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 (a) with respect to the Excluded Assets and the Excluded Liabilities, 2009 through the date hereof, except or (b) as otherwise contemplated, required or permitted contemplated by this Agreement, there since March 31, 2011, Seller has not beenoperated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18: (a) (i) suffered any declaration, setting aside change which has had or payment of any dividend or other distribution (whether in cash, securities or other property or by allocation of additional Indebtedness is reasonably likely to any Seller or any Key Subsidiary without receipt of fair value) have a Material Adverse Effect with respect to any Equity Interests in any Seller the Branch Offices, the Transferred Assets or any Key Subsidiary Assumed Liabilities 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 Seller’s ability to consummate the authorization of any issuance of any other Equity Interests in respect of, in lieu of or in substitution for Equity Interests of Sellerstransactions contemplated by this Agreement; (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(i) sold, termination oftransferred, entry into leased, pledged, mortgaged, or amendment otherwise encumbered or modification ofagreed to sell, in a material mannertransfer, lease, pledge, mortgage or otherwise encumber, any Benefit Planof the Transferred Assets or the Assumed Liabilities or rights with respect thereto, (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 (vii) entry into canceled, waived, compromised or amendmentagreed to cancel, modification waive or termination of compromise any Collective Bargaining Agreement debts, claims or other Contract rights with any Union of any Seller respect to the Transferred Assets or Purchased SubsidiaryAssumed Liabilities; (c) made or permitted any material change in accounting methodsamendment, principles termination, lapse of, or practices by waiver or consent to, any SellerAssumed Contract, Purchased Subsidiary lease, agreement, consent, license 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 Permit with respect to the extent required by a change in GAAP or applicable Law, including Tax LawsBranch Offices; (d) made any sale, transfer, pledge change in any method of management or other disposition by any Seller or any Purchased Subsidiary operation of any portion of its assets or properties the Branch Offices not in the Ordinary Course of Business and with a sale price or fair value in excess of $100,000,000any accounting change, except as may be required by GAAP or generally applicable regulatory requirements; (e) aggregate capital expenditures by granted 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 increase in the aggregatecompensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices; (f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations 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 (deposits other than acquisitions of portfolio assets and acquisitions deposits securing any loans, except in the Ordinary Course of Business) Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in a transaction (the Ordinary Course of Business at the unsolicited request of depositors or series of related transactions) where the aggregate consideration paid or received (including non-cash equity consideration) exceeded $100,000,000loan customers, as applicable; (g) made any discharge or satisfaction of change to its customary policies for setting rates on deposits offered at the Branch Offices, including any Indebtedness increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served 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 termsBranch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6; (h) any alteration, whether through a complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in entered into any other mannertransaction or conducted its affairs, 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 in either case related to the material adverse detriment of any Key Subsidiary of any material Affiliate Contract Transferred Assets 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 caseAssumed Liabilities, other than in the Ordinary Course of BusinessBusiness and consistent with prudent banking practices except as contemplated by this Agreement; (i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens; (j) suffered any eventdamage, development or circumstance involvingdestruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or any change personal or mixed property included in the financial conditionTransferred Assets, propertieswhether or not covered by insurance, assetsin each case and the aggregate, liabilities, business, or results in excess 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$25,000; or (k) committed to or entered into any commitment by any Sellerunderstanding, any Key Subsidiary arrangement or agreement (in the case of clauses (a), (g) and (h) above) written or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) aboveunwritten) to do any of the foregoing.

Absence of Certain Changes and Events. From January 1, 2009 through Since the date hereofof the Audited Buyer Balance Sheet, except as otherwise contemplatedthe Buyer has conducted its business in the ordinary course consistent with past practice and, required or permitted by this Agreementsince such date, there has not been: (a) (i) occurred: any declarationevent, setting aside damage, destruction or payment of loss, whether covered by insurance or not, which has had or reasonably is expected to have a Material Adverse Effect on the Buyer or its assets; 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 entry by the terms Buyer into a commitment or transaction material to the Buyer, which is not in the ordinary course of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement or business consistent with past practice; any change by the expiration of a Collective Bargaining Agreement Buyer in accounting principles, methods or practices, except insofar 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 have been required by a change in GAAP GAAP; any declaration, payment or applicable Lawsetting aside for payment of any dividends or distributions in respect to shares of Buyer Common Stock, including Tax Laws; (d) or any saleredemption, transfer, pledge purchase or other disposition by any Seller or any Purchased Subsidiary acquisition of any portion shares of Buyer Common Stock; any cancellation of any debts or waiver or release of any right or claim of the Buyer individually or in the aggregate material to the Buyer, whether or not in the ordinary course of business; any revaluations by the Buyer of any of its assets or properties not liabilities, including without limitation, writing-off notes or accounts receivable; any material increase in the Ordinary Course rate or terms of Business and with a sale price compensation payable or fair value in excess to become payable by the Buyer to any of $100,000,000; (e) aggregate capital expenditures by its personnel or consultants; any Seller bonus, incentive compensation, service award or any Purchased Subsidiary in excess of $100,000,000 in a single project other benefit granted, made or group of related projects accrued, contingently or capital expenditures in excess of $100,000,000 in otherwise, for or to the aggregate; (f) any acquisition by any Seller or any Purchased Subsidiary (including by merger, consolidation, combination or acquisition credit of any Equity Interests Buyer personnel; employee welfare, pension, retirement, profit-sharing or assets) of similar payment or arrangement made or agreed to by the Buyer for 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 Buyer personnel except for contributions in accordance with its terms; (h) prior practice made to, and payments made to employees under, plans and arrangements existing on the date of the Audited Buyer Balance Sheet; any alteration, whether through adoption of a complete plan of liquidation or partial resolutions providing for the liquidation, dissolution, merger, consolidationconsolidation or other reorganization of the Buyer, restructuringother than in connection with the transactions contemplated hereby; any purchase, reorganization acquisition or in any other manner, sale by the legal structure or ownership Buyer 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 caseassets, other than in the Ordinary Course ordinary course of Business; (j) business; any eventamendment, development cancellation or circumstance involvingtermination of any Material Contract, including, without limitation, license or sublicense, or other instrument to which the Buyer is a party or to which the Buyer or any change of the assets of the Buyer is bound; any failure to pay when due any material obligation of the Buyer; any failure to operate the business of the Buyer in the financial conditionordinary course with an effort to preserve the business intact, 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 keep available to the end Buyer the services of its personnel, and to preserve for the most recent fiscal year end) Buyer the goodwill of Sellers its customers and others having business relations with the Buyer except for such failures that has had or would reasonably be expected to not have a Material Adverse EffectEffect on the Buyer; or any commitment to borrow money entered into by the Buyer, or any loans made or agreed to be made by the Buyer, involving more than $100,000 individually or $500,000 in the aggregate (kother than credit provided by suppliers or manufacturers in the ordinary course of the Buyer's business consistent with past practices); any liabilities incurred by the Buyer involving $10,000 or more individually and $25,000 or more in the aggregate, other than liabilities incurred in the ordinary course of business consistent with past practices; any payment, discharge or satisfaction of any material liabilities of the Buyer or any material capital expenditure of the Buyer, other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with prior practice of liabilities reflected or reserved against in the Audited Financial Statements or incurred in the ordinary course of business consistent with prior practice since the date of the Audited Buyer Balance Sheet, and (ii) any commitment by any Seller, any Key Subsidiary (capital expenditures involving $10,000 or less individually and $25,000 or less in the case aggregate; any amendment of clauses (a), (g) and (h) above) the Buyer's Articles of Incorporation or Buyer Bylaws; or any Purchased Subsidiary (in agreement by the case of clauses (b) through (f) and clauses (h) and (j) above) Buyer to do any of the foregoingthings described in the preceding clauses (a) through (p) of this section other than as expressly contemplated or provided for in this Agreement.

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 1Except as set forth on Schedule ------------------------------------- 3.5, 2009 through from the date hereof, except as otherwise contemplated, required or permitted by this Agreement, there Balance Sheet Date each of the Company and its Subsidiaries has conducted its business only in the ordinary and usual course and has not been: (a) (i) any declaration, setting aside undergone or payment suffered or become aware 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 involvingoccurrence, development, or any change in the financial condition, properties, assets, liabilities, business, state of circumstances 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 fact which has had or would reasonably be expected to have a Company Material Adverse Effect. Without limiting the generality of the first sentence of this Section 3.5 (and except as set forth on Schedule 3.5 or as otherwise disclosed in or permitted or required by this Agreement or Schedules hereto), since the Balance Sheet Date neither the Company nor any of its Subsidiaries has: (a) Authorized for issuance, issued, delivered or sold any debt or equity securities, or altered the terms of any outstanding securities issued by it, or increased its indebtedness for borrowed money other than in the ordinary and usual course of business; (b) Made or set aside for making any distribution (whether in cash, interests or property or otherwise) in respect of any partnership or other interest, or redeemed, purchased or otherwise acquired any such partnership or other interests, any securities convertible into or exchangeable for such partnership or other interests or any options, warrants or other rights to purchase or subscribe to any of the foregoing; (c) Paid, discharged or satisfied any Liability or obligation (whether accrued, absolute, contingent or otherwise) other than the payment, discharge or satisfaction, in the ordinary and usual course of business, of Liabilities or obligations shown or reflected on the financial statements included in the SEC Reports or incurred in the ordinary and usual course of business; (d) Except in the ordinary and usual course of business, permitted or allowed any assets (whether real, personal or mixed, tangible or intangible) to be subjected to any Lien except (i) Liens disclosed on the Schedules hereto and (ii) (A) mechanics', carriers', workmen's, repairmen's, and other like liens arising or incurred in the ordinary course of business, (B) liens for Taxes, assessments and other governmental charges that are not yet due and payable or that may thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings (which liens are set forth in Schedule 3.5) and (C) imperfections of title and other encumbrances that, individually or in the aggregate, are not substantial in character or amount and do not, except in immaterial respects, detract from, or interfere with the Company's business as presently conducted (the Liens described in clauses (i) and (ii) being herein referred to as "Permitted Liens"); --------------- (e) Written off as uncollectible any notes or accounts receivable other than in immaterial amounts or in the ordinary and usual course of business; (f) Cancelled or waived any claims or rights of value or sold, transferred, distributed or otherwise disposed of any assets except in the ordinary and usual course of business; (g) Granted any increase in the compensation of any member of the Board of Control, management committee member, officer or employee, whether now or hereafter payable (other than increases in compensation in the ordinary and usual course of business and consistent in timing and amount with past practice) or granted any severance or termination pay (other than for severance pay in amounts consistent with its established severance pay practices), or entered into or varied the terms of any employment agreement (other than employment agreements terminable at will without any liability other than severance consistent with its established severance policies) with any such person or adopted, amended in any material respect or terminated (except in the ordinary and usual course of business and consistent with past practice) any Schedule 3.12 Plan (as defined in Section 3.12 hereof), non-ERISA arrangement, bonus, profit sharing or other employee benefit plan, agreement or arrangement of general applicability for the benefit of its members of the Board of Control, management committee members, officers or employees or for the benefit of members of the Board of Control, management committee members, officers or employees of any of its affiliates; (h) Other than as provided in the Company's 1996 capital expenditure plan previously provided to the Purchaser, made any capital expenditure or commitment for additions to property or equipment, or leased or agreed to lease any assets in excess of $250,000 individually or in the aggregate, or made any advance or capital contributions to, or investment in, any Person (other than to wholly-owned subsidiaries); (i) Made any material change in any method of accounting or keeping its books of account or accounting practices, except as required as a result of changes in GAAP; (j) Incurred any material obligation or Liability, except Liabilities incurred in the ordinary and usual course of business; or (k) Prior to the date hereof, experienced any commitment damage, destruction, or other casualty loss (whether or not covered by any Seller, any Key Subsidiary (in insurance) detrimental to the case business or assets of clauses (a), (g) and (h) above) the Company or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoingfacility.

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.

Absence of Certain Changes and Events. From January 1, 2009 through Since the date hereof, except as otherwise contemplated, required or permitted by this AgreementReference Balance Sheet Date, there has not been: (a) been any Material Adverse Effect. Since the Reference Balance Sheet Date, (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 Valence Parent has conducted 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 Business in the Ordinary Course of Business, adoptionand (ii) except as set forth in Section 3.18 of the Disclosure Schedule or as otherwise contemplated by this Agreement, termination Valence Parent has not: (a) granted any increase in the base compensation of, entry into or amendment paid any bonuses or modification of, in a material mannerother compensation to, 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 officers or properties not in the Ordinary Course employees outside 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; (b) adopted, amended, or increased the payments or benefits under, any Employee Benefit Plan outside of the Ordinary Course of Business; (c) acquired assets outside of the Ordinary Course of Business, including acquired any business, whether by merger, consolidation, the purchase of all or a substantial portion of the assets or equity interests of such business or otherwise; (d) sold, leased, or otherwise disposed of any assets outside of the Ordinary Course of Business; (e) incurred, assumed, or guaranteed any Indebtedness, or made any loans, advances or capital contributions to, or investments in, any other Person; (f) entered into any Material Contract, or amended, terminated, cancelled, taken or omitted to take any action that would constitute a violation or default, or waived any rights, under any Material Contract; (g) cancelled, compromised, waived or released any right or claim (or series of related rights and claims) either involving more than $25,000 or outside of the Ordinary Course of Business; (h) experienced any damage, destruction or loss (whether or not covered by insurance) to any of the assets of Valence Parent in excess of $25,000; (i) made any material change in connection with its accounts payable or accounts receivable terms, systems, policies or procedures; (j) declared, set aside or paid any eventdividend (whether in cash, development securities or circumstance involving, property or other combination thereof) in respect of the capital stock or other equity interests of Valence Parent; (k) made any material change in the financial condition, properties, assets, liabilities, business, its accounting 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 methods; or (kl) entered into any commitment by any Selleragreement, any Key Subsidiary (in the case of clauses (a)whether oral or written, (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 on Schedule 3.5, 2009 through from the date hereof, except as otherwise contemplated, required or permitted by this Agreement, there Balance Sheet Date each of the Company and its Subsidiaries has conducted its business only in the ordinary and usual course and has not been: (a) (i) any declaration, setting aside undergone or payment suffered or become aware 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 involvingoccurrence, development, or any change in the financial condition, properties, assets, liabilities, business, state of circumstances 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 fact which has had or would reasonably be expected to have a Company Material Adverse Effect. Without limiting the generality of the first sentence of this Section 3.5 (and except as set forth on Schedule 3.5 or as otherwise disclosed in or permitted or required by this Agreement or Schedules hereto), since the Balance Sheet Date neither the Company nor any of its Subsidiaries has: (a) Authorized for issuance, issued, delivered or sold any debt or equity securities, or altered the terms of any outstanding securities issued by it, or increased its indebtedness for borrowed money other than in the ordinary and usual course of business; (b) Made or set aside for making any distribution (whether in cash, interests or property or otherwise) in respect of any partnership or other interest, or redeemed, purchased or otherwise acquired any such partnership or other interests, any securities convertible into or exchangeable for such partnership or other interests or any options, warrants or other rights to purchase or subscribe to any of the foregoing; (c) Paid, discharged or satisfied any Liability or obligation (whether accrued, absolute, contingent or otherwise) other than the payment, discharge or satisfaction, in the ordinary and usual course of business, of Liabilities or obligations shown or reflected on the financial statements included in the SEC Reports or incurred in the ordinary and usual course of business; (d) Except in the ordinary and usual course of business, permitted or allowed any assets (whether real, personal or mixed, tangible or intangible) to be subjected to any Lien except (i) Liens disclosed on the Schedules hereto and (ii) (A) mechanics', carriers', workmen's, repairmen's, and other like liens arising or incurred in the ordinary course of business, (B) liens for Taxes, assessments and other governmental charges that are not yet due and payable or that may thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings (which liens are set forth in Schedule 3.5) and (C) imperfections of title and other encumbrances that, individually or in the aggregate, are not substantial in character or amount and do not, except in immaterial respects, detract from, or interfere with the Company's business as presently conducted (the Liens described in clauses (i) and (ii) being herein referred to as "Permitted Liens"); (e) Written off as uncollectible any notes or accounts receivable other than in immaterial amounts or in the ordinary and usual course of business; (f) Cancelled or waived any claims or rights of value or sold, transferred, distributed or otherwise disposed of any assets except in the ordinary and usual course of business; (g) Granted any increase in the compensation of any member of the Board of Control, management committee member, officer or employee, whether now or hereafter payable (other than increases in compensation in the ordinary and usual course of business and consistent in timing and amount with past practice) or granted any severance or termination pay (other than for severance pay in amounts consistent with its established severance pay practices), or entered into or varied the terms of any employment agreement (other than employment agreements terminable at will without any liability other than severance consistent with its established severance policies) with any such person or adopted, amended in any material respect or terminated (except in the ordinary and usual course of business and consistent with past practice) any Schedule 3.12 Plan (as defined in Section 3.12 hereof), non-ERISA arrangement, bonus, profit sharing or other employee benefit plan, agreement or arrangement of general applicability for the benefit of its members of the Board of Control, management committee members, officers or employees or for the benefit of members of the Board of Control, management committee members, officers or employees of any of its affiliates; (h) Other than as provided in the Company's 1996 capital expenditure plan previously provided to the Purchaser, made any capital expenditure or commitment for additions to property or equipment, or leased or agreed to lease any assets in excess of $250,000 individually or in the aggregate, or made any advance or capital contributions to, or investment in, any Person (other than to wholly-owned subsidiaries); (i) Made any material change in any method of accounting or keeping its books of account or accounting practices, except as required as a result of changes in GAAP; (j) Incurred any material obligation or Liability, except Liabilities incurred in the ordinary and usual course of business; or (k) Prior to the date hereof, experienced any commitment damage, destruction, or other casualty loss (whether or not covered by any Seller, any Key Subsidiary (in insurance) detrimental to the case business or assets of clauses (a), (g) and (h) above) the Company or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) to do any of the foregoingfacility.

Absence of Certain Changes and Events. From January 1Except as set forth on Schedule 3.7, 2009 through as contemplated by this Agreement or the date hereofAncillary Agreements, or as requested or consented to in writing by Buyer, since December 31, 2006, Seller has conducted the Purchased Business in the Ordinary Course of Business. Without limiting the generality of the foregoing and except as otherwise contemplatedexpressly provided herein or as set forth on Schedule 3.7, required or permitted by this Agreementsince December 31, 2006, there has not beenbeen no: (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 SellersMaterial Adverse Change; (b) change in accounting methods, principles or practices by Seller or any of its Subsidiaries in connection with the Purchased Business other than as is required by the terms of the Parent Employee Benefit Plans and Policies, the Settlement Agreement, the UAW Collective Bargaining Agreement GAAP or consistent with the expiration of a Collective Bargaining Agreement or as may be required by other 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 law; (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, (iiic) other than in the Ordinary Course of Business, adoption, termination of, entry into revaluation by Seller 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 its Subsidiaries of any Collective Bargaining Agreement or other Contract with any Union of any Seller or the 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 LawAssets, including Tax Lawswithout limitation writing down the value of Inventory or writing off notes that are Purchased Assets; (d) any saledamage, transferdestruction or loss (whether or not covered by insurance) with an adverse economic consequence of more than $50,000 on the Purchased Assets or the Purchased Business (other than damage, pledge destruction 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 $100,000,000loss to Excluded Assets); (e) aggregate capital expenditures waiver or release by any Seller or any of its Subsidiaries of any right or claim of Seller or any of its Subsidiaries related to its activities or properties which had or will have an adverse economic consequence of more than $50,000 on the Purchased Subsidiary in excess of $100,000,000 in a single project Business (other than rights or group of claims related projects or capital expenditures in excess of $100,000,000 in solely to Excluded Assets other than the aggregateIntellectual Property Assets therein); (f) to the Knowledge of Seller, adverse change in employee relations which has or is reasonably likely to adversely and materially affect the productivity, financial condition, or results of operations of the Purchased Business or the relationships between any acquisition by any Seller or any Purchased Subsidiary (including by mergerBusiness Employee and Seller, consolidationor, combination or acquisition of any Equity Interests or assets) of any Person or business or division thereof (other than acquisitions of portfolio assets from and acquisitions in after 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 $100,000,000Closing Date, Buyer; (g) any discharge except as may be provided in the Key Executive Agreements, (i) increase in, or satisfaction agreement or promise to increase, the compensation or rate of commission of any Indebtedness by any Seller Purchased Business Employee who is proposed to be an officer or any member of the senior management of the Purchased Subsidiary in excess of $100,000,000, other than the discharge Business or satisfaction of any Indebtedness when due in accordance with its terms; (hii) 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 other Purchased Business Employee, increase in, or agreement or promise to increase, the compensation or rate of the foregoing; (i) any amendment or modification to the material adverse detriment commission 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, such Purchased Business Employee other than in the Ordinary Course of Business; (jh) any event, development or circumstance involving, or any change except as may be provided in the financial conditionKey Executive Agreements, properties(i) bonus, assets, liabilities, business, incentive compensation or results other similar benefit granted or made to or for the benefit of operations any Purchased Business Employee who is proposed to be an officer or member of Sellers the senior management of the Purchased Business or any circumstance, occurrence or development (including any adverse change ii) with respect to any circumstanceother Purchased Business Employee, occurrence bonus, incentive compensation or development existing on other similar benefit granted or prior made to or for the benefit of any such Purchased Business Employee other than in the Ordinary Course of Business; (i) adoption, entering into, amendment, modification or termination of any Seller Plan covering any Purchased Business Employee (other than in the Ordinary Course of Business with respect to Purchased Business Employees who are not officers or directors of the Seller or senior management of the Purchased Business) or any promise or commitment to undertake any of the foregoing; (j) amendment, cancellation or termination of any Transferred Contract, commitment, agreement, lease, transaction or Permit related to the end Purchased Assets or the Purchased Business (other than related solely to Excluded Assets other than the Intellectual Property Assets therein) or entry into any Transferred Contract, commitment, agreement, lease, transaction or Permit related to the Purchased Assets or the Purchased Business (other than related solely to Excluded Assets other than the Intellectual Property Assets therein), in each case, which is not in the Ordinary Course of Business and involves payments or the exchange of goods or services relating to the Purchased Business in excess of $50,000; (k) mortgage, pledge or other Encumbrance of any Purchased Asset other than Permitted Encumbrances incurred in the Ordinary Course of Business and Encumbrances under the Seller Credit Facility or the Seller Loan Agreements; (l) sale, assignment or transfer of any of the most recent fiscal year endassets related to or used in the Purchased Business (other than Excluded Assets other than the Intellectual Property Assets therein) with a value in excess of Sellers that has had $50,000 in the aggregate other than in the Ordinary Course of Business; (m) payment, discharge or would reasonably be expected satisfaction of any Liabilities of Seller using Purchased Assets other than in the Ordinary Course of Business; (n) failure to have pay or satisfy when due any Liability of Seller or any of its Subsidiaries related to the Purchased Assets or the Purchased Business (other than Excluded Liabilities) other than in the Ordinary Course of Business; (o) disposition, assignment, exclusive licensing, abandonment or lapsing of any Intellectual Property Assets or disclosure to any Person of any Intellectual Property Assets not theretofore a Material Adverse Effectmatter of public knowledge, except for disclosures made in connection with operating the Purchased Business in the Ordinary Course of Business with obligations of confidentiality appropriate for the Intellectual Property Assets disclosed; or (kp) any commitment agreement by any Seller, any Key Subsidiary (in the case of clauses (a), (g) and (h) above) Seller 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 foregoingthings described in the preceding clauses (a) through (o) other than as expressly provided for herein.

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 1Since December 31, 2009 2005, except as set forth in the Seller Disclosure Schedule, the Seller has conducted the Business in the ordinary course thereof consistent with past practice and from such date through the date hereof, except as otherwise contemplated, required or permitted by of this Agreement, with respect to Seller, there has not beenbeen any: (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) change in the business, assets, liabilities, results of operations or financial condition of the Seller, or any amendment event, condition or modification to the material adverse detriment contingency (either individually or taken together) that constitutes a Material Adverse Effect; (A) incurrence, payment or discharge of any Key Subsidiary Liability, (B) sale or transfer of any material Affiliate Contract or Seller Material Contractproperty, or termination (C) acquisition or sale, lease, grant of interest in, or other disposition of, any material Affiliate Contract assets or Seller Material Contract to the material adverse detriment of any Seller or any Key Subsidiarybusinesses, in each caseof clauses (A), (B) and (C), other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice; (jA) guarantee or any event, development or circumstance involvingother assumption of the obligations of any Person, or (B) making of any change loan or advance to any Person (other than vacation payments made to hourly factory employees at the L.A. Facility in the financial condition, properties, assets, liabilities, ordinary course of business, consistent with past practice); (iv) settlement or results compromise of operations any Action if the amount of Sellers or any circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or such settlement will either not be paid in full prior to the end of the most recent fiscal year end) of Sellers that has had Closing or which settlement or compromise would reasonably be expected to have a Material Adverse Effect; orcontinuing adverse impact on the Business after the Closing; (kv) Tax election or change in a Tax election or the filing for any commitment change in any material respect of any method of accounting with the Internal Revenue Service, except as required by any Seller, change in Law; (vi) change in any Key Subsidiary (method of accounting applied in the case preparation of clauses the Financial Statements, other than a change which is required by reason of a concurrent change in Law or GAAP; (a)A) adoption or amendment in any material respect to any benefit plan or bonus, profit sharing, deferred compensation, incentive, stock option or stock purchase plan, program or commitment, paid time off for sickness or other plan, program or arrangement for the benefit of its employees, consultants or directors, or (gB) and grant of any increase (hother than increases required under any Contact) abovein the compensation of its employees (including any such increase pursuant to any bonus, profit sharing or other compensation or incentive plan, program or commitment) or any Purchased Subsidiary increase (other than increases required under any Contract) in the case of clauses compensation payable or to become payable to any officer or director; (bviii) through (f) and clauses (h) and (j) above) to do material change or modification in any of the foregoingContracts required to be listed in any Schedule to this Agreement (other than an Exempt Purchase Order), nor has the Seller entered into any Contract (other than an Exempt Purchase Order), except, in each case, in the ordinary and regular course of its business and in no event calling for annual payments by, or to, the Seller in excess of $25,000; (ix) the making of any capital expenditures in excess of $25,000; (x) declaration, distribution or the setting aside for distribution of any property, other than cash, or directly or indirectly, the redemption, purchase or otherwise acquisition of any shares of capital stock for property, other than cash, as the case may be; and (xi) agreement, whether in writing or otherwise, to take any action described in this Section 3.15.

Absence of Certain Changes and Events. From January 1, 2009 through the date hereof, except 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 set forth 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 Section 3.14 of the Parent Employee Benefit Plans and PoliciesSeller Disclosure Letter, since the Settlement AgreementClosing Book Date, 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 Acquired Entity has conducted its assets or properties not business only in the Ordinary Course of Business and with there has not been any: (a) change in such Acquired Entity’s authorized or issued Membership Interests; grant of any membership interest vesting rights, option or right to purchase Membership Interests of such Acquired Entity; grant of any phantom or similar rights which give any Person any interest in any portion of the revenue or earnings of such Acquired Entity; issuance of any security convertible into such Membership Interests; grant of any registration rights; purchase, redemption, retirement, or other acquisition by such Acquired Entity of any Membership Interests; or declaration or payment of any non-cash dividend or other non-cash distribution or payment in respect of Membership Interests or rights in respect thereof, provided that nothing herein shall limit cash distributions to Seller for payment of Taxes or otherwise prior to the Closing Date. (b) amendment to the Organizational Documents of such Acquired Entity; (c) material damage to or destruction or loss of any Material Asset, whether or not covered by insurance; (d) except for those Contracts that supersede prior Contracts, without materially changing the terms of such prior Contracts or materially increasing the dollar amount of any commitment by Acquired Entity thereunder, entry into, termination of, or receipt of formal or informal notice or advice of termination of any Contract or transaction involving a sale price total remaining commitment by or fair value in excess to Acquired Entity of $100,000,00050,000 or more; (e) aggregate capital expenditures by any Seller sale, lease, 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 other disposition of any Equity Interests or assets) material Asset of any Person Acquired Entity or business mortgage, transfer, pledge, or division thereof imposition of any Encumbrance (other than acquisitions of portfolio assets and acquisitions in the Ordinary Course of BusinessPermitted Encumbrances) 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) on any discharge or satisfaction material Asset 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 SubsidiaryAcquired Entity, in each case, other than sales, leases, dispositions or Encumbrances in the Ordinary Course of Business; (jf) any event(i) capital expenditure, development agreement to incur any liability or circumstance involvingobligation whether absolute, accrued, asserted or unasserted, contingent or otherwise (other than routine maintenance in the Ordinary Course of Business), or (ii) any Applicable Contract, in the case of either clause (i) or (ii), involving payments by an Acquired Company in excess of $50,000; (g) loan, advance or capital contribution to, or investments in, any other Person or acquisition or agreement to acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the assets of, or by any other manner, any other Person; (h) intentional cancellation or waiver of any claims or rights with a value to such Acquired Entity in excess of $50,000; (i) material change in the financial conditionaccounting methods used by such Acquired Entity; (j) incurrence or guarantee of any Debt, propertieswhether or not evidenced by a note, assetsbond, liabilities, businessdebenture or similar instrument, or results entrance into any “keep well” or other agreement to maintain the financial condition of operations another Person other than in the Ordinary Course of Sellers Business and in excess of $50,000; (k) transfer to any Person of any material rights to the Intellectual Property Assets; (l) payment, prepayment, discharge or satisfaction of any circumstancematerial claims, occurrence liabilities or development obligations (including any adverse change absolute, accrued, asserted or unasserted, contingent or otherwise), except the payment, prepayment, discharge or satisfaction of liabilities or obligations in the Ordinary Course of Business and in accordance with the terms thereof; (m) settlement or compromise with respect to any circumstanceProceeding, occurrence other than in an aggregate amount not in excess of $50,000 (provided such settlement documents do not involve any material non-monetary obligations on the part of Acquired Entity); (n) entry into any Contract with any Seller or development existing on Related Person of any Seller (excluding Related Persons that are themselves Acquired Entities) or prior to the end Affiliate of the most recent fiscal year end) of Sellers any Seller (excluding Related Persons that has had or would reasonably be expected to have a Material Adverse Effectare themselves Acquired Entities); or (ko) 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 foregoingMaterial Adverse Effect on Acquired Entity.

Absence of Certain Changes and Events. From January Except (1, 2009 through the date hereof, except ) as otherwise contemplated, required or permitted by set forth in this Agreement, (2) any actions taken to obtain the cash necessary to fulfill the Company’s obligations under Section 2.9(a) of this Agreement, (3) on Schedule 4.15, (4) to the extent required by any Legal Requirement or Regulatory Authority or (5) with the prior written consent of the Acquiror (which shall not be unreasonably withheld, conditioned or delayed), each of the Company and the Bank has conducted its business only in the Ordinary Course of Business, and without limiting the foregoing, with respect to each, since December 31, 2016, there has not beenbeen any: (a) change in its authorized or issued capital stock, except for the issuance of any shares of common stock pursuant to the exercise of Outstanding Stock Options; grant of any stock option or right to purchase shares of its capital stock; issuance of any security convertible into such capital stock or evidences of indebtedness (i) except in connection with customer deposits); grant of any declarationregistration rights; purchase, setting aside redemption, retirement or other acquisition by it of any shares of any such capital stock, except for shares acquired to satisfy tax withholding obligations upon the vesting of shares of restricted stock or shares tendered to pay the exercise price of Outstanding Stock Options; or declaration or payment of any dividend or other distribution (whether or payment in cashrespect of shares of its capital stock, 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 its regular cash dividends not to exceed $0.10 per share, each as reflected on the Financial Statements and distributions among its Subsidiaries) or (ii) any split, combination or reclassification of any Equity Interests that will be included 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 SellersCalculation; (b) amendment to its articles of incorporation, charter or bylaws or adoption of any resolutions by its board of directors or shareholders with respect to the same; (c) payment or increase of any bonus, salary or other than as is required by compensation to any of its directors, officers or employees, except for normal increases in the terms Ordinary Course of the Parent Business or in accordance with any then existing Employee Benefit Plans and Policies, Plan disclosed in 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, 2009Schedules, or as a result of a promotion to a position of additional responsibilityentry by it into any employment, (ii) grant to any Seller Key Personnel of any increase in retentionconsulting, non-competition, change in control, severance or termination compensation similar Contract with any director, officer or benefitsemployee, except as required under for the Contemplated Transactions and except for any employment Contracts employment, consulting or similar agreement or arrangement that is terminable at will or upon thirty (30) days’ notice or less, without penalty or premium; (d) adoption, amendment (except for any amendment necessary to comply with any Legal Requirement) or termination of, or increase in effect as the payments to or benefits under, any Employee Benefit Plan; (e) entry into, termination or extension of, or receipt of January 1notice of termination of any joint venture or similar agreement pursuant to any Contract or any similar transaction; (f) except for this Agreement, 2009entry into any new, or modification, amendment, renewal or extension (iiithrough action or inaction) of the terms of any existing, lease, Contract or license that has a term of more than one year or that involves the payment by the Company or the Bank of more than the Target Amount in the aggregate; (g) Bank Loan or commitment to make any Bank Loan 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) Bank Loan or commitment to make, renew, extend the term or increase the amount of any alteration, whether through a complete Bank Loan to any Person if such Bank Loan or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization or in any other manner, Bank Loans to such Person or an Affiliate of such Person is on the legal structure “watch list” or ownership similar internal report of any Seller or any Key Subsidiary or any material joint venture to which any Seller or any Key Subsidiary is a partythe Bank, or has been classified by the adoption Bank or alteration of Regulatory Authority as “substandard,” “doubtful,” “loss,” or “other loans specially mentioned” or listed as a plan with respect to “potential problem loan”; provided, however, that nothing in this Section 4.15 shall prohibit the Bank from honoring any of contractual obligation in existence on the foregoingAgreement Date; (i) any amendment or modification to the material adverse detriment incurrence by it of any Key Subsidiary of any material Affiliate Contract obligation or Seller Material Contract, liability (fixed 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, contingent) other than in the Ordinary Course of Business; (j) sale (other than any eventsale in the Ordinary Course of Business, development which shall include the sale, transfer or circumstance involvingdisposal of OREO), lease or other disposition of any of its assets or properties, or mortgage, pledge or imposition of any lien or other encumbrance upon any of its material assets or properties, except: (i) for Permitted Exceptions; or (ii) as otherwise incurred in the Ordinary Course of Business; (k) cancellation or waiver by it of any claims or rights with a value in excess of the Target Amount; (l) any investment by it of a capital nature exceeding the Target Amount; (m) except for the Contemplated Transactions, merger or consolidation with or into any other Person, or acquisition of any stock, equity interest or business of any other Person; (n) transaction for the borrowing or loaning of monies, or any increase in any outstanding indebtedness, other than in the Ordinary Course of Business; (o) material 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 policies and practices with respect to liquidity management and cash flow planning, marketing, deposit origination, lending, budgeting, profit and Tax planning, accounting or any circumstanceother material aspect of its business or operations, occurrence or development existing on or prior to except for such changes as may be required in the end opinion of the most recent fiscal year endmanagement of the Company or the Bank to respond to then current market or economic conditions or as may be required by any Regulatory Authorities or by any Legal Requirement; (p) filing of Sellers that any applications for additional branches, opening of any new office or branch, closing of any current office or branch, or relocation of operations from existing locations; (q) discharge or satisfaction of any material lien or encumbrance on its assets or repayment of any material indebtedness for borrowed money, except for obligations incurred and repaid in the Ordinary Course of Business; (r) entry into any Contract or agreement to buy, sell, exchange or otherwise deal in any assets or series of assets in a single transaction in excess of the Target Amount in aggregate value, except as otherwise incurred in the Ordinary Course of Business, which shall include sales by the Bank of OREO and other repossessed properties or the acceptance of a deed in lieu of foreclosure; (s) purchase or other acquisition of any investments, direct or indirect, in any derivative securities, financial futures or commodities or entry into any interest rate swap, floors and option agreements, or other similar interest rate management agreements; (t) hiring of any employee with an annual salary in excess of the Target Amount, except for employees at will who are hired to replace employees who have resigned or whose employment has had or would reasonably be expected to have a Material Adverse Effectotherwise been terminated; 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) or any Purchased Subsidiary (in the case of clauses (b) through (f) and clauses (h) and (j) above) it to do any of the foregoing.