Common use of Absence of Material Adverse Changes, etc Clause in Contracts

Absence of Material Adverse Changes, etc. Except as set forth in Section 3.6(a) of the Seller Disclosure Schedule, since June 30, 1997, (a) there has not been any material adverse change in the Assets, liabilities, business, operations or condition (financial or otherwise) of the Division (other than changes resulting from changes in general economic or financial conditions or changes affecting generally the industry in which the Business operates); (b) Seller and the Conveyed Subsidiaries have conducted the Business only in the ordinary course and consistent with past practice; (c) none of Seller or the Conveyed Subsidiaries has increased the compensation of any of the officers or employees of the Business, except such increases as are granted in the ordinary course of business in accordance with its customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases); (d) none of Seller or the Conveyed Subsidiaries has sold or disposed of material properties or assets of the Business, except in the ordinary course of business; (e) Seller and the Conveyed Subsidiaries have not suffered any loss or damage (whether or not covered by insurance) to the properties or assets of the Business in excess of $250,000; (f) none of Seller or the Conveyed Subsidiaries has changed its methods of accounting or its accounting principles or practices or revalued any of its assets or determined as collectible any notes or accounts receivable arising out of the Business that were previously determined to be uncollectible (including, without limitation, any write-downs of inventory or write-offs of accounts receivable other than in the ordinary course of business and consistent with past practice) insofar as they relate to the Business; (g) there has not been mortgaged, pledged, or subjected to any lien, lease or security interest or other charge or encumbrance any of the Assets other than in the ordinary course of business and other than Permitted Liens; (h) there has not been any waiver or compromise by Seller relating to the Assets of a valuable right or of a material debt owed to it other than in the ordinary course of business; (i) none of Seller or the Conveyed Subsidiaries has entered into any agreement or made any commitment to take any of the preceding actions described in this Section 3.6; (j) none of Seller or the Conveyed Subsidiaries in connection with the Business has, prior to the date of this Agreement, (i) incurred any indebtedness or other liabilities (whether absolute, accrued, contingent or otherwise) or guaranteed any such indebtedness, except in the ordinary course of business, consistent with past practice; (ii) paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) except in each case in the ordinary course of business; (iii) permitted any material insurance policy to be canceled or terminated; (iv) factored or discounted accounts receivable and other amounts due or sold any inventory at less than fair market value or made any bulk sale of such inventory except in the ordinary course of business; (v) sold, assigned, encumbered, licensed, pledged, abandoned or otherwise transferred any Intellectual Property, Subsidiary Intellectual Property (as hereafter defined) or other intangible assets; (vi) made any loans which in the aggregate exceed $5,000 to any employee or made any loans to any stockholder, officer, director or Affiliate; (vii) made capital expenditures or commitments in excess of $750,000 in the aggregate; (viii) to the knowledge of Seller, lost or learned of the prospective loss of any customer, vendor, representative or agent listed in Section 3.26(a) or 3.27(a) of the Seller Disclosure Schedule; (ix) made or guaranteed any loans to any customer, vendor or distributor; or (x) reduced liabilities or reserves in the aggregate in amounts in excess of $500,000, except by reason of related cash payments.

Absence of Material Adverse Changes, etc. Except as set forth ------------------------------------------ in Section 3.6(a) 3.5 of the Seller Disclosure Schedule, since June 30, 1997, Schedule or as otherwise contemplated by this Agreement: (a) there has not been any material adverse change in Since August 9, 2005, neither Holdings nor the Assets, liabilities, business, operations or condition Company has: (financial or otherwisei) of the Division (other than changes resulting from changes in general economic or financial conditions or changes affecting generally the industry in which the Business operates); (b) Seller and the Conveyed Subsidiaries have conducted the Business only in the ordinary course and consistent with past practice; (c) none of Seller or the Conveyed Subsidiaries has increased the compensation of any of the officers or employees of the Business, except such increases as are granted in the ordinary course of business in accordance with its customary practices (which shall include normal periodic performance reviews and related compensation and benefit increases); (d) none of Seller or the Conveyed Subsidiaries has sold or disposed of material properties or assets of the Business, except in the ordinary course of business; (e) Seller and the Conveyed Subsidiaries have not suffered any Material Adverse Effect; (ii) suffered any damage, destruction or loss or damage of physical property (whether or not covered by insurance) that could reasonably be expected to have a Material Adverse Effect; (iii) incurred any direct or indirect Indebtedness (as defined in Section 3.25 hereof), liability, assessment, expense, claim, loss, damage, deficiency, obligation or responsibility (including any liability under any guarantees, or letters of credit) whether absolute, accrued, contingent or otherwise (a "Liability"), except (A) current Liabilities for trade or --------- business obligations incurred in connection with the purchase of goods or services in the ordinary course of business consistent with prior practice, which Liabilities could not reasonably be expected to have a Material Adverse Effect and (B) Liabilities related to this Agreement or any of the transactions contemplated by this Agreement; (iv) instituted, settled or agreed to settle any litigation, action or proceeding before any court or Government Authority relating to the properties Company or assets of its operations, which resulted (or could result) in net payments or obligations by the Business Company in excess of $250,000; 100,000; (fv) had any actual or threatened employee strikes, work stoppages, slowdowns or lockouts and, to the Knowledge of Holdings, none of Seller the Company's or Holdings' employees were involved in any labor union organizing activity with respect to Holdings or the Conveyed Subsidiaries has changed its methods of accounting or Company, as applicable; (vi) made any material change in its accounting principles methods, policies or practices or revalued any of with respect to its condition, operations, business, properties, assets or determined as collectible Liabilities; (vii) received any notes notices from any Governmental Authority or accounts receivable arising out any insurance company which has issued a policy with respect to any portion of the Business that were previously determined Owned Real Property or the Leased Real Property of material zoning, building, fire or health code violations with respect to be uncollectible the Owned Real Property or the Leased Real Property, or material violations pertaining to the use and occupancy of the Owned Real Property or the Leased Real Property; and (includingviii) transferred or granted any rights or licenses under, without limitationor entered into any settlement regarding the breach or infringement of, any write-downs material Company Intellectual Property, or modified any material existing rights with respect thereto. (b) Since March 31, 2006, neither Holdings nor the Company has: (i) made or permitted any material amendment or termination of inventory any Material Contract, other than in the ordinary course of business; (ii) paid or write-offs obligated itself to pay in excess of accounts receivable $100,000 in the aggregate for fixed assets; (iii) sold, transferred, leased to others or otherwise disposed of, or agreed to sell, transfer, lease or otherwise dispose of any portion of the Owned Real Property or any assets having a fair market value at the time of sale, transfer or disposition of $100,000 or more in the aggregate, or forgiven, canceled or compromised, or agreed to forgive, cancel or compromise, any debts or claims or waived or released any material right, other than in the ordinary course of business and consistent with past practice; (iv) insofar as they relate to the Business; (g) there has not been mortgaged, pledgedhad any resignation or termination of employment, or subjected to received any lienwritten notice of any threatened or impending resignation or termination of employment, lease of any of its officers or security interest employees at the level of director, vice president or above; (v) made any change in the rate of compensation, commission, bonus or other charge direct or encumbrance indirect remuneration payable, or paid or promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, or adopted or increased any benefit under any insurance, pension or other employee benefit plan, payment or arrangement made to or in respect of any of its officers or employees at the Assets level of director, vice president or above or executive level consultants; (vi) made any prepayment of any accounts payable, delayed payment of any trade payables or other obligations other than in the ordinary course of business and consistent with past practice, or made any other than Permitted Liens; (h) there has not been any waiver or compromise by Seller relating to the Assets of a valuable right or of a material debt owed to it cash payments other than in the ordinary course of business; (i) none of Seller or the Conveyed Subsidiaries has entered into any agreement or made any commitment to take any of the preceding actions described in this Section 3.6; (j) none of Seller or the Conveyed Subsidiaries in connection with the Business has, prior to the date of this Agreement, (i) incurred any indebtedness or other liabilities (whether absolute, accrued, contingent or otherwise) or guaranteed any such indebtedness, except in the ordinary course of business, consistent with past practice; (ii) paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) except in each case in the ordinary course of business; (iii) permitted any material insurance policy to be canceled or terminated; (iv) factored or discounted accounts receivable and other amounts due or sold any inventory at less than fair market value or made any bulk sale of such inventory except in the ordinary course of business; (v) sold, assigned, encumbered, licensed, pledged, abandoned or otherwise transferred any Intellectual Property, Subsidiary Intellectual Property (as hereafter defined) or other intangible assets; (vi) made any loans which in the aggregate exceed $5,000 to any employee or made any loans to any stockholder, officer, director or Affiliate; and (vii) made capital expenditures failed to maintain all of the tangible assets and all other tangible properties and assets owned, leased, occupied or commitments used by the Company in excess of $750,000 in the aggregategood repair, working order and operating condition, subject only to ordinary wear and tear; and (viii) to the knowledge of Seller, lost or learned of the prospective loss of any customer, vendor, representative or agent listed in Section 3.26(a) or 3.27(a) of the Seller Disclosure Schedule; (ix) made or guaranteed any loans subjected to any customerEncumbrance, vendor other than Permitted Encumbrances, the Owned Real Property or distributor; or (x) reduced liabilities or reserves in the aggregate in amounts in excess of $500,000, except by reason of related cash paymentsLeased Real Property.

Absence of Material Adverse Changes, etc. Except as -------------------------------------------- disclosed in the Company SEC Documents filed by the Company and as set forth in Section 3.6(a) Schedule 3.10 of the Seller Company Disclosure Schedule, (i) since June September 30, 19971998, (a) there has not been any material adverse change in the Assets, liabilities, business, operations or condition (financial or otherwise) of the Division (other than changes resulting from changes in general economic or financial conditions or changes affecting generally the industry in which the Business operates); (b) Seller Company and the Conveyed its Subsidiaries have conducted the Business only in the ordinary course and consistent with past practice; (c) none of Seller or the Conveyed Subsidiaries has increased the compensation of any of the officers or employees of the Business, except such increases as are granted their business in the ordinary course of business in accordance consistent with its customary practices past practice and there has not been a Material Adverse Effect and (which shall include normal periodic performance reviews and related compensation and benefit increasesii) since September 30, 1998, there has not been: (a) any declaration, setting aside or payment of any dividend or other distribution (other than regular quarterly dividends or regular distributions pursuant to the Company Operating Partnership Agreement (or as necessary to maintain REIT status); (d) none with respect to the shares of Seller Company Common Stock or the Conveyed Subsidiaries has sold Company OP Units, or disposed of material properties any repurchase, redemption or assets other acquisition by the Company or any Subsidiary of the BusinessCompany of (x) any outstanding shares of stock or other equity securities of, except in or other ownership interests in, the ordinary course Company or (y) the Company OP Units; (b) any amendment of business; (e) Seller and any material term of any outstanding security issued by the Conveyed Subsidiaries have not suffered Company or any loss or damage (whether or not covered by insurance) to the properties or assets Subsidiary of the Business in excess of $250,000; Company; (fc) none of Seller any incurrence, assumption or guarantee by the Conveyed Subsidiaries has changed its methods of accounting Company or its accounting principles or practices or revalued any of its assets or determined as collectible any notes or accounts receivable arising out Subsidiary of the Business that were previously determined to be uncollectible (including, without limitation, Company of any write-downs of inventory or write-offs of accounts receivable indebtedness for borrowed money other than in the ordinary course of business and consistent with past practice) insofar which, in any event, does not exceed $301,960,000 in the aggregate outstanding as they relate to the Business; (g) there has not been mortgaged, pledged, or subjected to any lien, lease or security interest or other charge or encumbrance any of the Assets date of this Agreement and, of which, no more than $8,000,000 represents an increase in aggregate outstanding indebtedness as of the date of this Agreement from that owed or guaranteed by the Company on September 30, 1998; (d) any creation or assumption by the Company or any Subsidiary of the Company of any Lien on any asset other than in the ordinary course of business and other than Permitted Liens; Liens which, in the aggregate, do not have and could not reasonably be expected to have a Material Adverse Effect; (he) there any damage, destruction or other casualty loss (whether or not covered by insurance) affecting the business or assets of the Company or any Subsidiary of the Company which has not been had a Material Adverse Effect; (f) any waiver change in any method of accounting or compromise accounting practice by Seller relating to the Assets Company or any Subsidiary of the Company, except for any such change required by reason of a valuable right change in GAAP; (g) except as a result of increases permitted by clause (iv) below, any (i) grant of any severance or termination pay to any director, officer or employee of a material debt owed the Company or any Subsidiary of the Company, (ii) employment, deferred compensation or other similar agreement (or any amendment to it any such existing agreement) with any director, officer or employee of the Company or any Subsidiary of the Company entered into, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements or (iv) increase in compensation, bonus or other benefits payable to directors, officers or employees of the Company or any Subsidiary of the Company, in each case, other than in the ordinary course of business; , including year-end bonuses and salary adjustments to the extent set forth in Schedule 5.1(q) of the Company Disclosure Schedule; (ih) none of Seller any commitment or the Conveyed Subsidiaries has contractual obligation relating to any capital expenditure (each, a "Commitment") entered into any agreement by the Company or made any commitment to take any of the preceding actions described in this Section 3.6; (j) none of Seller or the Conveyed Subsidiaries in connection with the Business hasits Subsidiaries, prior to the date of this Agreement, (i) incurred any indebtedness or other liabilities (whether absolute, accrued, contingent or otherwise) or guaranteed any such indebtedness, except in the ordinary course of business, consistent with past practice; (ii) paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) except in each case than immaterial Commitments in the ordinary course of business; or (iiii) any authorization of, or commitment or agreement to take any of, the foregoing actions except as otherwise permitted any material insurance policy to be canceled or terminated; (iv) factored or discounted accounts receivable and other amounts due or sold any inventory at less than fair market value or made any bulk sale of such inventory except in the ordinary course of business; (v) sold, assigned, encumbered, licensed, pledged, abandoned or otherwise transferred any Intellectual Property, Subsidiary Intellectual Property (as hereafter defined) or other intangible assets; (vi) made any loans which in the aggregate exceed $5,000 to any employee or made any loans to any stockholder, officer, director or Affiliate; (vii) made capital expenditures or commitments in excess of $750,000 in the aggregate; (viii) to the knowledge of Seller, lost or learned of the prospective loss of any customer, vendor, representative or agent listed in Section 3.26(a) or 3.27(a) of the Seller Disclosure Schedule; (ix) made or guaranteed any loans to any customer, vendor or distributor; or (x) reduced liabilities or reserves in the aggregate in amounts in excess of $500,000, except by reason of related cash paymentsthis Agreement.