall have the following meanings:

(a) The term "Sumitomo" means Sumitomo Metal Industries Limited.

(b) The term "Subsidiary Loan Agreement" means the Agreement between the Borrower and Sumitomo referred to in Section 5.06 of this Loan Agreement.

Section 2.01. The Bank agrees to lend to the Borrower, on the terms and conditions in this Agreement set forth or referred to, an amount in various currencies equivalent to thirty-three million dollars ($33,000,000).

Section 2.02. The Bank shall open a Loan Account on its books in the name of the Borrower and shall credit to such Account the amount of the Loan. The amount of the Loan may be withdrawn from the Loan Account as provided herein and in the Loan Regulations, and subject to the rights of cancellation and suspension set forth in the Loan Regulations.

Section 2.03. (a) The Borrower shall be entitled to withdraw from the Loan Account (i) such amounts as shall have been expended for the reasonable cost of imported goods ​to be financed under this Loan Agreement; and (ii), if the Bank shall so agree, such amounts as shall be required to meet the reasonable cost of such imported goods.

(b) In addition to withdrawals permitted pursuant to Section 2.03 (a), the Borrower shall be entitled to withdraw from the Loan Account, in such currencies and at such times as shall be agreed upon between the Bank and the Borrower, amounts which shall have been otherwise expended, or which are so to be expended, on the Project.

Section 2.04. The Borrower shall pay to the Bank a commitment charge at the rate of three-fourths of one per cent (¾ of 1%) per annum on the principal amount of the Loan not so withdrawn from time to time. Such commitment charge shall accrue from a date sixty days after the date of this Agreement to the respective dates on which amounts shall be withdrawn by the Borrower from the Loan Account as provided herein and in Article IV of the Loan Regulations or shall be cancelled pursuant to Article V of the Loan Regulations.

Section 2.05. The Borrower shall pay interest at the rate of five and three-eighths per cent (5⅜%) per annum on the principal amount of the Loan so withdrawn and outstanding from time to time.

Section 2.06. Except as the Bank and the Borrower shall otherwise agree, the charge payable for special commitments entered into by the Bank at the request of the Borrower pursuant to Section 4.02 of the Loan Regulations shall be at the rate of one-half of one per cent (½ of 1%) per annum on the principal amount of any such special commitment outstanding from time to time.

Section 2.07. Interest and other charges shall be payable semi-annually on February 1 and August 1 in each year.

Section 2.08. The Borrower shall repay the principal of the Loan in accordance with the amortization schedule set forth in Schedule 1^[7] to this Agreement.

Section 3.01. The Borrower shall cause the proceeds of the Loan to be applied to financing the cost of imported goods and other expenditures required to carry out the Project described in Schedule 21 to this Agreement. The specific imported goods to be financed out of the proceeds of the Loan shall be determined by agreement between the Bank and the Borrower, subject to modification by further agreement between them.

Section 3.02. The Borrower shall cause all goods financed out of the proceeds of the Loan to be used in the territories of the Guarantor exclusively in the carrying out of the Project.

Section 4.01. The Borrower shall execute and deliver Bonds representing the principal amount of the Loan as provided in the Loan Regulations.

Section 4.02. The President of the Borrower and such person or persons as he shall appoint in writing are designated as authorized representatives of the Borrower fort he purposes of Section 6.12 (a) of the Loan Regulations.

Section 5.01. (a) The Borrower shall carry on its operations and conduct its affairs in accordance with sound business and financial practices.

(b) The Borrower shall exercise its rights under the Subsidiary Loan Agreement so as to cause the Project to be carried out with due diligence and efficiency and in conformity with sound engineering and financial practices, and the operations of Sumitomo to be carried on in accordance with sound business and financial practices.

(c) The Borrower shall cause to be furnished to the Bank, promptly upon their preparation, the plans, specifications and construction schedules for the Project and any material modifications subsequently made therein, in such detail as the Bank shall from time to time request.

(d) The Borrower shall maintain or cause to be maintained records adequate to show the application of the proceeds of the Loan, to identify the imported goods financed out of the proceeds of the Loan, to disclose the use thereof in the Project, to record the progress of the Project (including the total expenditures incurred thereon) and to reflect in accordance with consistently maintained sound accounting practices all transactions between the Borrower and Sumitomo and the operations and financial condition of the Borrower and of Sumitomo ; shall enable or take such steps as may be necessary to enable the Bank's representatives to inspect the Project, Sumitomo's properties, the imported goods, and any relevant records and documents ; and shall furnish, or cause to be furnished, to the Bank all such information as the Bank shall reasonably request concerning the expenditure of the proceeds of the Loan, the Project, the imported goods, all transactions between the Borrower and Sumitomo and the operations and financial condition of the Borrower and of Sumitomo.

Section 5.02. (a) The Bank and the Borrower shall cooperate fully to assure that the purposes of the Loan will be accomplished. To that end, each of them shall furnish to the other all such information as it shall reasonably request with regard to the general status of the Loan.

(b) The Bank and the Borrower shall from time to time exchange views through their representatives with regard to matters relating to the purposes of the Loan and the maintenance of the service thereof. The Borrower shall promptly inform the Bank of any condition which interferes with, or threatens to interfere with, the accomplishment of the purposes of the Loan or the maintenance of the service thereof.

​Section 5.03. The Borrower undertakes that, except as the Bank shall otherwise agree, if any lien shall be created on any assets of the Borrower as security for any debt, such lien will ipso facto equally and ratably secure the payment of the principal of, and interest and other charges on, the Loan and the Bonds, and that in the creation of any such lien express provision will be made to that effect; provided, however, that the foregoing provisions of this Section shall not apply to: (i) any lien created on property, at the time of purchase thereof, solely as security for the payment of the purchase price of such property; or (ii) any lien arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after its date.

Section 5.04. The Borrower shall pay or cause to be paid all taxes or fees, if any, imposed under the laws of the Guarantor or laws in effect in the territories of the Guarantor on or in connection with the execution, issue, delivery or registration of this Agreement, the Guarantee Agreement^[8] or the Bonds, or the payment of principal, interest or other charges thereunder; provided, however, that the provisions of this Section shall not apply to taxation of, or fees upon, payments under any Bond to a holder thereof other than the Bank when such Bond is beneficially owned by an individual or corporate resident of the Guarantor.

Section 5.05. The Borrower shall pay or cause to be paid all taxes and fees, if any, imposed under the laws of the country or countries in whose currency the Loan and the Bonds are payable or laws in effect in the territories of such country or countries on or in connection with the execution, issue, delivery or registration of this Agreement, the Guarantee Agreement or the Bonds.

Section 5.06. All moneys withdrawn from the Loan Account shall be lent by the Borrower to Sumitomo. Such loan shall be made upon terms which shall be satisfactory to the Bank and be embodied in a loan agreement between the Borrower and Sumitomo. This Subsidiary Loan Agreement shall provide (inter alia) that the Borrower shall receive from Sumitomo, as security for its advances to Sumitomo thereunder, such lien or liens as may be consistent with the Borrower's established practice.

Section 5.07. Except as the Bank shall otherwise agree, the Borrower shall exercise its rights under the Subsidiary Loan Agreement in such manner as to protect the interests of the Borrower and the Bank; and (except as aforesaid) the Borrower shall not amend, assign, abrogate or waive any provision of the Subsidiary Loan Agreement; provided, however, that the agreement of the Bank shall not be required to the amendment, assignment, abrogation or waiver of any provision of the Subsidiary Loan Agreement relating to (i) damages for non-performance or (ii) any guarantor, thereunder.

Section 5.08. It is the mutual intention of the Borrower and the Bank that to the extent that Sumitomo shall prepay the Borrower its indebtedness under the Subsidiary ​

Loan Agreement, the Borrower shall to a correspondingly proportionate extent prepay the Bank under this Loan Agreement. Accordingly, unless otherwise agreed between the Borrower and the Bank, if Sumitomo shall prepay in advance of maturity any part of its indebtedness to the Borrower under the Subsidiary Loan Agreement, then the Borrower shall thereupon repay to the Bank, in advance of maturity, an amount being such proportion of the principal amount of the Loan then outstanding as the amount so repaid to the Borrower by Sumitomo bears to the total principal amount owing by Sumitomo under the Subsidiary Loan Agreement immediately prior to such repayment; provided that, in computing any such total principal amounts, there shall be deducted any amount paid, contemporaneously with such repayment, in accordance with the amortization schedule set forth in Schedule I to this Agreement. To any repayment by the Borrower in accordance with this Section, all the provisions of the Loan Regulations relating to repayment in advance of maturity shall be applicable.

Section 6.01. (i) If any event specified in paragraph (a), paragraph (b), paragraph (e) or paragraph (f) of Section 5.02 of the Loan Regulations shall occur and shall continue for a period of thirty days, or (ii) if the event specified in Section 6.02 of this Agreement for the purposes of Section 5.02 (j) of the Loan Regulations shall occur and shall continue for a period of thirty days, or (iii) if any event specified in paragraph (c) of Section 5.02 of the Loan Regulations shall occur and shall continue for a period of sixty days after notice thereof shall have been given by the Bank to the Borrower, then at any subsequent time during the continuance thereof, the Bank, at its option, may declare the principal of the Loan and of all the Bonds then outstanding to be due and payable immediately, and upon any such declaration such principal shall become due and payable immediately, anything in this Agreement or in the Bonds to the contrary notwithstanding.

Section 6.02. For the purposes of Section 5.02 (j) of the Loan Regulations the following additional event is specified, namely: if there shall have occurred any event specified in Article 14 of the Subsidiary Loan Agreement as an event of default.

Section 7.01. The following event is specified as an additional condition to the effectiveness of this Agreement within the meaning of Section 9.01 (a) (ii) of the Loan Regulations, namely, that the Subsidiary Loan Agreement, in form satisfactory to the Bank, shall have been duly executed and delivered as between the parties thereto and have become fully effective in accordance with its terms.

Section 7.02. The following are specified as additional matters, within the meaning of Section 9.02 (e) of the Loan Regulations, to be included in the opinion or opinions to be furnished to the Bank:

(a) that Sumitomo has full power and authority to construct and operate the Project and has all necessary rights and powers in connection therewith and that all acts, consents, ​validations and approvals necessary therefor have been duly and validly performed or given;

(b) that the Subsidiary Loan Agreement has been duly authorized or ratified by, and executed and delivered on behalf of, the Borrower and Sumitomo respectively, that all acts, consents, validations and approvals necessary under the laws of Japan to render the Subsidiary Loan Agreement valid and effective have been duly performed or given, and that the Subsidiary Loan Agreement consitutes a valid and binding obligation of the Borrower and of Sumitomo respectively in accordance with its terms.

Section 7.03. A date 60 days after the date of this Agreement is hereby specified for the purposes of Section 9.04 of the Loan Regulations.

Section 8.01. The Closing Date shall be July 31, 1961.

Section 8.02. The following addresses are specified for the purposes of Section 8.01 of the Loan Regulations:

For the Borrower:

The Japan Development Bank
8, 1-chome Marunouchi
Chiyoda-ku
Tokyo, Japan

Alternative address for cablegrams and radiograms:

Devebank, Tokyo

For the Bank:

International Bank for Reconstruction and Development
1818 H Street, N.W.
Washington 25, D. C.
United States of America

Alternative address for cablegrams and radiograms:

Intbafrad
Washington, D. C.

In witness whereof, the parties hereto, acting through their representatives thereunto duly authorized, have caused this Loan Agreement to be signed in their respective names and delivered in the District of Columbia, United States of America, as of the day and year first above written.

The following percentages are specified as the premiums payable on repayment in advance of maturity of any part of the principal amount of the Loan pursuant to Section 2.05 (b) of the Loan Regulations or on the redemption of any Bond prior to its maturity pursuant to Section 6.16 of the Loan Regulations:

The Project is part of a plan for the modernization and expansion of Sumitomo's production facilities at Wakayama, Osaka, Amagasaki and Kokura, which plan is designed to increase Sumitomo's annual productive capacity to about 825,000 tons of pig iron, 1,450,000 tons of steel ingots, and about 1,334,000 tons of finished and semi-finished steel products.

​The Project consists of the installation and operation of a blast furnace and blooming mill at Wakayama. The Project comprises the following:

Land Procurement and Reclamation: The purchase of 173 acres and the reclamation of 113 acres of land bringing the present surface area of Sumitomo's Wakayama estate to a total of 830 acres.

Harbor Facilities: The construction of wharves designed to receive carriers up to 15,000 tons.

Unloading and Transportation Equipment: The construction of unloading facilities, the purchase of tugboats and necessary locomotives and wagons, and the construction of the requisite railway track and roads.

Raw Material Yard: The construction of stackers and loaders, the installation of belt conveyors and crushers.

Coke Plant: The construction of a coal washing plant, 57 coke ovens, a by-products plant, and auxiliary facilities.

Blast Furnace: The construction of a blast furnace, with a daily capacity of 1,000 tons of pig iron, and auxiliary facilities.

Power Plant: The installation of two boilers, a 15,000 kw turbogenerator and two 7,000 kw spare turbogenerators, and two turboblowers.

Steel Making Plant: The remodelling of existing three 110-ton open hearth furnaces into 165-ton furnaces which will increase the annual capacity of the steel plant to 636,000 tons and the construction of an oxygen plant.

Blooming Mill: The construction of a plant with a 47" stand in tandem with a 36" stand, complete with soaking pits.

Auxiliary Facilities: The increase of the receiving power substation by one 20,000 kva and three 5,000 kva transformers. The increase of water supply by four deep wells, and connection with the municipal industrial water supply. The installation of all other necessary facilities for the Project.

The Project is expected to be completed by March 31, 1962.

For the purposes of this Agreement the provisions of Loan Regulations No. 4 of the Bank, dated June 15, 1956, shall be deemed to be modified as follows:

(a) By the deletion of Section 2.02.

(b) By the addition to Section 3.05, at the end thereof, of the following sentence:

"If a withdrawal is applied for on account of expenditures in the currency of the Guarantor, the value of the currency of the Guarantor in terms of the currency or currencies to be withdrawn shall be as reasonably determined by the Bank."

(c) By the deletion of Section 4.01 and the substitution therefor of the following Section:

​"4.01. Withdrawal from the Loan Account. Except as shall be otherwise agreed between the Bank and the Borrower, no withdrawals shall be made on account of expenditures prior to September 1, 1957, or on account of expenditures in the territories of any country which is not a member of the Bank or for goods produced in (including services supplied from) such territories.*"

(d) By the addition to Section 4.03, at the end thereof, of the words "and/or in relation to expenditures on the Project".

(e) By the addition, in paragraph 12 of Section 10.01, at the end thereof, of the words "with the concurrence of the Guarantor".

(f) By the addition, in paragraph 13 of Section 10.01, at the end of the first sentence, of the words "and the term 'imported goods' means goods which have been, or which are to be, imported into the territories of the Guarantor".

International Bank for Reconstruction and Development
1818 H Street, N.W.
Washington 25, D. C.

Gentlemen:

Reference is made to the Loan Agreement^[10] of even date between us providing for a loan by the Bank to The Japan Development Bank in various currencies equivalent to $33 million and to the Guarantee Agreement of the same date between Japan and the Bank.

Section 2.03 (b) of the said Loan Agreement provides, inter alia, that part of the withdrawals of the loan shall be "in such currencies and at such times as shall be agreed upon between the Bank and the Borrower."

This letter will confirm that, pursuant to the above Section, in making withdrawals we will be prepared to accept U.S. dollars, pounds sterling, or other currencies freely convertible by Japan into dollars or pounds sterling. It is our understanding that so far as is practicable the Bank will take into account Japan's preferences in its choice of currencies of disbursements.

Very truly yours,