Common use of By Acquiror Clause in Contracts

By Acquiror. (i) if the Merger and the Transactions fail to receive the approval required by Applicable Law, by vote (or to the extent permitted by Applicable Law, by consent) of the Stockholders; (ii) in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (or any "comfort letters", representation letters or other documents customarily requested by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IV) the Principal Stockholder is in breach of the Stockholder Agreement or any of his representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date; or (iii) if (A) the Board of Directors of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Merger or the Transactions, or shall have resolved to do any of the foregoing, or (II) have recommended or resolved to recommend to the Stockholders any Other Transaction, or (B) the Company shall have entered into or agreed to enter into any Other Transaction.

By Acquiror. Acquiror shall indemnify Transferor against any and all Losses and against all claims in respect thereof (including, without limitation, amounts paid in settlement and costs of investigation) or diminution in value, whether or not involving a Third-Party Claim to which Transferor may become subject or which it may suffer or incur, directly or indirectly, as a result from or in connection with: (i) if any inaccuracy of any representation or a breach of any warranty made by Acquiror to Transferor in this Agreement or any Disclosure Schedule or any instrument or other document delivered pursuant to this Agreement without giving effect to any qualifications as to materiality or material adverse effect contained in such representations and warranties, provided that, except as to any inaccuracy of any representation or a breach of any warranty by Acquiror set forth in Section 7.05 (LLC Agreement and Capitalization) or resulting from knowing and intentional fraud by the Merger Acquiror or anyone acting on its behalf, Acquiror shall not be obligated to indemnify Transferor pursuant to this Section 14.01(b)(i) unless and until all of Transferor’s Losses exceed, in the Transactions fail aggregate, Four Hundred Thousand Dollars (U.S. $400,000.00), following which event Transferor shall be entitled to receive indemnification for the approval required full amount of all of Transferor’s Losses suffered or incurred, and provided further that, except as to any inaccuracy of any representation or a breach of any warranty by Applicable LawAcquiror set forth in Section 7.05 (LLC Agreement and Capitalization) or resulting from knowing and intentional fraud by Acquiror or anyone acting on its behalf, by vote the aggregate liability of Acquiror for Losses pursuant to this Section 14.01(b)(i) shall not exceed Six Million Five Hundred Thousand Dollars (or to the extent permitted by Applicable Law, by consent) of the Stockholders$6,500,000); (ii) any breach of, or failure to duly and timely perform any covenant or agreement on the part of Acquiror contained in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations instrument or warranties shall have become and continue other document delivered pursuant to be untrue in this Agreement; (iii) any material respect, unless, in either case, such breach failure to pay or untruth is capable of being cured by and will not prevent or delay consummation perform any of the Merger Assumed Liabilities (subject to subparagraph (vi) below of this Section); (iv) any payment made by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (Transferor or any "comfort letters", representation letters or other documents customarily requested Affiliate to Columbus Bank and Trust Company with respect to payment of interest and fees payable by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, Acquiror pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with 8.08; (v) any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IV) the Principal Stockholder is in breach Liability arising out of the Stockholder Agreement ownership or any of his representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation operation of the Merger by Business on or beyond after the Termination Closing Date; or (iiivi) if any obligation to reimburse the bank or other financial institution that issued the Letters of Credit, or that issues new letters of credit that replace the Letters of Credit, for sums drawn against the Letters of Credit or the new letters of credit to pay Xxxxxxx Mac any amounts payable under the loss sharing arrangements with Xxxxxxx Mac that are Servicing Portfolio Loss Sharing Costs and any amounts applied with proceeds of liquidation of any Letter of Credit Collateral to satisfy any such reimbursement obligation; provided, however, that (A) Acquiror will not be required to pay any such amount until the Board of Directors one(1) year anniversary of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor Closing Date and such liability will be net of this Agreement, the Merger or the Transactions, or shall have resolved to do any amount of the foregoing, or (II) have recommended or resolved to recommend such draws returned by Xxxxxxx Mac to the Stockholders issuer of such Letters of Credit or letters of credit, Transferor or any Other TransactionAffiliate of Transferor, in exchange for alternative security furnished to Xxxxxxx Mac by Acquiror or otherwise and (B) if such sums drawn against such Letters of Credit or letters of credit are with respect to Servicing Portfolio Loss Sharing Costs that are indemnifiable by Transferor pursuant to Section 14.01(a)(iii) the Company shall have entered into reimbursement obligation with respect thereto will only be indemnifiable by Acquiror if (x) Transferor agrees in writing (1) that such amounts are indemnifiable Servicing Portfolio Loss Sharing Costs payable by Transferor to the Acquiror in accordance with Section 14.01(a)(iii), (2) that Transferor waives any right to dispute such indemnification by Transferor of such Servicing Portfolio Loss Sharing Costs of Acquiror, and (3) that Acquiror may exercise its Series B Setoff Rights to recover such Servicing Portfolio Loss Sharing Costs, and (y) that Acquiror recovers such amounts from the Transferor pursuant to its Series B Setoff Rights or agreed to enter into any Other Transactionotherwise.

By Acquiror. (i) if the Merger and the Transactions fail to receive the approval required by Applicable Law, its Board of Directors so determines by vote (or to the extent permitted by Applicable Law, by consent) of a majority of the Stockholdersmembers of its entire Board, in the event of: (A) a breach by Bancshares of any representation or warranty contained in Article II of this Agreement, which breach cannot be or has not been cured within 30 days after the giving of written notice to Bancshares of such breach; or (B) a breach by Bancshares of any of the covenants or agreements contained in Article IV of this Agreement, which breach cannot be or has not been cured within 30 days after the giving of written notice to Bancshares of such breach, which breach (whether under (A) or (B)) would be reasonably expected, individually or in the aggregate with other breaches, to result in a Material Adverse Effect with respect to Bancshares; (ii) if its Board of Directors so determines by vote of a majority of the members of its entire Board, in the event (A) neither Acquiror nor Acquiror that the Merger Subsidiary is in breach not consummated by the 210th day after the date of this Agreement and none of their representations or warranties shall have become and continue ("Termination Date"), except to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation the extent that the failure of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, consummated by such breach date arises out of or untruth is capable results from the knowing action or inaction of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (or any "comfort letters", representation letters or other documents customarily requested by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IV) the Principal Stockholder is in breach of the Stockholder Agreement or any of his representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date; orAcquiror; (iii) if (A) the its Board of Directors so determines by a vote of a majority of the Company members of its entire Board, in the event the approval of any governmental agency required for consummation of the Merger and the other transactions contemplated by this Agreement shall have been denied by final nonappealable action of such governmental agency or an application therefor shall have been permanently withdrawn at the request of a governmental agency; (Iiv) withdrawif any approval of the stockholders of Bancshares contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at the Bancshares Meeting; (v) At any time prior to Bancshares Meeting, modify or change if Bancshares shall have breached Section 4.03, (ii) the Bancshares Board shall have failed to make its recommendation so that it is not referred to in favor Section 4.07, withdrawn such recommendation or modified or changed such recommendation in a manner adverse in any respect to the interests of this Agreement, the Merger Acquiror or the Transactions, or (iii) Bancshares shall have resolved materially breached its obligations under Section 4.07 by failing to do any call, give notice of, convene and hold the Bancshares Meeting in accordance with Section 4.07; or (vi) if a tender offer or exchange offer for 20% or more of the foregoingoutstanding shares of Bancshares Common Stock is commenced (other than by Acquiror), and the Bancshares Board recommends that the stockholders of Bancshares tender their shares in such tender or (II) have recommended exchange offer or resolved otherwise fails to recommend to that such stockholders reject such tender offer or exchange offer within the Stockholders any Other Transaction, or (Bten-Business Day period specified in Rule 14e-2(a) under the Company shall have entered into or agreed to enter into any Other TransactionSecurities Exchange Act of 1934.

By Acquiror. Acquiror shall indemnify Transferor against any and all Losses and against all claims in respect thereof (including, without limitation, amounts paid in settlement and costs of investigation) or diminution in value, whether or not involving a Third-Party Claim to which Transferor may become subject or which it may suffer or incur, directly or indirectly, as a result from or in connection with: (i) if any inaccuracy of any representation or a breach of any warranty made by Acquiror to Transferor in this Agreement or any Disclosure Schedule or any instrument or other document delivered pursuant to this Agreement without giving effect to any qualifications as to materiality or material adverse effect contained in such representations and warranties, provided that, except as to any inaccuracy of any representation or a breach of any warranty by Acquiror set forth in Section 7.05 (LLC Agreement and Capitalization) or resulting from knowing and intentional fraud by the Merger Acquiror or anyone acting on its behalf, Acquiror shall not be obligated to indemnify Transferor pursuant to this Section 14.01(b)(i) unless and until all of Transferor’s Losses exceed, in the Transactions fail aggregate, Four Hundred Thousand Dollars (U.S. $400,000.00), following which event Transferor shall be entitled to receive indemnification for the approval required full amount of all of Transferor’s Losses suffered or incurred, and provided further that, except as to any inaccuracy of any representation or a breach of any warranty by Applicable LawAcquiror set forth in Section 7.05 (LLC Agreement and Capitalization) or resulting from knowing and intentional fraud by Acquiror or anyone acting on its behalf, by vote the aggregate liability of Acquiror for Losses pursuant to this Section 14.01(b)(i) shall not exceed Six Million Five Hundred Thousand Dollars (or to the extent permitted by Applicable Law, by consent) of the Stockholders$6,500,000); (ii) any breach of, or failure to duly and timely perform any covenant or agreement on the part of Acquiror contained in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations instrument or warranties shall have become and continue other document delivered pursuant to be untrue in this Agreement; (iii) any material respect, unless, in either case, such breach failure to pay or untruth is capable of being cured by and will not prevent or delay consummation perform any of the Merger Assumed Liabilities (subject to subparagraph (vi) below of this Section); (iv) any payment made by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (Transferor or any "comfort letters", representation letters or other documents customarily requested Affiliate to Columbus Bank and Trust Company with respect to payment of interest and fees payable by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, Acquiror pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with 8.08; (v) any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IV) the Principal Stockholder is in breach Liability arising out of the Stockholder Agreement ownership or any of his representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation operation of the Merger by Business on or beyond after the Termination Closing Date; or (iiivi) if any obligation to reimburse the bank or other financial institution that issued the Letters of Credit, or that issues new letters of credit that replace the Letters of Credit, for sums drawn against the Letters of Credit or the new letters of credit to pay Xxxxxxx Mac any amounts payable under the loss sharing arrangements with Xxxxxxx Mac that are Servicing Portfolio Loss Sharing Costs and any amounts applied with proceeds of liquidation of any Letter of Credit Collateral to satisfy any such reimbursement obligation; provided, however, that (A) Acquiror will not be required to pay any such amount until the Board of Directors one(1) year anniversary of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor Closing Date and such liability will be net of this Agreement, the Merger or the Transactions, or shall have resolved to do any amount of the foregoing, or (II) have recommended or resolved to recommend such draws returned by Xxxxxxx Mac to the Stockholders issuer of such Letters of Credit or letters of credit, Transferor or any Other TransactionAffiliate of Transferor, in exchange for alternative security furnished to Xxxxxxx Mac by Acquiror or otherwise and (B) if such sums drawn against such Letters of Credit or letters of credit are with respect to Servicing Portfolio Loss Sharing Costs that are indemnifiable by Transferor pursuant to Section 14.01(a)(iii) the Company shall have entered into reimbursement obligation with respect thereto will only be indemnifiable by Acquiror if (x) Transferor agrees in writing (1) that such amounts are indemnifiable Servicing Portfolio Loss Sharing Costs payable by Transferor to the Acquiror in accordance with Section 14.01(a)(iii), (2) that Transferor waives any right to dispute such indemnification by Transferor of such Servicing Portfolio Loss Sharing Costs of Acquiror, and (3) that Acquiror may exercise its Series B/C Setoff Rights to recover such Servicing Portfolio Loss Sharing Costs, and (y) that Acquiror recovers such amounts from the Transferor pursuant to its Series B/C Setoff Rights or agreed to enter into any Other Transactionotherwise, or if (z) the reimbursement obligation is not as described in clauses (x) and (y).solely because payment of the Servicing Portfolio Loss Sharing Costs was not required by the applicable loss sharing arrangements in Agency Contracts in effect at the Closing Date, or by Agency guidelines as in effect on the Closing Date or subsequently modified by the applicable Agencies.

By Acquiror. (i) if the Merger and the Transactions fail to receive the approval required by Applicable Law, by vote (or to the extent permitted by Applicable Law, by consent) of the Stockholders; (ii) in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (or any "comfort letters", representation letters or other documents customarily requested by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IVIII) any of the Principal Stockholder Stockholders is in breach of the Stockholder Stockholders' Agreement or any of his their representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date; or (iii) if (A) the Board of Directors of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Merger or the Transactions, or shall have resolved to do any of the foregoing, or (II) have recommended or resolved to recommend to the Stockholders any Other Transaction, or (B) the Company shall have entered into or agreed to enter into any Other Transaction.

By Acquiror. (i) if the Merger and the Transactions fail to receive the approval required by Applicable Law, by vote (or to the extent permitted by Applicable Law, by consent) of the Stockholders; (ii) in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, or (II) the Company's independent accountants shall have failed to deliver written consents (or any "comfort letters", representation letters or other documents customarily requested by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IVIII) the Principal any Stockholder is in breach of the Stockholder such Stockholders' Investment Agreement or any of his such Stockholder's representations or warranties therein shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date; or (iii) if (A) the Board of Directors of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Merger or the Transactions, or shall have resolved to do any of the foregoing, or (II) have recommended or resolved to recommend to the Stockholders any Other Transaction, or (B) the Company shall have entered into or agreed to enter into any Other Transaction.