Conditions of Agent’s Obligations. The Partners Trust Parties and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties made pursuant to the provisions hereof, to the performance by the Partners Trust Parties of their obligations hereunder, and to the following further conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued. (b) At Closing Time, the Agent shall have received: (1) The favorable opinion, dated as of Closing Time, of Xxxxx & Xxxxxxx, L.L.P., special counsel for the Partners Trust Parties, in form and substance satisfactory to the Agent. (2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent. (3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory to the Agent. (4) In giving their opinions required by subsections (b)(l) and (b)(3), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.” (c) At Closing Time referred to in Section 2, the Partners Trust Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion. (d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; (ii) there shall have been no material transactions entered into by the Partners Trust Parties from the latest date as of which the financial condition of the Partners Trust Parties is set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; (iii) the Partners Trust Parties shall not have received from the OTS any direction (oral or written) to make any material change in the method of conducting its business with which they have not complied (which direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Partners Trust Parties or the Subsidiaries; (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; (v) the Partners Trust Parties have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; and (vii) no order suspending the Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Application. (e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls. (f) At the time of the execution of this Agreement, the Agent shall have received from KPMG a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and Subsidiaries” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the Subsidiaries, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the Subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties and the Subsidiaries and of BSB and its subsidiaries identified in such letter. (g) At Closing Time, the Agent shall have received from KPMG a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time. (h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuance. (i) At Closing Time, the Agent shall have received a letter from R.P. Financial, dated as of the Closing Time, confirming its appraisal. (j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent. (k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 2 contracts
Samples: Agency Agreement (Partners Trust Financial Group Inc), Agency Agreement (Partners Trust Financial Group Inc)
Conditions of Agent’s Obligations. The Partners Trust Parties and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder --------------------------------- pursuant to this Agreement are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company contained herein contained as or in certificates of the date hereof and the Closing Time, to the accuracy officers of the statements of officers and directors of the Partners Trust Parties made Company delivered pursuant to the provisions hereof, as of the date hereof, the Initial Closing Time and each subsequent Closing Time, to the performance by the Partners Trust Parties Company of their its obligations hereunder, hereunder and to the following further conditions, except the extent waived in writing by the Agent:
(a) No stop order suspending At the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Initial Closing Time and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At each subsequent Closing Time, the Agent shall have received:;
(1i) The favorable opinion, dated as of the Initial Closing Time and each subsequent Closing Time, of Xxxxx Xxxxxxx Xxxxxx & XxxxxxxXxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, in form and substance reasonably satisfactory to counsel for the Agent., substantially in the form set forth in Exhibit C.
(2ii) The favorable opinion, dated as of the Initial Closing Time and each subsequent Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB Broad and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, counsel for the Agent, in form and substance satisfactory to the Agent.
(4iii) In giving their opinions required by subsections (b)(l) The letters from Hacker, Xxxxxxx & Xxxxx P.A. dated the Effective Date, the Initial Closing Time and (b)(3)each subsequent Closing Time, respectively, addressed to the Agent in the form reasonably approved by the Agent, containing statements and information of this Sectionthe type ordinarily included in accountant's "comfort letters" to underwriters and sales agents delivered according to Statement of Financial Accounting Standards No. 72 (or any successor bulletin), Xxxxx & Xxxxxxx, L.L.P. with respect to the audited financial statements and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the other financial information in the Registration Statement and the Prospectus.
(except for financial statements b) At the Initial Closing Time and schedules each subsequent Closing Time, (i) the Registration Statement and other financial data included thereinthe Prospectus, as to which counsel need make no statement)may then be amended or supplemented, at the time it became effective, contained shall not contain an untrue statement of a material fact or omitted omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus misleading, (except for financial statements and schedules and other financial data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”ii) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 2, the Partners Trust Parties shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the condition (financial conditionor otherwise), results of operationsearnings, business affairs or prospects assets of the Partners Trust Parties and Company or the Subsidiaries considered as one enterpriseSubsidiaries, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent (iii) no action, suit or proceeding at law or in equity shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Timebe pending or, to the effect that (i) there has been no such material adverse change; (ii) there shall have been no material transactions entered into by the Partners Trust Parties from the latest date as of which the financial condition Knowledge of the Partners Trust Parties is Company, threatened against the Company or any Subsidiary that would be required to be set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated as set forth therein and transactions no proceedings shall be pending or, to the Knowledge of the Company, threatened against the Company or any Subsidiary before or by any federal, state or other commission, board or administrative agency wherein an unfavorable decision, ruling or finding could reasonably be expected to have a Material Adverse Effect, other than set forth in the ordinary course of business consistent with past practice; (iii) the Partners Trust Parties shall not have received from the OTS any direction (oral or written) to make any material change in the method of conducting its business with which they have not complied (which directionProspectus, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Partners Trust Parties or the Subsidiaries; (iv) the representations and warranties Company shall have complied, in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; (v) the Partners Trust Parties have complied all material respects, with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Initial Closing Time and each subsequent Closing Time; , as applicable, (v) the other representations and warranties of the Company set forth in Section 2(a) of this Agreement shall be accurate in all respects as though expressly made at and as of the Initial Closing Time and each subsequent Closing Time, as applicable, and (vi) no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings proceeding for that purpose shall have been initiated or or, to the Knowledge of the Company, threatened by the Commission; and (vii) no order suspending the Offerings SEC or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain any bank regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Application.
(e) agency. At the Initial Closing Time and each subsequent Closing Time, the Agent shall have received a certificate of the President and of the Chief Executive Financial Officer of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and Subsidiaries” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the Subsidiaries, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the Subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties and the Subsidiaries and of BSB and its subsidiaries identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. FinancialCompany, dated as of the Initial Closing Time and each subsequent Closing Time, confirming its appraisalas applicable, to such effect.
(jc) At the Initial Closing Time and each subsequent Closing Time, counsel for the Agent shall have been furnished with all such documents documents, certificates and opinions as they may require request for the purpose of enabling them to pass upon the issuance and sale of the Securities Debentures as contemplated in this Agreement and the issuance matters referred to in Section 5 of the Exchange Shares as herein contemplated this Agreement, and related proceedings, or in order to evidence the accuracy and completeness of any of the representations representations, warranties or warrantiesstatements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions, conditions herein contained; and all proceedings taken by the Company at or prior to the Initial Closing Time and each subsequent Closing Time in connection with the authorization, issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Debentures as herein contemplated in this Agreement shall be satisfactory in form and substance to the Agent and counsel for the Agentits counsel.
(kd) At any time prior The Company shall have paid, or made arrangements satisfactory to Closing Timethe Agent for the payment of, all such expenses as may be required by Section 4 hereof.
(ie) there The Debentures shall not have occurred any material adverse change in been qualified or registered for sale, or are subject to an available exemption from such qualification or registration, under the financial markets in the United States Blue Sky or elsewhere or any outbreak securities laws of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of such jurisdictions as shall have been specified by the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for Offering contemplated by this Agreement shall have been cleared by the sale NASD. If any of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market conditions specified in this Section 5 shall not have been suspendedfulfilled when and as required by this Agreement to be fulfilled, and minimum this Agreement may be terminated by the Agent on notice to the Company at any time at or maximum prices for trading shall prior to the Initial Closing Time or any subsequent Closing Time, or, if the Agent so elects, the Agent may waive in writing any such conditions that have not have been fixedfulfilled, or maximum ranges for prices for securities have been requiredmay extend the time of their fulfillment. If the Agent terminates this Agreement as provided herein, by either such termination shall be without liability of said Exchanges or by order of the Commission or any party to any other governmental authorityparty, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 4, 6, 7 and a banking moratorium 11 of this Agreement shall not have been declared by either Federal or New York authoritiesremain in effect.
Appears in 2 contracts
Samples: Sales Agent Agreement (Florida Savings Bancorp Inc), Sales Agent Agreement (Florida Savings Bancorp Inc)
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the officers and trustees of the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, the Department, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx & XxxxxxxLxxx Xxxxxx, L.L.P.PC, special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules statements, notes to financial statements, financial tables and other financial tabular, financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements, notes to financial statements and schedules and other financial tabular financial, pro forma, appraisal, accounting or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx Lxxx Xxxxxx, PC and Silver, Fxxxxxxx, Txxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company and BSB Bank, as applicable, the Bank and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP may also rely on the opinion of Xxxxx & XxxxxxxLxxx Xxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgePC.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the Pennsylvania Conversion Law, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFRB, the Department or the FDIC or any other regulatory authority other than those which the OTS permits FRB, the Department or the FDIC or any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS FRB, the Department or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties or Company and the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission; and , (vii) no order suspending the Offerings FRB’s or the Department’s respective approval of the Holding Company Applications, the Department’s approval of the Pennsylvania Conversion Application, the FDIC’s non-objection to the FDIC Notice or the respective transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Department, the FDIC or the FRB and no person has sought to obtain regulatory or judicial review of the action of the Department in approving the Plan in accordance with the Pennsylvania Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the Department in approving the Pennsylvania Conversion Application or the action of the FRB or the Department in approving the Holding Company Applications, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory Department, the FDIC or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationFRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Company and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controlsdisclosure controls and procedures; and (vii) they have disclosed to KPMG YHB and the audit committee (A) all significant deficiencies in the design or operation of internal disclosure controls and procedures which could are reasonably likely to adversely affect the Partners Trust Parties’ Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors Company’s and the Bank’s independent registered public accounting firm any material weaknesses in internal disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controlsCompany’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG YHB a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG YHB set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialProsper Bank” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December March 31, 2003 balance sheet included 2021 unaudited statements of financial condition presented under the “Recent Developments” caption in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December March 31, 2003 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG YHB a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis crisis, including any natural disasters or other force majeure events or any epidemic, pandemic or disease outbreak or escalation (including the COVID-19 pandemic to the extent there is any material escalation or material worsening of such pandemic or the effects thereof subsequent to the date hereof), the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Pennsylvania or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank, Mineola Community MHC and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Bank and Mineola Community MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, Mineola Community Financial, the Bank and Mineola Community MHC made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, Mineola Community Financial, the Bank and Mineola Community MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post- effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P.PC, special counsel for the Partners Trust PartiesCompany, Mineola Community Financial, the Bank and Mineola Community MHC, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P. PC and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P., PC and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company and BSB Bank, as applicable, the Bank and certificates of public officials, and . Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP may also rely on the opinion of Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgePC.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, Mineola Community Financial, the Bank and Mineola Community MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, Mineola Community Financial, the Bank or Mineola Community MHC by the OTS, FRB or any other regulatory authority other than those which the OTS permits FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe Company, the Company and Mineola Community Financial, the Bank and Mineola Community MHC and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, Mineola Community Financial, the Company Bank and the BankMineola Community MHC, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, Mineola Community Financial, the Bank or Mineola Community MHC from the latest date as of which the financial condition of the Partners Trust Parties is Company, Mineola Community Financial or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, Mineola Community Financial, the Bank or Mineola Community MHC shall not have received from the OTS FRB, the TDSML or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, Mineola Community Financial the Bank or the Subsidiaries; Mineola Community MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, Mineola Community Financial, the Bank and Mineola Community MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the Commission; and , (vii) no order suspending the Offerings FRB’s approval of the Holding Company Application and the Conversion Application or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, Mineola Community Financial, the Bank or Mineola Community MHC, threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe Company, the Company and Mineola Community Financial, the Bank and Mineola Community MHC and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, the Company Bank and the BankMineola Community MHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties Mineola Community MHC, Mineola Community Financial and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG BKD a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, Mineola Community Financial, the Subsidiaries, BSB, BSB Bank and the BSB Subsidiaries Mineola Community MHC within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG BKD set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long- term or short short-term debt of PTFG and the Subsidiaries Mineola Community MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of PTFG, and the SubsidiariesMineola Community MHC, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement2020 audited statements of financial condition or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (EC) during the period from December 31, 2003 2020 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and Mineola Community MHC or increases in interest expense or the Subsidiariesprovision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter. In addition, as of the date hereof, the Agent shall have received from Xxxx a letter dated such date, in form and substance satisfactory to the Agent, to the effect that: (i) until October 2020, they were the independent public accountants with respect to Mineola Community Financial, the Bank and Mineola Community MHC and within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Subsidiaries Securities Act Regulations and the FRB Regulations, they are registered with the PCAOB, and they are not in violation of BSB the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) based upon limited procedures as agreed upon by the Agent and its subsidiaries Xxxx set forth in detail in such letter, nothing has come to their attention which causes them to believe that, except as set forth in such letter, the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data” in the Prospectus and the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package to which their opinion applied; and (iii) in addition to the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are included in the Registration Statement, Prospectus and the General Disclosure Package and that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Mineola Community Financial, the Bank and Mineola Community MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG each of BKD and Xxxx a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York Texas authorities.
Appears in 1 contract
Samples: Agency Agreement (Texas Community Bancshares, Inc.)
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission, the Federal Reserve Board, the FDIC or the Commissioner and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Ober, Kaler, Gxxxxx & XxxxxxxSxxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent.Agent as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent shall reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Ober, Kaler, Gxxxxx & XxxxxxxSxxxxxx, L.L.P. P.C. and Xxxxxxx Xxxxxx Xxxxxxxx Silver, Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx Ober, Kaler, Gxxxxx & XxxxxxxSxxxxxx, L.L.P.P.C. and Silver, Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company and BSB Bank, as applicable, the Bank and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP may also rely on the opinion of Xxxxx Ober, Kaler, Gxxxxx & XxxxxxxSxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”P.C.
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company and the Bank shall have completed complied in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, regulations of the FDIC and the Commissioner and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFDIC, the Commissioner or any other regulatory authority other than those which the OTS FDIC or the Commissioner permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer and President of PTFG, the Company and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFG, the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS Federal Resesrve Board, the FDIC or the Commissioner any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied in all material respects (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Federal Reserve Board’s and the Commissioner’s approval or non-objection of the Holding Company Application or the authorization for final use FDIC’s or the Commissioner’s approval of the Prospectus Conversion Application, or the transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS FDIC or the Commissioner in approving the Plan in accordance or consistent with the Conversion Regulations regulations of the FDIC or the Commissioner, as applicable, nor has any person sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board or the Commissioner in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Rxxxxx & Company, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations regulations of the FDIC and the Commissioner, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Rxxxxx & Company, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations regulations of the FDIC and the Commissioner or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and [or under “Selected Consolidated Financial and Other Data of BSB Bancorp and Subsidiaries” Recent Developments”] in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings stockholders’ equity of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 2013 consolidated balance sheet sheets included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December March 31, 2003 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Rxxxxx & Company, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Stock Market upon notice of issuance, if an application for listing has been filed by the Company, or otherwise approved for quotation on the OTC Bulletin Board.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx & XxxxxxxXxxxxxxxxx Xxxxxxxx, L.L.P., special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent., to the effect set forth in Appendix A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & XxxxElias, counsel for BSB and BSB BankMatz, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPL.L.P. (“Xxxxx Xxxx”), counsel for the Agent, in form and substance satisfactory with respect to the Agentmatters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require.
(43) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx and Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP Xxxx shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of Xxxxxxxxxx Xxxxxxxx and Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicablewill be governed by, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by interpreted in accordance with, the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the ). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge,” or similar terms and phrases as used herein in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.”” In giving their opinions, Xxxxxxxxxx Xxxxxxxx and Xxxxx Xxxx may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials, and Xxxxx Xxxx may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx.
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change Material Adverse Change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the Bank and the Subsidiaries Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company and of the Bank and the principal financial or principal accounting officer Chief Financial Officer and Principal Accounting Officer of PTFG, the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Change, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Bank or the Subsidiary from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank as set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Partners Trust Parties Company or the Subsidiaries; Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties have Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer and Principal Accounting Officer of PTFG, the Company and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the ProspectusProspectus and the General Disclosure Package; (ii) based on each of their knowledge, the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties Company and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG Xxxxxx & Company, LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Xxxxxx & Company, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPAAmerican Institute of Certified Public Accountants, the Securities Act, the Securities Act and the Securities Act Regulations Regulations, and the Conversion Regulations and they are registered with the PCAOB, they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxxx & Company, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank, except in all instances for increases or decreases which the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Xxxxxx & Company, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or Federal, New York or Maryland authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission, the NCCOB or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P., special Xxxxxxx L.L.P. (“Xxxxxx Xxxxxx”) counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agent as attached hereto as Appendix A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxxxx LLP (“Xxxxxxxxxx Xxxxxxxx”), counsel for the Agent, in form and substance satisfactory to addressing such matters the AgentAgent may reasonably request.
(43) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, Xxxxx & Xxxxxxxqualifications and limitations which shall be set forth in the opinion, L.L.P., Xxxxxxx the opinions of Xxxxxx Xxxxxx and Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicablebe governed by, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by interpreted in accordance with, the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the ). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge,” or similar terms and phrases as used herein in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.”” In giving their opinions, Xxxxxx Xxxxxx and Xxxxxxxxxx Xxxxxxxx may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials, and Xxxxxxxxxx Xxxxxxxx may also rely on the opinion of Xxxxxx Xxxxxx.
(c) At the Closing Time referred to in Section 2Time, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTSNCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the OTS permits NCCOB, the FRB or the FDIC permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in Material Adverse Effect.
(e) At the financial conditionClosing Time, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank has been set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, the MHC or the Bank shall not have received from the OTS NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairshave a Material Adverse Effect, financial condition, results of operations or prospects of the Partners Trust Parties or the Subsidiaries; (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; and Commission or any other governmental body, (vii) no order suspending any material aspect of the Offerings Conversion or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS NCCOB, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the OTS NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the Conversion Regulations applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the OTS NCCOB in approving the Conversion Application or of the FRB in approving the Holding Company Application, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(ef) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, the Company MHC and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, the Company MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the Prospectus Members’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the Prospectus Members’ Proxy Statement, fairly present the financial condition and results of operations of the Partners Trust Parties MHC and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties Company, the MHC and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG Xxxxx Xxxxxx Xxxxxxx LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any and fraud, whether or not material, that involves management or other employees who have a significant role roles in the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s internal controls.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the Subsidiaries, BSB, BSB Bank MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and Regulations, they are registered with the Conversion Regulations PCAOB and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxx Xxxxxx Xxxxxxx LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMHC, in each case as compared with the amounts shown in the December 31, 2003 consolidated balance sheet included in the Registration Statement, Statement or (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (EA) during the period from December 31June 30, 2003 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of PTFG and the SubsidiariesMHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(gh) At the Closing Time, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(hi) At the Closing Time, the Securities Company, the MHC and the Exchange Shares Bank shall have received all regulatory approvals required to consummate the Conversion and the Offerings and the Securities shall have been approved for listing quotation on the Nasdaq National Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, North Carolina, Georgia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission, the NCCOB, the FRB or the FDIC and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P., special Xxxxxxx L.L.P. (“Xxxxxx Xxxxxx”) counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agent as attached hereto as Appendix A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxxxx LLP (“Xxxxxxxxxx Xxxxxxxx”), counsel for the Agent, in form and substance satisfactory to addressing such matters the AgentAgent may reasonably request.
(43) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, Xxxxx & Xxxxxxxqualifications and limitations which shall be set forth in the opinion, L.L.P., Xxxxxxx the opinions of Xxxxxx Xxxxxx and Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicablebe governed by, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by interpreted in accordance with, the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the ). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge,” or similar terms and phrases as used herein in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.”” In giving their opinions, Xxxxxx Xxxxxx and Xxxxxxxxxx Xxxxxxxx may rely as to matters of fact on certificates of officers and directors of the Company, the MHC and the Bank and certificates of public officials, and Xxxxxxxxxx Xxxxxxxx may also rely on the opinion of Xxxxxx Xxxxxx.
(c) At the Closing Time referred to in Section 2Time, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTSNCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the OTS NCCOB, the FRB, the FDIC permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in Material Adverse Effect.
(e) At the financial conditionClosing Time, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank has been set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, the MHC or the Bank shall not have received from the OTS NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairshave a Material Adverse Effect, financial condition, results of operations or prospects of the Partners Trust Parties or the Subsidiaries; (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; and Commission or any other governmental body, (vii) no order suspending any material aspect of the Offerings Conversion or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS NCCOB, the FRB, or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the OTS NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the Conversion Regulations applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the OTS NCCOB in approving the Conversion Application, of the FRB in approving the Holding Company ApplicationApplication or of the FDIC in not objecting to the Conversion, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(ef) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, the Company MHC and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, the Company MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the ProspectusMembers’ Proxy Statement; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the Prospectus Members’ Proxy Statement, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus, the General Disclosure Package, any Issuer-Represented Free-Writing Prospectus and the Prospectus Members’ Proxy Statement, fairly present the financial condition and results of operations of the Partners Trust Parties MHC and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties Company, the MHC and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG Xxxxx Xxxxxx Xxxxxxx LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any and fraud, whether or not material, that involves management or other employees who have a significant role roles in the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s internal controls.
(fg) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the Subsidiaries, BSB, BSB Bank MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and Regulations, they are registered with the Conversion Regulations PCAOB and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxx Xxxxxx Xxxxxxx LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion NCCOB Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries MHC or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMHC, in each case as compared with the amounts shown in the December 31, 2003 consolidated balance sheet included in the Registration Statement, Statement or (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (EA) during the period from December 31June 30, 2003 2011 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest and dividend income, net interest income, net interest income after provision for loan losses, losses before provision for income before income tax expense taxes or net income of PTFG and the SubsidiariesMHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(gh) At the Closing Time, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(hi) At the Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Global Market upon notice of issuance.
(ij) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, North Carolina, Georgia or New York authorities.
(m) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Kxxxxxxxxx Txxxxxxx & XxxxxxxSxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agent as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Lxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPSxxxxx, P.C., counsel for the Agent, in form and substance satisfactory to the Agent.as attached hereto as Exhibit B.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Kxxxxxxxxx Txxxxxxx & Xxxxxxx, L.L.P. Sxxxxxxx LLP and Xxxxxxx Lxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP Sxxxxx, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Federal Reserve Board Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTSFederal Reserve Board, or any other regulatory authority other than those which the OTS Federal Reserve Board permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Federal Reserve Board’s approval of the Conversion Application, or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the OTS Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Plan in accordance with the Conversion Federal Reserve Board Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Mid-Tier Company, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG S.R. Sxxxxxxxx, X.X. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations Federal Reserve Board Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG S.R. Sxxxxxxxx, X.X. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Federal Reserve Board Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December March 31, 2003 2012 consolidated balance sheet sheets included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December March 31, 2003 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG S.R. Sxxxxxxxx, X.X. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Market OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Securities and Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Pennsylvania or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agent and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect at the Closing Time.
Appears in 1 contract
Samples: Agency Agreement (Polonia Bancorp)
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx Xxxxxx Xxxxxxxx & XxxxxxxXxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agents as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxXxxxxxxx LLP, counsel for BSB and BSB Bankthe Agents, in form and substance satisfactory as to such matters as the AgentAgents shall reasonably require.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory In addition to the Agent.
(4) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the Mid-Tier Company, the MHC and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx Xxxxxx . Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”Xxxxxx, P.C.
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTSFederal Reserve Board, or any other regulatory authority other than those which the OTS Federal Reserve Board permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company Mid‑Tier Company, of the MHC and of the Bank and the principal financial or principal accounting officer Executive Vice President, Chief Operating and Chief Financial Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Federal Reserve Board’s approval of the Conversion Application, or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the OTS Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Mid‑Tier Company, the Company and the Bank and the principal financial officer or principal accounting officer Executive Vice President and Chief Financial Officer of PTFGthe Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion FRB Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December 31June 30, 2003 2012 consolidated balance sheet sheets included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agent Agents shall have received from KPMG LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuance.
(i) At Closing Time, the Agent Securities and Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Securities and Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx & XxxxxxxXxxxxxx Xxxxxx Aguggia LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent., as set forth in Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, P.C., counsel for the Agent, in form and substance satisfactory with respect to the Agent.matters set forth in Exhibit B.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Xxxxxxx Xxxxxx & Xxxxxxx, L.L.P. Aguggia LLP and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP Xxxxxx, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Reorganization and the Offerings in accordance with the Plan, the applicable Conversion Regulations, OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization and the Offerings imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the ConversionReorganization and the Offerings.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the MHC nor the Bank shall not have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, of the Company MHC and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Bank and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Xxxxxxxxx, XxxXxxx & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMHC, BSB, BSB the Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxxxxxx, XxxXxxx & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion OTS Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesCompany, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2007 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Xxxxxxxxx, XxxXxxx & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Market OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Hampshire or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the Commission or the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxxxxXxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Representative, as attached hereto as Exhibit B.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx & Xxxx, local counsel for BSB and BSB Bankacceptable to the Representative, in form and substance satisfactory to counsel for the Agent.Representative, as attached hereto as Exhibit C.
(3) The favorable opinion, dated as of the Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx LLP, counsel for the AgentRepresentative, in form and substance satisfactory as to such matters as the AgentRepresentative may reasonably require.
(4) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP and Xxxxxx & Xxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP and Wachtell Lipton Xxxxx Xxxxxx & Xxxx Xxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the Mid-Tier Company, the MHC and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx . Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “and/or local counsel with respect to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning matters set forth in the Accord for the term “Actual Knowledgeparagraphs (i), (iv), (v), (vi), (xii)(A), (xiv) and (xvii).”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the Chief Executive Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Subscription and Community Offering or Syndicated Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the Chief Executive Officer of PTFGthe Mid-Tier Company, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from KPMG ParenteBeard LLC a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and KPMG ParenteBeard LLC set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion OTS Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid- Tier Company, in each case as compared with the amounts shown in the December 31September 30, 2003 balance sheet 2010 consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31September 30, 2003 2010 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent Agents shall have received from KPMG ParenteBeard LLC a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time. [(h) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.]
(hi) At the Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Global Select Market upon notice of issuance.
(ij) At the Closing Time, the Agent Agents shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of Securities and the Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the officers and trustees of Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, the NYSDFS, the FDIC or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P.PC, special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx & XxxxSilver, counsel for BSB and BSB BankXxxxxxxx, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx Xxxx & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P. PC and Xxxxxxx Xxxxxx Xxxxxxxx Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial financial, pro forma or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial financial, pro forma or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P.PC and Silver, Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx, Taff & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company and BSB Bank, as applicable, the Bank and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx, Taff & Xxxxxxx LLP may also rely on the opinion of Xxxxx & XxxxxxxXxxx Xxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgePC.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFRB, the NYSDFS or the FDIC or any other regulatory authority other than those which the OTS permits FRB, the NYSDFS or the FDIC or any such other regulatory authority permit to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS FRB, the NYSDFS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties or Company and the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the Commission; and , (vii) no order suspending the Offerings NYSDFS’ approval of the Conversion Applications or the FRB’s or NYSDFS’ approval of the Holding Company Applications or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company or the Bank, threatened by the NYSDFS or the FRB and no person has sought to obtain regulatory or judicial review of the action of the NYSDFS in approving the Plan in accordance with the New York Conversion Law nor has any person sought to obtain regulatory or judicial review of the action of the NYSDFS in approving the Conversion Applications or the FRB or the NYSDFS in approving the Holding Company Applications, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory NYSDFS, the FDIC or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationFRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Company and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Xxxxx Xxxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxx Xxxxxxx LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included 2016 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 2016 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG Xxxxx Xxxxxxx LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) business days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Foundation Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent Bank shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, Securities and the issuance and contribution of the Exchange Foundation Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS WDFI, the FRB or the FDIC; and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Breyer & XxxxxxxAssociates PC (“Breyer”), L.L.P., special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent, to the effect set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxx, PC (“Xxxx Xxxxxx”), counsel for the Agent, in form and substance satisfactory with respect to the Agentmatters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Exhibit A and such other matters as the Agent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. Breyer and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, Xxxxx & Xxxxxxxqualifications and limitations which shall be set forth in the opinion, L.L.P., Xxxxxxx the opinions of Breyer and Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicablewill be governed by, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by interpreted in accordance with, the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the ). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge,” or similar terms and phrases as used herein in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.”” In giving their opinions, Breyer and Xxxx Xxxxxx may rely as to matters of fact on certificates of officers and directors of the Company, the Bank and the Subsidiaries and certificates of public officials, and Xxxx Xxxxxx may also rely on the opinion of Breyer for purposes of issuing the opinion set forth in Section 5(b)(2).
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFRB, the FDIC or the WDFI, or any other regulatory authority other than those which the OTS permits WDFI, the FDIC or the FRB permit to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, operations or business affairs or prospects of the Partners Trust Parties Company and the Subsidiaries Bank and the Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFG, the Company and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Bank or any of the Subsidiaries from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Bank or any of the Subsidiaries, as set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS WDFI, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company or the Subsidiaries; Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties have Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS WDFI, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the OTS WDFI in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFG, the Company and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFG, the Company and of the Bank, dated as of Closing Time, to the effect that (i) they have he has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their his knowledge, the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their his knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, fairly present the consolidated financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) they are he is responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have he has designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Company and the Subsidiaries Bank is made known to them; (vi) they have he has evaluated the effectiveness of their internal controlsdisclosure controls and procedures; and (vii) they have he has disclosed to KPMG Xxxx Xxxxx LLP and the audit committee (A) all significant deficiencies in the design or operation of internal disclosure controls and procedures which could are reasonably likely to adversely affect the Partners Trust Parties’ Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s and the Bank’s auditors any material weaknesses in internal disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controlsCompany’s and the Bank’s disclosure controls and procedures.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Xxxx Xxxxx LLP, a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the Subsidiaries, BSB, BSB Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPAAmerican Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Sarbanes‑Oxley Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxx Xxxxx LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and and, if applicable, under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 _______________ to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Xxxx Xxxxx LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing trading on the Nasdaq National Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or Washington or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Mid-Tier, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx Xxxxxx Xxxxxxxx & XxxxxxxXxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany, the MHC, the Mid-Tier and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto. Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. may rely on the opinion of local counsel as necessary.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP, counsel for the Agent, in form and substance satisfactory with respect to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements statements, notes to financial statements, stock valuaiton information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxx Procter LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the MHC, the Mid-Tier and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”Xxxxxx, P.C.
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFRB, or any other regulatory authority other than those which the OTS FRB or the Department permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC, the Mid-Tier or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC, the Mid-Tier or the Bank, as set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC, the Mid-Tier or the Subsidiaries; Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties have Company, the MHC, the Mid-Tier and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or or, to their knowledge, threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS Department in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the Partners Trust Parties MHC and the Subsidiaries subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Wolf & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesMHC, the SubsidiariesMid-Tier, BSB, BSB Bank the Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPAAmerican Institute of Certified Public Accountants, the Securities Act and the Securities Act Regulations and Regulations, they are registered with the Conversion Regulations PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries MHC included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, Act and the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG the MHC, the Mid-Tier and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFGthe MHC, the Mid-Tier and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31October 1, 2003 2013 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties MHC, the Mid-Tier and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing trading on the Nasdaq National Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Rhode Island or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx & XxxxxxxMxxxxxx Xxxxxx Aguggia LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent., as set forth in Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Lxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPSxxxxx, P.C., counsel for the Agent, in form and substance satisfactory with respect to the Agent.matters set forth in Exhibit B.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Mxxxxxx Xxxxxx & Xxxxxxx, L.L.P. Aguggia LLP and Xxxxxxx Lxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP Sxxxxx, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Reorganization and the Offerings in accordance with the Plan, the applicable Conversion Regulations, OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Reorganization and the Offerings imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the ConversionReorganization and the Offerings.
(d) At Closing Time, there shall not have been, since the date hereof November 9, 2007 or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries Subsidiary, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company, the MHC nor the Bank shall not have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the best of their knowledge after due inquiry, threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated initiated, or to the best of their knowledge after due inquiry, threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, of the Company MHC and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Bank and the Subsidiaries Subsidiary as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Sxxxxxxxx, MxxXxxx & Company, P.C. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMHC, BSB, BSB the Bank and the BSB Subsidiaries Subsidiary within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Sxxxxxxxx, MxxXxxx & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion OTS Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2007 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Sxxxxxxxx, MxxXxxx & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Market OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Hampshire or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable written opinion, dated as of Closing Time, of Xxxxx Mxxxxxx Mxxxxx Xxxxxxxx & XxxxxxxAxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as to the matters set forth on Exhibit A hereto.
(2) The favorable written opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx Mxxxxxx Spidi & XxxxFxxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPPC, counsel for the Agent, in form and substance satisfactory with respect to the Agentmatters set forth on Exhibit B hereto.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Mxxxxxx Mxxxxx Xxxxxxxx & Xxxxxxx Axxxxxx LLP and Mxxxxxx Spidi & Fxxxx, PC shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Regulations, OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the ConversionOfferings.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the MHC nor the Bank shall not have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, of the Company MHC and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Bank and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG Bxxxx Mxxxxx Company LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Bxxxx Mxxxxx Company LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMHC, BSB, BSB the Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations OTS Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Bxxxx Mxxxxx Company LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion OTS Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesCompany, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Bxxxx Mxxxxx Company LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Market OTC Bulletin Board upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Maryland or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties MHC, the Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties MHC, the Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties MHC, the Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties MHC, the Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx Kxxxxxxxxx Txxxxxxx & XxxxxxxSxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesMHC, the Company and the Bank, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Kxxxxxxxxx Txxxxxxx & XxxxxxxSxxxxxxx LLP and Silver, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx Kxxxxxxxxx Txxxxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Sxxxxxxx LLP and Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB MHC, the Company and BSB Bank, as applicable, the Bank and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP may also rely on the opinion of Xxxxx Kxxxxxxxxx Txxxxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgeSxxxxxxx LLP.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Regulations, MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Partners Trust Parties Company, the Bank or the MHC by the OTS, FRB or any other regulatory authority other than those which the OTS permits FRB or any such other regulatory authority do not require or permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe MHC, the Company and the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, the MHC or the Bank shall not have received from the OTS FRB or the OCC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties or Company, the Subsidiaries; MHC and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission; and , (vii) no order suspending the Offerings FRB’s approval of the FRB Application or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Plan in accordance with the Conversion MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Holding Company FRB Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe MHC, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Company, the MHC and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controlsdisclosure controls and procedures; and (vii) they have disclosed to KPMG LLP and the audit committee (A) all significant deficiencies in the design or operation of internal disclosure controls and procedures which could are reasonably likely to adversely affect the Partners Trust Parties’ Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors Company’s and the Bank’s independent registered public accounting firm any material weaknesses in internal disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controlsCompany’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Company or any decrease in consolidated total assets, total investment securities, total loans, the allowance for loan losses, total deposits or retained earnings total stockholder’s equity of PTFG, and the SubsidiariesCompany, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included 2017 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (EC) during the period from December 31, 2003 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, or any increases in interest expense, non-interest expense or the provision for loan losses except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Foundation Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, Securities and the issuance and contribution of the Exchange Foundation Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the OTS, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx & Xxxxxxx, L.L.P., special counsel for the Partners Trust Parties, in form and substance satisfactory to the Agent.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable written opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the AgentCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent, as to the matters set forth on Exhibit A hereto:
(2) The written opinion, dated as of Closing Time, of Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Agent, with respect to the matters set forth on Exhibit B hereto.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Regulations, OTS Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTS, OTS or any other regulatory authority authority, other than those which the OTS permits to be completed after the ConversionOfferings.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries Subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the MHC nor the Bank shall not have received from the OTS any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion OTS Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company ApplicationPlan.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, of the Company MHC and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties Company, the MHC, the Bank and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG Deloitte & Touche, LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ Company’s, the MHC’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Deloitte & Touche LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMHC, BSB, BSB the Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations and OTS Regulations, they are not in violation of registered with the auditor independence requirements of the Xxxxxxxx-Xxxxx ActPCAOB; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Deloitte & Touche LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion OTS Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesCompany, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31, 2003 to a specified date not more than five (5) days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Deloitte & Touche LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares Common Stock shall have been approved for listing quotation on the Nasdaq National Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to in the reasonable judgment of the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Mid-Tier, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS FRB, and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx Xxxxxx Xxxxxxxx & XxxxxxxXxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany, the MHC, the Mid-Tier and the Bank, in form and substance satisfactory to counsel for the Agent, set forth on Exhibit A hereto.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP, counsel for the Agent, in form and substance satisfactory with respect to the Agentmatters set forth in clauses [ ] of Exhibit A and such other matters as the Agent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxx Procter LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, or that the General Disclosure Package as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements statements, notes to financial statements, stock valuation information and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. and Xxxxxxx Procter LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the MHC, the Mid-Tier and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Procter LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”Xxxxxx, P.C.
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company, the MHC, the Mid-Tier and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTSFRB, or any other regulatory authority other than those which the OTS FRB permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC, the Mid-Tier or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC, the Mid-Tier or the Bank, as set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC, the Mid-Tier or the Subsidiaries; Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties have Company, the MHC, the Mid-Tier and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; , and (vii) no order suspending the Offerings Subscription and Community Offering or the Syndicated Community Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS Division in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC, of the Mid-Tier and of the Bank, dated as of Closing Time, to the effect that (i) they have he or she has reviewed the contents of the Registration Statement and the General Disclosure Package, including the Prospectus; (ii) based on each of their his or her knowledge, the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their his or her knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, fairly present the financial condition and results of operations of the Partners Trust Parties Bank and the Subsidiaries as of and for the dates and periods covered by the Registration Statement and the General Disclosure Package, including the Prospectus; (iv) they are he or she is responsible for establishing and maintaining internal controls; (v) they have he or she has designed such internal controls to ensure that material information relating to the Partners Trust Parties Company, the MHC, the Mid-Tier and the Subsidiaries Bank is made known to them; (vi) they have he or she has evaluated the effectiveness of their internal controls; and (vii) they have he or she has disclosed to KPMG Wolf & Company, P.C. and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Wolf & Company, P.C., a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the Subsidiaries, BSB, BSB Bank and the BSB Subsidiaries within the meaning of the Code of Ethics of the AICPAAmerican Institute of Certified Public Accountants, the Securities Act and Act, the Securities Act Regulations and the Conversion Regulations Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Wolf & Company, P.C. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Company included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG the MHC, the Mid-Tier and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFGthe MHC, the Mid-Tier and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31[October 1, 2003 2013] to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the General Disclosure Package, including the Prospectus and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC, the Mid-Tier and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Wolf & Company, P.C. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing trading on the Nasdaq National Capital Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Foundation Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares Securities and the Merger Foundation Shares as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Rhode Island or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx Xxxxxx Xxxxxxxx & XxxxxxxXxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agents as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxXxxxxxxx LLP, counsel for BSB and BSB Bankthe Agents, in form and substance satisfactory as to such matters as the AgentAgents shall reasonably require.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory In addition to the Agent.
(4) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the Mid-Tier Company, the MHC and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx Xxxxxx . Xxxxxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”Xxxxxx, P.C.
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTSFederal Reserve Board, or any other regulatory authority other than those which the OTS Federal Reserve Board permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank and the principal financial or principal accounting officer Executive Vice President, Chief Operating and Chief Financial Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Federal Reserve Board’s approval of the Conversion Application, or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the OTS Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Mid-Tier Company, the Company and the Bank and the principal financial officer or principal accounting officer Executive Vice President and Chief Financial Officer of PTFGthe Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion FRB Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December 31June 30, 2003 2012 consolidated balance sheet sheets included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agents and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agent Agents shall have received from KPMG LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuance.
(i) At Closing Time, the Agent Securities and Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Securities and Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or to the knowledge of the Company threatened by the Commission, ; no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxxxxXxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the AgentAgent as attached hereto as Exhibit B hereto.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & XxxxElias, counsel for BSB and BSB BankMatz, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPL.L.P., counsel for the Agent, in form and substance satisfactory to the Agentas attached hereto as Exhibit C hereto.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP and Elias, Matz, Xxxxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxxxxXxxxxxxx LLP and Elias, L.L.P.Matz, Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx L.L.P. may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the Mid-Tier Company, the MHC and BSB Bank, as applicable, the Bank and certificates of public officials. Elias, and Matz, Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP L.L.P. may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgeXxxxxxxx LLP.”
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects with the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and the Control Act Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTS, FRB or any other regulatory authority other than those which the OTS FRB permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, the Company Mid-Tier Company, the MHC and the Bank and the principal chief financial or principal chief accounting officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS OCC or the FRB any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations operations, business affairs or prospects of the Partners Trust Parties or Company, the Mid-Tier Company, the MHC, the Bank and the Subsidiaries; , considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Subscription and Community or Public Offering or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Conversion Application or the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Mid-Tier Company, the Company and the Bank and the principal chief financial officer or principal chief accounting officer of PTFGthe Mid-Tier Company, the Company Company, the MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Clark, Schaefer, Xxxxxxx & Co. a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are the independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as (but not an audit examination in accordance with the auditing standards of the PCAOB) consisting of a review in accordance with Statement on Auditing Standards (SAS) No. 100, “Interim Financial Information” (AU Section 722), agreed upon by the Agent and KPMG Clark, Schaefer, Xxxxxxx & Co. set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion FRB Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and [or under “Selected Consolidated Financial and Other Data of BSB Bancorp and Subsidiaries” Recent Developments”] in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December 31, 2003 balance sheet consolidated statements of financial conditions included in the Registration Statement, or (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31[September 30, 2003 2012] to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Clark, Schaefer, Xxxxxxx & Co. a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing quotation on the Nasdaq National Global Market upon notice of issuance.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of Securities and the Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, Indiana or New York authorities.
(l) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Agent and the persons set forth on Exhibit E hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect on the Closing Date.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the MHC, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or or, to the knowledge of the Company, proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission, the NCCOB or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Brooks, Pierce, XxXxxxxx, Xxxxxxxx & Xxxxxxx, L.L.P., special Xxxxxxx L.L.P. (“Xxxxxx Xxxxxx”) counsel for the Partners Trust PartiesCompany, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agent as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLPXxxxxxxx LLP (“Xxxxxxxxxx Xxxxxxxx”), counsel for the Agent, in form and substance satisfactory as to such matters the AgentAgent may reasonably request.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxx and Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB Company, the MHC and BSB Bank, as applicable, the Bank and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgeXxxxxx.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, NCCOB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the MHC or the Bank by the OTSNCCOB, the FRB, the FDIC or any other regulatory authority authority, other than those which the OTS NCCOB, the FRB or the FDIC permits to be completed after the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the MHC and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe Company, of the Company MHC and of the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe Company, of the Company MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company, the MHC nor the Bank shall not have received from the OTS NCCOB, the FRB or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; and , (vii) no order suspending the Offerings NCCOB’s approval of the Conversion Application or the authorization for final use transactions contemplated thereby or the FRB’s Approval of the Prospectus Holding Company Application or the transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or threatened by the OTS NCCOB, the FRB or the FDIC and no person has sought to obtain regulatory or judicial review of the action of the OTS NCCOB, the FRB or the FDIC in approving or not objecting to the Plan in accordance with the Conversion Regulations applicable regulations, nor has any person sought to obtain regulatory or judicial review of the action of the OTS NCCOB in approving the Conversion Application or of the FRB in approving the Holding Company Application, (viii) since the date the Prospectus became authorized for final use, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus which has not been so set forth and (ix) the conditions set forth in this Section 5 have been satisfied.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer and President of PTFGthe Company, the Company MHC and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe Company, the Company MHC and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties MHC and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the Subsidiaries, BSB, BSB Bank MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations regulations of the FRB, they are registered with the PCAOB and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxx Xxxxxx Xxxxxxx LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries MHC included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations regulations of the FRB or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income for the three months ended March 31, 2014 and net income 2013 set forth under “Selected Consolidated Financial and Other Data of Partners Trust Financial” and “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesData” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries MHC or any decrease in consolidated total assets, total deposits, loans receivable, net, the allowance for loan losses, or total deposits or retained earnings equity of PTFG, and the SubsidiariesMHC, in each case as compared with the amounts shown in the December March 31, 2003 balance sheet 2014 consolidated statements of financial condition included in the Registration Statement, Statement or (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December March 31, 2003 2014 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, noninterest income before income tax expense or net income or any increases in the provision for loan losses or noninterest expense of PTFG and the SubsidiariesMHC, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG Xxxxx Xxxxxx Xxxxxxx LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (fg) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities Company, the MHC and the Exchange Shares Bank shall have received all regulatory approvals required to consummate the Conversion and the Offerings and the Securities shall have been approved for listing quotation on the Nasdaq National Global Market upon notice of issuance.
(i) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, North Carolina, Georgia or New York authorities.
(l) The Securities shall have been qualified or registered for offering and sale or exempted therefrom under the securities or blue sky laws of the jurisdictions as the Agent shall have reasonably requested and as agreed to by the Company, the MHC and the Bank.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Mid-Tier Company, the MHC, the Bank and the Agent Agents agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent Agents hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or threatened by the OTS Commission or the Federal Reserve Board and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent Agents shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxx Xxxxxx Xxxxxxxx & XxxxxxxXxxxxx, L.L.P.P.C., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the MHC and the Bank, in form and substance satisfactory to counsel for the Agent.Agents as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx Xxxxxxxxxx Xxxxxxxx & XxxxXxxxxxxx LLP, counsel for BSB and BSB Bankthe Agents, in form and substance satisfactory as to such matters as the AgentAgents shall reasonably require.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory In addition to the Agent.
(4) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, P.C. and Xxxxxxxxxx Xxxxxxxx & Xxxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and or at Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicable, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual Knowledge.”
(c) At Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank by the OTSFederal Reserve Board, or any other regulatory authority other than those which the OTS Federal Reserve Board permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries Bank, considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank and the principal financial or principal accounting officer Executive Vice President, Chief Operating and Chief Financial Officer of PTFGthe Company, of the Company Mid-Tier Company, of the MHC and of the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; , (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company, the MHC or the Bank, as set forth in the Registration Statement and the Prospectus other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; practice (iii) neither the Partners Trust Parties Company, the Mid-Tier Company, the MHC nor the Bank shall not have received from the OTS Federal Reserve Board, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the AgentAgents) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company, the MHC or the Subsidiaries; Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings Federal Reserve Board’s approval of the Conversion Application, or the authorization for final use of the Prospectus transactions contemplated thereby, has been issued and no proceedings for that purpose have been initiated or threatened by the OTS Federal Reserve Board and no person has sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS Federal Reserve Board in approving the Holding Company Conversion Application.
(e) At the Closing Time, the Agent Agents shall have received a certificate of the President and Chief Executive Officer of PTFGthe Mid-Tier Company, the Company and the Bank and the principal financial officer or principal accounting officer Executive Vice President and Chief Financial Officer of PTFGthe Mid-Tier Company, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement and the Prospectus; (ii) based on each of their knowledge, the Registration Statement and the Prospectus do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; and (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controls; (v) they have designed such internal controls to ensure that material information relating to the Partners Trust Parties and the Subsidiaries is made known to them; (vi) they have evaluated the effectiveness of their internal controls; and (vii) they have disclosed to KPMG and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controls.
(f) At the time As of the execution of this Agreementdate hereof, the Agent Agents shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the AgentAgents, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB Bank the MHC and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent Agents and KPMG LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited consolidated financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries Mid-Tier Company included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion FRB Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited consolidated financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of PTFG and the Subsidiaries Mid-Tier Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings net worth of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December 31June 30, 2003 2012 consolidated balance sheet sheets included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2012 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement and the Prospectus and which that are specified by the AgentAgents, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the MHC and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Agents and the persons set forth on Exhibit D hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agents on or before the date hereof and shall be in full force and effect on the Closing Time.
(h) At Closing Time, the Agent Agents shall have received from KPMG LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuance.
(i) At Closing Time, the Agent Securities and Exchange Shares shall have been approved for quotation on the Nasdaq Global Select Market upon notice of issuance.
(j) At Closing Time, the Agents shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisalAppraisal.
(jk) At Closing Time, counsel for the Agent Agents shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Securities and Exchange Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent Agents and counsel for the AgentAgents.
(kl) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the AgentAgents, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal Federal, New Jersey or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank, the MHC and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company, the Bank and the MHC herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company, the Mid-Tier Company, the Bank and the MHC made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company, the Mid-Tier Company, the Bank and the MHC of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx & XxxxxxxLord LLP, L.L.P., special counsel for the Partners Trust PartiesCompany, the Mid-Tier Company, the Bank and the MHC, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit A.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx & XxxxSilver, counsel for BSB and BSB BankXxxxxxxx, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx Taff & Xxxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx & XxxxxxxLord LLP and Silver, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx, Xxxx & Xxxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial financial, pro forma, appraisal or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & XxxxxxxLord LLP and Silver, L.L.P.Xxxxxxxx, Xxxxxxx Xxxxxx Xxxxxxxx Xxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Xxxxx Parties or BSB and BSB Bank, as applicable, and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx, Xxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgeLord LLP.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company, the Mid-Tier Company, the Bank and the MHC shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, FRB Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company, the Mid-Tier Company, the Bank or the MHC by the OTS, FRB or any other regulatory authority other than those which the OTS permits FRB or any such other regulatory authority permit to be completed after the consummation of the Conversion.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the President and Chief Executive Officer of PTFGthe Company, the Company and Mid-Tier Company, the Bank and the principal financial or principal accounting officer MHC and the Chief Financial Officer of PTFGthe Company, the Company Mid-Tier Company, the Bank and the BankMHC, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Mid-Tier Company, the Bank or the MHC from the latest date as of which the financial condition of the Partners Trust Parties is Company, the Mid-Tier Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, the Mid-Tier Company, the Bank or the MHC shall not have received from the OTS FRB, the OCC or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which would materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties Company, the Mid-Tier Company the Bank or the Subsidiaries; MHC, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the Mid-Tier Company, the Bank and the MHC have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the Commission; and , (vii) no order suspending the Offerings FRB’s approval of the Holding Company Application and the Conversion Application or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the Mid-Tier Company, the Bank or the MHC, threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Plan in accordance with the Conversion FRB Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Conversion Application or the Holding Company Application, and (viii) no order suspending the Subscription and Community Offering or the Syndicated Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe Company, the Company and Mid-Tier Company, the Bank and the principal financial officer or principal accounting officer MHC and the Chief Financial Officer of PTFGthe Company, the Company Bank and the BankMHC, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the consolidated financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Mid-Tier Company and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controlsdisclosure controls and procedures; and (vii) they have disclosed to KPMG Mazars and the audit committee (A) all significant deficiencies in the design or operation of internal disclosure controls and procedures which could are reasonably likely to adversely affect the Partners Trust Parties’ Mid-Tier Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors Mid-Tier Company’s and the Bank’s independent registered public accounting firm any material weaknesses in internal disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controlsMid-Tier Company’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG Mazars a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust PartiesCompany, the SubsidiariesMid-Tier Company, BSB, BSB the Bank and the BSB Subsidiaries MHC within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations FRB Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Mazars set forth in detail in such letter, nothing has come to their attention which causes them to believe that that, except as set forth in such letter, (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any change in the common stock or preferred stock, increase in advances with the consolidated long Federal Home Loan Bank of New York or other long-term or short short-term debt of PTFG and the Subsidiaries or any decrease decreases in consolidated total assets, the allowance for of loan losses, total loans, total deposits or retained earnings stockholders’ equity of PTFG, and the SubsidiariesMid-Tier Company, in each case as compared with the amounts shown in the December 31September 30, 2003 balance sheet included 2021 unaudited statements of financial condition presented under the “Recent Developments” caption in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31October 1, 2003 2021 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total consolidated interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesMid-Tier Company or increases in interest expense or the provision for loan losses, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company, the Mid-Tier Company, the Bank and the Subsidiaries and of BSB and its subsidiaries MHC identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG Mazars a letter, letter dated as of the Closing Time, to the effect that they reaffirm it reaffirms the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Agent and the persons set forth on Exhibit C hereto, relating to sales and certain other dispositions of shares of Common Stock, Mid-Tier Company Common Stock or certain other securities, shall be delivered to the Agent on or before the date hereof and shall be in full force and effect at the Closing Time.
(i) At the Closing Time, the Securities and the Exchange Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(ij) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(jk) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance Exchange Shares and the contribution of the Exchange Foundation Shares to the Foundation as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of Securities and the Exchange Shares and the Merger contribution of the Foundation Shares to the Foundation as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(kl) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus shall have been issued or proceedings therefor initiated or threatened by the OTS and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx & XxxxxxxXxxxxxxxxx Xxxxxxxx, L.L.P., special counsel for the Partners Trust PartiesCompany and the Bank, in form and substance satisfactory to counsel for the Agent., to the effect set forth in Appendix A.
(2) The favorable opinion, dated as of Closing Time, of Wachtell Lipton Xxxxx & XxxxElias, counsel for BSB and BSB BankMatz, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLPL.L.P. (“Xxxxx Xxxx”), counsel for the Agent, in form and substance satisfactory with respect to the Agentmatters set forth in clauses (i), (ii), (v), (vii), (viii) (solely as to preemptive rights arising by operation of law), (xv), (xvi) and (xviii) of Appendix A and such other matters as the Agent may reasonably require.
(43) In giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxxxxxxx Xxxxxxxx and Xxxxx & Xxxxxxx, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP Xxxx shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules schedules, notes to financial statements, stock valuation information and other financial or statistical data included thereintherein or omitted therefrom, as to which counsel need make no statement), at the time the Registration Statement became effective and or at the Closing Time, or that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinionsTo the extent not inconsistent with the assumptions, qualifications and limitations which shall be set forth in the opinion, the opinions of Xxxxxxxxxx Xxxxxxxx and Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP and Wachtell Lipton Xxxxx & Xxxx may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB and BSB Bank, as applicablewill be governed by, and certificates of public officials, and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP may also rely on the opinion of Xxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by interpreted in accordance with, the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the ). The clause “to counsel’s knowledge,” “to such counsel’s actual knowledge,” or similar terms and phrases as used herein in said opinion shall have the meaning set forth in the Accord for the term “Actual Knowledge.”” In giving their opinions, Xxxxxxxxxx Xxxxxxxx and Xxxxx Xxxx may rely as to matters of fact on certificates of officers and directors of the Company and the Bank and certificates of public officials, and Xxxxx Xxxx may also rely on the opinion of Xxxxxxxxxx Xxxxxxxx.
(c) At Closing Time referred to in Section 2, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion in accordance with the Plan, the applicable Conversion Regulations, Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion imposed upon the Partners Trust Parties Company or the Bank by the OTS, or any other regulatory authority other than those which the OTS permits to be completed after the Conversion.
(d) At Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the General Disclosure Package, including the Prospectus, any material adverse change Material Adverse Change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties Company, the Bank and the Subsidiaries Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business consistent with past practice, and the Agent shall have received a certificate of the President, Chief Executive Officer and Chief Financial Officer of PTFG, the Company and the Bank and the principal financial or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Change, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company, the Bank or the Subsidiary from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank as set forth in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) neither the Partners Trust Parties Company nor the Bank shall not have received from the OTS or the FDIC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed to the Agent) or which materially and adversely would affect the business affairs, financial condition, results of operations or prospects of the Partners Trust Parties Company or the Subsidiaries; Bank, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties have Company and the Bank has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission; Commission and (vii) no order suspending the Offerings or the authorization for final use of the Prospectus has been issued and no proceedings for that purpose have been initiated or threatened by the OTS and no person has sought to obtain regulatory or judicial review of the action of the OTS in approving the Plan in accordance with the Conversion Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS in approving the Holding Company Application.
(e) At the Closing Time, the Agent shall have received a certificate of the President, Chief Executive Officer and Chief Financial Officer of PTFG, the Company and the Bank and the principal financial officer or principal accounting officer of PTFG, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have he has reviewed the contents of the Registration Statement and the ProspectusProspectus and the General Disclosure Package; (ii) based on each of their his knowledge, the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their his knowledge, the financial statements and other financial information included in the Registration Statement and the Prospectus and the General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Bank as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are he is responsible for establishing and maintaining internal controls; (v) they have he has designed such internal controls to ensure that material information relating to the Partners Trust Parties Company and the Subsidiaries Bank is made known to them; (vi) they have he has evaluated the effectiveness of their internal controls; and (vii) they have he has disclosed to KPMG Xxxxxx & Company, LLP and the audit committee (A) all significant deficiencies in the design or operation of internal controls which could adversely affect the Partners Trust Parties’ Company’s and the Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ Company’s and the Bank’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ Company’s and the Bank’s internal controls.
(f) At the time of the execution of this Agreement, the Agent shall have received from KPMG Xxxxxx & Company, LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPAAmerican Institute of Certified Public Accountants, the Securities Act, the Securities Act and the Securities Act Regulations Regulations, and the Conversion Regulations and they are registered with the PCAOB, they are not in violation of the auditor independence requirements of the Xxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions opinion therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG Xxxxxx & Company, LLP set forth in detail in such letter, nothing has come to their attention which causes them to believe that (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement and the General Disclosure Package, including the Prospectus, do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the General Disclosure Package, including the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement and Prospectus do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions caption or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited financial statements included in the Registration Statement, (C) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Bank or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings of PTFG, and the SubsidiariesBank, in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (E) during the period from December 31June 30, 2003 2010 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesBank, except in all instances for increases or decreases which the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included in the Registration Statement and the Prospectus General Disclosure Package, including the Prospectus, and which are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At Closing Time, the Agent shall have received from KPMG Xxxxxx & Company, LLP a letter, dated as of Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.
(h) At Closing Time, the Securities and the Exchange Shares shall have been approved for listing trading on the Nasdaq National Market OTC Bulletin Board upon notice of issuance, provided that the Agent has timely filed the application for such trading.
(i) At Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, the issuance of the Exchange Shares and the Merger Securities as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either the American Stock Exchange, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or Federal, New York or Maryland authorities.
Appears in 1 contract
Conditions of Agent’s Obligations. The Partners Trust Parties MHC, the Company, the Bank and the Agent agree that the issuance and the sale of Securities and the issuance of the Exchange Shares and all obligations of the Agent hereunder are subject to the accuracy of the representations and warranties of the Partners Trust Parties MHC, the Company and the Bank herein contained as of the date hereof and the Closing Time, to the accuracy of the statements of officers and directors of the Partners Trust Parties MHC, the Company and the Bank made pursuant to the provisions hereof, to the performance by the Partners Trust Parties MHC, the Company and the Bank of their obligations hereunder, and to the following further conditions:
(a) No stop order suspending the effectiveness of the Registration Statement Statement, including any post-effective amendment thereto, shall have been issued under the Securities Act or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the Commission, no order suspending the Offerings or authorization for final use of the Prospectus Prospectus, including any prospectus included in a post-effective amendment to the Registration Statement, shall have been issued or proceedings therefor initiated or or, to the knowledge of the Company, threatened by the OTS Commission, or the FRB and no order suspending the sale of the Securities in any jurisdiction shall have been issued.
(b) At the Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xxxxx Kxxxxxxxxx Txxxxxxx & XxxxxxxSxxxxxxx LLP, L.L.P., special counsel for the Partners Trust PartiesMHC, the Company and the Bank, in form and substance satisfactory to counsel for the Agent., as attached hereto as Exhibit C.
(2) The favorable opinion, dated as of the Closing Time, of Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx, counsel for BSB and BSB Bank, in form and substance satisfactory to the Agent.
(3) The favorable opinion, dated as of Closing Time, of Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Txxxxxx LLP, counsel for the Agent, in form and substance satisfactory as to such matters as the AgentAgent may reasonably require.
(43) In addition to giving their opinions required by subsections (b)(l) and (b)(3b)(2), respectively, of this Section, Xxxxx Kxxxxxxxxx Txxxxxxx & XxxxxxxSxxxxxxx LLP and Silver, L.L.P. and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP shall each additionally state that nothing has come to their attention that would lead them to believe that the Registration Statement (except for financial statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements and schedules and other financial financial, pro forma or statistical data included therein, as to which counsel need make no statement), at the time the Registration Statement became effective and effective, as of the date of the Prospectus or at the Closing Time, or (if applicable) that the General Disclosure Package as of the Applicable Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In giving their opinions, Xxxxx & Xxxxxxx, L.L.P., Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Kxxxxxxxxx Txxxxxxx &Stockton LLP and Wachtell Lipton Xxxxx Silver, Fxxxxxxx, Taff & Xxxx Txxxxxx LLP may rely as to matters of fact on certificates of officers and directors of the Partners Trust Parties or BSB MHC, the Company and BSB Bank, as applicable, the Bank and certificates of public officials. Silver, and Xxxxxxx Xxxxxx Xxxxxxxx Fxxxxxxx, Taff & Xxxxxxx Txxxxxx LLP may also rely on the opinion of Xxxxx Kxxxxxxxxx Txxxxxxx & Xxxxxxx, L.L.P. The opinions of Xxxxx & Xxxxxxx, L.L.P., Wachtell Lipton Xxxxx & Xxxx and Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP shall be governed by the provisions of The Legal Opinion Accord (the “Accord”) of the American Bar Association Section of Business Law (1991) and the clause “to such counsel’s knowledge,” or similar terms and phrases as used herein shall have the meaning set forth in the Accord for the term “Actual KnowledgeSxxxxxxx LLP.”
(c) At the Closing Time referred to in Section 22 hereof, the Partners Trust Parties Company and the Bank shall have completed in all material respects the conditions precedent to the Conversion Offerings in accordance with the Plan, the applicable Conversion Regulations, MHC Regulations and all other applicable laws, regulations, decisions and orders, including all terms, conditions, requirements and provisions precedent to the Conversion Offerings imposed upon the Partners Trust Parties Company or the Bank by the OTS, FRB or any other regulatory authority other than those which the OTS permits FRB or any such other regulatory authority do not require or permit to be completed after the ConversionOfferings.
(d) At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change in the financial condition, results of operations, business affairs or prospects of the Partners Trust Parties and the Subsidiaries considered as one enterpriseMaterial Adverse Effect, whether or not arising in the ordinary course of business consistent with past practicebusiness, and the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe MHC, the Company and the Bank and the principal financial or principal accounting officer Chief Financial Officer of PTFGthe MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) there has been no such material adverse change; Material Adverse Effect, (ii) there shall have been no material transactions transaction entered into by the Partners Trust Parties Company or the Bank from the latest date as of which the financial condition of the Partners Trust Parties is Company or the Bank, as set forth in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package other than transactions referred to or contemplated therein and transactions in the ordinary course of business consistent with past practice; , (iii) none of the Partners Trust Parties Company, the MHC or the Bank shall not have received from the OTS FRB or the OCC any order or direction (oral or written) to make any material change in the method of conducting its business with which they have it has not complied (which order or direction, if any, shall have been disclosed in writing to the Agent) or which materially and adversely would affect the business affairsbusiness, financial condition, results of operations or prospects of the Partners Trust Parties or Company, the Subsidiaries; MHC and the Bank, considered as one enterprise, (iv) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time; , (v) each of the Partners Trust Parties Company, the MHC and the Bank have complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Time; , (vi) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the Commission; and , (vii) no order suspending the Offerings FRB’s approval of the FRB Application or the authorization for final use of the Prospectus transactions contemplated thereby has been issued and no proceedings for that purpose have been initiated or, to the knowledge of the Company, the MHC or the Bank, threatened by the OTS FRB and no person has sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Plan in accordance with the Conversion MHC Regulations nor has any person sought to obtain regulatory or judicial review of the action of the OTS FRB in approving the Holding Company FRB Application, and (viii) no order suspending the Subscription and Community Offering, the Syndicated Offering or the Public Offering or authorization for use of the Prospectus has been issued and no proceedings for that purpose have been initiated by the FRB.
(e) At the Closing Time, the Agent shall have received a certificate of the Chief Executive Officer of PTFGthe MHC, the Company and the Bank and the principal financial officer or principal accounting officer Chief Financial Officer of PTFGthe MHC, the Company and the Bank, dated as of Closing Time, to the effect that (i) they have reviewed the contents of the Registration Statement Statement, the Prospectus and the ProspectusGeneral Disclosure Package; (ii) based on each of their knowledge, the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which such statements were made, not misleading; (iii) based on each of their knowledge, the financial statements and other financial information included in the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package fairly present the financial condition and results of operations of the Partners Trust Parties and the Subsidiaries Company as of and for the dates and periods covered by the Registration Statement and the Prospectus; (iv) they are responsible for establishing and maintaining internal controlsdisclosure controls and procedures; (v) they have designed such internal disclosure controls and procedures to ensure that material information relating to the Partners Trust Parties Company, the MHC and the Subsidiaries Bank is made known to them; (vi) they have evaluated the effectiveness of their internal controlsdisclosure controls and procedures; and (vii) they have disclosed to KPMG LLP and the audit committee (A) all significant deficiencies in the design or operation of internal disclosure controls and procedures which could are reasonably likely to adversely affect the Partners Trust Parties’ Bank’s ability to record, process, summarize, and report financial data, and have identified for the Partners Trust Parties’ auditors Company’s and the Bank’s independent registered public accounting firm any material weaknesses in internal disclosure controls and procedures and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partners Trust Parties’ internal controlsCompany’s and the Bank’s disclosure controls and procedures.
(f) At the time As of the execution of this Agreementdate hereof, the Agent shall have received from KPMG LLP a letter dated such date, in form and substance satisfactory to the Agent, to the effect that that: (i) they are independent public accountants with respect to the Partners Trust Parties, the Subsidiaries, BSB, BSB Bank Company and the BSB Subsidiaries Bank within the meaning of the Code of Ethics of the AICPA, the Securities Act and the Securities Act Regulations and the Conversion Regulations MHC Regulations, they are registered with the PCAOB, and they are not in violation of the auditor independence requirements of the XxxxxxxxSxxxxxxx-Xxxxx Act; (ii) it is their opinion that the consolidated financial statements and supporting schedules included in the Registration Statement and covered by their opinions therein comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Act Regulations; (iii) based upon limited procedures as agreed upon by the Agent and KPMG LLP set forth in detail in such letterletters, nothing has come to their attention which causes them to believe that that, except as set forth in such letters, (A) the unaudited financial statements and supporting schedules of the Partners Trust Parties and their Subsidiaries and BSB and BSB Bank and its subsidiaries included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Securities Act Regulations and the Conversion Regulations or are not presented in conformity with generally accepted accounting principles used in the United States applied on a basis substantially consistent with that of the audited financial statements included in the Registration Statement and the Prospectus, (B) the unaudited amounts of net interest income and net income set forth under “Selected Consolidated Financial and Other Data of Partners Trust FinancialData” and or under “Selected Consolidated Financial and Other Data of BSB Bancorp and SubsidiariesRecent Developments” in the Registration Statement Prospectus and Prospectus the General Disclosure Package do not agree with the amounts set forth in unaudited consolidated financial statements as of and for the dates and periods presented under such captions or such amounts were not determined on a basis substantially consistent with that used in determining the corresponding amounts in the audited consolidated financial statements included in the Registration Statement, the Prospectus and the General Disclosure Package, (CB) at a specified date not more than five (5) business days prior to the date of this Agreement, there has been any increase in the consolidated long long-term or short short-term debt of PTFG and the Subsidiaries Company or any decrease in consolidated total assets, the allowance for loan losses, total deposits or retained earnings total stockholders’ equity of PTFG, and the SubsidiariesCompany, in each case as compared with the amounts shown in the [December 31], 2003 balance sheet included 2017 unaudited consolidated statements of financial condition presented under the “Recent Developments” caption in the Registration StatementStatement or, (D) at a specified date not more than five days prior to the date of this Agreement, there has been any increase in the consolidated long term or short term debt of BSB and its subsidiaries or any decrease in consolidated total assets, the allowance for loan losses, total deposits or stockholder’s equity of BSB and its subsidiaries in each case as compared with the amounts shown in the December 31, 2003 balance sheet included in the Registration Statement, (EC) during the period from [December 31], 2003 2017 to a specified date not more than five (5) business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding fiscal year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of PTFG and the SubsidiariesCompany, except in all instances for increases or decreases which the Registration Statement Statement, the Prospectus and the Prospectus General Disclosure Package disclose have occurred or may occur, or (F) during the period from December 31, 2003 to a specified date not more than five days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period in the preceding year, in total interest income, net interest income, net interest income after provision for loan losses, income before income tax expense or net income of BSB and its subsidiaries, except in all instances for increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur, ; and (iv) in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iii) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which that are included in the Registration Statement Statement, Prospectus and the Prospectus General Disclosure Package and which that are specified by the Agent, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Partners Trust Parties Company and the Subsidiaries and of BSB and its subsidiaries Bank identified in such letter.
(g) At the Closing Time, the Agent shall have received from KPMG LLP a letter, letter dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter letters furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Time.
(h) At the Closing Time, the Securities and the Exchange Foundation Shares shall have been approved for listing on the Nasdaq National Market upon notice of issuanceStock Market.
(i) At the Closing Time, the Agent shall have received a letter from R.P. Financialthe Appraiser, dated as of the Closing Time, confirming its appraisal.
(j) At the Closing Time, counsel for the Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities and the issuance of the Exchange Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities, Securities and the issuance and contribution of the Exchange Foundation Shares and the Merger as herein contemplated shall be satisfactory in form and substance to the Agent and counsel for the Agent.
(k) At any time prior to the Closing Time, (i) there shall not have occurred any material adverse change in the financial markets in the United States or elsewhere or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which, in the judgment of the Agent, is are so material and adverse as to make it impracticable to market the Securities or to enforce contracts, including subscriptions or orders, for the sale of the Securities, and (ii) trading generally on either any of the American Stock ExchangeNYSE MKT, the New York Stock Exchange or the Nasdaq Stock Market shall not have been suspended, and minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities have been required, by either any of said Exchanges or by order of the Commission or any other governmental authority, and a banking moratorium shall not have been declared by either Federal or New York authorities.
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