Common use of No Misrepresentation or Breach of Covenants and Warranties Clause in Contracts

No Misrepresentation or Breach of Covenants and Warranties. The representations and warranties of the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, as though made on such date, except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof and on and as of the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company on or before the Closing Date.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach of covenants by MergerCo, Holdings or the Company in the performance of any of their covenants and agreements herein; each of the representations and warranties of MergerCo, Holdings and the Company made contained to in this Agreement (without regard to any materiality or Material Adverse Effect qualifications and of MergerCo contained therein), other than in the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), Merger Agreement shall be true and correct in all respects (a) as of the date hereof; and (b) on and Closing Date as though made as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) for (i) for those representations and warranties that speak as of a specific date or time which need only be true and correct as of such date or time, (ii) representations and warranties which refer to facts existing at a specific date are not qualified by Material Adverse Effect or otherwise by material adversity (which shall need be true and correct only except for such inaccuracies as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate (together with the inaccuracies referred to in the following clause (iii)) would not have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority iii) representations and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) warranties which are qualified by Material Adverse Effect or otherwise by material adversity shall also be true and correct without regard to such qualification except for such inaccuracies as in all material respects the aggregate (x) as of together with the date hereof and (y) on and as of inaccuracies referred to in the Closing Date, as though made on such date, except (in each of preceding clause (x) and (yii)) for those representations and warranties which refer to facts existing at would not have a specific date Material Adverse Effect, (which shall be true and correct in all material respects only as of such date); and iv) the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) 4.2 shall be true and correct in all respects as of correct, and (v) changes therein specifically permitted by this Agreement and the date hereof Merger Agreement and on and as of there shall have been delivered to the Trustee a certificate to such effect, dated the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with signed by the Company on President or before other senior executive officer of Merger Co., Holdings and the Closing DateCompany.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach by Terra, any Stockholder or any Optionholder in the performance of their respective covenants and agreements herein to be performed at or prior to the Effective Time; subject to Section 10.7, none of the representations and warranties of Terra, any Stockholder or any Optionholder that is qualified as to materiality shall be untrue or incorrect in any respect on the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than Effective Date and on the Effective Date such representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), warranties shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such datethe Effective Date except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by CMS Energy, except (permitted by Section 6.6 or entered into in each case connection with the consummation of (a) the Merger and (b)) (i) for those the other transactions contemplated hereby; subject to Section 10.7, none of the representations and or warranties which refer to facts existing at a specific date (which that is not so qualified shall be true untrue or incorrect in any material respect on the Effective Date and correct only as of such date) and (ii) to on the extent any breaches of Effective Date such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, as though made on such date, the Effective Date except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof and on and as of the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to be performed in writing by CMS Energy, permitted by Section 6.6 or complied entered into in connection with the consummation of the Merger and the other transactions contemplated hereby; and there shall have been delivered to CMS Energy and Sub a certificate or certificates to the foregoing effect in substantially the form of Exhibit C hereto, dated the Effective Date, signed on behalf of Terra by its Chairman and its President and signed by each of the Company on or before Stockholders and the Closing DateOptionholders (limited in the case of the respective Management and Non-Management Stockholders and Optionholders to the respective covenants and agreements, and representation and warranties, of such persons contained herein).

No Misrepresentation or Breach of Covenants and Warranties. (a) There shall not have been any failure by Seller in the performance of any of its covenants and agreements herein that shall not have been remedied or cured, other than failures to perform that are not, in the aggregate, material. (b) The Seller Fundamental Representations shall be true and correct in all but de minimis respects on the Closing Date as though made on the Closing Date, except to the extent that they expressly relate to an earlier date, in which case such representations and warranties need only be true and correct in all but de minimis respects as of such date. (c) The representations and warranties of the Company made Seller contained in this Agreement, Article VI of the MSR Purchase Agreement and Section 6.01 of the Mortgage Loan Purchase Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(aSeller Fundamental Representations) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (bwithout taking into account any “material”, “Material Adverse Effect” or similar qualifiers) on and the Closing Date as of though made on the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of that they expressly relate to an earlier date, in which case such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall need only be true and correct in all material respects (x) as of such date; provided, however, that the date hereof conditions set forth in this Section 7.1(c), with respect to all representations and warranties stated therein shall be deemed satisfied unless the effect of all such failures of such representations and warranties to be true, complete and correct, taken together, has had a Material Adverse Effect. (d) There shall have been delivered to Buyer a certificate certifying as to the satisfaction of the conditions in clauses (a), (b), (b) and (yc) on and as of above, dated the Closing Date, as though made signed on such date, except (in each behalf of clause (x) and (y)) for those representations and warranties which refer to facts existing at Seller by a specific date (which shall be true and correct in all material respects only as duly authorized officer of such date); and the representations and warranties set forth in Seller. Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof and on and as of the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company on or before the Closing Date7.2.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach by CMS Energy or Sub in the performance of any of their respective covenants and agreements herein to be performed at or prior to the Effective Time; none of the representations and warranties of CMS Energy or Sub that is qualified as to materiality shall be untrue or incorrect in any respect and on the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the Effective Date such representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), warranties shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such datethe Effective Date except for changes therein specifically permitted by this Agreement or resulting from any transactions expressly consented to in writing by Waltxx, except (xxrmitted by Section 6.6 or entered into in each case connection with the consummation of (a) the Merger and (b)) (i) for those the other transactions contemplated hereby; none of the representations and or warranties which refer to facts existing at a specific date (which that are not so qualified shall be true untrue or incorrect in any material respect and correct only as of such date) and (ii) to on the extent any breaches of Effective Date such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, as though made on such date, the Effective Date except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof and on and as of the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required changes therein specifically permitted by this Agreement or resulting from any transactions expressly consented to be performed in writing by Waltxx, xxrmitted by Sections 6.6 or complied entered into in connection with the consummation of the Merger and the other transactions contemplated hereby; and there shall have been delivered to Waltxx xxx the Stockholders a certificate or certificates to the foregoing effect, dated the Effective Date, signed on behalf of CMS Energy and Sub by the Company on their respective Presidents or before the Closing DateVice Presidents.

No Misrepresentation or Breach of Covenants and Warranties. The Each of the representations and warranties of the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall Article VI hereof will be true and correct in all material respects (x) as of the date hereof and (y) on at and as of the Closing Date, as though then made on such dateand as though the Closing Date were substituted for the date of this Agreement, except (in each of clause (x) and (y)) for those to the extent that such representations and warranties are qualified by terms such as "material" or "Material Adverse Effect," in which refer to facts existing at a specific date (which shall be true and correct in all material respects only as case each of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof Closing Date (except to the extent that they expressly relate to an earlier date, in which case they will be true as of such date), in each case except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by Seller or expressly permitted by this Agreement and on other than breaches of particular representations and warranties which, individually or in the aggregate, are not material to the Buyer, the transactions contemplated by this Agreement or Sellers' reasonable expectations in connection herewith or therewith). Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the that such covenants are qualified by terms such as "material" or "Material Adverse Effect," in which case Sellers shall have performed and complied with all such covenants in all respects as of the Closing Date, as though made on such date. The Company There shall have performed or complied been delivered to the Sellers a certificate to the effect that each of the conditions in all material respects with all obligations the preceding two sentences is fully satisfied and covenants required by this Agreement to such certificate shall be performed or complied with by the Company on or before dated the Closing DateDate and signed on behalf of Buyer by a duly authorized officer of Buyer.

No Misrepresentation or Breach of Covenants and Warranties. The Each of the representations and warranties of the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall Article V hereof will be true and correct in all material respects (x) as of the date hereof and (y) on at and as of the Closing Date, as though then made on such dateand as though the Closing Date were substituted for the date of this Agreement, except (in each of clause (x) and (y)) for those to the extent that such representations and warranties are qualified by terms such as "material" or "Material Adverse Effect," in which refer to facts existing at a specific date (which shall be true and correct in all material respects only as case each of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof Closing Date (except to the extent that they expressly relate to an earlier date, in which case they will be true as of such date), in each case except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by Buyer or expressly permitted by this Agreement and on other than breaches of particular representations and warranties which, individually or in the aggregate are not material to the Companies or the transactions contemplated by this Agreement. Sellers shall have performed and complied with all of their covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as "material" or "Material Adverse Effect," in which case Sellers shall have performed and complied with all such covenants in all respects as of the Closing Date, as though made on such date. The Company There shall have performed or complied been delivered to Buyer a certificate to the effect that each of the conditions in all material respects with all obligations the preceding two sentences is fully satisfied and covenants required by this Agreement to such certificate shall be performed or complied with by the Company on or before dated the Closing DateDate and signed on behalf of the Sellers by a duly authorized officer of each of the Sellers.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach by Seller in the performance of any of its covenants and agreements contained herein; each of (i) the representations and warranties of the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications Seller contained therein), other than the representations set forth in Sections 4.1(a3.1(a) — (d) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (CapitalizationAuthority), Section 4.7(a)(ii) 3.2 (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (TaxesCapital Structure) and Section 4.11(b3.25 (No Finder) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Datethis Agreement, as though made on such datequalified by the Seller Disclosure Schedule, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of at the Closing Date, as though made on such date, except (in each of clause (x) at the Closing and (y)ii) for those the remaining representations and warranties which refer to facts existing at a specific date (which of Seller contained in Article III of this Agreement, as qualified by the Seller Disclosure Schedule, shall be true and correct at the Closing as though made at the Closing, without regard to qualifications by “material”, “materiality”, “materially”, “in all material respects only as respects”, “Material Adverse Change”, “Material Adverse Effect” or other similar qualifications (except to the extent that any such representation or warranty expressly relates to an earlier date, in which case, such representation or warranty shall have been true and correct on that date), except for (A) with respect to clause (ii), those failures of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall to be so true and correct that, individually or in all respects as of the date hereof aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Company and as of (B) changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by Buyer; and there shall have been delivered to Buyer a certificate to such effect, dated the Closing Date, as though made signed on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with behalf of Seller by the Company on or before the Closing Datemanager of Seller.

No Misrepresentation or Breach of Covenants and Warranties. The There shall not have been any material breach by Seller in the performance of any of its covenants and agreements herein which shall not have been remedied or cured; each of the representations and warranties of the Company made Seller contained in this Agreement (without regard other than those contained in the Fundamental Representations, disregarding all qualifications and exceptions contained therein relating to any materiality or materiality, Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property)or similar standard or qualifications, shall be true and correct in all respects (a) on the Closing Date as of the date hereof; and (b) though made on and as of the Closing Date, as though made on such Date (except to the extent that they expressly relate to an earlier date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such on that date) ), except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by Buyer or any transaction permitted by this Agreement and (ii) to the extent any other than breaches of such representations and warranties would not which, individually or in the aggregate aggregate, have not had or would not reasonably be expected to have a Material Adverse Effect; each of the representations set forth and warranties of Seller contained in Sections 4.1(a) (Organization the Fundamental Representations, disregarding all qualifications and Power)exceptions contained therein relating to materiality, 4.2 (Authority and Enforceability)Material Adverse Effect or similar standard or qualifications, 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) on the Closing Date as of the date hereof and (y) though made on and as of the Closing Date, as though made on such Date (except to the extent that they expressly relate to an earlier date, except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such on that date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) there shall be true and correct in all respects as of the date hereof and on and as of have been delivered to Buyer a certificate to such effect, dated the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required signed by this Agreement to be performed or complied with by the Company on or before the Closing Datea duly authorized officer of Seller.

No Misrepresentation or Breach of Covenants and Warranties. (a) There shall not have been any failure by Buyer in the performance of any of its covenants and agreements herein that shall not have been remedied or cured, other than failures to perform that are not, in the aggregate, material. (b) The representations and warranties of the Company made Buyer Fundamental Representations contained in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all material respects (a) on the Closing Date as of the date hereof; and (b) though made on and as of the Closing Date, as though made on such except to the extent that they expressly relate to an earlier date, except (in each which case of (a) and (b)) (i) for those such representations and warranties which refer to facts existing at a specific date (which shall need only be true and correct only in all material respects as of such date. (c) and (ii) to the extent any breaches of such The representations and warranties would not individually or of Buyer contained in this Agreement (other than the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual PropertyBuyer Fundamental Representations) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, Date as though made on such the Closing Date (except to the extent that they expressly relate to an earlier date, except (in each of clause (x) and (y)) for those which case such representations and warranties which refer to facts existing at a specific date (which shall need only be true and correct in all material respects only as of such date); and provided, however, that the conditions set forth in this Section 8.1(c), with respect to all representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) stated therein shall be true deemed satisfied unless the effect of all such failures of such representations and correct in all respects warranties to be true, complete and correct, taken together, has not had a materially adverse effect on the Buyer Parties’ ability to consummate the Transactions. (d) There shall have been delivered to Seller a certificate certifying as to the satisfaction of the date hereof conditions in clauses (a), (b) and on and as of (c) above, dated the Closing Date, as though made signed on such datebehalf of Buyer by a duly authorized officer of Buyer. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company on or before the Closing DateSection 8.2.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach by Buyer in the performance of any of its respective covenants and agreements herein; each of (i) the representations and warranties of the Company made Buyer contained in this Agreement Section 4.1 (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (TaxesOrganization) and Section 4.11(b4.2(a) (Intellectual Property), shall be true and correct in all respects (aAuthority) as of the date hereof; and (b) on and as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) this Agreement shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of at the Closing Date, as though made on such date, except (in each of clause (x) at the Closing and (y)ii) for those the 49 remaining representations and warranties which refer to facts existing at a specific date (which of Buyer contained in Article IV of this Agreement shall be true and correct at the Closing as though made at the Closing without regard to qualifications by “material”, “materiality”, “materially”, “in all material respects only as respects” or other similar qualifications (except to the extent that they expressly relate to an earlier date, in which case such representation or warranty shall have been true and correct on that date), except for (A) with respect to clause (ii), those failures of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall to be so true and correct that, individually or in all respects as the aggregate, have not and would not reasonably be expected to have materially impaired the ability of Buyer to perform any of its obligations hereunder or reasonably be expected to prevent the consummation of any of the date hereof transactions contemplated hereby and on (B) changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by Seller or any transaction contemplated by this Agreement; and as of there shall have been delivered to Seller a certificate or certificates to such effect, dated the Closing Date, as though made signed on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required behalf of Buyer by this Agreement to be performed or complied with by the Company on or before the Closing Datea duly authorized officer of Buyer.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no material breach by Waltxx, xxy Stockholder, any Preferred Stockholder or any Warrantholder in the performance of their respective covenants and agreements herein to be performed at or prior to the Effective Time; subject to Section 10.7, none of the representations and warranties of Waltxx, xxy Stockholder, any Preferred Stockholder or any Warrantholder that is qualified as to materiality shall be untrue or incorrect in any respect and on the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the Effective Date such representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), warranties shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such datethe Effective Date except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by CMS Energy, except (permitted by Section 6.6 or entered into in each case connection with the consummation of (a) the Merger and (b)) (i) for those the other transactions contemplated hereby; subject to Section 10.7, none of the representations and or warranties which refer to facts existing at a specific date (which that is not so qualified shall be true untrue or incorrect in any material respect and correct only as of such date) and (ii) to on the extent any breaches of Effective Date such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, as though made on such date, the Effective Date except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as of the date hereof and on and as of the Closing Date, as though made on such date. The Company shall have performed or complied in all material respects with all obligations and covenants required changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to be performed in writing by CMS Energy, permitted by Section 6.6 or complied entered into in connection with the consummation of the Merger and the other transactions contemplated hereby; and there shall have been delivered to CMS Energy and Sub a certificate or certificates to the foregoing effect, dated the Effective Date, signed on behalf of Waltxx xx its President and its Chief Financial Officer and signed by each of the Company on or before Stockholders, the Closing DatePreferred Stockholders and the Warrantholders (limited in the case of Cain, xxe Cain Xxxst, Oehmxx, xxe Preferred Stockholders and the Warrantholders to the respective covenants and agreements, and representation and warranties, of such persons contained herein).

No Misrepresentation or Breach of Covenants and Warranties. The representations and warranties of the Company made in this Agreement (without regard to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, as though made on such date, except (in each case of (a) and (b)) (i) for those representations There shall have been no material breach by Holdings or the Company in the performance of any of their covenants, agreements and warranties which refer to facts existing at a specific date (which shall be true and correct only as of such date) and obligations herein; (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, as though made on such date, except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Sections 3.1, 3.2, 3.4(a), 3.5(c) and 3.5(d)(as Section 4.7(a)(ii3.5(d) (Operations Since relates to the Most Recent Balance Sheet DateCompany Financial Statements) shall be true and correct in all respects as of on the date hereof and on and as of the Closing Date, Date (except for such statements therein that address matters only as of a specific date which shall be true as of such specific date); and (iii) none of the other representations and warranties contained in Article III hereof shall fail to be true and correct on the date hereof or on the Closing Date as though made on the Closing Date, except for (A) representations and warranties that speak as of a specific date or time other than the Closing Date (which need only be true and correct, subject to clause (B) or (C) hereof as applicable, as of such date. The Company shall date or time), (B) representations and warranties which are not qualified by Material Adverse Effect or otherwise by material adversity (which need be true and correct except for such inaccuracies as in the aggregate (together with the inaccuracies referred to in the following clause (C)) as would not have performed a Material Adverse Effect, (C) representations and warranties which are qualified by Material Adverse Effect or complied otherwise by material adversity (which need be true and correct without regard to such qualification except for such inaccuracies as in all material respects the aggregate (together with all obligations the inaccuracies referred to in the preceding clause (B)) as would not have a Material Adverse Effect), and covenants required (D) changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to be performed or complied with in writing by the Company on or before the Closing DatePurchaser.

No Misrepresentation or Breach of Covenants and Warranties. The There shall have been no breach by Sellers in the performance of any of their covenants and agreements herein; each of the representations and warranties of the Company made in this Agreement (without regard Sellers contained or referred to any materiality or Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), herein shall be true and correct in all respects (a) on the Closing Date as of the date hereof; and (b) though made on and as of the Closing Date, as though made on such date, except for (A) changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in each case of writing by Buyer or any transaction permitted by this Agreement or (aB) and (b)) (i) for those representations and warranties which refer breaches or inaccuracies that could not reasonably be expected to facts existing at a specific date (which shall be true and correct only as of such date) and (ii) to the extent any breaches of such representations and warranties would not individually or in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power)there shall have been delivered to Buyer a certificate to such effect, 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of dated the Closing Date, as though made on such datesigned by the Chief Executive Officer of TEP. To the extent that at the Closing Sellers deliver to Buyer a written notice specifying in reasonable detail the breach by Sellers of any of the representations or warranties of Sellers contained herein, except (in each of clause (x) and (y)) for those representations and warranties which refer to facts existing at a specific date (which nevertheless Buyer proceeds with the Closing, Buyer shall be true and correct in all material respects only as of such date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) shall be true and correct in all respects as deemed to have waived any rights or remedies it may have against Sellers by reason of the date hereof and on and as breach of any such representations or warranties to the Closing Date, as though made on extent described in such date. The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company on or before the Closing Datenotice.

No Misrepresentation or Breach of Covenants and Warranties. The representations and warranties of the Company made Seller contained in this Agreement (without regard which are qualified as to any materiality or “Material Adverse Effect qualifications contained therein), other than the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property), Effect” shall be true and correct in all respects (a) as of the date hereof; and (b) on and as of the Closing Date, Date as though made on such date, except (in each case of (a) and (b)) (i) for those representations and warranties which refer were made at and as of the Closing (except for representations and warranties expressly stated to facts existing at relate to a specific date (date, in which case such representation and warranties shall be true and correct only as of such earlier date) and (ii) to the extent any breaches of such all other representations and warranties would not individually or of Seller contained in the aggregate have a Material Adverse Effect; the representations set forth in Sections 4.1(a) (Organization and Power), 4.2 (Authority and Enforceability), 4.4(a) and (b) (Capitalization), 4.8(l) and (m) (Taxes) and Section 4.11(b) (Intellectual Property) this Agreement shall be true and correct in all material respects (x) as of the date hereof and (y) on and as of the Closing Date, Date as though made on such date, except (in each of clause (x) and (y)) for those representations and warranties which refer were made at and as of the Closing Date (except for representations and warranties expressly stated to facts existing at relate to a specific date (date, in which case such representations and warranties shall be true and correct in all material respects only as of such earlier date); and the representations and warranties set forth in Section 4.7(a)(ii) (Operations Since the Most Recent Balance Sheet Date) provided that this condition shall be deemed to be satisfied unless any failure of any such representation or warranty to be true and correct would reasonably be expected to have a Material Adverse Effect, either alone or when taken in all respects as the aggregate with other breaches of the date hereof any such representations and on and as of the Closing Date, as though made on such datewarranties. The Company Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the Company Seller on or before the Closing Date. Seller shall deliver to Buyer a certificate dated the Closing Date, signed by an authorized officer of Seller, certifying its fulfillment of the conditions set forth in this Section 7.1.