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.
Appears in 6 contracts
Samples: Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation)
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 it is 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.
Appears in 6 contracts
Samples: Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation)
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.
Appears in 4 contracts
Samples: Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxx Xxxxxx Xxxxxxxx Mori & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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 and constitutes a valid and legally binding obligation of the Issuer and Japan in accordance with its terms;
(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 The statements in Japan are required (i) for the creation, offering, issue or delivery each part of the most recent Registration Statement, the Pricing Disclosure Package and the Final Prospectus relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 each part of the Most Recent most recent Registration Statement, the Latest Preliminary Pricing Disclosure Package and the Final Prospectus 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 Final Prospectus and any amendment or supplement thereto with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law the most recent Registration Statement or the Final Prospectus, (A) as of the effective date of such part of the most recent Registration Statement or the date of the Prospectus Supplement, as the case may be, 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 (B) as of the Closing Date, contains any untrue statement of a material fact or omits 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 (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; 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, the Base Prospectus, the Pricing Disclosure Package or the Prospectus Supplement except for those made in the Base Prospectus under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” and the Prospectus Supplement relating to the Securities under the captions “Description of the Bonds and Guarantee” and “Taxation — Additional Japanese Taxation Considerations” 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 therein.
(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 most recent 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 headings “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Political Parties”; captions “Description of the Bonds and Guarantee”; , “Taxation – — Additional Japanese United States Taxation Considerations” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar 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 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 an Executive Director of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Development Bank of Japan), Underwriting Agreement (Development Bank of Japan)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 (iv) through (vi) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; caption “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 areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Japan Finance Corp), Underwriting Agreement (Japan Finance Corp)
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 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 Xxxx Xxxxxx Xxxxxxxx Mori & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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 and constitutes a valid and legally binding obligation of the Issuer and Japan in accordance with its terms;
(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 The statements in Japan are required (i) for the creation, offering, issue or delivery each part of the most recent Registration Statement, the Pricing Disclosure Package and the Final Prospectus relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 each part of the Most Recent most recent Registration Statement, the Latest Preliminary Pricing Disclosure Package and the Final Prospectus 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law the most recent Registration Statement or the Final Prospectus, (A) as of the effective date of such part of the most recent Registration Statement or the date of the Prospectus Supplement, as the case may be, 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 (B) as of the Closing Date, contains any untrue statement of a material fact or omits 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 (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; 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, the Base Prospectus, the Pricing Disclosure Package or the Prospectus Supplement except for those made in the Base Prospectus under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” and the Prospectus Supplement relating to the Securities under the captions “Description of the Bonds and Guarantee” and “Taxation — Additional Japanese Taxation Considerations” 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 therein.
(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 most recent 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 headings “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Political Parties”; captions “Description of the Bonds and Guarantee”; , “Taxation – — Additional Japanese United States Taxation Considerations” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar 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 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 an Executive Director of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Development Bank of Japan), Underwriting Agreement (Development Bank of Japan)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Japan Finance Corp), Underwriting Agreement (Japan Finance Corp)
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 ExchangeSGX-ST, (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 Xxxxxxxx Xxxx Xxxxxx & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency – Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(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, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “Description of the Debt Securities and Guarantee” and “Taxation – U.S. Taxation” 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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 Director, Capital Markets Division, Treasury, Finance and Accounting Department of Issuer, dated the Closing Date, in which such officer, to the extent best of such statements relate to matters ofDirector’s knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Japan International Cooperation Agency), Underwriting Agreement (Japan International Cooperation Agency)
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 AgentAgent and effectuated by the Common Safekeeper (as defined in the Fiscal Agency Agreement), 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 AgentAgent and effectuated by the Common Safekeeper, 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Japan Bank for International Cooperation), Underwriting Agreement (Japan Bank for International Cooperation)
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; and 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) (Aa) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or Luxembourg Stock Exchange, (Bb) 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 (Cc) 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 Tomotsune & XxxxxxxxxKimura, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sxxxxxxx & Cxxxxxxx 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, as of its respective effective or issue date, 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, it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included therein.
(d) The Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, with respect to the validity of the subject matters of such statements) ofSecurities, the guarantee thereof by Japan, the Fiscal Agency Agreement, the Registration Statement, the Final Prospectus 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 or opinions, such counsel may rely as to all matters governed by Japanese law upon the opinion of Japanese counsel for Issuer and regulation Japan referred to above.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 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) Under The statements in 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 Latest Preliminary Final Prospectus (i) for the creation, offering, issue or delivery as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 each part of the Most Recent 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional — Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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 extent 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 relate 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 matters ofstate 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation — Additional United States Taxation Considerations” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) of, the law and regulation of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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) 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;
(iv) The Fiscal Agency Agreement has been duly authorized, executed and delivered by Issuer and Japan, and does, assuming that the Fiscal Agency Agreement constitutes a valid and legally binding obligation of Issuer and Japan in accordance with its terms under its governing law, to which it is subject and as to which such counsel renders no opinion, constitute a valid and legally binding obligation of Issuer and Japan in accordance with its terms;
(v) The Securities have been duly authorized, and, assuming that the payment therefor is duly made in accordance with this Agreement, 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 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 do, assuming that the Securities constitute valid and legally binding obligations of Issuer in accordance with their terms entitled to the benefits provided by the Fiscal Agency Agreement, under their governing law, to which they are subject and as to which such counsel renders no opinion, constitute valid and legally binding obligations of Issuer in accordance with their terms entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized and, assuming that it has been executed on behalf of Japan by the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance, 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 does, assuming that the guarantee of the Securities by Japan constitutes the valid, 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, under its governing law, to which it is subject and as to which such counsel renders no opinion, 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) This Agreement has been duly authorized, executed and delivered by Issuer and Japan and does, assuming that this Agreement constitutes a valid and legally binding obligation of Issuer and Japan in accordance with its terms under its governing law, to which it is subject and as to which such counsel renders no opinion, constitute a valid and legally binding obligation of Issuer and Japan in accordance with its terms;
(viii) The statements in the Latest Preliminary Final Prospectus (as of the Applicable Time), the Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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;
(x) 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;; and
(ivxi) This Agreement and No prior filings with, or consents, approvals, authorizations, licenses, orders, registrations, clearances, qualifications or decrees of, or prior notification to, any court or governmental agency, authority or body in Japan is required under the laws of Japan to be obtained by the Issuer (other than those that have been obtained or those contemplated to be obtained by this Agreement, the Fiscal Agency Agreement have been duly authorizedor the Securities) for (i) the execution and delivery by the Issuer of this Agreement, executed and delivered the Fiscal Agency Agreement or the Securities, or the performance by the Issuer and Japanof its obligations under, 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 or the laws of Securities; (ii) 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;
Agreement ; or (viiii) 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 (Ba) the ex post facto reports to be submitted pursuant to filing requirements under the Foreign Exchange and Foreign Trade Law Act of Japan after (Act No. 228 of 1949, as amended) which have been filed or will be filed and (b) 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 filing requirements under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and “Description Cooperation Act (Act No. 39 of 2011, as amended) which have been filed or will be filed. In rendering such opinion, such counsel may rely as to all matters governed by United States or New York law upon the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for the Underwriters referred to below. In addition, with respect to the matters referred to in paragraphs (iv) through (vii) above, such counsel may state they are expressing no opinion as to the enforceability of the Debt Securities obligations. The counsel may also state that the matters referred to in paragraphs (i) to (ix) are subject to other assumptions and Guarantee” in qualifications that 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 respectsRepresentatives reasonably agree.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 it is expressly governed, and as to which such counsel renders no opinion;
(viv) The issue and offering of the Securities have been duly authorized by Issuer, and, assuming that the Securities have been executed on behalf of the 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;
(viv) 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;
(viivi) 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 Agreement, the Securities 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;
(viiivii) 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 heading “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”; heading “Description of the Bonds and Guarantee”; “Taxation – Additional Japanese Taxation Considerations” and “General InformationTaxation” 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 IssuerJapan, true and accurate in all material respects; and
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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. With respect to the matters referred to in paragraphs (iii) through (v) above, such counsel may state they are expressing no opinion as to the enforceability of the obligation. 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 and the Guarantee, nothing came to such counsel’s attention in the course of their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 captions “Description of the Bonds and Guarantee” and “Taxation” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement insofar as they relate to provisions of documents or Japanese tax law 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, 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 Most Recent 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 or as of the date hereof, 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they relate to provisions of the Securities, the Guarantee, 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 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, CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 Minister of Finance ad interim 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 ExchangeSGX-ST, (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 Xxxxxxxx Xxxx Xxxxxx & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency - Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(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, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “Description of the Debt Securities and Guarantee” and “Taxation—U.S. Taxation” 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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 Senior Director, Budget for Finance and Investment Account, and Capital Markets Division, Treasury, Finance and Accounting Department of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of her knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Taxation—Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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) Under The statements in 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 Latest Preliminary Final Prospectus (i) for the creation, offering, issue or delivery as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 Most Recent 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law 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 and as of the Closing Date, 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 of the Prospectus Supplement and as of the Closing Date, 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional — Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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 extent 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 relate 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 matters ofstate 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 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 captions “Description of the Bonds and Guarantee”, “Taxation — Additional United States Taxation Considerations” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the Registration Statement, any post-effective amendment thereto, the Final Prospectus or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of the subject matters of such statements) of, the law and regulation of Japan and the Articles of Incorporation Governor or 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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 ExchangeSGX-ST, (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 Xxxxxxxx Xxxx Xxxxxx & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency - Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(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, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “Description of the Debt Securities and Guarantee” and “Taxation—U.S. Taxation” 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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 Senior Director, Budget for Finance and Investment Account, and Capital Markets Division, Treasury, Finance and Accounting Department of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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 it is 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 ActJBIC”; “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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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; and 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 Xxxxxxxx Mori & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters referred to below. And with respect to the matters referred to in paragraphs (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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary 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 express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(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 statementscounsel, 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 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 that the Basic 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that 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)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) 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 and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; “Taxation – Additional Japanese Taxation Considerations” and “General InformationTaxation” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 Most Recent 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 relate 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 matters ofstate 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 or as of the date hereof, 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 accurate 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 Minister of Finance ad interim 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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) Under The statements in 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 Latest Preliminary Final Prospectus (i) for the creation, offering, issue or delivery as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 Most Recent 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 Sxxxxxxx & Cxxxxxxx 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law 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 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings caption “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment Description of the JBIC Act”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 Sxxxxxxx & Cxxxxxxx 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 “Recent Developments – Japan – General – Political Parties”; 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 Japanese United States Taxation Considerations” and “General InformationUnderwriting” in the preliminary prospectus supplement included 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 Latest Preliminary Final Prospectus and Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement areor 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 extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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 it is 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 – Japan—Government”; “Financial System – System—Government Financial Institutions”; “Government Finance” and “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings “Risk Factors – Factors—Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Developments—Japan—General—Political Parties”; “Description of the Bonds and Guarantee”; “Taxation – 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.. 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 and the Guarantee, nothing came to such counsel’s attention in the course of their
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 Mori Hamada & XxxxxxxxxMatsumoto, 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 it is 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) 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 and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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 (iv) through (vi) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; caption “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 areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 Most Recent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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; and 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 a majority in interest of the Underwriters, including 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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and JapanJaxxxxxx xxxxxxx xxx Issxxx xxx Xxpan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer's obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sullivan & Cromwell LLP, United Statxx xxxxxel xxx xxx 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(d) The Representatives shall have received an opinion of Sullivan & Cromwell LLP, United Statxx xxxxxel xxx xxx 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 statementscounsel, 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 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 that the Basic 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation Governor or an 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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; and 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) (Aa) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or Luxembourg Stock Exchange, (Bb) 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 (Cc) 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 a majority in interest of the Underwriters, including 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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sxxxxxxx & Cxxxxxxx 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject matters Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such statementscounsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(d) ofThe Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, with respect to the validity of the Securities, the guarantee thereof by Japan, the Fiscal Agency Agreement, the Registration Statement, the Final Prospectus or any amendment or supplement thereto 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 or opinions, such counsel may rely as to all matters governed by Japanese law upon the opinion of Japanese counsel for Issuer and regulation Japan referred to above.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation Governor or an 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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 RepresentativesRepresentative[s], 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 RepresentativesRepresentative[s], 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 [London] [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 RepresentativesRepresentative[s], after consultation with Issuer and Japan, would materially adversely affect the marketing of the Securities.
(c) The Representatives Representative[s] shall have received an opinion of Xxxx Xxxxxx Xxxxxxxx Mori & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 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 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 Representative[s] 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 Final Prospectus and any amendment or supplement thereto relevant to the Securities, they have no reason to believe that (i) the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (A) as of its respective effective or issue date, 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 (B) as of the Closing Date, contains any untrue statement of a material fact or omits 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 (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; it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(d) The Representative[s] 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 Representative[s] 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 Representative[s] 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included 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 Latest Preliminary Final Prospectus and Registration Statement, any Post-Effective Amendment thereto, the Base Prospectus, the Prospectus Supplement areor the Pricing Disclosure Package.
(e) The Representative[s] shall have received a certificate of the President and Chief Executive Officer, a Deputy President or a Managing Executive Officer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representative[s] 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 Representative[s] with such conformed copies of such statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentative[s] reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Development Bank of Japan Inc.)
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 Mori Hamada & XxxxxxxxxMatsumoto, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation juridical person validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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;
(vi) This 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;
(vii) Under The statements in 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 Pricing Disclosure Package (i) for the creation, offering, issue or delivery as of the Securities by Issuer Applicable Time), Final Prospectus and any amendment or the performance of its obligations thereunder, (ii) for the guarantee of supplement thereto relating to the Securities by Japan or and the performance of its obligation thereunder or (iii) for the execution, delivery Guarantee and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 Most Recent 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 (vi) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional — Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofPresident and Chief Executive Officer, the law and regulation of Japan and the Articles of Incorporation Deputy President or Senior Executive Directors 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Organization for Municipalities)
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 Mori Hamada & XxxxxxxxxMatsumoto, 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 AgentAgent and effectuated by the Common Safekeeper (as defined in the Fiscal Agency Agreement), 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 AgentAgent and effectuated by the Common Safekeeper, 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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; and 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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters referred to below. And with respect to the matters referred to in paragraphs (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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary 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 express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(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 statementscounsel, 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 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 that 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushikikaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 [twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,000) 12,683,925,630,964)] shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 paripassu 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Taxation—Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation Executive Managing Director or Senior Managing 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; caption “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 areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) 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 and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; “Taxation – Additional Japanese Taxation Considerations” and “General InformationTaxation” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 Most Recent 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 relate 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 matters ofstate 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 or as of the date hereof, 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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. P.M.] [New York City 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 ExchangeSGX ST], (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 an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency—Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(d) The Representatives shall have received an opinion of [●], United States counsel for the Underwriters, dated the Closing Date, with respect to the Securities, governmental approvals, the Guarantee, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings captions “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and “[Description of the Debt Securities and Guarantee]” and “[Taxation—U.S. Taxation]” in the Base Prospectus and under the headings captions “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[Underwriting]” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 [●] of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of [his/her] knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of [his/her] knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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 Supplement 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 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 Xxxx Xxxxxx Xxxxxxxx Mori & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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 and constitutes a valid and legally binding obligation of the Issuer and Japan in accordance with its terms;
(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 The statements in Japan are required (i) for the creation, offering, issue or delivery each part of the most recent Registration Statement, the Pricing Disclosure Package and the Final Prospectus relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 each part of the Most Recent most recent Registration Statement, the Latest Preliminary Pricing Disclosure Package and the Final Prospectus 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law the most recent Registration Statement or the Final Prospectus, (A) as of the effective date of such part of the most recent Registration Statement or the date of the Prospectus Supplement, as the case may be, 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 (B) as of the Closing Date, contains any untrue statement of a material fact or omits 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 (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; 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, the Base Prospectus, the Pricing Disclosure Package or the Prospectus Supplement except for those made in the Base Prospectus under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” and the Prospectus Supplement relating to the Securities under the captions “Description of the Bonds and Guarantee” and “Taxation — Additional Japanese Taxation Considerations” 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 therein.
(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 most recent 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 headings “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Political Parties”; captions “Description of the Bonds and Guarantee”; , “Taxation – — Additional Japanese United States Taxation Considerations” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar 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 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 an Executive Director of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
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; and 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) (Aa) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or Luxembourg Stock Exchange, (Bb) 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 (Cc) 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 Tomotsune & XxxxxxxxxKimura, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sxxxxxxx & Cxxxxxxx, 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, as of its respective effective or issue date, 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, it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included therein.
(d) The Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx, United States counsel for the Underwriters, dated the Closing Date, with respect to the validity of the subject matters of such statements) ofSecurities, the guarantee thereof by Japan, the Fiscal Agency Agreement, the Registration Statement, the Final Prospectus 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 or opinions, such counsel may rely as to all matters governed by Japanese law upon the opinion of Japanese counsel for Issuer and regulation Japan referred to above.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with power and authority to own its properties and assets and to conduct its business as described in the Latest latest Preliminary Final Prospectus and in the Final Prospectus;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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) Under The statements in 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 Latest Preliminary Final Prospectus (i) for the creation, offering, issue or delivery as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 each part of the Most Recent most recent 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 with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law the most recent Registration Statement, when such part became effective and as of the Closing Date, 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 and as of the Closing Date, 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 of the Prospectus Supplement and as of the Closing Date, 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings caption “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment Description of the JBIC Act”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 most recent 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 “Recent Developments – Japan – General – Political Parties”; 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 Japanese United States Taxation Considerations” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar 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 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 extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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) Under The statements in 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 Latest Preliminary Final Prospectus (i) for the creation, offering, issue or delivery as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities by Issuer or the performance of its obligations thereunder, (ii) for and the guarantee of the Securities thereof by Japan or the performance of its obligation thereunder or (iii) for the execution, delivery and performance by Issuer of this Agreement and to the Fiscal Agency Agreement, except for (A) such authorizations Agreement are correct insofar as have been duly obtained or made and matters of Japanese law 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 Dateconcerned; and
(viii) The 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 Most Recent 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 Sxxxxxxx & Cxxxxxxx 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 Final Prospectus and any amendment or supplement thereto with respect relevant to matters the Securities, they have no reason to believe that (i) any part of Japanese law 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings caption “Risk Factors – Risks Relating to Us”; “Recent Developments – JBIC – Amendment Description of the JBIC Act”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 Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(d) The Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx 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 “Recent Developments – Japan – General – Political Parties”; Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included 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 Latest Preliminary Final Prospectus and Registration Statement, any post-effective amendment thereto, the Base Prospectus, the Prospectus Supplement areor the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of the Governor or an Executive Director of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant 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 purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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; and 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 subparagraph (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 Tomotsune & XxxxxxxxxKimura, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters referred to below. And with respect to the matters referred to in subparagraphs (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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(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 statementscounsel, 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 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 that the Final Prospectus as of the date of the Final Prospectus 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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. P.M.] [New York City 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 an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time), the Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency - Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post effective amendment thereto, the Preliminary Final Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included
1.1 6 or required to be included in the Registration Statement, any post effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.]
(d) The Representatives shall have received an opinion of [·], United States counsel for the Underwriters, dated the Closing Date, with respect to the Securities, governmental approvals, the Guarantee, 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 law 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Final Prospectus, the Pricing Disclosure Package, except for those made under the headings captions “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and “[Description of the Debt Securities and Guarantee]” and “[Taxation—U.S. Taxation]” in the Base Prospectus and under the headings captions “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[Underwriting]” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 President, [·], [·], [·], or [·] of Issuer, dated the Closing Date, in which such officer, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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; and 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 a majority in interest of the Underwriters, including 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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sxxxxxxx & Cxxxxxxx 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(d) The Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx 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 statementscounsel, 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 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 that the Basic 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation Governor or an 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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. P.M.] [New York City 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 ExchangeSGX-ST, (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 an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(vii) Under The statements set forth in the laws Registration Statement, the Preliminary Prospectus and regulations the Final Prospectus relating to the Securities and the Guarantee 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, to Japan currently and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Preliminary Prospectus and the Final Prospectus are correctly set forth therein. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under forceJapanese law, no filings, consents, clearances, approvals, authorizations, orders, registrations or qualifications of any court, government or administrative agency in Japan are required nothing has come to such counsel’s attention that causes them to believe that (i) for the creation, offering, issue or delivery any part of the Securities by Issuer Registration Statement as of the effective date of such part of the Registration Statement 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 performance statements therein, in the light of its obligations thereunderthe circumstances under which they were made, not xxxxxxxxxx, (iixx) for the guarantee Pricing Disclosure Package, as of the Securities by Japan Applicable Time, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the performance statements therein, in the light of its obligation thereunder the circumstances under which they were made, not misleading, or (iii) the Final Prospectus, as of the date on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the executionaccuracy, delivery completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, the Preliminary Prospectus and performance by Issuer the Final Prospectus insofar as they relate to Japanese law or provisions of this Agreement and documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial or statistical data included or required to be included in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus.
(d) The Representatives shall have received an opinion of [●], United States counsel for the Underwriters, dated the Closing Date, with respect to the Securities, governmental approvals, the Guarantee, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the captions “[Description of the [Bonds] and Guarantee]”, “[Taxation]” and “[Underwriting]” in the Preliminary Prospectus and in the Final Prospectus insofar as they relate to provisions of the Securities, the Guarantee, 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 (Ab) express any opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of the President, [●], [●], [●], or [●] of Issuer, dated the Closing Date, in which such authorizations as have been duly obtained or made officer, to the best of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are in full force true and effect correct, and (B) Issuer has complied with all agreements and satisfied all the ex post facto reports conditions on its part to be submitted pursuant performed or satisfied at or prior to the Foreign Exchange and Foreign Trade Law of Japan after the Closing Date; and
(viiiii) 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 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 Representatives shall have received a certificate of the Debt Securities and Guarantee” Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, 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 arewhich he, to the extent such statements relate to matters ofbest of his knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Japan in this Agreement are true and correct, and insofar as they purport Japan has complied with all the agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions (Registration Statement has been issued, and no proceedings for that purpose have been instituted and are relevant to pending or are contemplated by the purpose Commission. Issuer and context of Japan will furnish the subject matters Representatives with such conformed copies of such statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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 it is 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 – Japan—Government”; “Financial System – System—Government Financial Institutions”; “Government Finance” and “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the headings “Risk Factors – Factors—Risks Relating to Us”; “Recent Developments – JBIC – Amendment of the JBIC Act”; “Recent Developments – Japan – General – Developments—Japan—General—Political Parties”; “Description of the Bonds and Guarantee”; “Taxation – 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that 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)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) 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 and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; “Taxation – Additional Japanese Taxation Considerations” and “General InformationTaxation” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 Most Recent 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 relate 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 matters ofstate 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 or as of the date hereof, 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 accurate 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 Minister of Finance ad interim 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Executive Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized by Japanauthorized, and, assuming that it has been executed on behalf of Japan by either the signature or the facsimile signature or facsimile of the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed by the duly designated Minister of Finance ad interim)Finance, and assuming that the Securities have been duly authenticated by the Fiscal Agent, validly made in accordance with the The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) 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 and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Most Recent 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 paragraphs (iv) through (vii) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that caused them to believe that (i) any part of the Most Recent 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; caption “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 areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 Most Recent 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 relate 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 matters ofstate 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) ofGovernor, the law and regulation of Japan and the Articles of Incorporation CEO, Executive Managing Director, COO, Senior Managing Director, or a Managing 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 accurate 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 material respectsthe 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.
(g) The Representatives shall have received evidence satisfactory to the Representatives that the Securities have received a rating at or above A2 by Xxxxx’x Investors Service and A by Standard and Poor’s. Issuer and Japan will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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 ExchangeSGX-ST, (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 Xxxxxxxx Xxxx Xxxxxx & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency - Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(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, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “Description of the Debt Securities and Guarantee” and “Taxation—U.S. Taxation” 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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 Director, Budget for Finance and Investment Account, and Capital Markets Division, Treasury, Finance and Accounting Department of Issuer, dated the Closing Date, in which such officer, to the extent best of such statements relate to matters ofDirector’s knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
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; and 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) (Aa) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or Luxembourg Stock Exchange, (Bb) 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 (Cc) 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 Tomotsune & XxxxxxxxxKimura, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, as of its respective effective or issue date, 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, it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included therein.
(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 validity of the subject matters of such statements) ofSecurities, the guarantee thereof by Japan, the Fiscal Agency Agreement, the Registration Statement, the Final Prospectus 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 or opinions, such counsel may rely as to all matters governed by Japanese law upon the opinion of Japanese counsel for Issuer and regulation Japan referred to above.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 Announcement on the Ratings Outlook of Japan, 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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Latest Preliminary Final Prospectus (as of the Applicable Time), Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned; and
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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 (iv) through (vi) 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 with respect relevant to matters the Securities and the Guarantee, nothing came to such counsel’s attention in the course of Japanese law their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; caption “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 areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context of financial statements or other financial data derived from accounting records contained in the subject matters of such statements) ofRegistration Statement, any post-effective amendment thereto, the law and regulation Base Prospectus, the Prospectus Supplement or the Pricing Disclosure Package.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation a President & CEO, JBIC, a Deputy President, JBIC or Managing Director, JBIC 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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 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 Xxxx Xxxxxx Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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 twelve trillion, six hundred eighty-three billion nine hundred twenty-five trillion one million six hundred sixty thirty thousand nine hundred sixty-four billion (5,164,000,000,00012,683,925,630,964) shares, and all of the issued shares of common stock shall be owned and are owned by the Japanese government;
(iii) The All Japanese governmental approvals have been obtained which are required for the valid authorization, issue and offering sale of the Securities by Issuer and for the guarantee performance of Issuer’s obligations hereunder and under 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 The Fiscal Agency Agreement have has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(v) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and constitutes the valid, 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 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 This Agreement has been duly authorized, executed 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 delivered by Issuer or the performance and Japan and constitutes a valid and legally binding obligation of Issuer and Japan in accordance with 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; andterms;
(viii) The statements in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus and (as of the Applicable Time), the Final Prospectus and any amendment or supplement thereto with respect 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
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee of the Securities and all other statements with respect to or involving Japanese law set forth in each part of 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 (iv) through (vi) 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 and the Guarantee, nothing came to much counsel’s attention in the counsel of their review that 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 and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 of the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits 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 headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and caption “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”; captions “Description of the Bonds and Guarantee”; ” and “Taxation – Additional Taxation—Japanese Taxation Considerations” and “General Information” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and the Prospectus Supplement areinsofar as they relate to provisions of documents or Japanese tax law 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, 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 extent 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 relate 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 matters ofstate 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 caption “Description of the Debt Securities and Guarantee” in the Base Prospectus and under the captions “Description of the Bonds and Guarantee”, “Taxation—Additional United States Taxation Considerations” and “Underwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement insofar as they purport relate to constitute summaries provisions of the material Securities, the Guarantee, 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 (that are relevant b) express any opinion or belief as to the purpose and context financial statements or other financial data derived from accounting records contained in the 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 subject matters of such statements) of, the law and regulation of Japan and the Articles of Incorporation Governor & CEO or a Senior Managing 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 accurate 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 material respectsthe 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.
Appears in 1 contract
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; and 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) (Aa) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or Luxembourg Stock Exchange, (Bb) 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 (Cc) 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 a majority in interest of the Underwriters, including 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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer's obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally bindingconstitutes the valid, irrevocable binding 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Xxxxxxxx & Xxxxxxxx, 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject matters Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such statementscounsel need express no view with respect to the financial statements or any financial or statistical data included therein.
(d) ofThe Representatives shall have received an opinion of Xxxxxxxx & Xxxxxxxx, United States counsel for the Underwriters, dated the Closing Date, with respect to the validity of the Securities, the guarantee thereof by Japan, the Fiscal Agency Agreement, the Registration Statement, the Final Prospectus or any amendment or supplement thereto 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 or opinions, such counsel may rely as to all matters governed by Japanese law upon the opinion of Japanese counsel for Issuer and regulation Japan referred to above.
(e) The Representatives shall have received a certificate of Japan and the Articles of Incorporation Governor or an 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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 Xxxxxxxxx Xxxx Xxxxxx & XxxxxxxxxXxxxxxxxxx, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation (kabushiki kaisha) validly existing under the laws of Japan and has full corporate Japan, with 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) 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;
(iv) The Fiscal Agency Agreement has been duly authorized, executed and delivered by Issuer and Japan, and does, assuming that the Fiscal Agency Agreement constitutes a valid and legally binding obligation of Issuer and Japan in accordance with its terms under its governing law, to which it is subject and as to which such counsel renders no opinion, constitute a valid and legally binding obligation of Issuer and Japan in accordance with its terms;
(v) The Securities have been duly authorized, and, assuming that the payment therefor is duly made in accordance with this Agreement, 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 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 do, assuming that the Securities constitute valid and legally binding obligations of Issuer in accordance with their terms entitled to the benefits provided by the Fiscal Agency Agreement, under their governing law, to which they are subject and as to which such counsel renders no opinion, constitute valid and legally binding obligations of Issuer in accordance with their terms entitled to the benefits provided by the Fiscal Agency Agreement;
(vi) The Guarantee has been duly authorized and, assuming that it has been executed on behalf of Japan by the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance, 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 does, assuming that the guarantee of the Securities by Japan constitutes the valid, 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, under its governing law, to which it is subject and as to which such counsel renders no opinion, 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) This Agreement has been duly authorized, executed and delivered by Issuer and Japan and does, assuming that this Agreement constitutes a valid and legally binding obligation of Issuer and Japan in accordance with its terms under its governing law, to which it is subject and as to which such counsel renders no opinion, constitute a valid and legally binding obligation of Issuer and Japan in accordance with its terms;
(viii) The statements in the Latest Preliminary Final Prospectus (as of the Applicable Time), the Final Prospectus and any amendment or supplement thereto relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(ix) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of 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;
(x) 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;; and
(ivxi) This Agreement and No prior filings with, or consents, approvals, authorizations, licenses, orders, registrations, clearances, qualifications or decrees of, or prior notification to, any court or governmental agency, authority or body in Japan is required under the laws of Japan to be obtained by the Issuer (other than those that have been obtained or those contemplated to be obtained by this Agreement, the Fiscal Agency Agreement have been duly authorizedor the Securities) for (i) the execution and delivery by the Issuer of this Agreement, executed and delivered the Fiscal Agency Agreement or the Securities, or the performance by the Issuer and Japanof its obligations under, 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 or the laws of Securities; (ii) 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;
Agreement ; or (viiii) 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 (Ba) the ex post facto reports to be submitted pursuant to filing requirements under the Foreign Exchange and Foreign Trade Law Act of Japan after (Act No. 228 of 1949, as amended) which have been filed or will be filed and (b) 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 filing requirements under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and “Description Cooperation Act (Act No. 39 of 2011, as amended) which have been filed or will be filed. In rendering such opinion, such counsel may rely as to all matters governed by United States or New York law upon the opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for the Underwriters referred to below. In addition, with respect to the matters referred to in paragraphs (iv) through (vii) above, such counsel may state they are expressing no opinion as to the enforceability of the Debt Securities obligations. The counsel may also state that the matters referred to in paragraphs (i) to (ix) are subject to other assumptions and Guarantee” in qualifications that 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 respectsRepresentatives reasonably agree.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Bank for International Cooperation)
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; and 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 a majority in interest of the Underwriters, including 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 Nagashima Ohno & XxxxxxxxxTsunematsu, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock public corporation validly existing under the laws of Japan and has full corporate Japan, with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver for the performance of Issuer’s obligations hereunder and perform its obligations under this Agreement the Securities 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 has been duly authorized, executed and delivered by Issuer and Japan, and constitute constitutes a valid and legally binding obligations obligation 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 opinionits terms;
(viv) The issue and offering of the Securities have been duly authorized by Issuerauthorized, and, assuming that the Securities 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 the Securities they 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 by Issuer and will constitute valid and legally binding obligations of Issuer enforceable against Issuer in accordance with the their terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency Agreement;
(viv) The Guarantee guarantee of the Securities by Japan 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 The Constitution and laws of Japan, and will constitute valid and legally 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 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;
(viivi) Under the laws This Agreement has been duly authorized, executed 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 delivered 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; andJapan;
(viiivii) 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 relating to the Securities and the guarantee thereof by Japan and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law contained under the headings “Japan Bank for International Cooperation”are concerned; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and
(viii) All matters of Japanese law relating to Issuer and “Description of the Debt Securities its business and Guarantee” all other statements with respect to or involving Japanese law set forth in the Base Prospectus and under Registration Statement, 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 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 Prospectus Supplement areopinion of Sxxxxxxx & Cxxxxxxx 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 extent such statements relate to matters ofeffect that, based on a review of documents and insofar as they purport to constitute summaries their participation in the preparation of the material provisions (that are Registration Statement, the Final Prospectus and any amendment or supplement thereto relevant to the purpose and context Securities, they have no reason to believe that the Registration Statement or the Final Prospectus, or any amendment or supplement thereto, (i) as of its respective effective or issue date, 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) as of the subject Closing Date, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view with respect to the financial statements or any financial or statistical data included or required to be included therein.
(d) The Representatives shall have received an opinion of Sxxxxxxx & Cxxxxxxx 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 statementscounsel, 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 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 that the Basic 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.
(e) of, The Representatives shall have received a certificate of the law and regulation of Japan and the Articles of Incorporation Governor or an 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 accurate 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 material respectsthe 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.
Appears in 1 contract
Samples: Underwriting Agreement (Japan Finance Corp for Municipal Enterprises)
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 ExchangeSGX-ST, (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 Xxxxxxxx Xxxx Xxxxxx & XxxxxxxxxTomotsune, Japanese counsel for Issuer and Japan, dated the Closing Date, to the effect that:
(i) Issuer is a joint stock corporation an incorporated administrative agency (dokuritsu gyosei hojin) validly existing under the laws of Japan and has full corporate with 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;
(ii) All Japanese governmental approvals have been obtained which are required for the valid authorization, to issue and sale of the Securities and to execute, deliver and perform its for the performance of Issuer’s obligations under the Securities, 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 execution and offering of the Securities delivery by Issuer of this Agreement and the guarantee Fiscal Agency Agreement and the performance by Issuer of the Securities its obligations thereunder has been duly authorised by Japan pursuant to the terms Issuer, and conditions contained in this Agreement and the Fiscal Agency Agreement, the assuming that they constitute valid and legally binding obligations of Issuer under their governing law, constitute valid and legally binding obligations of Issuer;
(iv) The execution and delivery by Issuer and Japan of this Agreement and the Fiscal Agency AgreementAgreement and the performance by Japan of its obligations thereunder has been duly authorised by Japan, 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 this Agreement and the Fiscal Agency Agreement have been duly authorizedAgreement, executed and delivered by Issuer and Japan, and assuming that they constitute valid and legally binding obligations of Issuer and JapanJapan under their governing law, 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 by Issuer has been duly authorized by Issuer, and, assuming that ; and when 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 when the Securities have been duly authenticated by the Fiscal Agent, when the entire aggregate amount of the purchase price for the Securities has been paid in full in accordance with this Agreement Agreement, and assuming that 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 under their governing law, such Securities will constitute valid and legally binding obligations of Issuer in accordance with the terms and conditions of the Securities, entitled to the benefits provided by the Fiscal Agency AgreementAgreement (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Securities);
(vi) The Guarantee has been duly authorized by Japan, ; and, assuming it upon the issue of the Securities by Issuer, and when the Guarantee has been executed endorsed on behalf of Japan by either the signature or Securities bearing the facsimile signature or the official seal (or the facsimile thereof) of the Minister of Finance (including when affixed or, in the absence of the Minister of Finance, any other Minister designated by the duly designated Minister of Finance ad interimPrime Minister), and assuming that the Securities Guarantee will constitute valid and legally binding obligations of Japan under their governing law, the Guarantee will have been duly authenticated by the Fiscal Agent, validly made in accordance with the Constitution and laws of Japan, and will constitute valid and valid, legally binding, irrevocable direct and unconditional general obligation of Japan in accordance with its termsJapan, for the payment and performance of which the full faith and credit of Japan has have been pledgedpledged (such counsel expresses no opinion as to the enforceability, as distinguished from the valid and legally binding nature, of the Guarantee); and such Guarantee ranks will rank pari passu in right of payment with all other general obligations of Japan without any preference one above the other by reason of priority of date of issue, currency of payment or otherwise;
(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 set forth in the Most Recent Registration Statement, the Latest Preliminary Final Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto with respect relating to the Securities and the Guarantee and to the Fiscal Agency Agreement are correct insofar as matters of Japanese law are concerned;
(viii) All matters of Japanese law relating to Issuer and its business, to Japan and the Guarantee and all other statements with respect to or involving Japanese law set forth in each part of the Registration Statement, the Latest Preliminary Prospectus (as of the Applicable Time) and the Final Prospectus and any amendment or supplement thereto, are correctly set forth therein; and
(ix) Neither the execution, delivery nor performance of this Agreement and the Fiscal Agency Agreement by Issuer in connection with the issue by Issuer of the Securities, nor the issue by Issuer of the Securities, nor the consummation by Issuer of the transactions contemplated in any such documents, nor compliance with the terms and provisions thereof by Issuer, will conflict with, violate or result in a breach of the Act of the Incorporated Administrative Agency - Japan International Cooperation Agency (Act No. 136 of 2002, as amended) or any law or regulations of Japan applicable to Issuer. In addition, the Representatives shall have received a letter of such counsel, dated the Closing Date, to the effect that, on the basis of the information which they gained in the course of the performance of the services and their review of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and any amendment or supplement thereto relevant to the Securities and the Guarantee, considered in light of their understanding of applicable Japanese law and the experience they have gained through their practice under Japanese law, nothing has come to such counsel’s attention that causes them to believe that (i) any part of the Registration Statement as of the effective date of such part of the Registration Statement 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, in the light of the circumstances under which they were made, not misleading, (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 in order 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 on which it was filed and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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 the limitations inherent in the independent verification of factual matters and the character of determinations involved in the process of preparation of the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package and the Final Prospectus are such, however, that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus except for those made in the Registration Statement, any post-effective amendment thereto, the Preliminary Prospectus and the Final Prospectus insofar as they relate to Japanese law or provisions of documents therein described; also, such counsel does not express any opinion or belief as to the financial statements or any other financial data included or required to be included in the Registration Statement, any post-effective amendment thereto, the Pricing Disclosure Package or the Final Prospectus.
(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, 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 an 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 Final Prospectus, as of the date on which it is filed pursuant to Rule 424(b) or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in 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 Preliminary Prospectus, the Pricing Disclosure Package, except for those made under the headings “Japan Bank for International Cooperation”; “Japan – Government”; “Financial System – Government Financial Institutions”; “Government Finance” and captions “Description of the Debt Securities and Guarantee” and “Taxation—U.S. Taxation” 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”; captions “Description of the Bonds and Guarantee”; , “Taxation – Additional Japanese Taxation ConsiderationsTaxation” and “General InformationUnderwriting” in the preliminary prospectus supplement included in the Latest Preliminary Final Prospectus and in the Prospectus Supplement areinsofar as they relate to provisions of the Securities, the Guarantee, 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 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 Director, Capital Markets Division, Treasury, Finance and Accounting Department of Issuer, dated the Closing Date, in which such officer, to the extent best of such statements relate to matters ofDirector’s knowledge after reasonable investigation, shall state that:
(i) The representations and warranties of Issuer in this Agreement are true and correct, and insofar as they purport Issuer has complied with all agreements and satisfied all the conditions on its part to constitute summaries be performed or satisfied at or prior to the Closing Date; and
(ii) No stop order suspending the effectiveness of the material provisions Registration Statement has been issued and no proceedings for that purpose have been instituted and are pending or are contemplated by the Commission.
(that are relevant f) The Representatives shall have received a certificate of the Minister of Finance or Minister of Finance ad interim or any Vice Minister of Finance of Japan, dated the Closing Date, in which he, to the purpose best of his knowledge after reasonable investigation, shall state that:
(i) The representations and context 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 subject matters 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 statements) ofopinions, certificates, letters and documents as the law and regulation of Japan and the Articles of Incorporation of Issuer, true and accurate in all material respectsRepresentatives reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Japan International Cooperation Agency)
