Common use of Organization and Qualification; Capitalization Clause in Contracts

Organization and Qualification; Capitalization. (a) Seller is a bank duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and, together with FTFC, to carry on the Business as currently conducted. FTFC is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. Each of the Companies and FTPS Partners is, and upon its formation, CMC LLC will be, a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction and has all requisite limited liability company power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. As of the Closing, each of the Companies, FTPS Partners and CMC LLC will have all requisite limited liability company power and authority to own, lease and operate its assets, and, together with the Canadian Sub, to carry on the Business as currently conducted. Seller is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business (other than the Canadian Sub) requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, impair or delay Seller’s or the Companies’ ability to perform their respective obligations hereunder. (b) Upon the consummation of the Closing, the capital structure of Holdco will be as set forth in the Holdco LLC Agreement. As of the Closing, (i) all of the Holdco LLC Interests and CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Holdco LLC Interests will be owned beneficially and of record by Seller and FTPS Partners (at least 1% of which Holdco LLC Interests will be owned by FTPS Partners), free and clear of all Encumbrances, and 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller, FTPS Partners, CMC LLC or Holdco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Holdco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than the Warrant and as set forth in the Holdco LLC Agreement, (iv) the Holdco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Holdco LLC Interests other than as set forth in the Holdco LLC Agreement or as created by Buyer or its Affiliates and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Holdco LLC Interests or other equity interests of Holdco, except as created by Buyer or its Affiliates, other than as set forth in the Holdco LLC Agreement. (c) Upon the consummation of the Closing, the capital structure of Opco will be as set forth in the Opco LLC Agreement. As of the Closing, (i) all of the Opco LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Opco LLC Interests will be owned beneficially and of record by Holdco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the Opco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Opco LLC Interests other than as set forth in the Opco LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Opco LLC Interests or other equity interests of Opco. (d) Upon the consummation of the Closing, the capital structure of CMC LLC will be as set forth in the CMC LLC Agreement. As of the Closing, (i) all of the CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the CMC LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the CMC LLC Interests other than as set forth in the CMC LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the CMC LLC Interests or other equity interests of CMC LLC. (e) As of the date hereof, CMC is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. As of the date hereof, CMC is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions. (f) As of the Closing, (i) all of issued and outstanding stock of the Canadian Sub will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the issued and outstanding stock of the Canadian Sub will be owned beneficially and of record by FTFC, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which the Canadian Sub may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any stock, or any securities or obligations exercisable or exchangeable for or convertible into stock of the Canadian Sub, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than as provided in this Agreement, (iv) the Transferred Canadian Sub Stock will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Transferred Canadian Sub Stock, other than as provided in this Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the stock of the Canadian Sub. (g) The Canadian Sub is a corporation duly organized, validly existing and in good standing under the federal laws of Canada and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. The Canadian Sub is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions.

Organization and Qualification; Capitalization. (a) Seller is a bank duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and, together with FTFC, and to carry on the Business as currently conducted. FTFC is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. Each of the Companies and FTPS Partners is, and upon its formation, CMC LLC will be, a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction and has all requisite limited liability company power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. As of the Closing, each of the Companies, FTPS Partners and CMC LLC will have all requisite limited liability company power and authority to own, lease and operate its assets, and, together with the Canadian Sub, and to carry on the Business as currently conducted. Seller is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business (other than the Canadian Sub) requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, impair or delay Seller’s or the Companies’ ability to perform their respective obligations hereunder. (b) Upon the consummation of the Closing, the capital structure of Holdco will be as set forth in the Holdco LLC Agreement. As of the Closing, (i) all of the Holdco LLC Interests and CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Holdco LLC Interests will be owned beneficially and of record by Seller and FTPS Partners (at least 1% of which Holdco LLC Interests will be owned by FTPS Partners), free and clear of all Encumbrances, and 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller, FTPS Partners, CMC LLC or Holdco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Holdco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than the Warrant and as set forth in the Holdco LLC Agreement, (iv) the Holdco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Holdco LLC Interests other than as set forth in the Holdco LLC Agreement or as created by Buyer or its Affiliates and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Holdco LLC Interests or other equity interests of Holdco, except as created by Buyer or its Affiliates, other than as set forth in the Holdco LLC Agreement. (c) Upon the consummation of the Closing, the capital structure of Opco will be as set forth in the Opco LLC Agreement. As of the Closing, (i) all of the Opco LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Opco LLC Interests will be owned beneficially and of record by Holdco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the Opco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Opco LLC Interests other than as set forth in the Opco LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Opco LLC Interests or other equity interests of Opco. (d) Upon the consummation of the Closing, the capital structure of CMC LLC will be as set forth in the CMC LLC Agreement. As of the Closing, (i) all of the CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the CMC LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the CMC LLC Interests other than as set forth in the CMC LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the CMC LLC Interests or other equity interests of CMC LLC. (e) As of the date hereof, CMC is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. As of the date hereof, CMC is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions. (f) As of the Closing, (i) all of issued and outstanding stock of the Canadian Sub will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the issued and outstanding stock of the Canadian Sub will be owned beneficially and of record by FTFC, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which the Canadian Sub may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any stock, or any securities or obligations exercisable or exchangeable for or convertible into stock of the Canadian Sub, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than as provided in this Agreement, (iv) the Transferred Canadian Sub Stock will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Transferred Canadian Sub Stock, other than as provided in this Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the stock of the Canadian Sub. (g) The Canadian Sub is a corporation duly organized, validly existing and in good standing under the federal laws of Canada and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. The Canadian Sub is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions.

Organization and Qualification; Capitalization. Seller represents and warrants to Buyer as follows: (a) Seller is a national bank duly organized, validly existing and in good standing under the laws of the State of Ohio United States and has all requisite corporate power and authority to own, lease and operate its assets, and, together with FTFC, assets and to carry on the Business as currently conducted. FTFC New SPC is a corporation Delaware corporation, duly organizedformed, validly existing and in good standing under the laws of the State of Ohio Delaware and has all requisite corporate power and authority to own, lease and operate its assets, assets and to carry on its business as currently conducted and proposed to be conducted. Each As of the date hereof and the Closing, each of the Companies is and FTPS Partners is, and upon its formation, CMC LLC will be, be a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction and has all requisite limited liability company power and authority to own, lease and operate its assets, and to carry on its business as currently conductedthe State of Delaware. As of the date hereof and the Closing, each of the Companies, FTPS Partners Companies have and CMC LLC will have all requisite limited liability company power and authority to own, lease and operate its assets, and, together with the Canadian Sub, assets and to carry on the Business as currently conducted. Seller is As of the Closing, each of the Companies shall be duly qualified to do business and is in good standing as a foreign corporation limited liability company in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business (other than the Canadian Sub) requires such qualification, except for such failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, impair or delay Seller’s or the Companies’ ability to perform their respective obligations hereunder. (b) Upon the consummation of each of the Contribution and the Closing, the capital structure of Holdco will shall be as set forth properly reflected in the Holdco LLC Agreement or the Preclosing Holdco LLC Agreement, as applicable. As of the date hereof and immediately prior to the Closing, (i) all of the Holdco LLC Interests have and CMC LLC Interests will have been duly authorized and validly issued and are and will be fully paid and nonassessable, (ii) 100% of the Holdco LLC Interests are and will be owned beneficially and of record by Seller and FTPS Partners (at least 1% of which Holdco LLC Interests will be owned by FTPS Partners), free and clear of all Encumbrances, and 100% of the CMC LLC Interests will be owned beneficially and of record by OpcoNew SPC, free and clear of all Encumbrances, (iii) there are and will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller, FTPS Partners, CMC LLC New SPC or Holdco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Holdco, and no securities or obligations evidencing such rights have been or will be authorized, issued or outstanding, other than the Warrant and as set forth in the Holdco LLC Agreement, (iv) the Holdco LLC Interests are and will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Holdco LLC Interests other than as set forth in the Holdco LLC Agreement or as created by Buyer or its Affiliates and (v) there is and will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Holdco LLC Interests or other equity interests of Holdco, except as created by Buyer or its Affiliates, other than as set forth in the Holdco LLC Agreement. Holdco is a direct and indirect wholly-owned subsidiary of Seller and has no historical operations other than as described in this Agreement. (c) Upon the consummation of each of the Contribution and the Closing, the capital structure of Opco will shall be as set forth properly reflected in the Opco LLC Agreement. As of the date hereof and the Closing, (i) all of the Opco LLC Interests have and will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Opco LLC Interests are and will be owned beneficially and of record by Holdco, free and clear of all Encumbrances, (iii) there are and will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights have been or will be authorized, issued or outstanding, (iv) the Opco LLC Interests are and will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Opco LLC Interests other than as set forth in the Opco LLC Agreement and (v) there is and will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Opco LLC Interests or other equity interests of Opco. Opco is a wholly-owned subsidiary of Holdco and has no historical operations other than as described in this Agreement. (d) Upon the consummation of the Closing, the capital structure of CMC LLC will be as set forth in the CMC LLC Agreement. As of the Closing, (i) all of the CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the CMC LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the CMC LLC Interests other than as set forth in the CMC LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the CMC LLC Interests or other equity interests of CMC LLC. (e) As of the date hereofhereof and at all times prior to the SPC Merger, CMC SPC is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana Nebraska and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business the Business as currently conducted, conducted and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. As of the date hereof, CMC SPC is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions. (f) As . Prior to the SPC Merger, SPC shall be a wholly-owned subsidiary of the Closing, (i) all of issued Seller and outstanding stock of the Canadian Sub will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the issued and outstanding stock of the Canadian Sub will be owned beneficially and of record by FTFC, free and clear of all Encumbrances, (iii) there will be had no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which the Canadian Sub may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any stock, or any securities or obligations exercisable or exchangeable for or convertible into stock of the Canadian Sub, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, historical operations other than as provided in this Agreement, (iv) the Transferred Canadian Sub Stock will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Transferred Canadian Sub Stock, other than as provided in this Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the stock of the Canadian Sub. (g) The Canadian Sub is a corporation duly organized, validly existing and in good standing under the federal laws of Canada and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. The Canadian Sub is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the TransactionsBusiness.