Conditions of Initial Loans The obligation of each Lender to make its initial Loans and of each L/C Issuer to Issue, or cause to be Issued, the initial Letters of Credit hereunder is subject to satisfaction of the following conditions in a manner satisfactory to Agent:
Conditions of Initial Borrowing The obligation of each Lender to advance the Borrowings on the Closing Date of its Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Loan, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, such proposed Borrowing or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(j) The Parent REIT and the Borrower shall have entered into (i) the PNC Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
CONDITIONS OF BORROWING The obligation of each Lender to make its Loan hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization, perfection of the Liens in favor the Collateral Agent and “no conflicts” with the First Lien Loan Documents);
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (a) that (1) the representations and warranties of the Loan Parties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, (A) which are qualified by materiality are true and correct, and (B) which are not qualified by materiality are true and correct in all material respects, in each case, on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct, or true and correct in all material respects, as the case may be, as of such earlier date and (2) no Default exists or would result from the borrowing of the Loans or from the application of the proceeds thereof, (b) that there has been no event or circumstance since May 1, 2021, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (c) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(vii) a certificate from the chief financial officer of the Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Borrower and its Subsidiaries on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(viii) the Perfection Certificate;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent.
(b) The Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(c) The Administrative Agent and each Lender shall have received all fees and other amounts due and payable to them by the Borrower on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket fees and expenses (including the legal fees and expenses of King & Spalding LLP, Xxxxxxxx & Xxxxx LLP and Xxxxx Xxxxxxx Xxxxxx & Ashton LLP, counsel to the Agents and the Lenders, as applicable); provided that, in the case of costs and expenses, an invoice for all such fees and expenses shall be received by the Borrower at least one (1) Business Day prior to the Closing Date for payment to be required as a condition to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Conditions of Initial Credit Extension The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
CONDITIONS OF INITIAL EXTENSION OF CREDIT The obligation of Bank to extend any credit contemplated by this Agreement is subject to the fulfillment to Bank's satisfaction of all of the following conditions:
Conditions to Obligations of Parent The obligation of Parent to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions:
Conditions of Advances The Banks and the Agent shall not be obligated to make any Advance hereunder at any time unless:
(a) On the Effective Date there shall have been delivered to each Bank the following documents, in form and substance satisfactory to the Agent and the following additional conditions shall have been satisfied:
(i) The favorable opinion of such counsel for the Borrowers as shall be approved by the Required Banks, with respect to the matters as requested by the Banks, all in form and substance satisfactory to the Required Banks;
(ii) certified copies of such corporate documents of each Borrower, including each Borrower's articles of incorporation, by-laws and a good standing certificate, and such documents evidencing necessary corporate action with respect to this Agreement, the Loans, the Notes and the Security Documents, and certifying to the incumbency of, and attesting to the genuineness of the signatures of, those officers authorized to act on behalf of each Borrower, as the Banks shall request;
(iii) the Security Documents required as of the Effective Date under Section 5.1 duly executed on behalf of the Borrowers, together with evidence of the recordation, filing and other action in such jurisdictions as the Banks may deem necessary or appropriate with respect to the Security Documents and evidence of the first-priority of the Banks' liens and security interests under the Security Documents, subject only to Permitted Liens, including without limitation such additional mortgages, security agreements, pledge agreements, other documents and opinions of counsel required by the Banks and original stock certificates and assignments separate from certificate of each Person whose stock is required to be pledged;
(iv) the Notes duly executed on behalf of the Borrowers, and it is acknowledged and agreed that the Notes: (A) are issued in exchange and replacement for the promissory notes issued pursuant to the Existing Credit Agreement, (B) shall not be deemed a novation or to have satisfied such promissory notes and (C) evidence the same indebtedness evidenced by such promissory notes plus additional indebtedness;
(v) the Consent and Amendment of Security Documents duly executed by the Borrowers;
(vi) Payment of such fees agreed to among the Borrowers and the Agent;
(vii) the execution by the Borrowers of the Agent's standard environmental certificate;
(viii) the Banks shall have determined that the Loans to be made are equal to or less than the Borrowing Base;
(ix) copies of all agreements relating to any material Indebtedness for borrowed money, any outstanding preferred stock, any joint ventures or partnerships or any other material documents requested by the Banks;
(x) the originals of all promissory notes payable to any Borrower, other than promissory notes in an aggregate amount less than $1,000,000;
(xi) such other agreements, documents, conditions and certificates as reasonably requested by the Banks, including without limitation, releases and terminations of all other Liens which are not permitted hereunder and amendments of existing Security Documents, all in form and substance satisfactory to the Banks.
(b) The aggregate outstanding principal amount of all Advances after giving effect to the proposed Advance, does not exceed the lesser of the Commitments or the Borrowing Base.
(c) On and as of the date of each such Advance, the representations and warranties contained in Section 6 hereof shall be true and correct in all material respects as if made on such date; provided, however, that for purposes of this Section 3.2(c) the representations and warranties contained in Section 6.7 hereof shall be deemed made with respect to both the financial statements referred to therein and the most recent financial statements delivered pursuant to Section 7.1(d)(ii) and (iii).
(d) No Default or event or condition which could cause a Material Adverse Effect has occurred and is continuing or will exist upon the disbursement of such Advance. Acceptance of the proceeds of any Advance hereunder by the Borrowers shall be deemed to be a certification by the Borrowers at such time with respect to the matters set forth in subparagraphs (b), (c) and (d) of this Section 3.2.
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 Luxembourg 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 Xxxx Xxxxxx & Xxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation validly existing under the laws of Japan and has full corporate power and authority to own its properties and assets and to conduct its business as described in the Latest Preliminary Final Prospectus and in the Final Prospectus, to issue the Securities and to execute, deliver and perform its obligations under this Agreement and the Fiscal Agency Agreement;
(ii) The number of authorized shares of Issuer is five trillion one hundred sixty four billion (5,164,000,000,000) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The issue and offering of the Securities by Issuer and the guarantee of the Securities by Japan pursuant to the terms and conditions contained in this Agreement and the Fiscal Agency Agreement, the execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency Agreement, and the compliance by Issuer and Japan with the terms thereof and the terms of the Securities (including the terms and conditions of the Securities) and the guarantee of the Securities do not contravene any provisions of applicable Japanese laws or the Articles of Incorporation or the Regulations of the Board of Directors of Issuer;
(iv) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by Issuer and Japan, and constitute valid and legally binding obligations of Issuer and Japan, enforceable against Issuer and Japan in accordance with their respective terms assuming that this Agreement and the Fiscal Agency Agreement constitute valid and legally binding obligations of Issuer and Japan, enforceable against Issuer and Japan in accordance with their respective terms under the laws of the State of New York, by which they are expressly governed, and as to which such counsel renders no opinion;
(v) The issue and offering of the Securities have been duly authorized by Issuer, and, assuming that the Securities 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 the Securities have been duly authenticated by the Fiscal Agent, when the entire amount of the purchase price has been paid in full in accordance with this Agreement and the Securities have been delivered in the manner contemplated in this Agreement, the Securities will have been duly issued and delivered and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japan, and, assuming it has been executed on behalf of Japan by either the signature or the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim), and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and legally 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;
(vii) Under the laws and regulations of Japan currently under force, no filings, consents, clearances, approvals, authorizations, orders, registrations or qualifications of any court, government or administrative agency in Japan are required (i) for the creation, offering, issue or delivery of the Securities by Issuer or the performance of its obligations thereunder, (ii) for the guarantee of the Securities by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and the Fiscal Agency Agreement, except for (A) such authorizations as have been duly obtained or made and are in full force and effect and (B) the ex post facto reports to be submitted pursuant to the Foreign Exchange and Foreign Trade Law of Japan after the Closing Date; and
(viii) The statements in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus and the Final Prospectus and any amendment or supplement thereto with respect to matters of Japanese law contained under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Political Parties”; “Description of the Bonds and Guarantee”; “Taxation – Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement are, to the extent such statements relate to matters of, and insofar as they purport to constitute summaries of the material provisions (that are relevant to the purpose and context of the subject matters of such statements) of, the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respects.
Conditions of Obligations Your obligations hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company contained in Section 1 hereof, the accuracy of the statements of the Company made pursuant to the provisions hereof, to the performance by the Company of its covenants, agreements and obligations contained in Sections 3 and 5 hereof, and to the following additional conditions:
Conditions of Loans 5 3.1 Conditions Precedent to Initial Credit Extension.................. 5 3.2 Conditions Precedent to all Credit Extensions..................... 5
