Common use of Absence of Certain Changes and Events Clause in Contracts

Absence of Certain Changes and Events. From January 1, 2009 through the date hereof, except as otherwise contemplated, required or permitted by this Agreement, there has not been: (a) (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights of any Seller or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) or (ii) any split, combination or reclassification of any Equity Interests in Sellers or any issuance or the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of Sellers; (b) other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibility, (ii) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiary; (c) any material change in accounting methods, principles or practices by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary of any portion of its assets or properties not in the Ordinary Course of Business and with a sale price or fair value in excess of $100,000,000; (e) aggregate capital expenditures by any Seller or any Purchased Subsidiary in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 in the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000; (g) any discharge or satisfaction of any Indebtedness by any Seller or any Purchased Subsidiary in excess of $100,000,000, other than the discharge or satisfaction of any Indebtedness when due in accordance with its terms; (h) any alteration, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification to the material adverse detriment of any Key Subsidiary of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiary, in each case, other than in the Ordinary Course of Business; (j) any event, development or circumstance involving, or any change in the financial condition, properties, assets, liabilities, business, or results of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse Effect; or (k) any commitment by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoing.

Absence of Certain Changes and Events. From January 1, 2009 through the date hereof, except as otherwise contemplated, required or permitted by of the Financial Statements to the date of this Agreement, there has not beenbeen any Material Adverse Effect. Without limiting the generality of the foregoing, since the date of the Financial Statements, there has not been any: (a) amendment or authorization of any amendment to the articles of incorporation or bylaws or other applicable charter or organizational documents of the Seller or the Acquired Company in a manner that could be expected to delay or otherwise interfere with the consummation of the transactions contemplated by this Agreement; (ib) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights of any Seller or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) or (ii) any split, combination or reclassification of any Equity Interests in Sellers or any issuance or the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of Sellers; (b) other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibility, (ii) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in cash) in respect of the Ordinary Course capital stock of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiarythe Acquired Company; (c) except as set forth on Section 3.7(c) of the Seller Disclosure Schedule, sale, lease, license, pledge or other disposition of, or Encumbrance on, any material change of the properties or assets of the Acquired Company or the Seller used or held for use in accounting methodsconnection with, principles necessary for or practices by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, except relating to the extent required by a change Business (other than sales of inventory for fair consideration and in GAAP or applicable Law, including Tax Lawsthe ordinary course of the Business); (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary acquisition of any portion of its properties or assets that are material to the Business individually or properties not in the Ordinary Course aggregate, except purchases of Business inventory for fair consideration and with a sale price or fair value in excess the ordinary course of $100,000,000the Business; (e) damage to, or destruction or loss of, any of the properties or assets of the Acquired Company or of the Seller used or held for use in connection with, necessary for or relating to the Business with an aggregate capital expenditures by any Seller or any Purchased Subsidiary value in excess of two hundred and fifty thousand ($100,000,000 in 250,000), whether or not covered by insurance; (f) settlement or compromise with a single project or group of related projects or capital expenditures value in excess of one hundred thousand ($100,000,000 100,000) in connection with any Proceeding involving the Seller and the Acquired Company and arising in connection with the operation of the Business or otherwise relating to the Business, the Purchased Assets or the Assumed Liabilities; (g) except as set forth on Section 3.7(g) of the Seller Disclosure Schedule, rejection, termination, expiration or adverse amendment to any Material Contract, (h) except as set forth on Section 3.7(h) of the Seller Disclosure Schedule, capital expenditure or other expenditure with respect to property, plant or equipment used in or held for use in connection with, necessary for or relating to the Business in excess of two hundred and fifty thousand ($250,000) individually or one million ($1,000,000) in the aggregate; (fi) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions change in the Ordinary Course of Business) Seller’s accounting principles, methods or practices or investment practices in a transaction (connection with or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000; (g) any discharge or satisfaction of any Indebtedness by any Seller or any Purchased Subsidiary in excess of $100,000,000, other than the discharge or satisfaction of any Indebtedness when due in accordance with its terms; (h) any alteration, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification relating to the material adverse detriment of Business, including any Key Subsidiary of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract changes as were necessary to the material adverse detriment of any Seller or any Key Subsidiary, in each case, other than in the Ordinary Course of Businessconform with GAAP; (j) any event, development material acceleration or circumstance involving, or any change delay in the financial condition, properties, assets, liabilities, business, payment of accounts payable or results other Liabilities or in the collection of operations of Sellers notes or any circumstance, occurrence accounts receivable in connection with or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior relating to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse EffectBusiness; or (k) any commitment agreement by any the Seller, any Key Subsidiary (whether in the case of clauses (a)writing or otherwise, (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoing.

Absence of Certain Changes and Events. From January 1Except as set forth in Schedule 3.10, 2009 through since the date hereof, except as otherwise contemplated, required or permitted by this Agreement, there has of the Audited Balance Sheet North Central and North Central’s Affiliates have not been: (a) (i) sold or otherwise disposed of any declarationof their real property or real property leases, setting aside or payment entered into any renewals or extensions of such existing leases or entered into any new leases; (ii) made any material increase in the compensation or benefits payable or to become payable by North Central or North Central’s Affiliates to any officers, employees or consultants whose total remuneration for the last fiscal year was, or for the current fiscal year is expected to be after any such increase, more than $20,000, or paid or accrued any bonus, percentage of compensation, severance benefit or other like benefit to, or for the credit of, any officer, employee or consultant, except in accordance with such plans and arrangements as were in effect prior to the date of the Audited Balance Sheet or are set forth in Schedule 3.1I; (iii) entered into, amended, terminated or received notice of termination of any material contract, license, franchise, commitment or other arrangement other than in the ordinary course of business; (iv) altered or revised its accounting principles, procedures, methods or practices except as required by law; (v) changed their credit policies as to sales of Inventories, discounts, product returns, warranties or collection of receivables; (vi) transferred or otherwise disposed of any material assets except Inventory in the ordinary course of business; (vii) incurred, discharged or satisfied any material liability (absolute or contingent), mortgage, lien, security interest or encumbrance other than in the ordinary course of business; (viii) except as set forth on the Audited Balance Sheet, declared or paid any dividend or other distribution (whether in cashcash or securities, securities or redeemed, repurchased or otherwise acquired any capital stock or other property securities of North Central or by allocation North Central’s Affiliates; (ix) issued or committed to issue any securities of, or other ownership interests in, North Central or North Central’s Affiliates; (x) made any purchase commitment in excess of additional Indebtedness the normal, ordinary and usual requirements of their businesses, or made any change in their selling, pricing, advertising or personnel practices inconsistent with its prior practice; (xi) written off or down as uncollectible any notes or accounts receivable or portion thereof except in amounts that in the aggregate are not materially in excess of preexisting reserves therefor, or taken, set aside or increased any reserves or charges on their books against earnings or assets; (xii) failed to replenish their Inventories in a normal and customary manner consistent with their prior practices and prudent business practices prevailing in North Central and North Central’s Affiliates’ industry; (xiii) entered into any Seller compromise or settlement of or suffered any Key Subsidiary without receipt of fair value) with respect to any Equity Interests judgment in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights of any Seller or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) or (ii) any splitlitigation, combination or reclassification of any Equity Interests in Sellers or any issuance or the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of Sellers; (b) other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009proceeding, or as a result of a promotion governmental investigation relating to a position of additional responsibilitythem or their assets, properties, rights or businesses; (iixiv) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiary; (c) suffered any material change in accounting methodsdamage, principles destruction or practices loss whether or not covered by insurance; (xv) made any Seller, Purchased Subsidiary capital expenditures or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary of any portion of its assets or properties not in the Ordinary Course of Business and with a sale price or fair value commitment therefor in excess of $100,000,000; 20,000; or (exvi) aggregate capital expenditures by entered into any Seller written or any Purchased Subsidiary in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 in the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000; (g) any discharge or satisfaction of any Indebtedness by any Seller or any Purchased Subsidiary in excess of $100,000,000oral agreement, other than the discharge or satisfaction of any Indebtedness when due in accordance with its terms; (h) any alterationthis Agreement, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification to the material adverse detriment of any Key Subsidiary of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiary, in each case, other than in the Ordinary Course of Business; (j) any event, development or circumstance involving, or any change in the financial condition, properties, assets, liabilities, business, or results of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse Effect; or (k) any commitment by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoingthings enumerated in (i) through (xv) of this Section.

Absence of Certain Changes and Events. From January 1, 2009 through the date hereof, except as otherwise contemplated, required or permitted by this Agreement, there has not been:through (a) (i) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights of any Seller or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) or (ii) any split, combination or reclassification of any Equity Interests in Sellers or any issuance or the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of Sellers; (b) other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibility, (ii) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiary; (c) any material change in accounting methods, principles or practices by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary of any portion of its assets or properties not in the Ordinary Course of Business and with a sale price or fair value in excess of $100,000,000; (e) aggregate capital expenditures by any Seller or any Purchased Subsidiary in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 in the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000; (g) any discharge or satisfaction of any Indebtedness by any Seller or any Purchased Subsidiary in excess of $100,000,000, other than the discharge or satisfaction of any Indebtedness when due in accordance with its terms; (h) any alteration, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification to the material adverse detriment of any Key Subsidiary of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiary, in each case, other than in the Ordinary Course of Business; (j) any event, development or circumstance involving, or any change in the financial condition, properties, assets, liabilities, business, or results of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse Effect; or (k) any commitment by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoing. (a) Title to and Sufficiency of Assets. (b) The tangible Purchased Assets of each Seller are in normal operating condition and repair, subject to ordinary wear and tear, and sufficient for the operation of such Seller’s business as currently conducted, except where such instances of noncompliance with the foregoing would not reasonably be expected to have a Material Adverse Effect.

Absence of Certain Changes and Events. From January 1, 2009 through Since the date hereofof the Interim Balance Sheet, except as otherwise contemplatedthe Seller has conducted its business only in the ordinary course of business and there has not been any Material Adverse Effect. Without limiting the generality of the foregoing, required or permitted by this Agreementsince the date of the Balance Sheet, there has not beenbeen any: (a) amendment or authorization of any amendment to the Seller’s articles of incorporation, other than to increase the authorized capital of the Seller; (ib) other than as set forth in Section 3.10(a) above, change in the Seller’s authorized or issued capital stock, or issuance, sale, grant, repurchase, redemption, pledge or other disposition of or Encumbrance on any shares of the Seller’s capital stock or other voting securities or any securities convertible, exchangeable or redeemable for, or any options, warrants or other rights to acquire, any such securities; (c) split, combination or reclassification of any of Seller’s capital stock; (d) declaration, setting aside or payment of any dividend or other distribution (whether in cash, securities or other property property) in respect of the Seller’s capital stock; (e) other than loans from the Shareholders, (i) issuance, incurrence, assumption, guarantee or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value amendment of any Equity Interests or rights of any Seller or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) Indebtedness, or (ii) any splitloans, combination advances (other than routine advances to the Seller’s employees in the ordinary course of business) or reclassification of any Equity Interests in Sellers capital contributions to, or any issuance or the authorization of any issuance of investment in, any other Equity Interests Person, other than in respect of, accordance with the Seller’s cash investment policy as described in lieu Section 3.10(e) of or in substitution for Equity Interests of Sellersthe Seller Disclosure Schedule; (bf) other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or consistent with the expiration of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibility, (ii) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiary; (c) any material change in accounting methods, principles or practices by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transferlease, license, pledge or other disposition of, or Encumbrance on, any of the Seller’s properties or assets (other than sales of inventory for fair consideration or disposition of damaged or obsolete items and in the ordinary course of business); (g) acquisition (i) by merger or consolidation with, or by purchase of all or a substantial portion of the assets or any stock of, or by any Seller other manner, any business or any Purchased Subsidiary Person or (ii) of any portion of its properties or assets that are material to the Seller individually or properties not in the Ordinary Course aggregate, except purchases of Business inventory for fair consideration and in the ordinary course of business; (h) damage to, or destruction or loss of, any of the Seller’s properties or assets with a sale price or fair an aggregate value to the Seller in excess of $100,000,00010,000, whether or not covered by insurance; (ei) aggregate capital expenditures entry into, modification, acceleration, cancellation or termination of, or receipt of notice of cancellation or termination of, any Contract (or series of related Contracts) which involves a total remaining commitment by or to the Seller of at least $25,000 outside the ordinary course of business; (j) (i) except as required by Law, adoption, entry into, termination or amendment of any Seller Plan, collective bargaining agreement or employment, severance or similar Contract, (ii) increase in the compensation or fringe benefits of, or payment of any Purchased Subsidiary bonus to, any director, officer, employee or consultant or other independent contractor of the Seller, (iii) amendment or acceleration by the Seller of the payment, right to payment or vesting of any compensation or benefits, (iv) payment by the Seller of any benefit not provided for as of the date of this Agreement under any Seller Plan, (v) grant by the Seller of any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Seller Plans or Contracts or awards made thereunder or (vi) any action by the Seller other than in the ordinary course of business to fund or in any other way secure the payment of compensation or benefits under any Seller Plan; (k) cancellation, compromise, release or waiver of any claims or rights (or series of related claims or rights) with a value to the Seller exceeding $10,000 or otherwise outside the ordinary course of business; (l) settlement or compromise in connection with any Proceeding involving the Seller; (m) capital expenditure or other expenditure by the Seller with respect to property, plant or equipment in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 10,000 in the aggregate; (fn) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions change in the Ordinary Course of Business) in a transaction (Seller’s accounting principles, methods or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000practices; (go) any discharge acceleration or satisfaction delay in the payment of any Indebtedness by any Seller accounts payable or any Purchased Subsidiary other Liabilities or in excess the collection of $100,000,000, other than the discharge notes or satisfaction of any Indebtedness when due in accordance with its termsaccounts receivable; (hp) any alteration, whether through a complete making or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, rescission by the legal structure or ownership Seller of any Seller Tax election, settlement or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification to the material adverse detriment compromise of any Key Subsidiary Tax Liability or amendment of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiary, in each case, other than in the Ordinary Course of Business; (j) any event, development or circumstance involving, or any change in the financial condition, properties, assets, liabilities, business, or results of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse EffectTax Return; or (kq) any commitment agreement by any the Seller, any Key Subsidiary (whether in the case of clauses (a)writing or otherwise, (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoing.

Absence of Certain Changes and Events. From January 1Except as set forth in Part 3.17 of Newco's Disclosure Letter, 2009 since the date of the Balance Sheet, Company and its Subsidiaries have conducted their businesses only in the Ordinary Course of Business and from the date of the Balance Sheet through the date hereof, except as otherwise contemplated, required or permitted by this Agreement, hereof there has not beenbeen any: (a) (i) change in Company's or any declarationof its Subsidiaries' authorized or issued capital stock; grant of any stock option or right to purchase shares of capital stock of Company or any of its Subsidiaries; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, setting aside redemption, retirement or other acquisition by Company or any of its Subsidiaries of any shares of any such capital stock except for acquisitions from former employees, directors and consultants in accordance with agreements providing for the repurchase of securities in connection with a termination of service to Company or any of its Subsidiaries; declaration or payment of any dividend or other distribution (whether or payment in cash, securities or other property or by allocation respect of additional Indebtedness to any Seller shares of capital stock of Company or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights of any Seller or any Key Subsidiary its Subsidiaries (except for dividends and distributions among its Subsidiaries) paid in cash or (ii) otherwise contemplated pursuant to Section 5.10); or any split, combination or reclassification of any Equity Interests in Sellers capital stock of Company or any issuance of its Subsidiaries or issue or authorize the authorization of any issuance of any other Equity Interests securities in respect of, in lieu of or in substitution for Equity Interests shares of Sellerstheir capital stock; (b) other than as is required by amendment to the terms Organizational Documents of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement Company or consistent with the expiration any of a Collective Bargaining Agreement or as may be required by applicable Law, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any (i) grant to any Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibility, (ii) grant to any Seller Key Personnel of any increase in retention, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, (iii) other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiaryits Subsidiaries; (c) any material change except as otherwise approved in accounting methods, principles or practices writing by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities of Parent, increase (except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary of any portion of its assets or properties not in the Ordinary Course of Business and with a sale price or fair value in excess of $100,000,000; (e) aggregate capital expenditures by any Seller or any Purchased Subsidiary in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 in the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of Business) in the compensation or rate of compensation or commission payable or to become payable by Company or any of its Subsidiaries to any director, officer, salaried employee, sales person or agent of Company or any of its Subsidiaries, or any General Increase in the compensation or rate of compensation payable or to become payable to any hourly or salaried employees of Company or any of its Subsidiaries ("GENERAL INCREASE" for purposes hereof shall mean any increase applicable to a transaction class or group of employees and does not include increases granted to individual employees for merit, length of service, change in position or responsibility or other reasons applicable to specific employees of Company or any of its Subsidiaries and not generally to a class or group thereof), or any aggregate increase in compensation to any director, officer or salaried employee of Company or any of its Subsidiaries, of more than ten percent (10%), or series any hiring of related transactionsany employee at a salary in excess of $100,000 per annum, or any termination of any key employee or any employee whose compensation was in excess of $100,000 per annum; (d) where except as provided in a Plan or collective bargaining agreement, adoption of, or increase in the aggregate consideration paid payments to or received benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement or other Plan for or with any employees of Company or any of its Subsidiaries; (including non-cash equity consideratione) exceeded damage to or destruction or loss of any asset or property of Company or any of its Subsidiaries in excess of $100,000,000100,000 per damage, destruction or loss, whether or not covered by insurance, adversely affecting the properties, assets, business, financial condition or prospects of Company or any of its Subsidiaries; (f) entry into, termination of, or receipt of notice of termination of any license, distributorship, dealer, sales representative, joint venture, credit or similar agreement; (g) any discharge sale (other than sales of inventory in the Ordinary Course of Business), lease or satisfaction other disposition of any Indebtedness by any Seller material assets or property of Company or any Purchased Subsidiary in excess of $100,000,000its Subsidiaries or mortgage, other than the discharge pledge or satisfaction imposition of any Indebtedness when due in accordance with material Encumbrance on any asset or property of Company or any of its termsSubsidiaries, including the sale, lease or other disposition of any of the Intellectual Property; (h) any alterationrelease, whether through a complete cancellation, material modification or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, the legal structure or ownership waiver of any Seller material obligation, indebtedness, liability or Lien owing to or held by Company or any Key Subsidiary of its Subsidiaries, unless such obligation, indebtedness, liability or any material joint venture to which any Seller or any Key Subsidiary is a party, or Lien has been paid in full at the adoption or alteration time of a plan with respect to any of the foregoingrelease; (i) waivers, compromises or settlements by Company or any amendment or modification to the material adverse detriment of its Subsidiaries of any Key Subsidiary right or claim of Company or any of its Subsidiaries in excess of $500,000 in the aggregate; or any institution or settlement of, or agreement to settle, any Proceeding relating to Company or any of its Subsidiaries or any property of Company or any of its Subsidiaries; (j) assumptions or guarantees (except in the Ordinary Course of Business) by Company or any of its Subsidiaries of the obligations of any material Affiliate Contract Person, but in no event in excess of $500,000 when all such assumptions, guarantees and endorsements are aggregated; (k) any capital expenditure or Seller Material Contractexpenditures or agreement to make any capital expenditure or expenditures which, in the aggregate, are in excess of $500,000; (l) entrance into or termination of any material Affiliate Contract or Seller Material Contract agreement to the material adverse detriment of any Seller enter into by Company or any Key Subsidiaryof its Subsidiaries any operating lease providing for payments in excess of $500,000 in any calendar year; (m) change in the accounting methods used by Company or any of its Subsidiaries, except insofar as required by a change in each case, GAAP or other than applicable laws or regulations; (n) accelerated or delayed collection of accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected except in the Ordinary Course of Business; (jo) delayed or accelerated payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid except in the Ordinary Course of Business; (p) acquisition or any agreement to make an acquisition by Company or any of its Subsidiaries, (i) by merging or consolidating with, or purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (ii) any eventassets that are material, development individually or circumstance involvingin the aggregate, to Company or any of its Subsidiaries, except purchases of inventory in the Ordinary Course of Business; (q) material work interruptions, material labor grievances or material claims filed, general labor dispute or Threat of a general labor dispute or any attempt or Threat of any attempt by a union to organize any employees of Company or any of its Subsidiaries who are not now covered under an existing union or collective bargaining agreement; (r) except in the Ordinary Course of Business, granting of powers of attorney by Company or any of its Subsidiaries; or except in the Ordinary Course of Business any material change in the financial conditionbanking or safe deposit arrangements of Company or any of its Subsidiaries; (s) plan, properties, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the assets, liabilitiesproperty or rights, businessother than inventory, of Company or any of its Subsidiaries or requiring the consent of any party to the transfer and assignment of any such assets, property or rights; (t) purchase or acquisition of, or results agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside the Ordinary Course of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse EffectBusiness; or (ku) any commitment agreement, whether oral or written, by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) Company or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) its Subsidiaries to do any of the foregoing.

Absence of Certain Changes and Events. From January 1, 2009 through Since the Balance Sheet Date until the date hereof, except each of the Applicable Entities and, to the extent related to the Applicable Entities, the Seller has conducted its business only in the Ordinary Course of Business and there has not been any material and adverse change on the business, assets, properties, financial condition or prospects of the Applicable Entities, taken as otherwise contemplateda whole. Such a material and adverse change excludes any effect resulting from or relating to (i) general political or economic conditions, general financial and capital market conditions (including interest rates) or general effects on any of the industries in which the Applicable Entities are engaged which, in each such case, does not disproportionately affect any Applicable Entity, or, in each case, any changes therein (including as a result of (x) an outbreak or escalation of hostilities involving the United States or any other country or the declaration by the United States or any other country of a national emergency or war, or (y) the occurrence of any other calamity or crisis (including any act of terrorism)), (ii) any action taken by the Seller or any of the Applicable Entities at the written request of the Buyer or that is specifically required or permitted by this Agreement, there has not beenor (iii) any action taken by the Buyer or any of its affiliates or Representatives. Without limitation of the foregoing and except as set forth on Schedule 3.14, since the Balance Sheet Date until the date hereof, none of the Applicable Representation Entities nor, to the extent related to any Applicable Representation Entity or any Purchased Interest, the Seller has: (a) taken any action that, if taken after the date of this Agreement, would constitute a breach of any of the covenants set forth in Section 5.01; (ib) any declarationdeclared, setting aside set aside, made, set a record date for or payment of paid any dividend or other distribution (whether in cash, securities respect of its capital stock or other property or by allocation of additional Indebtedness to any Seller or any Key Subsidiary without receipt of fair value) with respect to any Equity Interests in any Seller or any Key Subsidiary or any repurchase for value of any Equity Interests or rights otherwise purchased or redeemed, directly or indirectly, any shares of any Seller its capital stock or any Key Subsidiary (except for dividends and distributions among its Subsidiaries) or (ii) any split, combination or reclassification of any Equity Interests in Sellers or any issuance or the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of SellersInterests; (bc) issued or sold any shares of any class of its capital stock or other Equity Interest, or any securities convertible into or exchangeable for any such shares or Equity Interest, or issued, sold, granted or entered into any subscription, options, warrants, conversion or other rights, agreements, commitments, arrangements or understandings of any kind, contingently or otherwise, to purchase or otherwise acquire any such shares or interest or any securities convertible into or exchangeable for any such shares or Equity Interest; (d) effected, or adopted any plan with respect to, any recapitalization, reorganization, reclassification, merger, stock split or like change in its capitalization or adopted a plan of complete or partial liquidation or dissolution; (e) incurred any material obligation or Liability except in the Ordinary Course of Business; (f) discharged or satisfied any material Encumbrance, other than as is those required by the terms of the Parent Employee Benefit Plans and Policiesto be discharged or satisfied, the Settlement Agreementor paid any obligation or Liability, the UAW Collective Bargaining Agreement absolute, accrued, contingent or consistent with the expiration of a Collective Bargaining Agreement otherwise, whether due or as may be required by applicable Lawto become due, in each case, as may be permitted by TARP or under any enhanced restrictions on executive compensation agreed to by Parent and Sponsor, any other than (i) grant to any current liabilities shown on the Audited Financial Statements (other than the Seller Key Personnel of any increase in compensation, except increases required under employment Contracts in effect as of January 1, 2009, or as a result of a promotion to a position of additional responsibilityAudited Financial Statements), (ii) grant to any Seller Key Personnel current liabilities incurred since the date thereof in the Ordinary Course of any increase in retentionBusiness, change in control, severance or termination compensation or benefits, except as required under any employment Contracts in effect as of January 1, 2009, and (iii) intercompany Liabilities owed by any Applicable Entity to another Applicable Entity; (g) subjected any of its assets or properties to any material Encumbrance other than any Permitted Encumbrance or an Encumbrance to be released at or prior to the Closing; (h) sold, transferred, leased to others or otherwise disposed of any of its assets, except in the Ordinary Course of Business or fixed assets having an aggregate value of less than $100,000, or canceled or compromised any debt or claim, individually or in the aggregate, in excess of $100,000, or waived or released any right of substantial value; (i) (x) entered into, amended, terminated or waived any Representation Material Contract or any material right or benefit under any Representation Material Contract except in the Ordinary Course of Business, (y) entered into, amended, terminated or waived any Applicable Material Contract or any material right or benefit under any Applicable Material Contract or (z) received any written notice of termination of any Material Contract; (j) suffered any damage, destruction or loss (whether or not covered by insurance) in excess of $100,000 to any of its assets or properties; (k) accelerated the delivery or sale of products or services, or offered discounts or price protection on the sale of products or services or premiums on the purchase of raw materials, except in the Ordinary Course of Business; (l) made any changes in the selling, distribution, advertising, promotion, terms of sale or collection, purchase or payment practices of the Seller and the Applicable Representation Entities other than in the Ordinary Course of Business, adoption, termination of, entry into or amendment or modification of, in a material manner, any Benefit Plan, (iv) adoption, termination of, entry into or amendment or modification of, in a material manner, any employment, retention, change in control, severance or termination Contract with any Seller Key Personnel or (v) entry into or amendment, modification or termination of any Collective Bargaining Agreement or other Contract with any Union of any Seller or Purchased Subsidiary; (cm) any material change purchased, ordered or otherwise acquired inventory in accounting methods, principles or practices by any Seller, Purchased Subsidiary or Seller Group member or any material joint venture to which any Seller or Purchased Subsidiary is a party, in each case, materially affecting the consolidated assets or Liabilities excess of Parent, except to the extent required by a change in GAAP or applicable Law, including Tax Laws; (d) any sale, transfer, pledge or other disposition by any Seller or any Purchased Subsidiary of any portion of its assets or properties not reasonably forecasted requirements in the Ordinary Course of Business and Business; (n) paid, loaned or advanced any amount to, or sold, transferred or leased any of its assets to, or entered into any agreement or arrangement with, the Seller or any other Related Person of any Applicable Representation Entity (other than another Applicable Entity); (o) changed in any material respect its accounting practices, policies or principles except as required by applicable accounting principles; (p) made or changed any material Tax election, changed an annual accounting period, adopted or changed any accounting method with respect to Taxes, filed any amended Tax Return, entered into any material closing agreement with respect to Taxes or a sale price Tax Return, settled or fair value compromised any Proceeding with respect to any material Tax claim or assessment, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Seller or any of the Applicable Representation Entities, or taken any other similar action relating to the filing of any material Tax Return or the payment of any material Tax; (q) entered into any new employment, severance, change of control or bonus Contract or granted to any executive officer or employee any increase in compensation, severance or termination pay, change in control bonus or any other benefits, except in the case of employees other than executive officers in the Ordinary Course of Business; (r) established, adopted, amended, authorized, suspended, or terminated any Seller Plan; (s) made or committed to make any capital expenditures or capital additions or improvements, individually or in the aggregate, in excess of $100,000,000100,000; (et) aggregate capital expenditures by acquired any Seller or any Purchased Subsidiary in excess of $100,000,000 in a single project or group of related projects or capital expenditures in excess of $100,000,000 in the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof assets (other than acquisitions of portfolio inventory and other assets and acquisitions in the Ordinary Course of Business) involving an amount, individually or in a transaction (or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000; (g) any discharge or satisfaction of any Indebtedness by any Seller or any Purchased Subsidiary aggregate, in excess of $100,000,000, other than the discharge or satisfaction of any Indebtedness when due in accordance with its terms100,000; (hu) instituted, settled or agreed to settle any alteration, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in Proceeding before any other manner, the legal structure or ownership of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a party, or the adoption or alteration of a plan with respect to any of the foregoing; (i) any amendment or modification to the material adverse detriment of any Key Subsidiary of any material Affiliate Contract or Seller Material Contract, or termination of any material Affiliate Contract or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiary, in each caseGovernmental Body, other than in the Ordinary Course of Business; (jv) acquired (whether by merger, consolidation, recapitalization or otherwise) the shares of capital stock or any event, development or circumstance involvingother Equity Interest in, or a substantial portion of the assets of, and Person or any change in the financial condition, properties, assets, liabilities, businessdivision or business thereof; (w) transferred or granted any material rights or licenses under, or results entered into any settlement regarding the infringement of, the Intellectual Property of operations of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to the end of the most recent fiscal year end) of Sellers that has had or would reasonably be expected to have a Material Adverse Effect; or (k) any commitment by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoingApplicable Representation Entities or entered into any licensing or similar agreements or arrangements with respect thereto (other than any shrink-wrap software license), other than in the Ordinary Course of Business; (x) entered into any agreement containing covenants that in any way purport to restrict the business activity of the Seller or any of the Applicable Representation Entities or limit the freedom of the Seller or any of the Applicable Representation Entities to engage in any line of business or compete with any Person; (y) made any amendment or changes in the Organization Documents of any Applicable Representation Entity; (z) moved, by dividend, distribution, investment, contribution or transfer or otherwise, any cash between or among any Applicable Representation Entities; or (aa) entered into a written agreement to take any of the foregoing actions.