Common use of Accuracy of Representations and Warranties Clause in Contracts

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (a) (i) The representations and warranties made by of the Company set forth in Section 3.4(a) and Section 3.6(bArticle 3 (other than the Fundamental Representations of the Company) shall be true and correct in all respects, in each case on and as of the Agreement Date and as of the Closing Date with the same force and effect as if they had been made on the Closing Date (except for any such representations and or warranties made that by their terms speak only as of a specific datedate or dates, in which case such representations and warranties shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) on and as of such date) be true and correct in all respects (except for inaccuracies thatspecified date or dates), individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where except to the extent that the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, not reasonably be reasonably likely expected to have a Material Adverse Effect; Effect with respect to the Company and (ii) the Surviving Pubco shall have received a certificate signed by an officer Fundamental Representations of the CompanyCompany shall be true and correct in all but de minimis respects, dated in each case on and as of the ClosingAgreement Date and as of the Closing Date with the same force and effect as if they had been made on the Closing Date (except for any such Fundamental Representations of the Company that by their terms speak only as of a specific date or dates, in which case such Fundamental Representations of the Company shall be true and correct in all but de minimis respects, on and as of such specified date or dates). (i) The representations and warranties of the Seller Guarantors, the Sellers and NewCo set forth in Article 4 (other than the Fundamental Representations of the Sellers) shall be true and correct in all respects, in each case on and as of the Agreement Date and as of the Closing Date with the same force and effect as if they had been made on the Closing Date (except for any such representations or warranties that by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct in all respects on and as of such specified date or dates), in each case except to the extent that the failure of such effectrepresentations and warranties to be true and correct would not reasonably be expected to have a Material Adverse Effect with respect to the Seller Guarantor, the Sellers or NewCo and (ii) the Fundamental Representations of the Sellers shall be true and correct in all but de minimis respects, in each case on and as of the Agreement Date and as of the Closing Date with the same force and effect as if they had been made on the Closing Date (except for any such Fundamental Representations of the Sellers that by their terms speak only as of a specific date or dates, in which case such Fundamental Representations of the Sellers shall be true and correct in all but de minimis respects, on and as of such specified date or dates).

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company Parent and Merger Sub set forth in Section 3.4(a4.4(a) and Section 3.6(b4.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Parent Fundamental Representations (in each case, without taking into account any Parent Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Parent Fundamental Representations and the representations and warranties set forth in Section 3.4(a4.4(a) and Section 3.6(b4.6(b)) made by the Company Parent and Merger Sub (in each case, without taking into account any Parent Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect; and the Surviving Pubco Company shall have received a certificate signed by an officer of the CompanySurviving Pubco, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in (i) Section 3.4(a2.2(a), Section 2.2(b) and Section 3.6(b2.2(d) (Capitalization) shall be true and correct as of immediately prior to the Effective Time (except for such representations and warranties made that relate to a specific date or time which need only be true and correct as of such date or time), in each case, except for such failures to be true and correct that, individually or in the aggregate, would not result in more than a specific datede minimis increase in the aggregate amounts payable by Merger Sub or Parent in the Transactions, which (ii) Section 2.1(a) (Corporate Existence), Section 2.3 (Corporate Authority), Section 2.17 (Finders; Brokers) and Section 2.19 (Opinion of Financial Advisor) (collectively, the “Fundamental Representations”) to the extent qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Effective Time as if made as of the Closing; (ii) the Company Fundamental Representations (Effective Time except in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except case for representations and warranties made in the Fundamental Representations that relate to a specific date or time (which need only be true and correct as of a specific datesuch date or time), which and all of the Fundamental Representations to the extent not qualified by materiality or “Company Material Adverse Effect” shall be true and correct in all material respects as of the Effective Time with the same force and effect as if made as of the Effective Time except for representations and warranties in the Fundamental Representations that relate to a specific date or time (which need only be true and correct as of such datedate or time), (iii) Section 2.8(a) (Absence of Certain Changes or Events) shall be true and correct in all respects as of the Effective Time as if made as of the Effective Time, and (iv) all other provisions of Article II (excluding those included in the foregoing clauses (i), (ii) and (iii)) (without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein), shall be true and correct as of the Effective Time as if made as of the Effective Time except for such representations and warranties that relate to a specific date or time (which need only be true and correct in all material respects as of the such date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(bor time)) made by the Company (, in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall such failures to be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would notcorrect, individually or and in the aggregate, be reasonably likely to as have not had a Company Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a) 3.1 (Organization and Qualification), Section 3.2 (Authority; Corporate Approvals and Enforceability), Section 3.22 (No Ownership of Parent Capital Stock), Section 3.25 (Takeover Statutes; Rights Plan), Section 3.26 (Fairness Opinion), and Section 3.6(b3.27 (Brokers, Finders and Financial Advisors) (collectively, the “Company Fundamental Representations”) (A) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be have been true and correct in all material respects as of the date of this Agreement Agreement, and (B) shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly speaks as of a specified earlier date, which representations and warranties shall be true and correct in all material respects as of such specified earlier date). (ii) The representations and warranties of the Company set forth in Sections 3.4(a), (c) and (h) (the “Company Capitalization Representations”) (A) shall have been true and correct as of the Closing; date of this Agreement, and (B) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly speaks as of an earlier date, which representations and warranties shall be true and correct as of such date) except to the extent the failures of such representations and warranties to be true and correct individually and in the aggregate would not result in an increase in the aggregate consideration payable by Parent in connection with the Merger (and/or an increase in the amount of outstanding indebtedness for borrowed money of the Company and its Subsidiaries) of more than $1,000,000, in the aggregate (valuing any shares, options or other awards that Parent is required to issue or make in connection therewith pursuant to the terms of this Agreement at a price equal to the closing price of a share of Parent Class A Common Stock as reported on the NYSE on the business day prior to the date of this Agreement), as compared to what such aggregate amount would have been if the Company Capitalization Representations had been true and correct in all respects. (iii) the The representations and warranties of the Company set forth in Section 3.9(b) (Subsequent Changes) (A) shall have been true and correct as of the date of this Agreement, and (B) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly speaks as of an earlier date, which representations and warranties shall be true and correct as of such date). (iv) The representations and warranties of the Company set forth in this Agreement (other than the Company Fundamental Representations, the Company Capitalization Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b3.9(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualificationsA) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be have been true and correct as of the date of this Agreement Agreement, and (B) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the Closingextent any such representation or warranty expressly speaks as of an earlier date, which representations and warranties shall be true and correct as of such date), except in each the case under this clause of the foregoing clauses (iiiA) where the and (B) for any failure of such representations and warranties to be so true and correct which has not had, and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and provided, however, that for purposes of determining the Surviving Pubco shall have received a certificate signed by an officer accuracy of the Company, dated as representations and warranties of the ClosingCompany set forth in this Agreement for purposes of this Section 8.2(a)(iv), (1) all qualifications based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases contained in such representations and warranties shall be disregarded (it being understood and hereby agreed that the phrase “similar phrases” as used in this proviso shall not be deemed to include any dollar thresholds contained in any such effectrepresentations and warranties), and (2) any update of or modification to the Company Disclosure Letter made or purported to have been made after the date hereof shall be disregarded).

Accuracy of Representations and Warranties. (iA) The representations and warranties made by of the Company set forth in Section 3.4(a) 3.1, Section 3.2, Section 3.3 and Section 3.6(b3.23 (the “Fundamental Representations”) (i) shall (except for representations have been true and warranties made correct in all respects as of a specific datethe date of this Agreement, which and (ii) shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement on and as of the Closing Date with the same force and effect as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations on and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct , except in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the each case for those representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made which address matters only as of a specific date, particular date (which representations shall be have been true and correct in all respects as of such particular date). (B) be The representations and warranties of the Company set forth in Section 3.5 (the “Capitalization Representations”) (i) shall have been true and correct as of the date of this Agreement Agreement, and (ii) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in the Closingcase of the preceding clauses (i) and (ii), for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date), and except in each case under this clause for any de minimis inaccuracies. (iiiC) where the failure of such The representations and warranties of the Company set forth in this Agreement (other than the Fundamental Representations and the Capitalization Representations) (i) shall have been true and correct as of the date of this Agreement, and (ii) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in the case of the preceding clauses (i) and (ii), (x) for any failure to be so true and correct which has not had, and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; , and the Surviving Pubco (y) for those representations and warranties which address matters only as of a particular date (which representations shall have received been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, and would not reasonably be expected to have, individually or in the aggregate, a certificate signed by an officer Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the Company, dated as representations and warranties of the ClosingCompany set forth in this Agreement for purposes of this Section 2.2(b)(ii)(C), to all qualifications based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds or in the definition of “Material Contracts”) contained in such effectrepresentations and warranties shall be disregarded.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company of Seller set forth in Section 3.4(aArticle 3, “Representations and Warranties of Seller,” (i) and Section 3.6(b) shall (except for representations and warranties made that are qualified as of a specific date, which shall to materiality or Material Adverse Effect will be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any that are not qualified as to materiality or Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects respects, in each case on and as of the Closing with the same force and effect as if they had been made on the Closing Date (except for any such representations or warranties that, by their terms, speak only as of a specific date or dates, in which case such representations and warranties (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (ii) that are not qualified as to materiality or Material Adverse Effect shall be true and correct in all material respects, on and as of such datespecified date or dates), and at the Closing Buyer will have received a certificate to such effect executed by an authorized officer of Seller; provided, however, that if any representation or warranty is true and correct as provided in the foregoing clause on the date of this Agreement, but such representation or warranty ceases to be so true and correct thereafter and (A) Seller notifies Parent and Buyer in reasonable detail of the facts and circumstances as a result of which such representation or warranty ceases to be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iiiB) the representations ceasing of such representation or warranty to be so true and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any correct does not have or represent a Material Adverse Effect with respect the Business or the Purchased Assets, then for purposes of this Section 8.2(a) only (and not for purposes of any other materiality qualifications) shall (except for representations and warranties made as of a specific dateSection or Article hereunder, which including Article 7, “Indemnification”), such representation or warranty shall be true and correct in all respects as of such date) deemed to be so true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effectDate.

Accuracy of Representations and Warranties. The (ia) The representations and warranties made by of the Company WPG Parties set forth in Section 3.4(aSections 11.1.1, 11.1.2, 11.1.12(a), 11.1.13, 11.1.14 and 11.1.22 (the “Seller Specified Reps”) (as modified by acts of the WPG Parties, the Partnership Entities and Section 3.6(bthe Parallel Partnership Entities expressly permitted to be taken pursuant to this Agreement) shall (except for representations and warranties made as of a specific date, which shall be being true and correct in all respects (except for other than any immaterial inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made remade as of the Closing; Closing Date (ii) the Company Fundamental Representations (in each case, without taking into account other than any Material Adverse Effect representations or other materiality qualifications) shall (except for representations and warranties made as of a specific specified date, which shall be true and correct in all material respects made only as of such specified date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iiib) the other representations and warranties by the WPG Parties in Section 11.1 (other than as modified by acts of the Company Fundamental Representations WPG Parties, the Partnership Entities and the representations and warranties set forth in Section 3.4(aParallel Partnership Entities expressly permitted to be taken pursuant to this Agreement) and Section 3.6(b)) made by the Company (in each case, without taking into account disregarding any “materiality” or Property Material Adverse Effect or other materiality qualificationsqualifiers) shall (except for representations and warranties made as of a specific date, which shall be being true and correct in all respects as of such date) be true and correct the Closing as of the date of this Agreement and if remade as of the Closing as if Date (other than any representations or warranties made as of the Closinga specified date, which shall be made only as of such specified date), except for any failure of the representations and warranties referenced in each case under this clause (iiib) where the failure of such representations and warranties to be so true and correct as would not, individually or in the aggregate, not reasonably be reasonably likely expected to have a Property Material Adverse Effect; . Notwithstanding the foregoing, no representation or warranty of the WPG Parties contained in this Agreement shall be deemed to be not true and correct solely as a result of any condemnation, destruction, damage or other casualty with respect to any Real Property or Real Properties, or any portion thereof, in which case Article 12 shall govern and set forth Purchasers’ sole and exclusive rights and remedies with respect thereto, and the Surviving Pubco representations and warranties of the WPG Parties shall be read without respect to any Excluded Property and the related Property Owner and WPG-OC REIT and Partnership Entity or Parallel Partnership Entity and without respect to such condemnation, destruction, damage or other casualty and shall be of no further force and effect in respect of any Excluded Properties and the related Property Owner and WPG-OC REIT and Partnership Entity or Parallel Partnership Entity for all purposes of this Agreement, including without limitation for purposes of Section 11.4.1. Each Purchaser shall have received a certificate signed by an officer of the Companycertificate, dated as of the ClosingClosing Date and signed on behalf of WPG by an executive officer of WPG, to stating that the condition specified in this Section 3.1.3 has been satisfied, which shall update Schedule 11.1.11 (provided that no such effectupdate shall affect whether the closing condition set forth in this Section 3.1.3 is met).

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company of Parent and Buyer set forth in Section 3.4(aArticle 4, “Representations and Warranties of Parent and Buyer,” (i) and Section 3.6(b) shall (except for representations and warranties made that are qualified as of a specific date, which shall to materiality or Material Adverse Effect will be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any that are not qualified as to materiality or Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects respects, in each case on and as of the Closing with the same force and effect as if they had been made on the Closing Date (except for any such representations or warranties that, by their terms, speak only as of a specific date or dates, in which case such representations and warranties (i) that are qualified as to materiality or Material Adverse Effect shall be true and correct and (ii) that are not qualified as to materiality or Material Adverse Effect shall be true and correct in all material respects, on and as of such datespecified date or dates), and at the Closing Seller will have received a certificate to such effect executed by a duly authorized officer of Parent; provided, however, that if any representation or warranty is true and correct as provided in the foregoing clause on the date of this Agreement, but such representation or warranty ceases to be so true and correct thereafter and (A) Parent or Buyer notifies Seller in reasonable detail of the facts and circumstances as a result of which such representation or warranty ceases to be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iiiB) the representations ceasing of such representation or warranty to be so true and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any correct does not have or represent a Material Adverse Effect with respect Parent or Buyer, then for purposes of this Section 8.1(a) only (and not for purposes of any other materiality qualifications) shall (except for representations and warranties made as of a specific dateSection or Article hereunder, which including Article 7, “Indemnification”), such representation or warranty shall be true and correct in all respects as of such date) deemed to be so true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effectDate.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth of Parent and Seller contained in Section 3.4(aSections 4.1(a), 4.1(b), and 4.1(i)(B) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) each case as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall Date (except for representations and warranties to the extent expressly made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such date) (without giving effect to any qualifier as to “materiality” or other similar qualifiers set forth therein); (ii) the other representations and warranties of Parent and Seller in Section 4.1 shall be true and correct in each case as of the date of this Agreement and as of Closing Date (except to the extent expressly made as of a specific date, in which case such representations and warranties shall be true and correct as of such date) (without giving effect to any qualifier as to “materiality” or other similar qualifiers set forth therein), except in the case of this clause (ii) where the failures of such representations and warranties to be so true and correct, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (iii) the representations and warranties of Synovus contained in Sections 4.3(a) and 4.3(b) shall be true and correct in all material respects in each case as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall Date (except for representations and warranties to the extent expressly made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such date) (without giving effect to any qualifier as to “materiality” or other similar qualifiers set forth therein); and (iv) the other representations and warranties of Synovus in Section 4.3 shall be true and correct in each case as of the date of this Agreement and as of Closing Date (except to the Closing as if extent expressly made as of the Closinga specific date, in which case such representations and warranties shall be true and correct as of such date) (without giving effect to any qualifier as to “materiality” or other similar qualifiers set forth therein), except in each the case under of this clause (iiiiv) where the failure failures of such representations and warranties to be so true and correct correct, would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Material Adverse Effect; and Effect or to prevent or materially impair Synovus from consummating the Surviving Pubco shall have received a certificate signed transactions contemplated by an officer of the Company, dated as of the Closing, to such effectthis Agreement.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a3.2(a) and Section 3.6(b(the “Capitalization Representations”) (A) shall (except for representations have been true and warranties made correct in all respects as of a specific datethe Agreement Date, which and (B) shall be true and correct in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in the case of the preceding clauses (A) and (B), for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date), and except in each case for any inaccuracies thatthat would not, individually or in the aggregate, are de minimisincrease the aggregate Merger Consideration payable in the Merger by more than $10,000,000. (ii) The representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.4 and Section 3.8 (the “Fundamental Representations”) (A) shall have been true and correct in all material respects as of such datethe Agreement Date, and (B) shall be true and correct in all material respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement on and as of the Closing Date with the same force and effect as if made on and as of the Closing; (ii) the Company Fundamental Representations (such date, except in each casecase of the preceding clauses (A) and (B), without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for those representations and warranties made which address matters only as of a specific date, particular date (which representations shall be have been true and correct in all material respects as of such particular date) be true and correct in all material respects as ); provided, however, that for purposes of determining the accuracy of the date Fundamental Representations for purposes of this Agreement Section all qualifications based on a “Company Material Adverse Effect” and as of all materiality qualifications and other qualifications based on the Closing as if made as of the Closing; and word “material” or similar phrases (but not dollar thresholds) contained in such Fundamental Representations shall be disregarded. (iii) the The representations and warranties of the Company set forth in this Agreement (other than the Company Fundamental Capitalization Representations and the representations and warranties set forth in Section 3.4(aFundamental Representations) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true on and correct as of the date of this Agreement Date and as of the Closing Date with the same force and effect as if made on and as of the Closingsuch date, except in each case under this clause (iiii) where the for any failure of such representations and warranties to be so true and correct which has not had, or would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; , and the Surviving Pubco (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have received been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, or would not reasonably be expected to have, individually or in the aggregate, a certificate signed by an officer Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the Company, dated as representations and warranties of the Closing, to Company set forth in this Agreement for purposes of this Section all qualifications based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds) contained in such effectrepresentations and warranties shall be disregarded.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which Capital One shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) each case as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall Date (except for representations and warranties to the extent expressly made as of a specific date, in which shall be true and correct in all material respects as of case such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closingsuch date), except in each case under this clause (iii) where the failure failures of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to prevent or materially impair Capital One from consummating the transactions between Capital One and Synovus contemplated by this Agreement; and (ii) (A) the representations and warranties of Parent and Seller (other than those set forth in Section 4.1(m)(iii)-(viii) shall be true and correct in each case as of the date of this Agreement and as of the Closing Date (except to the extent expressly made as of a specific date, in which case such representations and warranties shall be true and correct as of such date), except where the failures of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably likely be expected to prevent or materially impair Parent or Seller from consummating the transactions between Synovus, on the one hand, and Parent and Seller, on the other hand, contemplated by this Agreement; and (B) each of the representations and warranties of Parent and Seller set forth in Section 4.1(m)(iii)-(viii) shall be true and correct as of the date of this Agreement and as of the Closing Date (except to the extent expressly made as of a specific date, in which case such representations and warranties shall be true and correct as of such date), except in the case of this clause (B) where the failures of such representations and warranties to be so true and correct (without giving effect to any qualifier as to “materiality” or other similar qualifiers set forth therein), would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Synovus Retained Assets and the Synovus Retained Liabilities, taken as a whole (other than any Effect referred to in the proviso to clause (i) of the definition of “Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect”).

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a3.2(a) and the first sentence of Section 3.6(b3.2(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in other than de minimis inaccuracies) as of the aggregate, are de minimis) Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except, in each case, for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct in all material respects as of such particular date). (ii) The representations and warranties of the Company set forth in Sections 3.1, 3.3, 3.8 and 3.10 shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except, in each case, for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct in all material respects as of such particular date) and, in the case of this paragraph, interpreted without giving effect to any Company Material Adverse Effect or materiality qualifications. (iii) The representations and warranties of the Company set forth in Section 3.6(b) shall be true and correct in all respects as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date. (except for inaccuracies that, individually or iv) The other representations and warranties of the Company contained in the aggregate, are de minimis) this Agreement shall be true and correct in all respects both as of the date of this Agreement and as of the Closing Date as if though made on and as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall such date (except for to the extent such representations and warranties made speak as of a specific an earlier date, in which shall be true and correct in all material respects as of case, such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such earlier date) be true and correct as of ), and, in the date case of this Agreement and as of the Closing as if made as of the Closingparagraph, interpreted without giving effect to any Company Material Adverse Effect or materiality qualifications, except in each case under this clause (iii) where the failure all failures of such representations and warranties referred to in this paragraph to be so true and correct would notcorrect, individually or in the aggregate, have not had, and would not reasonably be reasonably likely expected to have have, a Company Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The Other than with respect to Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.13 (State Takeover Statutes) and Section 4.22 (Brokers), the representations and warranties made by of the Company set forth in Section 3.4(a) this Agreement, disregarding all qualifications and Section 3.6(b) shall (except for representations and warranties made as of a specific dateexceptions contained therein relating to materiality, which Material Adverse Effect or similar standard or qualifications, shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Asset Sale Time as if though made on and as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall such date and time (except for representations to the extent that any such representation and warranties made warranty expressly speaks as of a specific an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date) except where the failure of any such representations and warranties to be so true and correct has not had and would not reasonably be likely to have a Material Adverse Effect on the Company; and (ii) the representations and warranties set forth in Section 4.3 (Capital Structure), Section 4.4 (Authority), Section 4.13 (State Takeover Statutes) and Section 4.22 (Brokers), disregarding all qualifications and exceptions contained therein relating to materiality, Material Adverse Effect or similar standard or qualifications, shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Asset Sale Time as if though made on and as of the Closing; such date and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall time (except for representations to the extent that any such representation and warranties made warranty expressly speaks as of a specific an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco ). Parent shall have received a certificate signed on behalf of the Company by an a duly authorized officer of the Company, dated Company certifying as to the satisfaction of the Closingcondition in the preceding sentence. For purposes of this Section 9.3(a) only, a Material Adverse Effect with respect to such effecteither (i) the Company Properties not subject to the Arizona Asset Sale, taken as a whole, or (ii) the Company Properties subject to the Arizona Asset Sale, taken as a whole, shall be deemed to constitute a Material Adverse Effect on the Company.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth in Section 3.4(a) and Section 3.6(b) VIH Fundamental Representations shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; ; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which by VIH and Merger Sub set forth in Section 4.20 shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and Closing (iii(A) the provided, that representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made qualified by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualificationsqualifications shall be true and correct in all respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (B) shall (except for provided, further that representations and warranties made as of a specific date, which date shall be true and correct in all material respects as of such date (except that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of such date)); and (iii) the representations and warranties (other than the representations and warranties set forth in the foregoing clauses (i) and (ii)) made by VIH and Merger Sub in Article IV shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the ClosingClosing (except for representations and warranties made as of a specific date, which shall be true and correct as of such date) (in each case, without giving effect to any Material Adverse Effect or other materiality qualifications contained therein), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a VIH Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as Each of the date of Fundamental Representations in this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (except for such Fundamental Representations that are qualified by their terms by a reference to materiality, which representations and warranties as of such date) so qualified shall be true and correct in all material respects respects), in each case on and as of the date of this Agreement Date and on and as of the Closing Date as if though such Fundamental Representations were made on and as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall such date (except for representations and warranties made that address matters only as of to a specific specified date, which representations and warranties shall be true and correct with respect to such specified date). (ii) Other than Fundamental Representations, the representations and warranties of the Company in this Agreement shall be true and correct in all respects, in each case on and as of the Agreement Date and on and as of the Closing Date as though made on the Closing Date (except for representations and warranties that address matters only as to a specified date, which representations and warranties shall be true and correct in all respects as of with respect to such specified date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing), except in each case under this clause (iii) where the failure of for such representations and warranties to be so true and correct inaccuracies as would not, individually or in the aggregate, have or reasonably be reasonably likely expected to have a Material Adverse Effect; material and adverse effect on the Surviving Pubco shall have received Acquired Companies, taken as a certificate signed whole. For clarity, the parties agree that (x) the standard for determining whether a “material and adverse effect” has occurred or would reasonably be expected to occur is distinct from the standard for determining whether a “material adverse effect” has occurred or is reasonably expected to occur under Delaware case law, and (y) the condition in this Section 6.1(b)(ii) will not be satisfied if there is a substantial likelihood that one or more inaccuracies, individually or in the aggregate, would be viewed by an officer a reasonable acquirer of the CompanyAcquired Companies as having significantly altered the total mix of information regarding the Acquired Companies, dated taken as of the Closinga whole, that is available to such effectacquirer.

Accuracy of Representations and Warranties. (iA) The representations and warranties made by of the Company set forth in Section 3.4(aSections 3.1 (Organization; Good Standing), 3.2 (Corporate Power; Enforceability) and Section 3.6(b3.3 (Requisite Stockholder Approval) (i) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be have been true and correct in all material respects as of the date of this Agreement Agreement, and (ii) shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing; and (iii) the such date, except in each case for those representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made which address matters only as of a specific date, particular date (which representations shall be have been true and correct in all respects as of such particular date). (B) The representations and warranties of the Company set forth in Section 3.11(a)(ii) (Absence of Certain Changes) (i) shall have been true and correct in all respects as of the date of this Agreement, and (ii) shall be true and correct in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date, except in each case for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct in all respects as of such particular date). (C) The representations and warranties of the Company set forth in Section 3.6 (Company Capitalization) and 3.26 (Brokers) (i) shall have been true and correct as of the date of this Agreement, and (ii) shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in the case of the preceding clauses (i) and (ii), for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date), and except in each case for deminimis inaccuracies. (D) The representations and warranties of the Company set forth in this Agreement (other than the representations and warranties of the Company specified in Sections 2.2(b)(ii)(A), 2.2(b)(ii)(B) and 2.2(b)(ii)(C)) shall have been true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closingsuch date, except in each case under this clause (iiii) where the for any failure of such representations and warranties to be so true and correct which has not had, and would notnot have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; , and the Surviving Pubco (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have received been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, and would not have a certificate signed by an officer Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the Company, dated as representations and warranties of the ClosingCompany set forth in this Agreement for purposes of this Section 2.2(b)(ii)(D), to all qualifications based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds) contained in such effectrepresentations and warranties shall be disregarded.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a3.2(a) and Section 3.6(b3.2(b) shall (except for representations and warranties made as of a specific date, which the “Capitalization Representations”) shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement Date and as of the Closing Date with the same force and effect as if made on and as of the Closing; such date, except (i) for any de minimis inaccuracies and (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for those representations and warranties made which address matters only as of a specific particular date (which representations shall have been true and correct as of such particular date, which except for any de minimis inaccuracies); (ii) The representations and warranties of the Company set forth in Section 3.1, 3.3(a), 3.3(b), 3.3(e) and 3.8 (the “Fundamental Representations”) shall be true and correct in all material respects as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date) be , except for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and such particular date); (iii) the The representations and warranties of the Company set forth in this Agreement (other than the Company Fundamental Capitalization Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualificationsFundamental Representations) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement Date and as of the Closing Date with the same force and effect as if made on and as of the Closingsuch date, except in each case under this clause (iiii) where the for any failure of such representations and warranties to be so true and correct which has not had, or would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; , and the Surviving Pubco (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have received been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, or would not reasonably be expected to have, individually or in the aggregate, a certificate signed by an officer Company Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the Company, dated as representations and warranties of the ClosingCompany set forth in this Agreement for purposes of this Section 6.2(b)(iii), to all qualifications in the representations and warranties based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not dollar thresholds) contained in such effectrepresentations and warranties shall be disregarded.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company of Diamond set forth in the first sentence of Section 3.1, in Section 3.3(a), in Section 3.4(a), in Section 3.7(b) and in Section 3.6(b3.7(c) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies thatrespects, individually or in the aggregateeach case, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Date as if though made on and as of each such date (except that, to the Closing; extent such representations and warranties speak as of an earlier date, such representations and warranties need be true and correct in all respects only as of such earlier date), except with respect to Section 3.3(a) for inaccuracies that would have a de minimis effect on Diamond, (ii) Each of the Company Fundamental Representations representations and warranties of Diamond set forth in the second sentence of Section 3.2(b), in Section 3.3(f)(i) and in Section 3.18 shall be true and correct (without giving effect to any limitation as of "materiality" or "Diamond Material Adverse Effect" set forth therein) in all material respects, in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall as of the date of this Agreement and as of Closing Date as though made on and as of each such date (except for that, to the extent such representations and warranties made speak as of a specific an earlier date, which shall such representations and warranties need be true and correct in all material respects only as of such earlier date), and (iii) Each of the other representations and warranties of Diamond contained in this Agreement shall be true and correct (without giving effect to any limitation as of "materiality" or "Diamond Material Adverse Effect" set forth therein), in all material respects each case, as of the date of this Agreement and as of the Closing Date as if though made on and as of each such date (except that, to the Closing; and (iii) the extent such representations and warranties (other than the Company Fundamental Representations and the speak as of an earlier date, such representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall need be true and correct in all respects only as of such earlier date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as of "materiality" or "Diamond Material Adverse Effect" set forth therein) would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Diamond Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth contained in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually this Agreement or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which schedule attached hereto shall be true and correct in all material respects when made and on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date, and the Company shall have delivered to the Purchaser a certificate, dated the Closing Date, to such effect; provided, however, (a) if the conditions to Closing set forth in this Article V (other than this Section 5.1) are satisfied or waived (or, upon an immediate Closing, would be satisfied as of such Closing) and (b) any fact or circumstance has occurred after the date of this Agreement such that the representations and warranties of the Company contained in this Agreement or in any schedule attached hereto shall not be true and correct in all material respects as of the date of this Agreement on and as of the Closing Date with the same effect as if made as of the Closing; and (iii) the representations though such representation and warranties (other than the Company Fundamental Representations had been made on and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date, then in such event the Company shall give the Purchaser notice of such fact or circumstance and, for a period of five (5) be true Business Days thereafter, the Company and correct as of the date Purchaser shall negotiate in good faith to determine whether or not the Company and the Purchaser are able to mutually agree to an appropriate adjustment to the terms of this Agreement and as of or the Closing as Merger (including a reduction in the Merger Consideration); provided, further, that, if made as of at the Closing, except in each case under this clause (iii) where the failure end of such representations and warranties to be so true and correct would notfive (5) Business Day period, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; Company and the Surviving Pubco Purchaser are unable to agree to an appropriate adjustment, then the condition in this Section 5.1 shall have received a certificate signed by an officer of be treated as unsatisfied and the Company, dated as of Purchaser shall be entitled to terminate this Agreement pursuant to Section 8.1(a)(ii) and otherwise pursue any remedies to which the Closing, to such effectPurchaser may be entitled.

Accuracy of Representations and Warranties. (i) The representations Bakkt Fundamental Representations shall be true and warranties correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made by as of the Company set forth in Section 3.4(a) and Section 3.6(b) shall Closing (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; ); (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which by Bakkt Opco set forth in Section 3.20 shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and Closing (iii(A) the provided, that representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made qualified by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualificationsqualifications shall be true and correct in all respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (B) shall (except for provided, further that representations and warranties made as of a specific date, which date shall be true and correct in all material respects as of such date (except that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of such date)); and (iii) the representations and warranties (other than the representations and warranties set forth in the foregoing clauses (i) and (ii)) made by Bakkt Opco in Article III shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the ClosingClosing (except for representations and warranties made as of a specific date, which shall be true and correct as of such date) (in each case, without giving effect to any Material Adverse Effect or other materiality qualifications contained therein), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations Fundamental Representations regarding the Sellers and warranties made by regarding the Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all but de minimis respects as of the date hereof and as of the Closing as though made as of the Closing (except for inaccuracies that, individually or in the aggregate, are de minimis) representations and warranties that speak as of such a specified date) , which representations and warranties shall continue as of the Closing to be true and correct in all but de minimis respects as of such specified date). (except for inaccuracies thatii) All other representations and warranties regarding the Sellers set forth in Article III and regarding the Company set forth in Article IV shall be true and correct (without regard to any qualifications as to Material Adverse Effect, individually materiality or similar qualifications contained in the aggregate, are de minimissuch representations and warranties (other than any dollar amounts or dollar thresholds referenced therein)) as of the date of this Agreement hereof and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if though made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Seller Material Adverse Effect (for purposes of the representations and warranties regarding the Sellers set forth in Article III) or Material Adverse Effect (for purposes of the representations and warranties regarding the Company set forth in Article IV), as applicable (except for representations and warranties that speak as of a specified date, which representations and warranties shall continue as of the Closing to be true and correct (without regard to any qualifications as to Material Adverse Effect; , materiality or similar qualifications contained in such representations and warranties (other than any dollar amounts or dollar thresholds referenced therein)) as of such specified date, except where the Surviving Pubco shall failure to be so true and correct would not, individually or in the aggregate, reasonably be expected to have received a certificate signed by an officer Seller Material Adverse Effect (for purposes of the Company, dated as representations and warranties regarding the Sellers set forth in Article III) or Material Adverse Effect (for purposes of the Closingrepresentations and warranties regarding the Company set forth in Article IV), to such effectas applicable).

Accuracy of Representations and Warranties. (i) The Subject to Sections 8.3 and 8.4, CFCL's representations and warranties made by the Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date 8.2 of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as originally made and, if applicable, as remade on and as of the Closing Date (or, in the case of a representation that by its terms is made as of a specified date, as of such date), with appropriate modifications or qualifications to those representations and warranties to reflect the results of any Casualty or Condemnation or any action taken, or any omission, by or on behalf of any CF Entity in accordance with the provisions of Article IV, but without regard to any other modifications or qualifications of those representations and warranties that may be necessary to make such representations and warranties true and correct (any such other modification or qualification, a "Qualification"); provided, however, that, to the extent that the representations and warranties in Section 8.2 refer or relate to Interests, Properties or Final Selling Parties, the references will be deemed to be references only to the Interests, Properties and Final Selling Parties being included at the Closing at hand, and those representations and warranties specifically need not be true and correct as originally made or as remade with respect to any Interests, Property or CF Entity that is not being included in such Closing. (ii) If, at any Closing, CFCL must add any new Qualification to any of its representations and warranties in Section 8.2 of this Agreement with respect to any Interests, Properties and/or Final Selling Parties to be included in such Closing in order to make those representations and warranties true and correct in all material respects as of the date of this Agreement originally made or as remade on and as of the Closing Date, if applicable, the condition precedent to Closing described in paragraph (b)(i) of this Section 7.1 will nevertheless be deemed to be satisfied unless the sum of (w) in the case of Qualifications resulting from circumstances that can be cured by the payment of money, the aggregate cost of correcting all such circumstances, as if made as agreed between CFCL and the Purchaser acting reasonably, plus (x) in the case of Qualifications resulting from circumstances that cannot readily be corrected with the payment of money, the aggregate impairment to the value of the Closing; Properties and Interests being included in that Closing as a result of those circumstances, as agreed between CFCL and the Purchaser acting reasonably, plus (iiiy) the representations aggregate amount of any such costs and warranties value impairments that were identified and agreed between the parties in connection with any prior Closing and not subsequently cured by CFCL, minus (other than z) any amount that CFCL agrees to credit, or has previously agreed to credit, against the Company Fundamental Representations Consideration payable by the Purchaser to offset the effect of any such exceptions, exceeds Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Materiality Threshold"); it being agreed that any uncured circumstances involving net costs and/or impairments to value that, when taken together with all prior such costs and impairments to value identified by CFCL in connection with that Closing and any prior Closings (after giving credit for any credits or cash payments made by the CF Entities to offset the effect of those costs and impairments to value), in the aggregate, do not exceed the Materiality Threshold shall be deemed immaterial and that any such uncured circumstances involving net costs and/or impairments to value that, when taken together with all prior such costs and impairments to value identified by CFCL in connection with that Closing and any prior Closings (after giving credit for any credits or cash payments made by the CF Entities set forth above) in excess of the Materiality Threshold shall not be entitled to the benefit of that deeming convention. In the event that CFCL and the representations Purchaser are unable to agree on the cost to cure or the impairment to value resulting from any Qualification, CFCL shall have the right but not the obligation to submit the question of cost or value to arbitration conducted in New York, New York in accordance with the Commercial Arbitration Rules (and warranties the Expedited Procedures thereunder) of the American Arbitration Association and with the additional guidelines set forth in Section 3.4(a11.21 below and in the meantime the parties shall proceed to close over the Qualification in dispute. In addition if, following that Closing, the parties determine (either by mutual agreement or through arbitration in accordance with Section 11.21) and Section 3.6(b)) made by the Company (in each case, without taking into account that all or any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as portion of the date amount in question exceeded the standard for immateriality under the guidelines set out above and, as a result, the condition precedent to Closing described in paragraph (i) above would not have been met, CFCL shall promptly pay an amount equal to the excess to the Purchaser in cash. For the avoidance of this Agreement doubt, CFCL's obligation to pay such excess amount shall not be subject to the limitations set forth in Section 9.3 and as of the Closing as if any payments made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, with respect to such effectexcess amounts shall not count against the cap on CFCL's liability set forth in Section 9.3.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a3.2(a) and Section 3.6(b3.2(b) shall (except for representations and warranties made as of a specific date, which first sentence only) (the “Capitalization Representations”) shall be true and correct in all respects (as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for any de minimis inaccuracies that(it being understood that the accuracy of those representations and warranties that address matters only as of a specified date shall be measured as set forth in this clause (b)(i) only as of such date); (ii) The representations and warranties of the Company set forth in Section 3.1, Section 3.3(a), Section 3.3(b), Section 3.8 and Section 3.14(g) (the “Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date); provided, however, that for purposes of determining the accuracy of the representation and warranty of the Company set forth in the second sentence of Section 3.14(g), for purposes of this Section 6.2(b)(ii), qualifications based on Knowledge of the Company contained in such representation and warranty shall be disregarded; (iii) The representations and warranties of the Company set forth in this Agreement (other than the Capitalization Representations and the Fundamental Representations) shall be true and correct as of the Agreement Date and as of the Closing Date with the same force and effect as if made on and as of such date, except (i) for any failure to be so true and correct which has not had, or would not reasonably be expected to have, individually or in the aggregate, are de minimisa Company Material Adverse Effect, and (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date) , except for any failure to be so true and correct in all respects (except for inaccuracies thatas of such date which has not had, or would not reasonably be expected to have, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the a Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except Effect); provided, however, that for representations and warranties made as purposes of a specific date, which shall be true and correct in all material respects as determining the accuracy of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than of the Company Fundamental Representations and set forth in this Agreement for purposes of this Section 6.2(b)(iii), all qualifications in the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the based on a “Company (in each case, without taking into account any Material Adverse Effect Effect” and all materiality qualifications and other qualifications based on the word “material” or other materiality qualificationssimilar phrases (but not dollar thresholds) shall (except for representations and warranties made as of a specific date, which shall be true and correct contained in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to shall be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effectdisregarded.

Accuracy of Representations and Warranties. (a) Each of the representations and warranties of Sellers contained in Article III (other than the Seller Fundamental Representations contained in Article III) (i) The representations and warranties made by the that are qualified as to Company set forth in Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which Material Adverse Effect shall be true and correct in all respects as of the Closing Date as if made anew on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)) and (ii) that are not so qualified shall be true and correct (disregarding all qualifications and exceptions contained therein relating to materiality) as of the Closing Date as if made anew on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)) except for inaccuracies thatfailures of the representations and warranties referred to in this clause (ii) to be true and correct that do not constitute, and would not reasonably be expected to have, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as a Company Material Adverse Effect. Each of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Seller Fundamental Representations (contained in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which Article III shall be true and correct in all respects as of the Closing Date as if made anew on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)), except for de minimis inaccuracies. (b) Each of the representations and warranties of the Company contained in Article IV (other than the Seller Fundamental Representations contained in Article IV) (i) that are qualified as to Company Material Adverse Effect shall be true and correct as of the Closing Date as if made anew on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of this Agreement such earlier date)), and (ii) that are not so qualified shall be true and correct (disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect) as of the Closing Date as if made as of anew on the Closing, Closing Date (except in each case under this clause (iii) where to the failure of extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)) except for failures of the representations and warranties referred to in this clause (ii) to be so true and correct that do not constitute, and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer . Each of the CompanySeller Fundamental Representations contained in Article IV (other than the representations and warranties contained in [***], dated which shall not constitute Seller Fundamental Representations for purposes of this Section 7.1(b) and shall be subject to the foregoing sentence) shall be true and *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. correct in all respects as of the ClosingClosing Date as if made anew on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)), to such effectexcept for de minimis inaccuracies.

Accuracy of Representations and Warranties. (i) The representations and warranties made of GEXA contained herein (i) that are modified by the Company set forth phrase “Material Adverse Effect” or any other materiality modifier shall have been true and correct in Section 3.4(a) and Section 3.6(b) shall all respects when made (except for to the extent such representations and warranties made relate to an earlier date, in which case as of a specific such earlier date), which and shall be true and correct in all respects at and as of the Closing Date as though made on and as of the Closing Date (except for inaccuracies thatto the extent such representations and warranties that expressly relate to an earlier date, individually or in the aggregate, are de minimis) as which case of such earlier date), and (ii) be the other representations and warranties of GEXA contained herein shall have been true and correct in all material respects when made (except for inaccuracies that, individually or in to the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for extent such representations and warranties made as of a specific relate to an earlier date, in which case of such earlier date), and shall be true and correct in all material respects at and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties that expressly relate to an earlier date) , in which case of such earlier date); provided, however, that in the case of the preceding clause (ii), breaches of the representations and warranties referred to therein that are required to be true and correct in all material respects as of the Closing Date and that are caused by an event or occurrence arising after the date of this Agreement shall not cause a failure of this condition precedent to be fulfilled unless such breaches, individually or in the aggregate, would adversely affect (or be reasonably likely to adversely affect) GEXA and its Subsidiaries, taken as of a whole, in any material respect; and, provided further, in no case shall the Closing as if made as of “material” modifier set forth in such clause (ii) nor shall the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and foregoing proviso apply to the representations and warranties set forth in Section 3.4(a3.1(a) - (c), (e), (h), (o), (u) - (x), (aa), (dd), and Section 3.6(b)(ee) made by the Company (in each caseof this Agreement, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for which representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco respects. Holdings shall have received a certificate dated the Closing Date signed by an executive officer of GEXA certifying to the Company, dated as fulfillment of the Closing, to such effectthis condition.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company of Diamond set forth in the first sentence of Section 3.1, in Section 3.3(a), in Section 3.4(a), in Section 3.7(b) and in Section 3.6(b3.7(c) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies thatrespects, individually or in the aggregateeach case, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Date as if though made on and as of each such date (except that, to the Closing; extent such representations and warranties speak as of an earlier date, such representations and warranties need be true and correct in all respects only as of such earlier date), except with respect to Section 3.3(a) for inaccuracies that would have a de minimis effect on Diamond, (ii) Each of the Company Fundamental Representations representations and warranties of Diamond set forth in the second sentence of Section 3.2(b), in Section 3.3(f)(i) and in Section 3.18 shall be true and correct (without giving effect to any limitation as of “materiality” or “Diamond Material Adverse Effect” set forth therein) in all material respects, in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall as of the date of this Agreement and as of Closing Date as though made on and as of each such date (except for that, to the extent such representations and warranties made speak as of a specific an earlier date, which shall such representations and warranties need be true and correct in all material respects only as of such earlier date), and (iii) Each of the other representations and warranties of Diamond contained in this Agreement shall be true and correct (without giving effect to any limitation as of “materiality” or “Diamond Material Adverse Effect” set forth therein), in all material respects each case, as of the date of this Agreement and as of the Closing Date as if though made on and as of each such date (except that, to the Closing; and (iii) the extent such representations and warranties (other than the Company Fundamental Representations and the speak as of an earlier date, such representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall need be true and correct in all respects only as of such earlier date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as of “materiality” or “Diamond Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Diamond Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (ia) The Specified Representations (other than the representations and warranties made by the Company set forth in Section 3.4(a3.4 (Capitalization) and Section 3.6(b4.3 (Title to Securities)) shall (except for that are qualified by materiality or Company Material Adverse Effect and the representations and warranties made as of a specific date, which contained in Section 3.7(a) shall be true and correct in all respects as of the Agreement Date and as of the Closing Date with the same effect as though made on and as of the Closing (except for inaccuracies that, individually or in to the aggregate, are de minimis) extent expressly made as of an earlier date, in which case such date) representations and warranties shall be true and correct in all respects as of such earlier date). The Specified Representations (except for inaccuracies that, individually other than the representations and warranties set forth in Section 3.4 (Capitalization) and Section 4.3 (Title to Securities)) that are not qualified by materiality or Company Material Adverse Effect shall be true and correct in the aggregate, are de minimis) all material respects as of the date of this Agreement Date and as of the Closing Date with the same effect as if though made on and as of the Closing (except to the extent expressly made as of the Closing; (ii) the Company Fundamental Representations (an earlier date, in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for which case such representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such earlier date). (b) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the The representations and warranties (other than of the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a3.4 (Capitalization) and of the Seller Parties set forth in Section 3.6(b)4.3 (Title to Securities) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all but de minimis respects as of the Agreement Date and as of the Closing Date with the same effect as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all but de minimis respects as of such earlier date). (c) The other representations and warranties of the Company set forth in Article 3 and the Seller Parties set forth in Article 4 (except the representation in Section 3.7(a)) shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth therein) as of the Agreement Date and of the Closing Date with the same effect as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case such representations and warranties shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closingsuch earlier date), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The Each of the representations and warranties made by the Company set forth of Buyer contained in Section 3.4(aArticle IV (a) and Section 3.6(b) shall (except for representations and warranties made that are qualified as of a specific date, which to Buyer Material Adverse Effect shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true at and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Date as if made anew as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall such date (except for to the extent such representations and warranties made expressly relate to an earlier date (in which case, as of a specific such earlier date)), which and (b) that are not so qualified shall be true and correct in all material respects as of such date) be true at and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made anew as of such date (except to the Closing; extent such representations and warranties expressly relate to an earlier date (iii) in which case, as of such earlier date)), except where any failures of the representations and warranties referred to in this clause (b) to be true and correct do not constitute a Buyer Material Adverse Effect (it being acknowledged and agreed that all materiality qualifiers limiting the scope of such representations and warranties shall be disregarded); provided, that (i) the Buyer Fundamental Representations (other than the Company Fundamental Representations and the representations and warranties set forth of Buyer contained in Section 3.4(a4.2) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true at and correct as of the date of this Agreement and as of the Closing Date as if made anew as of such date (except to the Closingextent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)) (it being understood that, except in each case under this clause (iii) where for purposes of determining the failure accuracy of such representations and warranties, all “Buyer Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded) and (ii) the representations and warranties of Buyer contained in Section 4.2 shall be true and correct in all respects at and as of the date of this Agreement and as of the Closing Date as if made anew as of such date (except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such earlier date)) except where the failure to be so true and correct accurate in all respects would not, individually or not reasonably be expected to result in an increase in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer aggregate Merger Consideration otherwise payable under Section 2.7 of the Company, dated as of the Closing, to such effectmore than 150,000 Vidara Ordinary Shares.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in in: (i) Section 3.4(a3.10(c) and Section 3.6(b(Absence of Certain Changes or Events) of the Agreement shall (except for representations and warranties made as of a specific date, which shall not be true and correct in all respects as of the date specified therein; (ii) Section 3.2(a) and Section 3.2(b) (Capital Stock and Indebtedness) of the Agreement shall not be true and correct in all respects as of the date of the Agreement and at and as of the Offer Acceptance Time as if made at and as of the Offer Acceptance Time, except in each case for inaccuracies such representations and warranties that relate to a specific date or time (which need only be true and correct as of such date or time) and except, in each case, for such failures to be true and correct that, individually or in the aggregate, are would not reasonably be expected to cause more than a de minimisminimis increase in the aggregate amounts payable by Merger Sub or Parent in the transactions contemplated by the Agreement; (iii) as Section 3.1(a) (Organization), Section 3.2(c), Section 3.2(d) and Section 3.2(e) (Capital Stock and Indebtedness), Section 3.3(a) (Corporate Authority Relative to this Agreement), Section 3.17 (Opinion) and Section 3.18 (Finders or Brokers) of such datethe Agreement (collectively, the “Fundamental Representations”) to the extent qualified by materiality or “Material Adverse Effect” shall not be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this the Agreement and at and as of the Closing Offer Acceptance Time as if made at and as of the Closing; (ii) the Company Fundamental Representations (Offer Acceptance Time except in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except case for representations and warranties made as of in the Fundamental Representations that relate to a specific date, date or time (which shall need only be true and correct in all material respects as of such date) date or time), and all of the Fundamental Representations to the extent not qualified by materiality or “Material Adverse Effect” shall not be true and correct in all material respects as of the date of this the Agreement and at and as of the Closing Offer Acceptance Time as if made at and as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (Offer Acceptance Time except for representations and warranties made as of in the Fundamental Representations that relate to a specific date, date or time (which shall need only be true and correct in all material respects as of such datedate or time); and (iv) Article III of the Agreement (other than in Section 3.2(a), Section 3.2(b) and Section 3.10(c) of the Agreement and the Fundamental Representations) (without giving effect to any materiality or “Material Adverse Effect” qualifications therein), shall not be true and correct as of the date of this the Agreement and at and as of the Closing Offer Acceptance Time as if made at and as of the Closing, Offer Acceptance Time except in each case under this clause (iii) where the failure of for such representations and warranties that relate to a specific date or time (which need only be so true and correct would notas of such date or time), in each case, except for such failures to be true and correct, individually or in the aggregate, be reasonably likely to as have not had a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The ------------------------------------------ representations and warranties made by of JWGFC and Seller (for itself and/or respecting the Company set forth Company) contained in Section 3.4(a) this Agreement, in the Disclosure Schedule and Section 3.6(b) shall (except for representations in any closing certificate or document delivered to Fiserv and warranties made as of a specific date, which Buyer pursuant hereto shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement at and as of the Closing Date as if though made at and as of that time other than such representations and warranties as are specifically made as of another date, and JWGFC and Seller shall have delivered to Fiserv and Buyer a certificate to that effect, including a schedule of all exceptions to any and all of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made that arose between the date hereof and the Closing Date, provided that, as to any representation or warranty that JWGFC or Seller can no longer certify as accurate as of the Closing Date as a specific dateresult of an event or other development occurring after the date hereof and which would not have an Adverse Effect, which Fiserv and Buyer shall not be entitled to refuse to close if JWGFC and Seller shall disclose such event or development in an amendment to the Disclosure Schedule and specifically agree fully to indemnify and hold harmless Fiserv and Buyer with respect thereto pursuant to Section 5.03. Continuance of Company's Business and/or Revenues. ------------------------------------------------- Beginning on the date when the parties sign this Agreement and up to and through Closing, JWGFC, Seller and the Company shall provide written notice to Fiserv and Buyer of any loss or reduction of the Company's business and/or revenues due to the termination or discontinuance (or notice thereof) by one or more correspondents of such correspondent's clearing services arrangements with the Company ("CORRESPONDENT TERMINATIONS"), and provide written notice of all notice(s) or other communications (whether written, electronic or oral) from any and all of the Company's correspondents that any such termination or discontinuance is forthcoming or is under evaluation. Such developments and information shall be true and correct in all material respects handled as follows: (i) If the actual or reasonably expected loss or reduction of such date) be true and correct in all material respects the total business and/or revenues of the Company due to Correspondent Terminations is less than 5% of the same as of the date on which the parties sign this Agreement, there shall be no right of Fiserv and Buyer under this Section 4.01 (b) not to close the transaction described in this Agreement and as the Purchase Price shall not be adjusted based on said actual or reasonably expected loss or reduction. (ii) If the actual or reasonably expected loss or reduction of the Closing as if made as total business and/or revenues of the Closing; Company due to Correspondent Terminations is equal to or greater than 5% and (iii) up to and including 25% of the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct same as of the date on which the parties sign this Agreement, there shall be no right of Fiserv and Buyer under this Section 4.01 (b) not to close the transaction described in this Agreement and but $40,000,000 of the Purchase Price shall be reduced proportionately based on the percentage reduction of said actual or reasonably expected loss or reduction within said range. (iii) If the actual or reasonably expected loss or reduction of the total business and/or revenues of the Company due to Correspondent Terminations is greater than 25% of the same as of the Closing as if made as of date on which the Closingparties sign this Agreement, except in each case Fiserv and Buyer shall have the right at their option under this clause Section 4.01 (iiib) where not to close the failure of such representations and warranties to be so true and correct would not, individually or transaction described in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effectthis Agreement.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company set forth in Section 3.4(a3.3(a) and Section 3.6(b3.8(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a3.3(a) and Section 3.6(b3.8(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by the Company Parent and Merger Sub set forth in Section 3.4(a4.4(a) and Section 3.6(b4.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Parent Fundamental Representations (in each case, without taking into account any Parent Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Parent Fundamental Representations and the representations and warranties set forth in Section 3.4(a4.4(a) and Section 3.6(b4.6(b)) made by the Company Parent and Merger Sub (in each case, without taking into account any Parent Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Parent Material Adverse Effect; and the Surviving Pubco Company shall have received a certificate signed by an officer of the CompanySurviving Pubco, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in Section 3.4(a) Article 4 (as modified by the Company Disclosure Letter in accordance herewith), disregarding all qualifications and Section 3.6(b) shall (except for representations and warranties made as of a specific dateexceptions contained therein relating to materiality or any similar standard or qualification, which shall be true and correct in all respects each case on and as of the Closing with the same force and effect as if they had been made on the Closing Date (except for inaccuracies thatany such representations or warranties that by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct on and as of such specified date or dates), except where the failure of such representations or warranties to be true or correct have not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, provided, however, that (a) in the case of the representations and warranties contained in Section 4.3(a) (Power and Authority), Section 4.4 (Capitalization), Section 4.5 (No Conflict), Section 4.6 (Litigation) and Section 4.13 (Intellectual Property) (as to representations relating to intellectual property ownership, misappropriation or infringement only) (collectively, the “Special Representations”), such Special Representations (i) that are de minimis) qualified as of such date) to materiality shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other that are not qualified as to materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct respects, in all material respects as of the date of this Agreement each case on and as of the Closing with the same force and effect as if they had been made on the Closing Date (except for any such representations or warranties that by their terms speak only as of the Closing; a specific date or dates, in which case such representations and warranties shall be true and correct on and as of such specified date or dates), and (iiib) the representations and warranties (other than relating to the accuracy and presentation of the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company Financial Statements will not be deemed to have been breached (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except solely for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such date) be true and correct as of the date purposes of this Agreement Section 10.1) as a result of audit adjustments reflected in the Audited Financial Statements except and as of to the extent that the Audit Adjustment Amount exceeds $500,000, and at the Closing as if made as of the Closing, except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco Acquiror shall have received a certificate signed to such effect executed by an officer of the Company, dated as of the Closing, to such effect’s President or Chief Executive Officer.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of each member of the Company set forth Group and Seller which are Fundamental Representations (other than Section 3.2 (Capitalization of the Company Group)), determined for these purposes without giving effect to any “materiality,” “Material Adverse Effect” or similar qualification, shall be true and correct in Section 3.4(a) all material respects on the Closing Date as if made on and Section 3.6(b) shall as of the Closing Date (except for representations and warranties that are made as of a specific date, in which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which case they shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing); and (iiiii) the representations and warranties contained in Section 3.7(a) (No MAE) and, other than di minimis inaccuracies, Section 3.2 (Capitalization of the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(bGroup)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects on the Closing Date as if made on and as of such the Closing Date; (iii) all other representations and warranties of each member of the Company Group and Seller contained in Article III and Article IV, determined for these purposes without giving effect to any “materiality,” “Material Adverse Effect” or similar qualification, shall be true and correct in all respects on the Closing Date as if made on and as of the Closing Date, except (a) for representations and warranties that are made as of a specific date) , in which case they shall be true and correct as of the date of this Agreement such date, and as of the Closing as if made as of the Closing, except in each case under this clause (iiib) where the failure of such representations and warranties to be so true and correct has not had, and would notnot reasonably be expected to have, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect; and (iv) the Surviving Pubco shall have received a certificate signed by an officer representations and warranties of the CompanyCotton Family set forth in any Transaction Document, dated determined for these purposes without giving effect to any “materiality,” “Material Adverse Effect” or similar qualification, shall be true and correct on the Closing Date as if made on and as of the ClosingClosing Date (except for representations and warranties that are made as of a specific date, in which case they shall be true and correct as of such date), except where the failure of such representations and warranties to such effectbe so true and correct would not reasonably be expected to (i) prevent, hinder or materially delay any of the transactions contemplated by this Agreement or (ii) materially impair the ability of the Cotton Family to perform its obligations under the Transaction Documents.

Accuracy of Representations and Warranties. (i) The Performance of this Agreement. Each of the representations and warranties made by Seller in (i) the Company set forth in first sentence of Section 3.4(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date5.02, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations last sentence of Section 5.06(a), (in each case, without taking into account any Material Adverse Effect or other materiality qualificationsiii) shall Sections 5.07(a) and (except for representations b) (but only as they relate to FCC Authorizations) and warranties made as of a specific date, which (iv) Sections 5.14(a) and (b) shall be true and correct in all material respects on and as of the date hereof (unless such representation or warranty is given as of a particular date in which case such representation or warranty will be considered only as of such particular date) ), provided, however, that for purposes of determining the accuracy of such representations and warranties, such representations and warranties that are qualified by Seller Material Adverse Effect or other materiality qualifications shall be true and correct in all respects at and as of the date hereof. Each of the representations and warranties made by Seller in this Agreement shall be true and correct in all material respects as of the date of this Agreement on and as of the Closing as if made Date (unless any representation or warranty is given as of a particular date in which case such representation or warranty will be considered only as of such particular date), provided, however, that for purposes of determining the Closing; accuracy of such representations and (iii) the warranties, all representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (Seller in each case, without taking into account any this Agreement that are qualified by Seller Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which qualifications shall be true and correct in all respects as of such date) be true and correct as of the date of this Agreement at and as of the Closing as if made as Date. Seller shall have complied with and performed all of the Closing, except in agreements and covenants required by this Agreement and each case under this clause (iii) where the failure of such representations and warranties other Transaction Document to be so true and correct would not, individually performed or in complied with by it on or prior to the aggregate, be reasonably likely to have a Material Adverse Effect; and the Surviving Pubco Closing. Purchaser shall have received been furnished with a certificate signed by of an officer of the CompanySeller, dated as of the ClosingClosing Date, certifying to such effectthe fulfillment of the foregoing conditions. As used in this Agreement, the term "Seller Material Adverse Effect" means a material adverse effect on the business, assets, Liabilities, properties, condition (financial or otherwise), or results of operations of the Partnership, the Business, the Interest or the Switch taken as a whole; provided, however, that neither (a) the effects of any events, circumstances or conditions resulting from changes, developments or circumstances in worldwide or national conditions (political, economic, or regulatory) that adversely affect generally the market where the Cellular System is operated or affect generally industries engaged in the telecommunications business (including proposed legislation or regulation by any governmental or regulatory body or the introduction of any technological changes in the telecommunications industry), nor (b) any effects of competition resulting from the offering of personal communication services or other wireless telecommunications services, will constitute a Seller Material Adverse Effect.

Accuracy of Representations and Warranties. (a) (i) The representations and warranties made by of the Company Companies set forth in Section 3.4(aArticle 3 (other than the Fundamental Representations) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects on and as of the Closing Date (without giving effect to any limitations as to “materiality” or “Material Adverse Effect” set forth therein) with the same force and effect as if they had been made on the Closing Date (except for inaccuracies thatany such representations or warranties that by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct on and as of such specified date or dates), except to the extent that the failure of such representations and warranties to be true and correct, individually or in the aggregate, are de minimiswould not reasonably be expected to have a Material Adverse Effect, and (ii) as the Fundamental Representations of such date) the Companies shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement on and as of the Closing Date in all material respects with the same force and effect as if they had been made as of on the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall Closing Date (except for any such representations and or warranties made that by their terms speak only as of a specific datedate or dates, in which case such representations and warranties shall be true and correct in all material respects on and as of such datespecified date or dates). At the Closing, Acquiror shall have received a certificate confirming the accuracy of the representations and warranties of the Companies as described in this Section 10.1(a) executed by an officer of each of the Companies. (b) (i) The representations and warranties of Seller set forth in Article 4 (other than the Fundamental Representations), shall be true and correct in all material respects as of the date of this Agreement on and as of the Closing Date (without giving effect to any limitations as to “materiality” or “Material Adverse Effect” set forth therein) with the same force and effect as if they had been made as of on the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall Closing Date (except for any such representations and or warranties made that by their terms speak only as of a specific datedate or dates, in which case such representations and warranties shall be true and correct in all respects on and as of such date) be true and correct as of the specified date of this Agreement and as of the Closing as if made as of the Closingor dates), except in each case under this clause (iii) where to the extent that the failure of such representations and warranties to be so true and correct would notcorrect, individually or in the aggregate, would not reasonably be reasonably likely expected to have a Material Adverse Effect; , and (ii) the Surviving Pubco Fundamental Representations of the Seller shall be true and correct on and as of the Closing Date in all material respects with the same force and effect as if they had been made on the Closing Date (except for any such representations or warranties that by their terms speak only as of a specific date or dates, in which case such representations and warranties shall be true and correct in all material respects on and as of such specified date or dates). At the Closing, Acquiror shall have received a certificate signed confirming the accuracy of the representations and warranties of Seller as described in this Section 10.1(b) executed by an officer of the Company, dated as of the Closing, to such effectSeller.

Accuracy of Representations and Warranties. (i) The representations and warranties made by of the Company set forth in the first sentence of Section 3.4(a4.1 (Organization), in Section 4.4 (Authority), in Section 4.7(a), (b) and Section 3.6(b(c) shall (except for representations and warranties made as Absence of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific dateChange), which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (iii) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a4.14 (State Takeover Statutes) and in Section 3.6(b)4.23 (Brokers) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of the Effective Time as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date). The representations and warranties of the Company set forth in Section 4.3 (Capital Structure) shall be true and correct as of the date of this Agreement Effective Time as though made on and as of such date and time (except to the Closing extent that any such representation and warranty expressly speaks as if made of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date). The representations and warranties of the Company contained in this Agreement (other than those listed in the preceding two sentences) shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) as of the ClosingEffective Time as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, reasonably be reasonably likely expected to have a Material Adverse Effect; and Effect on the Surviving Pubco Company. Parent shall have received a certificate signed on behalf of the Company by an a duly authorized officer of the Company, dated Company as to the effect of the Closing, to such effectpreceding two sentences.

Accuracy of Representations and Warranties. (ia) The Specified Representations (other than the representations and warranties made by the Company set forth in Section 3.4(a2.4 (Capitalization), Section 2.11 (Regulatory Matters) and Section 3.6(b3.4 (Title to Securities)) shall (except for representations and warranties made as of a specific date, which that are qualified by materiality or Company Material Adverse Effect shall be true and correct in all respects as of the Agreement Date and as of the Closing Date with the same effect as though made on and as of the Closing (except for inaccuracies that, individually or in to the aggregate, are de minimis) extent expressly made as of an earlier date, in which case such date) representations and warranties shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental such earlier date). The Specified Representations (other than the representations and warranties set forth in each case, without taking into account any Section 2.4 (Capitalization) and Section 3.4 (Title to Securities)) that are not qualified by materiality or Company Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement Date and as of the Closing Date with the same effect as if though made on and as of the Closing (except to the extent expressly made as of the Closing; and (iii) the an earlier date, in which case such representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects as of such earlier date). (b) The representations and warranties of the Company set forth in Section 2.4 (Capitalization) and of the Seller set forth in Section 3.4 (Title to Securities) shall be true and correct in all respects as of the Agreement Date and as of the Closing Date with the same effect as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all respects as of such earlier date). The representations and warranties of the Acquired Companies set forth in Section 2.11 (Regulatory Matters) shall be true and correct in all material respects (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth therein) as of the Agreement Date and of the Closing Date with the same effect as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case such representations and warranties shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closingsuch earlier date), except in each case under this clause (iii) where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably expected to be reasonably likely material to the Acquired Companies taken as a whole. (c) The other representations and warranties of the Company set forth in Article 2 and the Seller set forth in Article 3 shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth therein) as of the Agreement Date and of the Closing Date with the same effect as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a Company Material Adverse Effect; and the Surviving Pubco shall have received a certificate signed by an officer of the Company, dated as of the Closing, to such effect.

Accuracy of Representations and Warranties. (iA) The representations and warranties made by the Company of Parent and Merger Sub set forth in Section 3.4(a) and Section 3.6(b) this Agreement shall (except for representations and warranties made as of a specific date, which shall be have been true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of such date) be true and correct in all material respects as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closing; such date, except (i) for any failure to be so true and correct which has not had, and would not have a Parent Material Adverse Effect, and (iiiii) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, and would not have a Parent Material Adverse Effect) and (B) the representations and warranties (other than the Company Fundamental Representations and the representations and warranties of Guarantor set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) this Agreement shall (except for representations and warranties made as of a specific date, which shall be have been true and correct in all respects as of such date) be true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closingsuch date, except in each case under this clause (iiii) where the for any failure of such representations and warranties to be so true and correct which has not had, and would not, individually or in the aggregate, be reasonably likely to not have a Guarantor Material Adverse Effect; , and the Surviving Pubco (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have received been true and correct as of such particular date, except for any failure to be so true and correct as of such date which has not had, and would not have a certificate signed by an officer Guarantor Material Adverse Effect); provided, however, that for purposes of determining the accuracy of the Companyrepresentations and warranties of Guarantor, dated as Parent and Merger Sub set forth in this Agreement for purposes of this Section 2.2(c)(ii), all materiality qualifications and other qualifications based on the Closing, to word “material” or similar phrases contained in such effectrepresentations and warranties shall be disregarded.

Accuracy of Representations and Warranties. (i) The Each of the representations and warranties made by of the Company Company: (1) set forth in Section 3.4(a3.10(a) and Section 3.6(b) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing Date, with the same force and effect as if made as of the Closing; (ii) the Company Fundamental Representations (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects as of on such date; (2) set forth in Section 3.1, Section 3.2 and Section 3.24 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, with the same force and effect as if made as of the Closing; and on such date (iii) the except for those representations and warranties (other than the Company Fundamental Representations and the representations and warranties set forth in Section 3.4(a) and Section 3.6(b)) made by the Company (in each case, without taking into account any Material Adverse Effect or other materiality qualifications) shall (except for representations and warranties made that address matters only as of a specific particular date, which representations shall be have been true and correct in all material respects as of such particular date); provided, however, that for purposes of determining the accuracy of the representations and warranties for purposes of this Section 2.2(b)(ii)(2), all materiality qualifications and other qualifications based on the word “material” or similar phrases (but not any qualifications based on a “Company Material Adverse Effect”) contained in such representations and warranties shall be disregarded; (3) set forth in Section 3.5 shall be true and correct as of the date of this Agreement and as of the Closing Date, with the same force and effect as if made on such date, except (A) those representations and warranties that address matters only as of a particular date (which representations shall have been true and correct as of such particular date, except for inaccuracies which (x) would not increase the aggregate Merger Consideration payable in the Merger by more than a de minimis amount and (y) are otherwise not material), and (B) for inaccuracies which (x) would not increase the aggregate Merger Consideration payable in the Merger by more than a de minimis amount and (y) are otherwise not material; and (4) otherwise set forth in this Agreement shall be true and correct as of the Closingdate of this Agreement and as of the Closing Date, with the same force and effect as if made on and as of such date, except for (A) those representations and warranties that address matters only as of a particular date (which representations shall have been true and correct as of such particular date, except as has not had, and would reasonably be expected to have, individually or in each case the aggregate with all inaccuracies under this clause (iii4), a Company Material Adverse Effect), and (B) where the any failure of such representations and warranties to be so true and correct as of such date which has not had, or would notreasonably be expected to have, individually or in the aggregateaggregate with all inaccuracies under this clause (4), be reasonably likely to have a Company Material Adverse Effect; and provided, however, that for purposes of determining the Surviving Pubco shall have received a certificate signed by an officer accuracy of the Companyrepresentations and warranties for purposes of Section 2.2(b)(ii)(4), dated as of all qualifications based on a “Company Material Adverse Effect” and all materiality qualifications and other qualifications based on the Closing, to word “material” or similar phrases contained in such effectrepresentations and warranties shall be disregarded.