Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed 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, the Conversion Application and Holding Company Application shall have been approved by the OTS, the Charter Applications have been approved by the FDIC and New Jersey Department of Banking and Insurance, as applicable, 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 the knowledge of the Primary Parties, 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 Conversion shall have been issued, or proceedings therefor initiated or, to the knowledge of the Primary Parties, threatened by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body. (b) At the Closing Date, the Agent shall have received: (1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that: (i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, 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 Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and Insurance; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction. (iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect. (v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects. (vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened. (vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan. (viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies). (ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank. (x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced. (xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered. (xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval. (xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission. (xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such matters. (xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form. (xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in approving the Applications filed with such agencies, respectively. (xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (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 and the business plan 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 1933 Act Regulations. (xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares. (xix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects. (xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940. (xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance. (2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration State
Appears in 2 contracts
Sources: Agency Agreement (Oritani Financial Corp), Agency Agreement (Oritani Financial Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties Holding Company and the Bank herein contained are, are at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all respects, the condition that the Primary Parties Holding Company and the Bank shall have performed 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, Commission and the Conversion Application and Holding Company Application shall have been Applications approved by the OTS, Regulatory Agencies not later than 5:30 p.m. on the Charter Applications have been approved by the FDIC and New Jersey Department date of Banking and Insurance, as applicablethis Agreement, 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 therefore initiated or, to the knowledge of Holding Company's or the Primary PartiesBank's 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 Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of Holding Company's or the Primary PartiesBank's best knowledge, threatened by the OTSRegulatory Agencies, the FDICCommission, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Krei▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇x▇▇▇▇▇ & ▇ape▇▇▇▇ ▇▇▇, P.C. and/or local counsel acceptable to for the AgentHolding Company and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareIndiana, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Holding Company.
(ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, Indiana banking corporation with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and InsuranceRegulatory Agencies; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor therefore as described in accordance with the terms of the PlanProspectus, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws deposit accounts of the United States, with corporate power and authority to own its properties and to conduct its business as described in Bank are insured by the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect FDIC up to the Bank, maximum amount allowed by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, law and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit such insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(viiiv) Upon consummation the completion of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be within the range as set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock Shares have been or will be issued and outstanding prior to the Closing Date (except for Date; the shares issued upon incorporation Shares of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plantherefor, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Planrights.
(viiiv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary PartiesHolding Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary PartiesHolding Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 8 and 12 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings financial institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ixvi) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject Subject to the satisfaction of any the conditions set forth in such approvalsto the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, Shares and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be renderedOffering.
(xiivii) The Applications, including the Prospectus as filed with the Regulatory Agencies, been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, FRB and no action has been taken taken, or is pending or, to such counsel’s knowledge's knowledge is pending or threatened, threatened to revoke any such authorization or approval.
(xiiiviii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commissionor threatened.
(xivix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences of to the Conversion are set forth Holding Company, the Bank or any person subscribing for shares in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such mattersOffering.
(xvx) The terms and provisions of the shares of Common Stock Shares conform to the description thereof contained in the Registration Statement and the ProspectusProspectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is Shares are in due and proper form.
(xvixi) At the time the Applications Applications, including the Prospectus contained therein, were approved and as of the Closing Dateapproved, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the OTSRegulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in Regulatory Agencies approving the Applications filed with such agencies, respectivelyApplications.
(xviixii) At the time that the Registration Statement became effective and as of the Closing Date, (i) the Registration Statement, including the Prospectus Statement (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 and the business plan 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act Regulationsand the rules and regulations promulgated thereunder, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xviiixiii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or or, (ii) seeking to prevent the Conversion or the offer, sale or issuance of the SharesOffering.
(xixxiv) The information in the Prospectus under the captions “caption "Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law)", “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” to the extent that such information it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been reviewed prepared by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xxxv) None The Holding Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Primary Parties Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are required to be registered as an investment company under in full force and effect and the Investment Holding Company Act of 1940and the Bank are in all material respects complying therewith.
(xxixvi) None of Neither the Primary Parties Holding Company nor the Bank is in violation of its certificate articles of incorporation or its charter, as bylaws or to the case may be, or its bylaws or, to best of such counsel’s 's knowledge, in violation of any 21 obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Holding Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not conflict with, constitute a breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Holding Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit toto which the Holding Company or the Bank is a party or by which any of them may be bound, or incorporated by reference in, to which any of the Registration Statement, which violation would have a Material Adverse Effectproperty or assets of the Holding Company or the Bank is subject. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein such action will not result in (i) any material violation of the provisions of the certificate articles of incorporation or charter, as bylaws of the case may be, Holding Company or the bylaws of Bank or any of the Primary Parties, (ii) any material violation of any applicable law, act, regulation, regulation or to such counsel’s 's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Holding Company and (iii) the Bank are not in violation in any violation material respect of any obligationdirective from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, agreement▇▇P, covenant or condition special counsel for the Holding Company and the Bank, in form and substance to the effect that: In addition, during the preparation of the Registration Statement and the Prospectus, Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, ▇▇P, participated in conferences with certain officers of and other representatives of the Bank and the Holding Company, counsel to the Agent, representatives of the independent public accountants for the Bank and the Holding Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, ▇▇P, is not passing upon and does not assume the accuracy of the statements contained in any contractthe Registration Statement and Prospectus, indentureon the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Holding Company), mortgagenothing has come to the attention of Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, loan agreement▇▇P, notethat caused Krie▇ ▇▇▇a▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇ape▇▇▇▇, lease or other instrument filed as an exhibit to▇▇P, or incorporated by reference in, to believe that the Registration Statement, at the time it was declared effective by the SEC or the Prospectus or as of its date, contained or contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which violation would have a Material Adverse Effectthey were made, not misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, schedules and other financial and statistical data included, or statistical or appraisal methodology employed, in the Registration Statement or Prospectus). The opinion may shall be limited to matters governed by the laws of the United States and or the States State of New York, New Jersey and DelawareIndiana. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesStates or Indiana, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agent and the Agent's counsel, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties Holding Company and the Bank and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent you together with the opinion to be rendered hereunder by special counsel to the Primary PartiesHolding Company and the Bank. The opinion of such counsel for the Primary Parties Holding Company shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. .
(3) The opinion favorable opinion, dated as of such the Closing Date, of counsel for the Primary Parties also shall state that Agent, with respect to such matters as the Agent’s Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and directors of the Holding Company and the Bank delivered pursuant hereto or as such counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliancereasonably request.
(2c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated the date hereof and addressed to the Agent, (i) such letter confirming that Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder, and no information concerning its relationship with or interests in the Holding Company or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in Crow▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇z▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified Company LLP's opinion the accuracy, completeness or fairness financial statements of the statements contained Holding Company included in the Registration StateProspectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the Commission thereunder and generally accepted accounting principles; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim financial statements of the Holding Company and the Bank prepared by the Holding Company and the Bank, a reading of the minutes of the meetings of the Board of Directors of the
Appears in 2 contracts
Sources: Agency Agreement (Lafayette Community Bancorp), Agency Agreement (Lafayette Community Bancorp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties Holding Company and the Bank herein contained are, are at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Holding Company and the Bank 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, Commission and the Conversion Application and Holding Company Application shall have been Applications approved by the OTS, Regulatory Agencies not later than 5:30 p.m. on the Charter Applications have been approved by the FDIC and New Jersey Department date of Banking and Insurance, as applicablethis Agreement, 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 therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's 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 Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's best knowledge, threatened by the OTSRegulatory Agencies, the FDICCommission, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇Squire, Sand▇▇▇ & ▇▇▇emp▇▇▇, P.C. and/or local ▇.L.P., special counsel acceptable to for the AgentHolding Company and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareUnited States, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and to such counsel"s knowledge is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Holding Company.
(ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, national banking association with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and InsuranceRegulatory Agencies; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor therefore as described in accordance with the terms of the PlanProspectus, will be validly issued, fully paid and nonassessable nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under Federal Reserve and the provisions deposit accounts of the Federal Deposit Insurance Act, as amended, Bank are insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or revocation of the federal deposit such insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(viiiv) Upon consummation the completion of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be within the range as set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock Shares have been or will be issued and outstanding prior to the Closing Date (except for Date; the shares issued upon incorporation of Common Shares of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the shares of Common Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Planrights.
(viiiv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary PartiesHolding Company and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary PartiesHolding Company and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 8 and 12 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings financial institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ixvi) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject Subject to the satisfaction of any the conditions set forth in such approvalsto the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, Shares and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be renderedOffering.
(xiivii) The Applications, including the Prospectus as filed with the Regulatory Agencies, has been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, FRB and no action has been taken taken, or is pending or, to such counsel’s knowledge's knowledge is pending or threatened, threatened to revoke any such authorization or approval.
(xiiiviii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commissionor threatened.
(xivix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences of to the Conversion are set forth Holding Company, the Bank or any person subscribing for shares in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such mattersOffering.
(xvx) The terms and provisions of the shares of Common Stock Shares conform to the description thereof contained in the Registration Statement and the ProspectusProspectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is Shares are in due and proper form.
(xvixi) At the time the Applications were approved and as of Application, including the Closing DateProspectus contained therein, was approved, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement Application (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the OTSRegulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in Regulatory Agencies approving the Applications filed with such agencies, respectivelyApplications.
(xviixii) At the time that the Registration Statement became effective and as of the Closing Date, (i) the Registration Statement, including the Prospectus Statement (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 and the business plan 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act Regulationsand the rules and regulations promulgated thereunder, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xviiixiii) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or or, (ii) seeking to prevent the Conversion or the offer, sale or issuance of the SharesOffering.
(xixxiv) The information in the Prospectus under the captions “caption "Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law)", “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” to the extent that such information it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been reviewed prepared by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xxxv) None To the best of counsel's knowledge, the Holding Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Primary Parties Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are required to be registered as an investment company under in full force and effect and the Investment Holding Company Act of 1940and the Bank are in all material respects complying therewith.
(xxixvi) None of Neither the Primary Parties Holding Company nor the Bank is in violation of its certificate of incorporation or its charterarticles of association, as the case may berespectively, or its bylaws or, or to the best of such counsel’s 's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Holding Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Holding Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Holding Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Holding Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit toto which the Holding Company or the Bank is a party or by which any of them may be bound, or incorporated by reference in, to which any of the Registration Statement, which violation would have a Material Adverse Effectproperty or assets of the Holding Company or the Bank is subject. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein such action will not result in (i) any material violation of the provisions of the certificate of incorporation or charter, as bylaws of the case may be, Holding Company or the bylaws of Bank or any of the Primary Parties, (ii) any material violation of any applicable law, act, regulation, regulation or to such counsel’s 's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Holding Company and (iii) the Bank are not in violation in any violation material respect of any obligationdirective from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Squire, agreementSand▇▇▇ & ▇emp▇▇▇, covenant or condition ▇.L.P., special counsel for the Holding Company and the Bank, in form and substance to the effect that: In addition, during the preparation of the Registration Statement and the Prospectus, Squire, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P. participated in conferences with certain officers of and other representatives of the Bank and the Holding Company, counsel to the Agent, representatives of the independent public accountants for the Bank and the Holding Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Squire, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P. is not passing upon and does not assume the accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Holding Company), nothing has come to the attention of Squire, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P. that caused Squire, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P. to believe that the Registration Statement at the time it was declared effective by the SEC or the Prospectus as of its date, contained or contains any contractuntrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, indenturein light of the circumstances under which they were made, mortgagenot misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, loan agreement, note, lease or schedules and other instrument filed as an exhibit tofinancial and statistical data included, or incorporated by reference instatistical or appraisal methodology employed, in the Registration Statement, which violation would have a Material Adverse EffectStatement or Prospectus). The opinion may shall be limited to matters governed by the laws of the United States and or the States State of New York, New Jersey and DelawareOhio. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesStates or Ohio, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agentof good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties Company and the Bank and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent you together with the opinion to be rendered hereunder by special counsel to the Primary PartiesCompany and the Bank. The opinion of such counsel for the Primary Parties Company shall state that it has no reason to believe that the Agent is you are not reasonably justified in relying thereon. .
(3) The opinion favorable opinion, dated as of such the Closing Date, of counsel for the Primary Parties also shall state that Agent, with respect to such matters as the Agent’s Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and directors of the Holding Company and the Bank delivered pursuant hereto or as such counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliancereasonably request.
(2c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated the date hereof and addressed to the Agent, (i) such letter confirming that Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder, and no information concerning its relationship with or interests in the Holding Company or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in Crow▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇z▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified Company LLP's opinion the accuracy, completeness or fairness financial statements of the statements contained Holding Company included in the Registration StateProspectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the Commission thereunder and generally accepted accounting principles; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordan
Appears in 1 contract
Sources: Agency Agreement (Ohio Legacy Corp)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and of the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties Company and the Bank herein contained are, are at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Bank 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, Commission and the Conversion Application and Holding Company Application shall have been Applications approved by the OTS, Regulatory Agencies not later than 5:30 p.m. on the Charter Applications have been approved by the FDIC and New Jersey Department date of Banking and Insurance, as applicablethis Agreement, 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 therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's 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 Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's best knowledge, threatened by the OTSRegulatory Agencies, the FDICCommission, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Squi▇▇▇▇ , ▇▇▇▇▇▇ ▇▇▇▇▇nd▇▇▇ & ▇▇▇emp▇▇▇, P.C. and/or local ▇.L.P., special counsel acceptable to for the AgentCompany and the Bank, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareOhio, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and to such counsel"s knowledge is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Company.
(ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, national banking association with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and InsuranceRegulatory Agencies; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor therefore as described in accordance with the terms of the PlanProspectus, will be validly issued, fully paid and nonassessable nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under Federal Reserve and the provisions deposit accounts of the Federal Deposit Insurance Act, as amended, Bank are insured by the FDIC up to the maximum amount allowed by law and to such counsel's knowledge no proceedings for the termination or revocation of the federal deposit such insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(viiiv) Upon consummation the completion of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be within the range as set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date (except for Date, other than as set forth in the shares issued upon incorporation Prospectus; the Units of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan plan of distribution against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Planplan of distribution, will be fully paid and nonassessable; and (d) the issuance of the Shares Units is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Planrights.
(viiiv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary PartiesCompany and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary PartiesCompany and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 8 and 12 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings financial institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ixvi) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject Subject to the satisfaction of any the conditions set forth in such approvalsto the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, Units and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be renderedOffering.
(xiivii) The Applications, including the Prospectus as filed with the Regulatory Agencies, has been approved by the Regulatory Agencies. The FRB has issued its order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, FRB and no action has been taken taken, or is pending or, to such counsel’s knowledge's knowledge is pending or threatened, threatened to revoke any such authorization or approval.
(xiiiviii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commissionor threatened.
(xivix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences of to the Conversion are set forth Company, the Bank or any person subscribing for Units in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such mattersOffering.
(xvx) The terms and provisions of the shares of Common Stock Units conform to the description thereof contained in the Registration Statement and the ProspectusProspectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is Units are in due and proper form.
(xvixi) At the time the Applications were approved and as of Application, including the Closing DateProspectus contained therein, was approved, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement Application (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the OTSRegulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in Regulatory Agencies approving the Applications filed with such agencies, respectivelyApplications.
(xviixii) At the time that the Registration Statement became effective and as of the Closing Date, (i) the Registration Statement, including the Prospectus Statement (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 and the business plan 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act Regulationsand the rules and regulations promulgated thereunder, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xviiixiii) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or or, (ii) seeking to prevent the Conversion or the offer, sale or issuance of the SharesOffering.
(xixxiv) The information in the Prospectus under the captions “caption "Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” " to the extent that such information it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been reviewed prepared by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xxxv) None To the best of counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Primary Parties Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations are required to be registered as an investment company under in full force and effect and the Investment Company Act of 1940and the Bank are in all material respects complying therewith.
(xxixvi) None of Neither the Primary Parties Company nor the Bank is in violation of its certificate articles of incorporation or its charterarticles of association, as the case may berespectively, or its bylaws orcode of regulations or bylaws, respectively, or to the best of such counsel’s 's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit toto which the Company or the Bank is a party or by which any of them may be bound, or incorporated by reference in, to which any of the Registration Statement, which violation would have a Material Adverse Effectproperty or assets of the Company or the Bank is subject. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein such action will not result in (i) any material violation of the provisions of the certificate of incorporation or charter, as bylaws of the case may be, Company or the bylaws of Bank or any of the Primary Parties, (ii) any material violation of any applicable law, act, regulation, regulation or to such counsel’s 's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Company and (iii) the Bank are not in violation in any violation material respect of any obligationdirective from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Squi▇▇, agreement▇▇nd▇▇▇ & ▇emp▇▇▇, covenant or condition ▇.L.P., special counsel for the Company and the Bank, in form and substance to the effect that: In addition, during the preparation of the Registration Statement and the Prospectus, Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P. participated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the Agent, representatives of the independent public accountants for the Bank and the Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P. is not passing upon and does not assume the accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the attention of Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P. that caused Squi▇▇, ▇▇nd▇▇▇ & Demp▇▇▇, ▇.L.P. to believe that the Registration Statement at the time it was declared effective by the Commission or the Prospectus as of its date, contained or contains any contractuntrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, indenturein light of the circumstances under which they were made, mortgagenot misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, loan agreement, note, lease or schedules and other instrument filed as an exhibit tofinancial and statistical data included, or incorporated by reference instatistical or appraisal methodology employed, in the Registration Statement, which violation would have a Material Adverse EffectStatement or Prospectus). The opinion may shall be limited to matters governed by the laws of the United States and or the States State of New York, New Jersey and DelawareOhio. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesStates or Ohio, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agentof good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties Company and the Bank and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent you together with the opinion to be rendered hereunder by special counsel to the Primary PartiesCompany and the Bank. The opinion of such counsel for the Primary Parties Company shall state that it has no reason to believe that the Agent is you are not reasonably justified in relying thereon. .
(3) The opinion favorable opinion, dated as of such the Closing Date, of counsel for the Primary Parties also shall state that Agent, with respect to such matters as the Agent’s Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and directors of the Company and the Bank delivered pursuant hereto or as such counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliancereasonably request.
(2c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated the date hereof and addressed to the Agent, (i) such letter confirming that Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent public accountants within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants, the 1933 Act and the regulations promulgated thereunder, and no information concerning its relationship with or interests in the Company or the Bank is required by the Application or Item 10 of the Registration Statement, and stating in effect that in Crow▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇z▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified Company LLP's opinion the accuracy, completeness or fairness financial statements of the statements contained Company included in the Registration StateProspectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the related published rules and regulations of the Commission thereunder and generally accepted accounting principles; (ii) stating in effect that, on the basis of certain agreed upon procedures (but not an audit examination in accordance with generally accepted auditing standards) consisting of a reading of the latest available unaudited interim financial statements of the Company and the Bank prepared by the Company and the Bank, a reading of the m
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Reorganization are subject to the condition that all representations and warranties of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed 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 CommissionCommission and the MHC Notice and Application and the NJ Application shall have been approved by the FDIC and the DOBI, as applicable, the Conversion Application and Holding Company Application shall have been approved by the OTS, the Charter Applications have been approved by the FDIC and New Jersey Department of Banking and Insurance, as applicableFRB, and no stop order or other action suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act to any of the Primary Parties' best knowledge or proceedings therefor initiated or, to the knowledge of the Primary Parties, or 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 Conversion Reorganization shall have been issuedissued to any of the Primary Parties' best knowledge, or proceedings therefor initiated or, to the knowledge of the Primary Parties, or threatened by the OTS, the FDIC, the New Jersey Department of Banking and InsuranceDOBI, the Commission FRB, the Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇Thac▇▇▇ ▇▇▇▇▇▇▇▇ & ▇, ▇▇▇▇▇▇, P.C. and/or d/or local counsel acceptable to the Agent, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and is duly qualified to transact business and is in good standing in Delaware New Jersey and in each other jurisdiction in which the conduct of its business requires such qualification, qualification and except where the failure to qualify would not have a Material Adverse Effect.
(ii) The On the date hereof, the Bank is a duly organized and validly existing New Jersey-chartered stock mutual savings bank, and upon consummation of the ConversionReorganization, the Bank will continue to be a duly-organized and validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal and New Jersey law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and InsuranceDOBI; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion Reorganization has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, Company and the Bank, as described in the Prospectus and the General Disclosure PackageProspectus, are permitted by for bank holding companies and for subsidiaries of a bank holding company and a Delaware-chartered stock holding company under applicable federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jerseyand state law. To the best of such counsel’s 's knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, Company and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations authorization are in full force and effect, and to the best of such counsel’s 's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(viiv) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge, no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(viiv) Upon consummation of the ConversionReorganization, the MHC will have been duly organized and will be validly existing as a mutual savings bank holding company chartered under New Jersey law, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus.
(vi) Upon consummation of the Reorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” ", and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the ConversionReorganization); (b) the Offer Shares shares of Common Stock of the Holding Company issued to the MHC will have been duly and validly authorized for issuance and will be fully paid and nonassessable; (c) the shares of Common Stock of the Holding Company to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Conversion Shares is not subject to preemptive rights under the charter, articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or or, to the best knowledge of such counsel, under any contract, indenture, agreement, instrument or other document known to such counseldocument, except for the subscription rights under the Plan.
(viiivii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except as rights to indemnity and contribution thereunder may be limited under applicable law, subject to the extent qualification that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability (i) enforcement thereof may be limited by bankruptcy lawsbankruptcy, insolvency lawsinsolvency, moratorium, reorganization or other laws (including the laws of fraudulent conveyance) or judicial decisions affecting the enforcement enforceability of creditors’ ' rights generally, or the rights of creditors of federally chartered savings institutions associations, the accounts of which are insured by the FDIC FDIC, or the reorganization of financial institutions and (including ii) enforcement thereof is subject to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to the effect of certain laws and judicial decisions relating to upon the rights availability of injunctive relief and enforceability of equity remedies, including the contracting parties to equitable remedies)remedies of specific performance and self-help.
(ixviii) The Plan has been duly adopted by the Board board of Directors directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders voting depositors of the Mid-Tier Holding Company and the Voting Depositors Bank, in the manner required by the Conversion Regulations and the articles of incorporation, charters Bank's charter and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bankbylaws.
(xix) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion NJ Application and the Holding Company Application have has been approved by the OTSDOBI, the Charter Applications have been FRB has approved by the FDIC and the New Jersey Department of Banking and InsuranceHolding Company Application, and the Prospectus, Bank has received the Depositors’ Proxy Statement, and non-objection of the Stockholders’ Proxy Statement have been authorized for use by FDIC to the OTSReorganization, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, Shares and the consummation of the ConversionReorganization, except as may be required under the state securities or “"blue sky” " laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiiix) The Registration Statement has become effective under the 1933 ActAct and to such counsel's knowledge, and no stop order suspending the effectiveness of the Registration Statement has been issued issued, or proceedings for that purpose have been instituted or, to such counsel’s knowledge, or threatened by the Commission.
(xivxi) The material tax consequences of the Conversion Reorganization are set forth in the Prospectus under the captions “Summary — caption "The Reorganization and the Offering - Tax Consequences” and “Federal and State Taxation.” Effects of the Reorganization". The information in the Prospectus under the captions “Summary — caption "The Reorganization and the Offering - Tax Consequences” and “Federal and State Taxation” Effects of the Reorganization" has been reviewed by such counsel and fairly describes such opinion opinions rendered by such counsel and KPMG LLP to the Primary Parties with respect to such matters.
(xvxii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form.
(xvixiii) At the time the Applications were approved MHC Notice and as of Application and the Closing DateNJ Application was approved, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) MHC Notice and the Stockholders’ Proxy Statement Application (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTSFDIC and the DOBI, except as modified or waived in writing by the FDIC and/or the DOBI (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation and the business plan as to which counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTSFDIC, the FDIC and DOBI, or the New Jersey Department of Banking and Insurance, in FRB approving the Applications filed with such agencies, respectivelyApplications.
(xviixiv) At the time that the Registration Statement became effective and as of the Closing Date, 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 and the business plan 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 1933 Act Regulationsrules and regulations promulgated thereunder.
(xviiixv) There To such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Reorganization or the offer, sale or issuance of the Shares.
(xixxvi) The information in the Prospectus under the captions “Supervision "Regulation of Huds▇▇ ▇▇▇y Savings Bank and RegulationHuds▇▇ ▇▇▇y Bancorp,” “Federal and State " "Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “" "Restrictions on the Acquisition of Oritani,” “Huds▇▇ ▇▇▇y Bancorp and Huds▇▇ ▇▇▇y Savings", "Description of Capital Stock of Oritani Following Huds▇▇ ▇▇▇y Bancorp," and "The Reorganization and the Conversion,” and “The Conversion and Offering,” " to the extent that such information it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
respects (xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United Statesfinancial statements, notes to the extent such counsel deems proper and specified in such opinionfinancial statements, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of financial tables and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties financial and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated statistical data included therein and the statements contained therein and, although (without limiting appraisal valuation and the opinions provided pursuant business plan as to Section 10(b)(1which counsel need express no opinion)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration State.
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering Offerings and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed 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, Commission and the Conversion Application approved by the FDIC and the PDOB not later than 5:30 p.m. on the date of this Agreement, the Holding Company Application shall have been approved by the OTS, the Charter Applications have been approved by the FDIC and New Jersey Department of Banking and Insurance, as applicableapproved, 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 the knowledge any of the Primary 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 Conversion Reorganization shall have been issued, issued or proceedings therefor initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the OTS, the FDIC, the New Jersey Department of Banking and InsurancePDOB, the Commission Commission, or any other governmental body.
(b) At the Closing Date, the Agent shall have each received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. and/or local special counsel acceptable to for the AgentPrimary Parties, in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State Commonwealth of DelawarePennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(ii) The Bank is a capital stock savings bank duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and Insurance; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing good standing under the laws of the United StatesCommonwealth of Pennsylvania, with corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder, and is duly qualified to transact business and is in good standing in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Primary Parties.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(viiii) The Bank is a member of the FHLB of New York. The Pittsburgh and the Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and to such counsel's knowledge no proceedings for the termination or revocation of such insurance are pending or threatened; the federal deposit insurance activities of the Bank as described in the Prospectus are pending orpermitted by the rules, regulations and practices of the FDIC and the PDOB; and the description of the liquidation account as set forth in the Prospectus under the caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Liquidation Account" has been reviewed by such counsel and, to the extent that such information constitutes matters of law or legal conclusions, is accurate in all material respects.
(iv) The MHC has been duly organized and is validly existing as a Pennsylvania chartered mutual holding company, duly authorized to conduct its business and own its properties as described in the Registration Statement and Prospectus and to enter into this Agreement and perform its obligations hereunder.
(v) The Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Commonwealth of Pennsylvania, and are duly qualified to transact business and are in good standing in each jurisdiction in which the conduct of their 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 Primary Parties and the Subsidiaries, taken as a whole; to such counsel’s 's knowledge, threatenedthe Subsidiaries hold all licenses, certificates and permits from governmental authorities necessary for the conduct of their business, except where the failure to hold such licenses, certificates or permits would not have a material adverse effect on the financial condition, earnings, capital, assets or properties of the Primary Parties and the Subsidiaries, taken as a whole; the Subsidiaries are not in violation of their articles of incorporation or bylaws; all of the outstanding capital stock of the Subsidiaries has been duly authorized and is validly issued, fully paid and nonassessable, and owned directly or indirectly by the Bank, free and clear of any liens, charges, encumbrances or restrictions except such as would not result in a material adverse effect on the financial condition, earnings, capital, assets or properties of the Primary Parties and the Subsidiaries, taken as a whole; all of the leases and subleases material to the business of the Subsidiaries under which the Subsidiaries hold properties are in full force and effect; and the activities of the Subsidiaries are permitted to subsidiaries of a Pennsylvania chartered savings bank by the regulations and the policies and practices of the FDIC and the PDOB and to non-banking subsidiaries of a bank holding company under the BHCA and the regulations of the FRB.
(viivi) Upon consummation of the ConversionReorganization, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued to the Bank upon incorporation of the Holding Company to facilitate the ConversionCompany, which have been cancelled); (b) the Offer Exchange Shares to be subscribed for in and the Offering will Conversion Shares have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid Plan and nonassessable; (c) stated on the Exchange Shares to be issued in cover page of the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the PlanProspectus, will be fully paid and nonassessable; and (d) the issuance of the Exchange Shares and the Conversion Shares is not subject to preemptive rights under the articles of incorporation or bylaws of any of the Holding CompanyPrimary Parties, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsellaw, except for the subscription rights under the Plan.
(vii) The authorized, issued and outstanding capital stock of the Bank is as set forth in the Prospectus under the caption "Capitalization," and all of the outstanding shares of such capital stock have been duly authorized and validly issued and are fully paid and nonassessable. Upon consummation of the Reorganization, all of the issued and outstanding capital stock of the Bank will be duly authorized and validly issued and fully paid and nonassessable,and all such capital stock will be owned of record and beneficially by the Holding Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 10 and 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board board of Directors directors of both the MHC, the Mid-Tier Holding Company, the Holding Company MHC and the Bank and approved by the members of the MHC and the eligible voting stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner Bank, as required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company 's and the Bank's respective charter and bylaws.
(x) The ConversionFRB has approved the Holding Company Application and, including to the Offering best of such counsel's knowledge, no action is pending or threatened respecting the Holding Company Application or the acquisition by the Holding Company of all of the Bank's issued and outstanding capital stock; the Exchange, was effected Holding Company Application complies as to form in all material respects in accordance with the Plan BHCA and all other requirements of the FRB, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the Holding Company is authorized to become a bank holding company and is authorized to own all of the issued and outstanding capital stock of the Bank pursuant to the Plan.
(xi) The PDOB has approved the Conversion Application and, to the best of such counsel's knowledge, no action is pending or threatened respecting the PDOB's approval of the Conversion Application; at the time the Conversion Application was approved, the Conversion Application complies in all material respects with Pennsylvania law and all applicable laws, including statutesrules, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws of the PDOB, includes all documents required to be filed as exhibits thereto, and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties is complete in all material respects or appropriate waivers were obtained (other than the financial statements, notes to financial statements, financial tables and all notices other financial and waiting periods were satisfied, waived or replacedstatistical data included therein and the appraisal valuation as to which counsel need express no opinion).
(xixii) The FDIC has raised no objection to the Reorganization, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the FDIC's non-objection to the Reorganization; at the time the FDIC issued its non-objection to the Reorganization, the Conversion Application complies in all material respects with the rules and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by regulations of the FDIC and all other requirements of the New Jersey Department of Banking and InsuranceFDIC, includes all documents required to be filed as exhibits thereto, and is complete in all material respects (other than the Prospectusfinancial statements, notes to financial statements, financial tables and other financial and statistical data included therein and the appraisal valuation as to which counsel need express no opinion).
(xiii) The FDIC has approved the Merger Application, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the FDIC's approval of the Merger Application; the Merger Application complies in all material respects with the Federal Deposit Insurance Act, the Depositors’ Proxy Statementrules and regulations of the FDIC and all other requirements of the FDIC, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the Stockholders’ Proxy FDIC has approved the merger of the MHC with and into the Bank and the merger of Interim with and into the Bank.
(xiv) The PDOB has approved the Merger Application, and, to the best of such counsel's knowledge, no action is pending or threatened respecting the PDOB's approval of the Merger Application; the Merger Application complies in all material respects with Pennsylvania law and all other requirements of the PDOB, includes all documents required to be filed as exhibits thereto, and is complete in all material respects; the PDOB has approved the merger of the MHC with and into the Bank and the merger of Interim with and into the Bank.
(xv) 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 authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no instituted or threatened.
(xvi) No further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.execution
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xivxvii) The material tax consequences of the Conversion Reorganization are set forth in the Prospectus under the captions “Summary — caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Tax Consequences” and “Federal and State TaxationEffects.” " The information in the Prospectus under the captions “Summary — caption "The Conversion and Reorganization -- Effects of Conversion and Reorganization on Depositors and Borrowers of the Savings Bank -- Tax Consequences” and “Federal and State Taxation” Effects" has been reviewed by such counsel and fairly describes such opinion opinions rendered by such counsel and KPMG LLP ▇▇▇▇▇▇▇ & ▇▇▇ to the Primary Parties with respect to such matters.
(xvxviii) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the ProspectusProspectus and such description describes in all material respects the rights of the holders thereof; the information in the Prospectus under the captions "Comparison of Stockholders' Rights," "Restrictions on Acquisition of the Holding Company" and "Description of Capital Stock of the Holding 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 forms of certificate certificates proposed to be used to evidence the shares of Common Stock is are in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in approving the Applications filed with such agencies, respectively.
(xviixix) At the time that the Registration Statement became effective and as of the Closing Date, 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 and the business plan 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 1933 Act Regulationsrules and regulations promulgated thereunder.
(xviiixx) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion Reorganization or the offer, sale or issuance of the Shares.
(xixxxi) The information in the Prospectus under the captions “Supervision and "Regulation,” “Federal " and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “"The Conversion and OfferingReorganization,” " to the extent that such information it constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed prepared by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xxxxii) None To the best of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None such counsel's knowledge, none of the Primary Parties is in violation of its certificate articles of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In additionmaterial adverse effect on the financial condition of the Primary Parties considered as one enterprise, or on the earnings, capital, properties or business affairs of the Primary Parties considered as one enterprise; the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations herein set forth herein and the consummation of the transactions contemplated herein herein, will not materially conflict with, constitute a material breach of, or default under, or result in (i) the creation or imposition of any violation of the provisions of the certificate of incorporation material lien, charge or charter, as the case may be, encumbrance upon any property or the bylaws assets of any of the Primary PartiesParties which are material to their business considered as one enterprise, (ii) any violation of any applicable law, act, regulation, or pursuant to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, to which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of is a party or by which any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration State
Appears in 1 contract
Sources: Agency Agreement (PSB Bancorp Inc)
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and the Conversion Reorganization are subject to the condition that all representations and warranties and other statements of the Primary Parties herein contained are, at and as of the commencement of the Offering and at and as of the Closing Date, true and correct, the condition that the Primary Parties shall have performed 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 CommissionCommission and the MHC Notice and Application approved by the OTS prior to the commencement of the Offering, the Conversion Application and Holding Company Application shall have been approved by the OTS, the Charter Applications have been approved by the FDIC and New Jersey Department of Banking and Insurance, as applicableapproved, 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 the knowledge any of the Primary 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 Conversion Reorganization shall have been issued, issued or proceedings therefor initiated or, to the knowledge any of the Primary Parties' best knowledge, threatened by the OTS, the FDICCommission, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Luse ▇▇▇▇▇▇, P.C. and/or local counsel acceptable to the Agent, in ▇▇ form and substance satisfactory to the Agent and counsel for the Agent 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 State United States of DelawareAmerica, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effect.
(ii) The Bank is a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, with full power and authority to own its properties and to conduct its business as described in the Prospectus; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and Insurance; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action material adverse effect on the part of the Holding Company and the Bank andfinancial condition, upon payment therefor in accordance with the terms of the Planearnings, will be validly issuedcapital, fully paid and nonassessable and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim properties or restriction.
(iii) The MHC is a mutual holding company duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws of the United States, 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 in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect to the Bank, by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, and to such counsel’s knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit insurance of the Bank are pending or, to such counsel’s knowledge, threatened.
(vii) Upon consummation of the Conversion, (a) the authorized, issued and outstanding capital stock of the Holding Company will be within the range set forth in the Prospectus under the caption “Capitalization,” and no shares of Common Stock have been or will be issued and outstanding prior to the Closing Date (except for the shares issued upon incorporation of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan, will be fully paid and nonassessable; and (d) the issuance of the Shares is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Plan.
(viii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part affairs of the Primary Parties; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary Parties, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 and 12 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ rights generally, or the rights of creditors of savings institutions insured by the FDIC (including laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ix) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject to the satisfaction of any conditions set forth in such approvals, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be rendered.
(xii) The purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, and no action has been taken or is pending or, to such counsel’s knowledge, threatened to revoke any such authorization or approval.
(xiii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commission.
(xiv) The material tax consequences of the Conversion are set forth in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such matters.
(xv) The terms and provisions of the shares of Common Stock conform to the description thereof contained in the Registration Statement and the Prospectus, and the form of certificate to be used to evidence the shares of Common Stock is in due and proper form.
(xvi) At the time the Applications were approved and as of the Closing Date, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations and all applicable laws, rules and regulations and decisions and orders of the OTS. To such counsel’s knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in approving the Applications filed with such agencies, respectively.
(xvii) At the time that the Registration Statement became effective and as of the Closing Date, the Registration Statement, including the Prospectus (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 and the business plan 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 1933 Act Regulations.
(xviii) There are no legal or governmental proceedings pending, or, to such counsel’s knowledge, threatened (i) asserting the invalidity of this Agreement or (ii) seeking to prevent the Conversion or the offer, sale or issuance of the Shares.
(xix) The information in the Prospectus under the captions “Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” to the extent that such information constitutes matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has been reviewed by such counsel and is accurate in all material respects.
(xx) None of the Primary Parties are required to be registered as an investment company under the Investment Company Act of 1940.
(xxi) None of the Primary Parties is in violation of its certificate of incorporation or its charter, as the case may be, or its bylaws or, to such counsel’s knowledge, any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein will not result in (i) any violation of the provisions of the certificate of incorporation or charter, as the case may be, or the bylaws of any of the Primary Parties, (ii) any violation of any applicable law, act, regulation, or to such counsel’s knowledge, order or court order, writ, injunction or decree, and (iii) any violation of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit to, or incorporated by reference in, the Registration Statement, which violation would have a Material Adverse Effect. The opinion may be limited to matters governed by the laws of the United States and the States of New York, New Jersey and Delaware. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of counsel reasonably acceptable to the Agent, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent together with the opinion to be rendered hereunder by special counsel to the Primary Parties. The opinion of such counsel for the Primary Parties shall state that it has no reason to believe that the Agent is not reasonably justified in relying thereon. The opinion of such counsel for the Primary Parties also shall state that the Agent’s counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliance.
(2) The letter of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel to the Agent, representatives of the independent public accountants for the Primary Parties and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration State
Appears in 1 contract
Conditions to the Agent’s Obligations. The obligations of the Agent hereunder and the occurrence of the Closing and of the Conversion Offering are subject to the condition that all representations and warranties and other statements of the Primary Parties Company and the Bank herein contained are, are at and as of the commencement of the Offering and at and as of the Closing Date, true and correctcorrect in all material respects, the condition that the Primary Parties Company and the Bank 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, Commission and the Conversion Application and Holding Company Application shall have been Applications approved by the OTS, Regulatory Agencies not later than 5:30 p.m. on the Charter Applications have been approved by the FDIC and New Jersey Department date of Banking and Insurance, as applicablethis Agreement, 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 therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's 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 Conversion Offering shall have been issued, issued or proceedings therefor therefore initiated or, to the knowledge of the Primary PartiesCompany's or Bank's best knowledge, threatened by the OTSRegulatory Agencies, the FDICCommission, the New Jersey Department of Banking and Insurance, the Commission or any other governmental body.
(b) At the Closing Date, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Date, of Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇▇ , ▇.L.P., special counsel for the Company and the Bank, and Crit▇▇▇▇▇▇ ▇▇, ▇▇it▇▇▇▇▇▇▇ & ▇▇▇ohn▇▇▇, P.C. and/or local counsel acceptable to ▇▇unsel for the AgentCompany and the Bank, as appropriate, and in form and substance satisfactory to the Agent and counsel for the Agent to the effect that:
(i) The Holding Company is a corporation duly organized and validly existing and in good standing under the laws of the State of DelawareOhio, with corporate power and authority to own its properties and to conduct its business as described in the Prospectus Prospectus, and to such counsel"s knowledge is duly qualified to transact business and is in good standing in Delaware and in each other jurisdiction in which the conduct of its business requires such qualification, except where qualification and in which the failure to qualify would not have a Material Adverse Effectmaterial adverse effect on the financial condition, earnings, capital, properties or business affairs of the Company.
(ii) The Upon receipt of final approval of the OCC, the Bank is will be a duly organized and validly existing New Jersey-chartered stock savings bank, and upon consummation of the Conversion, the Bank will continue to be a validly existing New Jersey-chartered stock savings bank, national banking association with full power and authority to own its properties and to conduct its business as described in the ProspectusProspectus and to enter into this Agreement and perform its obligations hereunder; the activities of the Bank as described in the Prospectus are permitted by federal law and the rules, regulations and practices of the FDIC and the New Jersey Department of Banking and InsuranceRegulatory Agencies; and at the Closing Date, the issuance and sale of the capital stock of the Bank to the Holding Company in the Conversion has been duly and validly authorized by all necessary corporate action on the part of the Holding Company and the Bank and, upon payment therefor therefore as described in accordance with the terms of the PlanProspectus, will be validly issued, fully paid and nonassessable nonassessable; and will be owned of record and beneficially by the Holding Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or restriction.
(iii) The MHC is Following the Closing, the Bank will apply to become a mutual holding company duly organized and validly existing under the laws member of the United StatesFederal Reserve and, with corporate power and authority to own its properties and to conduct its business as described in upon receipt of final FDIC approval, the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(iv) The Mid-Tier Holding Company is a federally-chartered stock corporation duly organized and validly existing under the laws deposit accounts of the United States, with corporate power and authority to own its properties and to conduct its business as described in Bank will be insured by the Prospectus and is duly qualified to transact business in each other jurisdiction in which the conduct of its business requires such qualification, except where the failure to qualify would not have a Material Adverse Effect.
(v) The activities of the Mid-Tier Holding Company, the MHC, the Holding Company, and the Bank, as described in the Prospectus and the General Disclosure Package, are permitted by federal law and, with respect FDIC up to the Bank, maximum amount allowed by the laws of the Commonwealth of New Jersey. To such counsel’s knowledge, each of the MHC, the Mid-Tier Holding Company, the Holding Company, and the Bank has obtained all licenses, permits, and other governmental authorizations that are material for the conduct of its business, and all such licenses, permits and other governmental authorizations are in full force and effect, law and to such counsel’s 's knowledge the Mid-Tier Holding Company and the Bank are complying therewith in all material respects.
(vi) The Bank is a member of the FHLB of New York. The Bank is an insured depository institution under the provisions of the Federal Deposit Insurance Act, as amended, and no proceedings for the termination or revocation of the federal deposit such insurance of the Bank are pending or, to such counsel’s knowledge, or threatened.
(viiiv) Upon consummation the completion of the ConversionOffering, (a) the authorized, issued and outstanding capital stock of the Holding Company and the Bank will be within the range as set forth in the Prospectus under the caption “"Capitalization,” " and no shares of Common Stock or attached warrants have been or will be issued and outstanding prior to the Closing Date (except for Date, other than as set forth in the shares issued upon incorporation Prospectus; the Units of the Holding Company to facilitate the Conversion); (b) the Offer Shares to be subscribed for in the Offering will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Plan plan of distribution against payment of the consideration calculated as set forth in the Plan, will be fully paid and nonassessable; (c) the Exchange Shares to be issued in the Exchange will have been duly and validly authorized for issuance, and when issued and delivered by the Holding Company pursuant to the Planplan of distribution, will be fully paid and nonassessable; and (d) the issuance of the Shares Units is not subject to preemptive rights under the articles of incorporation or bylaws of the Holding Company, or arising or outstanding by operation of law or under any contract, indenture, agreement, instrument or other document known to such counsel, except for the subscription rights under the Planrights.
(viiiv) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Primary PartiesCompany and the Bank; and this Agreement constitutes a valid, legal and binding obligation of each of the Primary PartiesCompany and the Bank, enforceable in accordance with its terms, except to the extent that the provisions of Sections 11 8 and 12 9 hereof may be unenforceable as against public policy, and except to the extent that such enforceability may be limited by bankruptcy laws, insolvency laws, or other laws affecting the enforcement of creditors’ ' rights generally, or the rights of creditors of savings financial institutions insured by the FDIC (including the laws and judicial decisions relating to the rights of the contracting parties to equitable remedies).
(ixvi) The Plan has been duly adopted by the Board of Directors of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank and approved by the stockholders of the Mid-Tier Holding Company and the Voting Depositors in the manner required by the Conversion Regulations and the articles of incorporation, charters and bylaws of each of the MHC, the Mid-Tier Holding Company, the Holding Company and the Bank.
(x) The Conversion, including the Offering and the Exchange, was effected in all material respects in accordance with the Plan and all applicable laws, including statutes, regulations, decisions and orders (except that this opinion need not address state securities or “blue sky” laws and regulations nor matters addressed in the letter referred to in Section 10(b)(2) of this Agreement); all terms, conditions, requirements and provisions with respect to the Conversion imposed by the OTS, the FDIC, the New Jersey Department of Banking and Insurance, the Commission, or any other governmental agency, if any, were complied with by the Primary Parties in all material respects or appropriate waivers were obtained and all notices and waiting periods were satisfied, waived or replaced.
(xi) The Conversion Application and the Holding Company Application have been approved by the OTS, the Charter Applications have been approved by the FDIC and the New Jersey Department of Banking and Insurance, and the Prospectus, the Depositors’ Proxy Statement, and the Stockholders’ Proxy Statement have been authorized for use by the OTS, and subject Subject to the satisfaction of any the conditions set forth in such approvalsto the Regulatory Agencies' approval of the Applications, no further approval, registration, authorization, consent or other order of any federal or state regulatory agency, public board or body is required in connection with the execution and delivery of this Agreement, the offer, sale and issuance of the Offer Shares, the issuance of the Exchange Shares, Units and the consummation of the Conversion, except as may be required under the state securities or “blue sky” laws of various jurisdictions as to which no opinion need be renderedOffering.
(xiivii) The Applications, as filed with the Regulatory Agencies, have been granted preliminary approval by the Regulatory Agencies. The FRB has issued its preliminary order of approval under the BHCA, and the purchase by the Holding Company of all of the issued and outstanding capital stock of the Bank has been authorized by the OTS, FRB and no action has been taken taken, or is pending or, to such counsel’s knowledge's knowledge is pending or threatened, threatened to revoke any such authorization or approval.
(xiiiviii) The Registration Statement has become effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement has been issued or issued, and to the best of such counsel's knowledge no proceedings for that purpose have been instituted or, to such counsel’s knowledge, threatened by the Commissionor threatened.
(xivix) The consummation of the Offering and the transactions contemplated thereunder will have no material tax consequences of to the Conversion are set forth Company, the Bank or any person subscribing for Units in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation.” The information in the Prospectus under the captions “Summary — Tax Consequences” and “Federal and State Taxation” has been reviewed by such counsel and fairly describes such opinion rendered by such counsel and KPMG LLP to the Primary Parties with respect to such mattersOffering.
(xvx) The terms and provisions of the shares of Common Stock Units conform to the description thereof contained in the Registration Statement and the ProspectusProspectus and such description describes in all material respects the rights of the holders thereof, the information in the Prospectus under the caption "Articles of Incorporation" to the extent that it constitutes matters of law or legal conclusions has been prepared by such counsel and is accurate in all material respects; and the form forms of certificate certificates proposed to be used to evidence the shares of Common Stock is Units are in due and proper form.
(xvixi) At the time the Applications were approved and as of the Closing DateApplication, was approved, the Applications (as amended or supplemented), the Prospectus (as amended or supplemented), the Depositors’ Proxy Statement Application (as amended or supplemented) and the Stockholders’ Proxy Statement (as amended or supplemented), complied as to form in all material respects with the requirements of the Conversion Regulations Regulatory Agencies and all applicable laws, rules and regulations and decisions and orders of the OTSRegulatory Agencies, except as modified or waived in writing by the Regulatory Agencies, (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein as to which counsel need express no opinion and other than compliance with state securities or Blue Sky laws as to which such counsel need express no opinion). To such counsel’s 's knowledge, no person has sought to obtain regulatory or judicial review of the final action of the OTS, the FDIC and the New Jersey Department of Banking and Insurance, in Regulatory Agencies approving the Applications filed with such agencies, respectivelyApplications.
(xviixii) At the time that the Registration Statement became effective and as of the Closing Date, (i) the Registration Statement, including the Prospectus Statement (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 and the business plan 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; and (ii) the Prospectus (other than the financial statements, notes to financial statements, financial tables and other financial and statistical data included therein, as to which counsel need express no opinion) complied as to form in all material respects with the requirements of the 1933 Act Regulationsand the rules and regulations promulgated thereunder, and the rules, regulations and decisions and orders of the Regulatory Agencies, except as modified or waived in writing by the Regulatory Agencies.
(xviiixiii) There To the best of such counsel's knowledge, there are no legal or governmental proceedings pending, or, to such counsel’s knowledge, or threatened (i) asserting the invalidity of this Agreement or or, (ii) seeking to prevent the Conversion or the offer, sale or issuance of the SharesOffering.
(xixxiv) The information in the Prospectus under the captions “caption "Supervision and Regulation,” “Federal and State Taxation” (solely as it relates to federal tax law), “Comparison of Stockholders’ Rights for Existing Stockholders of Oritani Financial Corp.,” “Restrictions on Acquisition of Oritani,” “Description of Capital Stock of Oritani Following the Conversion,” and “The Conversion and Offering,” " to the extent that such information it constitutes matters of law, summaries and supervision of legal matters, documents or proceedings, or legal conclusions, has been reviewed prepared by such counsel and is accurate in all material respectsrespects (except as to the financial statements and other financial data included therein as to which such counsel need express no opinion).
(xxxv) None To the best of counsel's knowledge, the Company and the Bank have obtained all material licenses, permits and other governmental authorizations (including preliminary approval from the OCC) required for the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to obtain such licenses, permits and other governmental authorizations would not have a material adverse effect on the financial condition of the Primary Parties Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company or the Bank considered as one enterprise, and all such licenses, permits and other governmental authorizations (including preliminary approval from the OCC), are required to be registered as an investment company under in full force and effect and the Investment Company Act of 1940and the Bank are in all material respects complying therewith.
(xxixvi) None of Neither the Primary Parties Company nor the Bank is in violation of its certificate articles of incorporation or its charterarticles of association, as the case may berespectively, or its bylaws orcode of regulations or bylaws, respectively, or to the best of such counsel’s 's knowledge, in violation of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its property may be bound, which violation would have a material adverse effect on the financial condition of the Company or the Bank considered as one enterprise, or on the earnings, capital, properties or business affairs of the Company and the Bank considered as one enterprise; the execution and delivery of this Agreement by the Company and the Bank, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein, will not materially conflict with, constitute a material breach of, or default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or the Bank which are material to their business considered as one enterprise, pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument filed as an exhibit toto which the Company or the Bank is a party or by which any of them may be bound, or incorporated by reference in, to which any of the Registration Statement, which violation would have a Material Adverse Effectproperty or assets of the Company or the Bank is subject. In addition, the execution and delivery of and performance under this Agreement by the Primary Parties, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein such action will not result in (i) any material violation of the provisions of the certificate of incorporation or charter, as bylaws of the case may be, Company or the bylaws of Bank or any of the Primary Parties, (ii) any material violation of any applicable law, act, regulation, regulation or to such counsel’s 's knowledge, order or court order, writ, injunction or decree.
(xvii) To the best of counsel's knowledge, the Company and the Bank are not in violation in any material respect of any directive from any Regulatory Agency to make any material change in the method of conducting their business.
(2) The letter of Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P., special counsel for the Company and the Bank, and (iii) any violation Crit▇▇▇▇▇▇▇, ▇▇it▇▇▇▇▇▇▇ & ▇ohn▇▇▇, ▇▇unsel for the Company and the Bank in form and substance to the effect that: In addition, during the preparation of any obligationthe Registration Statement and the Prospectus, agreementSqui▇▇, covenant or condition ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.P. and Crit▇▇▇▇▇▇▇, Crit▇▇▇▇▇▇▇ & ▇ohn▇▇▇ ▇▇▇ticipated in conferences with certain officers of and other representatives of the Bank and the Company, counsel to the Agent, representatives of the independent public accountants for the Bank and the Company and representatives of the Agent at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although Squi▇▇, Sand▇▇▇ & ▇emp▇▇▇, ▇.L.P. and Crit▇▇▇▇▇▇▇, ▇▇it▇▇▇▇▇▇▇ & ▇ohn▇▇▇ ▇▇▇ not passing upon and do not assume the accuracy of the statements contained in the Registration Statement and Prospectus, on the basis of the foregoing without independent verification (relying as to materiality as to factual matters on certificates of officers and other factual representations by the Bank and the Company), nothing has come to the attention of Squi▇▇, ▇▇nd▇▇▇ & ▇emp▇▇▇, ▇.L.▇. ▇▇▇ Crit▇▇▇▇▇▇▇, ▇▇it▇▇▇▇▇▇▇ & ▇ohn▇▇▇ ▇▇▇t caused Squi▇▇, ▇▇nd▇▇▇ & Demp▇▇▇, ▇.L.P. or Crit▇▇▇▇▇▇▇, ▇▇it▇▇▇▇▇▇▇ & ▇ohn▇▇▇ ▇▇ believe that the Registration Statement at the time it was declared effective by the Commission or the Prospectus as of its date, contained or contains any contractuntrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, indenturein light of the circumstances under which they were made, mortgagenot misleading (it being understood that counsel need express no comment or opinion with respect to the financial statements, loan agreement, note, lease or schedules and other instrument filed as an exhibit tofinancial and statistical data included, or incorporated by reference instatistical or appraisal methodology employed, in the Registration Statement, which violation would have a Material Adverse EffectStatement or Prospectus). The opinion may shall be limited to matters governed by the laws of the United States and or the States State of New York, New Jersey and DelawareOhio. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the United StatesStates or Ohio, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel reasonably acceptable to the Agentof good standing, as long as such other opinion indicates that the Agent may rely on the opinion, and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Primary Parties Company and the Bank and public officials; provided copies of any such opinion(s) or certificates of public officials are delivered to Agent you together with the opinion to be rendered hereunder by special counsel to the Primary PartiesCompany and the Bank. The opinion of such counsel for the Primary Parties Company shall state that it has no reason to believe that the Agent is you are not reasonably justified in relying thereon. .
(3) The opinion favorable opinion, dated as of such the Closing Date, of counsel for the Primary Parties also shall state that Agent, with respect to such matters as the Agent’s Agent may reasonably require, such opinion may rely as to matters of fact, upon certificates of officers and directors of the Company and the Bank delivered pursuant hereto or as such counsel may rely for purposes of its own opinion on the opinion of such counsel and, if applicable, local counsel, whose opinion(s) shall expressly authorize such reliancereasonably request.
(2c) The Concurrently with the execution of this Agreement, the Agent shall receive a letter of from Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP dated the date hereof and addressed to the Agent, (i) such letter confirming that Crow▇ ▇▇▇z▇▇ ▇▇▇ Company LLP is a firm of independent public accountants within
(d) At the Closing Date, the Agent shall receive letters from Crow▇ ▇▇▇z▇▇ ▇▇▇ & ▇▇▇▇▇▇Company LLP dated the Closing Date, P.C. in form and substance to the effect that during the preparation of the Registration Statement and the Prospectus, Luse, Gorman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. participated in conferences with certain officers of and other representatives of the Primary Parties, counsel addressed to the Agent, representatives confirming the statements made by its letter delivered by it pursuant to subsection (c) of this Section 7A, the independent public accountants for "specified date" referred to in clause (ii)(B) thereof to be a date specified in such letter, which shall not be more than five business days prior to the Primary Parties and representatives of Closing Date.
(e) At the Closing Date counsel to the Agent at which the contents of the Registration Statement shall have been furnished with such documents and the Prospectus and related matters were discussed and has considered the matters required to be stated therein and the statements contained therein and, although (without limiting the opinions provided pursuant to Section 10(b)(1)), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Stateopinion
Appears in 1 contract