Conditions to Agent’s Obligations. The Agent's obligations hereunder, as to the Shares to be delivered at the Closing Date and the occurrence of the Closing and the Reorganization, are subject to the condition that all representations and warranties and other statements of the Parties herein are, at and as of the commencement of the Subscription and PublicCommunity Offerings and at and as of the Closing Date, true and correct in all material respects, the condition that the Parties shall have performed in all material respects all of their obligations hereunder to be performed on or before such dates, and to the following further conditions: (a) The Registration Statement shall have been declared effective by the Commission and the MHC Notice and Application approved by the OTS prior to the commencement of the Offering, the Holding Company Application shall have been approved, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, to any of the Parties' best knowledge, threatened by the OTS, the Commission, or any other governmental body. (b) At the Closing Date, the MHC, the Holding Company and the Association will have completed the conditions precedent to, and shall have conducted the Reorganization in all material respects in accordance with, the Plan, the Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the OTS. (c) At the Closing Date, Agent shall have received: (1) The favorable opinion, dated as of the Closing Date addressed to Agent and for its benefit, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP ("S&P") counsel for the Parties, in form and substance acceptable to Agent . S&P shall also provide a letter dated as of the Closing Date addressed to Agent which states that, with respect to the opinion of such counsel nothing has come to the attention of S&P that would lead S&P to believe that Agent and its counsel are not justified in relying upon such opinion. The opinions of S&P shall in form and substance be to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Parties. (ii) The Mutual Holding Company has been incorporated and is validly existing as a mutual holding company in good standing under the laws of the United States. (iii) The Mutual Holding Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the OTS Applications and the Prospectus. (iv) The Association was organized and is a validly existing federally-chartered savings and loan association in mutual form of organization and upon the Reorganization will become an organized and validly existing federally-chartered savings bank in capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the OTS Applications and the Association has corporate existence under the laws of the United States. The activities of the Association as described in the Prospectus, insofar as they are material to the operations and financial condition of the Association, are permitted by the rules and regulations of the OTS; the issuance and sale of the capital stock of the Association to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (v) The Association is a member of the FHLB of New York, the deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the description of the liquidation account as set forth in the Application and the Prospectus under the caption "The Reorganization - Effects of Reorganization on Depositors and Borrowers - Liquidation Rights" to the extent that it constitutes matters of law, summaries of legal matters, documents, proceedings or legal conclusions has been reviewed by such counsel and is accurate in all material respects. (vi) On the Closing Date, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in as set forth in the Application and the Prospectus under the caption "Capitalization," and to such counsel's knowledge no shares of Common Stock have been issued prior to the Closing Date (except for shares issued to the MHC upon incorporation of the Holding Company); the shares of Common Stock of the Holding Company issued to the MHC have been duly and validly authorized for issuance and will be fully paid and nonassessable; at the time of the Reorganization, the Shares subscribed for pursuant to the Subscription and PublicCommunity Offerings and the Shares issued to the Mutual Holding Company will have been duly and validly authorized for issuance, and when issued and delivered by the Association 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, provided, however, that Shares issued to the Mutual Holding Company may be subject to restrictions on resale and possible subscription rights of the Association's depositors in accordance with the Reorganization Regulations, and provided further that no opinion need be rendered as to security interests or pledges granted by the purchasers of such Shares; and the issuance of the Shares is not subject to preemptive rights. (vii) The execution and delivery of this Agreement, and the performance by the Parties of their obligations hereunder, have been validly authorized by all necessary corporate action on the part of the Parties; and this Agreement is a valid and binding obligation of the Parties, enforceable in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions or savings and loan holding companies, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as the obligations of the Parties under the indemnification provisions of Sections 9 and 10 hereof may be limited by law or unenforceable as against public policy, as to which, no opinion need be expressed). (viii) The Plan has been duly adopted by the required vote of the Directors and members of the Association in the manner required by the Reorganization Regulations and the Association's respective charter and bylaws, provided, however, that as to the tally of votes, such counsel may rely upon the certificate of the inspectors of election. (ix) Subject to the satisfaction of the conditions to the OTS's approval of the Reorganization and the Holding Company Application, no further approval, registration, authorization, consent or other order of any regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Reorganization, except as may be required under Blue Sky laws, (as to which no opinion need be rendered) or the regulations of the NASD and the NASDAQ Stock Market (as to which no opinion need be rendered). The Reorganization has been consummated in all material respects in accordance with all applicable provisions of the HOLA and the Reorganization Regulations. (x) The OTS Applications including the Prospectus as filed with the OTS were complete as to form in all material respects and have been approved by the OTS. The OTS has approved the Application and the Holding Company Application under the HOLA, and the issuance of all of the issued and outstanding capital stock of the Association and the purchase thereof by the Holding Company as described in the Prospectus has been authorized by the OTS and to such counsel's knowledge, no action has been taken, or to counsel's knowledge is pending or threatened, to revoke any such authorization or approval. (xi) At the time the OTS Applications, including the Prospectus contained therein, was approved, the OTS Applications including the Prospectus contained therein (as amended or supplemented, if so amended or supplemented) complied as to form in all material respects with the requirements of all applicable federal laws and the rules and regulations of the OTS (except as to the financial statements, other financial and statistical data and stock valuation and pro forma information included therein as to which such counsel need express no opinion); to such counsel's knowledge, all material documents and exhibits required to be filed with the OTS Applications (as amended or supplemented, if so amended or supplemented) have been so filed. The description in the OTS Applications and the Prospectus contained therein of such documents and exhibits is accurate in all material respects. (xii) To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Application or the Holding Company Application. (xiii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to the best of such counsel's knowledge, no proceedings for that purpose have been instituted or threatened. (xiv) The terms and provisions of the Common Stock of the Holding Company conform to the description thereof contained in the Registration Statement, the OTS Applications and the Prospectus, and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions "Restrictions on Acquisition of the Company and the Bank - Absence of Cumulative Voting" and " - Authorization of Preferred Stock" and " - Restrictions on Acquisition of Securities" and "Description of Capital Stock of the Company," to the extent that they constitute matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form of certificate used to evidence the Shares is in due and proper form. (xv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened asserting the invalidity of this Agreement, seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or which are required to be disclosed in the OTS Applications and the Prospectus, other than those disclosed therein; provided, that for this purpose, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management of the Association, or to such counsel, a present intention to initiate such litigation or proceeding. (xvi) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder. (xvii) The information in the OTS Applications and Prospectus under the captions "Regulation," "The Reorganization-Tax Effects," "Taxation," and "Description of Capital Stock of the Company" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects (except as to the financial statements and other financial and statistical data and stock valuation and pro forma data included therein as to which such counsel need express no opinion).
Appears in 1 contract
Conditions to Agent’s Obligations. The obligation --------------------------------- of an Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's obligations hereunderdiscretion, as to the Shares to be delivered at the Closing Date and the occurrence conditions that: (i) all of the Closing and the Reorganization, are subject to the condition that all representations and warranties and other statements of the Parties Company herein are(and, at and in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as of the commencement of the Subscription and PublicCommunity Offerings and at and as of the Closing Dateprincipal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in all material respectsthe Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as principal, (E) at each Settlement Date, and (F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Parties Company shall have performed in all material respects all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates, and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the Public Utility Commission of Oregon and the MHC Notice Washington Utilities and Application approved by the OTS prior Transportation Commission which are acceptable to the commencement Agents and which permit the issuance and sale of the OfferingSecurities substantially in accordance with the terms and conditions of this Agreement, the Holding Company Application shall have been approved, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under and no proceedings for that purpose shall be pending before, or to the 1933 Act or proceedings therefor initiated or, to any knowledge of the Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, to any of the Parties' best knowledge, threatened by the OTSCompany contemplated by, the Commission, and (vi) there shall not have occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the Nasdaq National Market or any other governmental body.
relevant exchange; (bB) At a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) an engagement by the Closing DateUnited States in hostilities or any escalation of hostilities, the MHCeffect of which, in the Holding judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the Association will have completed the conditions precedent tomanner contemplated by this Agreement and, and if applicable, any Terms Agreement or other agreement; or (D) any downgrading, or any notice shall have conducted the Reorganization in all material respects in accordance withbeen given of any intended or potential downgrading, the Plan, the Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the OTS.
(c) At the Closing Date, Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date addressed to Agent and for its benefit, of Securities by either ▇▇▇▇▇▇'▇ Investors Service or Standard & ▇▇▇▇▇▇▇▇▇Poor's Corporation. In addition to the foregoing, LLP ("S&P") counsel for the Partiesobligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in form and substance acceptable to Agent . S&P shall also provide a letter dated as of the Closing Date addressed to Agent which states that, with respect to the opinion of such counsel nothing has come to the attention of S&P that would lead S&P to believe that Agent and its counsel are not justified in relying upon such opinion. The opinions of S&P shall in form and substance be to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Parties.
(ii) The Mutual Holding Company has been incorporated and is validly existing as a mutual holding company in good standing under the laws of the United States.
(iii) The Mutual Holding Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the OTS Applications and the Prospectus.
(iv) The Association was organized and is a validly existing federally-chartered savings and loan association in mutual form of organization and upon the Reorganization will become an organized and validly existing federally-chartered savings bank in capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the OTS Applications and the Association has corporate existence under the laws of the United States. The activities of the Association as described in the Prospectus, insofar as they are material to the operations and financial condition of the Association, are permitted by the rules and regulations of the OTS; the issuance and sale of the capital stock of the Association to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(v) The Association is a member of the FHLB of New York, the deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law, and to such counselAgent's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the description of the liquidation account as set forth in the Application and the Prospectus under the caption "The Reorganization - Effects of Reorganization on Depositors and Borrowers - Liquidation Rights" to the extent that it constitutes matters of law, summaries of legal matters, documents, proceedings or legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(vi) On the Closing Date, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in as set forth in the Application and the Prospectus under the caption "Capitalization," and to such counsel's knowledge no shares of Common Stock have been issued prior to the Closing Date (except for shares issued to the MHC upon incorporation of the Holding Company); the shares of Common Stock of the Holding Company issued to the MHC have been duly and validly authorized for issuance and will be fully paid and nonassessable; at the time of the Reorganization, the Shares subscribed for pursuant to the Subscription and PublicCommunity Offerings and the Shares issued to the Mutual Holding Company will have been duly and validly authorized for issuance, and when issued and delivered by the Association 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, provided, however, that Shares issued to the Mutual Holding Company may be subject to restrictions on resale and possible subscription rights of the Association's depositors in accordance with the Reorganization Regulations, and provided further that no opinion need be rendered as to security interests or pledges granted by the purchasers of such Shares; and the issuance of the Shares is not subject to preemptive rights.
(vii) The execution and delivery of this Agreement, and the performance by the Parties of their obligations hereunder, have been validly authorized by all necessary corporate action on the part of the Parties; and this Agreement is a valid and binding obligation of the Parties, enforceable in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions or savings and loan holding companies, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as the obligations of the Parties under the indemnification provisions of Sections 9 and 10 hereof may be limited by law or unenforceable as against public policy, as to which, no opinion need be expressed).
(viii) The Plan has been duly adopted by the required vote of the Directors and members of the Association in the manner required by the Reorganization Regulations and the Association's respective charter and bylaws, provided, however, that as to the tally of votes, such counsel may rely upon the certificate of the inspectors of election.
(ix) Subject to the satisfaction of the conditions to the OTS's approval of the Reorganization and the Holding Company Application, no further approval, registration, authorization, consent or other order of any regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Reorganization, except as may be required under Blue Sky laws, (as to which no opinion need be rendered) or the regulations of the NASD and the NASDAQ Stock Market (as to which no opinion need be rendered). The Reorganization has been consummated in all material respects in accordance with all applicable provisions of the HOLA and the Reorganization Regulations.
(x) The OTS Applications including the Prospectus as filed with the OTS were complete as to form in all material respects and have been approved by the OTS. The OTS has approved the Application and the Holding Company Application under the HOLA, and the issuance of all of the issued and outstanding capital stock of the Association and the purchase thereof by the Holding Company as described in the Prospectus has been authorized by the OTS and to such counsel's knowledge, no action has been taken, or to counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(xi) At the time the OTS Applications, including the Prospectus contained therein, was approved, the OTS Applications including the Prospectus contained therein (as amended or supplemented, if so amended or supplemented) complied as to form in all material respects with the requirements of all applicable federal laws and the rules and regulations of the OTS (except as to the financial statements, other financial and statistical data and stock valuation and pro forma information included therein as to which such counsel need express no opinion); to such counsel's knowledge, all material documents and exhibits required to be filed with the OTS Applications (as amended or supplemented, if so amended or supplemented) have been so filed. The description in the OTS Applications and the Prospectus contained therein of such documents and exhibits is accurate in all material respects.
(xii) To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Application or the Holding Company Application.
(xiii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, anddiscretion, to the best further condition that there shall not have been, since the date of such counsel's knowledge, no proceedings for that purpose have been instituted Terms Agreement or threatened.
(xiv) The terms and provisions other agreement or since the respective dates as of the Common Stock of the Holding Company conform to the description thereof contained which information is given in the Registration Statement, the OTS Applications and the Prospectus, and such description describes in all any material respects the rights of the holders thereof; the information adverse change in the Prospectus under condition, financial or otherwise, or in the captions "Restrictions on Acquisition earnings, business affairs or business prospects of the Company and the Bank - Absence of Cumulative Voting" and " - Authorization of Preferred Stock" and " - Restrictions on Acquisition of Securities" and "Description of Capital Stock of the Company," to the extent that they constitute matters of law its subsidiaries considered as one enterprise, whether or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form of certificate used to evidence the Shares is in due and proper form.
(xv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened asserting the invalidity of this Agreement, seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or which are required to be disclosed not arising in the OTS Applications and the Prospectus, other than those disclosed therein; provided, that for this purpose, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management ordinary course of the Association, or to such counsel, a present intention to initiate such litigation or proceedingbusiness.
(xvi) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xvii) The information in the OTS Applications and Prospectus under the captions "Regulation," "The Reorganization-Tax Effects," "Taxation," and "Description of Capital Stock of the Company" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects (except as to the financial statements and other financial and statistical data and stock valuation and pro forma data included therein as to which such counsel need express no opinion).
Appears in 1 contract
Conditions to Agent’s Obligations. The obligation of an Agent, as agent of the Company, at any time (each a "Solicitation Time"), to solicit offers to purchase the Securities and the obligation of an Agent to purchase Securities as principal, pursuant to a Terms Agreement or otherwise, shall be subject, in such Agent's obligations hereunderdiscretion, as to the Shares to be delivered at the Closing Date and the occurrence conditions that: (i) all of the Closing and the Reorganization, are subject to the condition that all representations and warranties and other statements of the Parties Company herein are(and, at and in the case of an obligation of an Agent under a Terms Agreement or other agreement with an Agent to purchase Securities as of the commencement of the Subscription and PublicCommunity Offerings and at and as of the Closing Dateprincipal, in or incorporated in such agreement by reference) were true and correct (A) on the Commencement Date; (B) each time that the Registration Statement or the Prospectus shall be amended or supplemented, (C) each time a document incorporated by reference in all material respectsthe Prospectus as amended or supplemented shall be filed by the Company under the Act or Exchange Act, (D) at the date of each acceptance by the Company of an offer to purchase Securities procured by such Agent, as agent, and each agreement by the Company, pursuant to a Terms Agreement or otherwise, to sell Securities to an Agent, as principal, (E) at each Settlement Date, and (F) at each Time of Delivery of Securities so to be purchased by such Agent, as principal, as the case may be, (ii) prior to such Solicitation Time or such Time of Delivery, as the case may be, the condition that the Parties Company shall have performed in all material respects all of their its obligations hereunder theretofore to be performed performed, (iii) all requests for additional information on or before such dates, and to the following further conditions:
(a) The Registration Statement part of the Commission shall have been declared effective by complied with to the Commission reasonable satisfaction of such Agent, (iv) there shall be in full force and effect orders of the OPUC and the MHC Notice WUTC which permit the issuance and Application approved by the OTS prior to the commencement sale of the OfferingSecurities in accordance with the terms and conditions of this Agreement, the Holding Company Application shall have been approved, and (v) no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to any of the Parties' best knowledge, threatened by the Commission or any state authority and no order or other action suspending the authorization for use of the Prospectus or the consummation of the Reorganization shall have been issued or proceedings therefore initiated or, to any of the Parties' best knowledge, threatened by the OTS, the Commission, or any other governmental body.
(b) At the Closing Date, the MHC, the Holding Company and the Association will have completed the conditions precedent to, and shall have conducted the Reorganization in all material respects in accordance with, the Plan, the Reorganization Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Reorganization imposed upon them by the OTS.
(c) At the Closing Date, Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date addressed to Agent and for its benefit, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP ("S&P") counsel for the Parties, in form and substance acceptable to Agent . S&P shall also provide a letter dated as of the Closing Date addressed to Agent which states that, with respect to the opinion of such counsel nothing has come to the attention of S&P that would lead S&P to believe that Agent and its counsel are not justified in relying upon such opinion. The opinions of S&P shall in form and substance be to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the federal laws of the United States of America, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business requires such qualification and in which the failure to qualify would have a material adverse effect on the financial condition, earnings, capital, properties or business affairs of the Parties.
(ii) The Mutual Holding Company has been incorporated and is validly existing as a mutual holding company in good standing under the laws of the United States.
(iii) The Mutual Holding Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the OTS Applications and the Prospectus.
(iv) The Association was organized and is a validly existing federally-chartered savings and loan association in mutual form of organization and upon the Reorganization will become an organized and validly existing federally-chartered savings bank in capital stock form of organization, in both instances duly authorized to conduct its business and own its property as described in the OTS Applications and the Association has corporate existence under the laws of the United States. The activities of the Association as described in the Prospectus, insofar as they are material to the operations and financial condition of the Association, are permitted by the rules and regulations of the OTS; the issuance and sale of the capital stock of the Association to the Holding Company in the Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Association and, upon payment therefore in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(v) The Association is a member of the FHLB of New York, the deposit accounts of the Association are insured by the FDIC up to the maximum amount allowed under law, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; and the description of the liquidation account as set forth in the Application and the Prospectus under the caption "The Reorganization - Effects of Reorganization on Depositors and Borrowers - Liquidation Rights" to the extent that it constitutes matters of law, summaries of legal matters, documents, proceedings or legal conclusions has been reviewed by such counsel and is accurate in all material respects.
(vi) On the Closing Date, the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in as set forth in the Application and the Prospectus under the caption "Capitalization," and to such counsel's knowledge no shares of Common Stock have been issued prior to the Closing Date (except for shares issued to the MHC upon incorporation of the Holding Company); the shares of Common Stock of the Holding Company issued to the MHC have been duly and validly authorized for issuance and will be fully paid and nonassessable; at the time of the Reorganization, the Shares subscribed for pursuant to the Subscription and PublicCommunity Offerings and the Shares issued to the Mutual Holding Company will have been duly and validly authorized for issuance, and when issued and delivered by the Association 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, provided, however, that Shares issued to the Mutual Holding Company may be subject to restrictions on resale and possible subscription rights of the Association's depositors in accordance with the Reorganization Regulations, and provided further that no opinion need be rendered as to security interests or pledges granted by the purchasers of such Shares; and the issuance of the Shares is not subject to preemptive rights.
(vii) The execution and delivery of this Agreement, and the performance by the Parties of their obligations hereunder, have been validly authorized by all necessary corporate action on the part of the Parties; and this Agreement is a valid and binding obligation of the Parties, enforceable in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws relating to or affecting the enforcement of creditors' rights generally or the rights of creditors of savings institutions or savings and loan holding companies, or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as the obligations of the Parties under the indemnification provisions of Sections 9 and 10 hereof may be limited by law or unenforceable as against public policy, as to which, no opinion need be expressed).
(viii) The Plan has been duly adopted by the required vote of the Directors and members of the Association in the manner required by the Reorganization Regulations and the Association's respective charter and bylaws, provided, however, that as to the tally of votes, such counsel may rely upon the certificate of the inspectors of election.
(ix) Subject to the satisfaction of the conditions to the OTS's approval of the Reorganization and the Holding Company Application, no further approval, registration, authorization, consent or other order of any regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the issuance of the Shares and the consummation of the Reorganization, except as may be required under Blue Sky laws, (as to which no opinion need be rendered) or the regulations of the NASD and the NASDAQ Stock Market (as to which no opinion need be rendered). The Reorganization has been consummated in all material respects in accordance with all applicable provisions of the HOLA and the Reorganization Regulations.
(x) The OTS Applications including the Prospectus as filed with the OTS were complete as to form in all material respects and have been approved by the OTS. The OTS has approved the Application and the Holding Company Application under the HOLA, and the issuance of all of the issued and outstanding capital stock of the Association and the purchase thereof by the Holding Company as described in the Prospectus has been authorized by the OTS and to such counsel's knowledge, no action has been taken, or to counsel's knowledge is pending or threatened, to revoke any such authorization or approval.
(xi) At the time the OTS Applications, including the Prospectus contained therein, was approved, the OTS Applications including the Prospectus contained therein (as amended or supplemented, if so amended or supplemented) complied as to form in all material respects with the requirements of all applicable federal laws and the rules and regulations of the OTS (except as to the financial statements, other financial and statistical data and stock valuation and pro forma information included therein as to which such counsel need express no opinion); to such counsel's knowledge, all material documents and exhibits required to be filed with the OTS Applications (as amended or supplemented, if so amended or supplemented) have been so filed. The description in the OTS Applications and the Prospectus contained therein of such documents and exhibits is accurate in all material respects.
(xii) To such counsel's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS approving the Application or the Holding Company Application.
(xiii) The Registration Statement has become effective under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued, and, to the best of such counsel's knowledge, no proceedings for that purpose shall be pending before, or to the knowledge of the Company contemplated by, the Commission, and (vi) there shall not have occurred: (A) a suspension or material limitation of trading in securities generally on the New York Stock Exchange or in any securities of the Company on the New York Stock Exchange or any relevant exchange or a material disruption in securities settlement or clearance services in the United States; (B) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (C) any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof or other calamity or crisis or material adverse change in national financial or economic conditions, in each case, the effect of which, in the reasonable judgment of such Agent, makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Securities or the purchase of Securities from the Company as principal on the terms and in the manner contemplated by this Agreement and, if applicable, any Terms Agreement or other agreement; or (D) unless known to such Agent prior to such Solicitation Time, any downgrading, or any notice shall have been instituted given of any intended or threatened.
(xiv) The terms and provisions potential downgrading, of the Common Stock Securities by either Moody's Investors Service or Standard & Poor's Rating Group. In additio▇ ▇▇ ▇▇e foregoing, the obligation of the Holding Company conform an Agent to purchase Securities as principal, pursuant to a Terms Agreement or other agreement, shall be subject, in such Agent's discretion, to the description thereof contained further condition that there shall not have been, since the date of such Terms Agreement or other agreement or since the respective dates as of which information is given in the Registration Statement, the OTS Applications and the Prospectus, and such description describes in all any material respects the rights of the holders thereof; the information adverse change in the Prospectus under condition, financial or otherwise, or in the captions "Restrictions on Acquisition earnings, business affairs or business prospects of the Company and the Bank - Absence of Cumulative Voting" and " - Authorization of Preferred Stock" and " - Restrictions on Acquisition of Securities" and "Description of Capital Stock of the Company," to the extent that they constitute matters of law its subsidiaries considered as one enterprise, whether or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form of certificate used to evidence the Shares is in due and proper form.
(xv) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened asserting the invalidity of this Agreement, seeking to prevent the Reorganization or the offer, sale or issuance of the Shares, or which are required to be disclosed not arising in the OTS Applications and the Prospectus, other than those disclosed therein; provided, that for this purpose, any litigation or governmental proceeding is not considered to be "threatened" unless the potential litigant or governmental authority has manifested to the management ordinary course of the Association, or to such counsel, a present intention to initiate such litigation or proceedingbusiness.
(xvi) At the time that the Registration Statement became effective the Registration Statement, including the Prospectus contained therein (as amended or supplemented) (other than the financial statements, notes to financial statements, financial tables or other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the rules and regulations promulgated thereunder.
(xvii) The information in the OTS Applications and Prospectus under the captions "Regulation," "The Reorganization-Tax Effects," "Taxation," and "Description of Capital Stock of the Company" to the extent that it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects (except as to the financial statements and other financial and statistical data and stock valuation and pro forma data included therein as to which such counsel need express no opinion).
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