At Closing Time. the Underwriters shall have received: (1) The opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriters, to the effect that: (i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California. (ii) The Company has corporate power and corporate authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and in each document filed pursuant to the 1934 Act and incorporated by reference into the Prospectus. (iii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company. (iv) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified under the 1939 Act. If California law were to apply, the Indenture would constitute a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. (v) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, and have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement and as provided for in the Prospectus. If California law were to apply, the Securities when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement, would constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture. (vi) To such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification and in which the failure to so qualify and be in good standing would materially adversely affect its business or financial condition. (vii) The Registration Statement has been declared effective under the 1933 Act and, to his knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (viii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference and the Statements of Eligibility on Form T-1 filed as exhibits therein, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations. (ix) The information in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by him and is correct in all material respects. (x) No authorization, approval, consent or order of any court or governmental authority or agency is required in connection with the sale of the Securities to the Underwriters, except such as may be required under the 1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act Regulations or state securities laws. (xi) Each document filed pursuant to the 1934 Act (other than the financial statements and supporting schedules and other financial, statistical and accounting data included therein, as to which no opinion need be rendered) and incorporated by reference in the Prospectus when filed, appeared on its face to comply as to form in all material respects with the 1934 Act and the 1934 Act Regulations thereunder in effect at the date of their filing. (xii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material. (xiii) To such counsel's knowledge, no default exists in the due performance or observance by the Company of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein, which default would have a material adverse effect on the financial condition, earnings, business affairs, business prospects, properties or results of operations of the Company and its subsidiaries considered as one enterprise. (xiv) The execution and delivery of this Agreement, the Indenture, the Securities and the consummation of the transactions contemplated herein and therein will not (A) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) result in any violation of the provisions of the charter or bylaws of the Company, or (C) to such counsel's knowledge, result in any violation of any applicable law, administrative regulation or administrative or court decree. (xv) The shares of issued and outstanding Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. (xvi) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof are correct in all material respects. Additionally such counsel shall state that he does not believe that the Registration Statement and each document filed pursuant to the 1934 Act and incorporated by reference therein (each, an "Incorporated Document") considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as a whole, as of the date of the Prospectus Supplement and at the Closing 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 the light of the circumstances under which they were made, not misleading. Such counsel may state that they express no view as to the Statements of Eligibility on Form T-1, financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in such Registration Statement or Prospectus. (2) The opinion, dated as of Closing Time, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that: (i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California. (ii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company. (iii) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified by the 1939 Act. Assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture constitutes a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. (iv) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement, when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement and as provided for in the Prospectus, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture. (v) The Registration Statement has been declared effective under the 1933 Act and, to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission. (vi) At the Closing Time, the Registration Statement (other than the financial statements and supporting schedules and other financial and statistical data included therein, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations. (vii) The Company is not an "investment company" as such term is defined in the 1940 Act. Additionally, such counsel shall state that subject to the foregoing and relying as to their determination of materiality to an extent upon opinions of officers and other representatives of the Company, no facts have come to their attention that has caused them to believe that the Registration Statement and the Incorporated Documents, considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as whole, as of the date of the Prospectus Supplement and at the Closing Time, contained an 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. Such counsel may state that they make no statement as to Statements of Eligibility on Form T-1, the financial statements and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein.
Appears in 1 contract
At Closing Time. the Underwriters shall have received:
(1) The opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California.
(ii) The Company has corporate power and corporate authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and in each document filed pursuant to the 1934 Act and incorporated by reference into the Prospectus.
(iii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company.
(iv) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified under the 1939 Act. If California law were to apply, the Indenture would constitute a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
(v) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, and have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement and as provided for in the Prospectus. If California law were to apply, the Securities when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement, would constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture.
(vi) To such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification and in which the failure to so qualify and be in good standing would materially adversely affect its business or financial condition.
(vii) The Registration Statement has been declared effective under the 1933 Act and, to his knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(viii) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference and the Statements of Eligibility on Form T-1 filed as exhibits therein, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations.
(ix) The information in the Prospectus under the captions "Description of the Notes" and "Description of Debt Securities" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by him and is correct in all material respects.
(x) No authorization, approval, consent or order of any court or governmental authority or agency is required in connection with the sale of the Securities to the Underwriters, except such as may be required under the 1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act Regulations or state securities laws.
(xi) Each document filed pursuant to the 1934 Act (other than the financial statements and supporting schedules and other financial, statistical and accounting data included therein, as to which no opinion need be rendered) and incorporated by reference in the Prospectus when filed, appeared on its face to comply as to form in all material respects with the 1934 Act and the 1934 Act Regulations thereunder in effect at the date of their filing.
(xii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xiii) To such counsel's knowledge, no default exists in the due performance or observance by the Company of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein, which default would have a material adverse effect on the financial condition, earnings, business affairs, business prospects, properties or results of operations of the Company and its subsidiaries considered as one enterprise.
(xiv) The execution and delivery of this Agreement, the Indenture, the Securities and the consummation of the transactions contemplated herein and therein will not (A) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) result in any violation of the provisions of the charter or bylaws of the Company, or (C) to such counsel's knowledge, result in any violation of any applicable law, administrative regulation or administrative or court decree.
(xv) The shares of issued and outstanding Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable.
(xvi) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof are correct in all material respects. Additionally such counsel shall state that he does not believe that the Registration Statement and each document filed pursuant to the 1934 Act and incorporated by reference therein (each, an "Incorporated Document") considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as a whole, as of the date of the Prospectus Supplement and at the Closing 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 the light of the circumstances under which they were made, not misleading. Such counsel may state that they express he expresses no view as to the Statements of Eligibility on Form T-1, financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in such Registration Statement or Prospectus.
(2) The opinion, dated as of Closing Time, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California.
(ii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company.
(iii) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified by the 1939 Act. Assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture constitutes a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
(iv) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement, when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement and as provided for in the Prospectus, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture.
(v) The Registration Statement has been declared effective under the 1933 Act and, to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(vi) At the Closing Time, the Registration Statement (other than the financial statements and supporting schedules and other financial and statistical data included therein, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations.
(vii) The Company is not an "investment company" as such term is defined in the 1940 Act. Additionally, such counsel shall state that subject to the foregoing and relying as to their determination of materiality to an extent upon opinions of officers and other representatives of the Company, no facts have come to their attention that has caused them to believe that the Registration Statement and the Incorporated Documents, considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as whole, as of the date of the Prospectus Supplement and at the Closing Time, contained an 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. Such counsel may state that they make no statement as to Statements of Eligibility on Form T-1, the financial statements and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein.
Appears in 1 contract
At Closing Time. the Underwriters Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Esq.P.C., General Counsel of counsel for the CompanyCompany and the Bank, in form and substance satisfactory to counsel for the UnderwritersAgent, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation duly incorporated, validly existing and in good standing under the laws of the State of CaliforniaDelaware.
(ii) The Company has full corporate power and corporate authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and in each document filed pursuant Prospectus and to the 1934 Act enter into and incorporated by reference into the Prospectusperform its obligations under this Agreement.
(iii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company.
(iv) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified under the 1939 Act. If California law were to apply, the Indenture would constitute a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
(v) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, and have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement and as provided for in the Prospectus. If California law were to apply, the Securities when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement, would constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture.
(vi) To such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of New York and in each other jurisdiction in which its such qualification is required whether by reason of the ownership or lease leasing of substantial properties property or the conduct of business, except where the failure to so qualify would not have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Company and the Bank, considered as one enterprise.
(iv) Upon consummation of the Conversion, the authorized, issued and outstanding capital stock of the Company will be as set forth in the Prospectus under "Capitalization" and, [except for shares issued upon incorporation of the Company,] [TO BE DETERMINED] no shares of Common Stock have been or will be issued and outstanding prior to the Closing Time.
(v) The Securities have been duly and validly authorized for issuance and sale and, when issued and delivered by the Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be duly and validly issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other similar rights arising by operation of law or, to the best of their knowledge and information, otherwise.
(vii) The Bank has been at all times since __________ and prior to the Closing Time duly organized, and is validly existing and in good standing under the laws of the United States of America as a federally chartered savings association of mutual form, and, at Closing Time, has become duly organized, validly existing and in good standing under the laws of the United States of America as a federally chartered savings association of stock form, in both instances with full corporate power and authority to own, lease and operate its properties and to conduct its business requires such qualification as described in the Registration Statement and the Prospectus; and the Bank is duly qualified as a foreign corporation in each jurisdiction in which the failure to so qualify and be would have a material adverse effect upon the financial condition, results of operations, business affairs or prospects of the Bank.
(viii) The Bank is a member in good standing would materially adversely affect its business or financial conditionof the Federal Home Loan Bank of New York and the deposit accounts of the Bank are insured by the FDIC up to the applicable limits.
(viiix) Upon consummation of the Conversion, all of the issued and outstanding capital stock of the Bank when issued and delivered pursuant to the Plan against payment of consideration calculated as set forth in the Plan and set forth in the Prospectus, will be duly authorized and validly issued and fully paid and nonassessable, and all such capital stock will be owned beneficially and of record by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(x) The OTS has duly approved the Holding Company Application and the Conversion Application and no action is pending, or to the best of such counsel's knowledge after due inquiry, threatened respecting the Holding Company Application or the Conversion Application or the acquisition by the Company of all of the Bank's issued and outstanding capital stock; the Holding Company Application and the Conversion Application comply as to form with the applicable requirements of the OTS, includes all documents required to be filed as exhibits thereto, and is, to the best of such counsel's knowledge after due inquiry, truthful, accurate and complete; and the Company is duly authorized to become a savings and loan holding company and is duly authorized to own all of the issued and outstanding capital stock of the Bank to be issued pursuant to the Plan.
(xi) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, (A) have been duly and validly authorized by all necessary action on the part of each of the Company and the Bank, and this Agreement constitutes the legal, valid and binding agreement of each of the Company and the Bank, enforceable in accordance with its terms, except as rights to indemnity and contribution hereunder may be limited under applicable law (it being understood that such counsel may avail itself of customary exceptions concerning the effect of bankruptcy, insolvency or similar laws and the availability of equitable remedies); (B) will not result in any violation of the provisions of the charter or by-laws of the Company or the Bank; and, (C) will not conflict with or constitute a breach of, or default under, and no event has occurred which, with notice or lapse of time or both, would constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance, that, individually or in the aggregate, would have a material adverse effect on the financial condition, results of operations, business affairs or prospects of the Company and the Bank considered as one enterprise, upon any property or assets of the Company or the Bank pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or the Bank is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the Bank is subject.
(xii) The Prospectus has been duly authorized by the OTS for final use pursuant to the Conversion Regulations and no action is pending, or to the best of such counsel's knowledge after due inquiry, is threatened, by the OTS to revoke such authorization.
(xiii) The Registration Statement has been declared is effective under the 1933 Securities Act and, to his knowledge, and no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Securities Act or or, to the best of such counsel's knowledge after due inquiry, proceedings therefor initiated or threatened by the Commission.
(viiixiv) No further approval, authorization, consent or other order of any public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Securities and the consummation of the Conversion, except as may be required under the securities or Blue Sky laws of various jurisdictions as to which no opinion need be rendered.
(xv) At the time the Registration Statement became effective, the Registration Statement (other than the financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference and the Statements of Eligibility on Form T-1 filed as exhibits therein, as to which no opinion need be rendered) appeared on its face to comply complied as to form in all material respects with the requirements of the 1933 Securities Act and the 1933 Securities Act Regulations and the 1939 Act and the 1939 Act Conversion Regulations.
(ixxvi) The Common Stock conforms to the description thereof contained in the Prospectus, and the form of certificate used to evidence the Common Stock is in due and proper form and complies with all applicable statutory requirements.
(xvii) There are no legal or governmental proceedings pending or threatened against or affecting the Company or the Bank which are required, individually or in the aggregate, to be disclosed in the Registration Statement and Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or the Bank is a party or to which any of their property is subject which are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xviii) The information in the Prospectus under [ "Risk Factors - Establishment of the captions Charitable Foundation - Tax Consequences," "Description -Certain Anti-Takeover Provisions," and "-Possible Adverse Income Tax Consequences of Notesthe Distribution of Subscription Rights,""Dividend Policy," "Business of the Bank - Legal Proceedings", "Taxation," "Regulation," "The Conversion - Establishment of the Charitable Foundation, "-Effects of Conversion," "-Liquidation Rights" and "- Tax Aspects," "Restrictions on Acquisitions of the Holding Company and the Bank" and "Description of Debt Securities" Capital Stock,"] to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by him them and is correct complete and accurate in all material respects.
(x) No authorization, approval, consent or order of any court or governmental authority or agency is required in connection with the sale of the Securities to the Underwriters, except such as may be required under the 1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act Regulations or state securities laws.
(xi) Each document filed pursuant to the 1934 Act (other than the financial statements and supporting schedules and other financial, statistical and accounting data included therein, as to which no opinion need be rendered) and incorporated by reference in the Prospectus when filed, appeared on its face to comply as to form in all material respects with the 1934 Act and the 1934 Act Regulations thereunder in effect at the date of their filing.
(xii) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its Subsidiaries is a party or to which any of their property is subject which are not described in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material.
(xiii) To such counsel's knowledge, no default exists in the due performance or observance by the Company of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument described or referred to in the Registration Statement or filed as an exhibit thereto or incorporated by reference therein, which default would have a material adverse effect on the financial condition, earnings, business affairs, business prospects, properties or results of operations of the Company and its subsidiaries considered as one enterprise.
(xiv) The execution and delivery of this Agreement, the Indenture, the Securities and the consummation of the transactions contemplated herein and therein will not (A) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) result in any violation of the provisions of the charter or bylaws of the Company, or (C) to such counsel's knowledge, result in any violation of any applicable law, administrative regulation or administrative or court decree.
(xv) The shares of issued and outstanding Common Stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable.
(xvi) To such counsel's knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or in each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus, or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof are correct in all material respects. Additionally such counsel shall state that he does not believe that the Registration Statement and each document filed pursuant to the 1934 Act and incorporated by reference therein (each, an "Incorporated Document") considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as a whole, as of the date of the Prospectus Supplement and at the Closing 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 the light of the circumstances under which they were made, not misleading. Such counsel may state that they express no view as to the Statements of Eligibility on Form T-1, financial statements and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in such Registration Statement or Prospectus.
(2) The opinion, dated as of Closing Time, of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of California.
(ii) This Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company.
(iii) The Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by the Company and the Indenture has been qualified by the 1939 Act. Assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture constitutes a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.
(iv) The Securities (in the form of specimen certified by the Company's Secretary and examined by such counsel) are in a form permitted by the Indenture, have been duly authorized by all necessary corporate action on the part of the Company for issuance, offer and sale to the Underwriters as contemplated by this Agreement, when executed and authenticated as specified in the Indenture and delivered against payment of the purchase price therefor pursuant to this Agreement and as provided for in the Prospectus, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including, without limitation, fraudulent conveyance laws) and by the application of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law; and the Securities will be entitled to the benefits of the Indenture.
(v) The Registration Statement has been declared effective under the 1933 Act and, to their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(vi) At the Closing Time, the Registration Statement (other than the financial statements and supporting schedules and other financial and statistical data included therein, as to which no opinion need be rendered) appeared on its face to comply as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations.
(vii) The Company is not an "investment company" as such term is defined in the 1940 Act. Additionally, such counsel shall state that subject to the foregoing and relying as to their determination of materiality to an extent upon opinions of officers and other representatives of the Company, no facts have come to their attention that has caused them to believe that the Registration Statement and the Incorporated Documents, considered as a whole as of the time the Registration Statement became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, or that the Prospectus and the Incorporated Documents, considered as whole, as of the date of the Prospectus Supplement and at the Closing Time, contained an 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. Such counsel may state that they make no statement as to Statements of Eligibility on Form T-1, the financial statements and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein.
Appears in 1 contract