Common use of Assumed Contracts Clause in Contracts

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled all of its obligations under the Assumed Contracts that were required to be fulfilled prior to the date hereof; (b) Seller has not defaulted under any of the Assumed Contracts, nor has any event occurred which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a default by Seller under any of the Assumed Contracts; (c) no consent of any party to any of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to such Assumed Contract other than Seller or Parent. Seller has provided Acquisition Sub or ITS with true, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date of each Business Contract.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled The Assumed Contacts are all of its obligations under the agreements and contracts in any way relating to or affecting the Business, all of which are assignable to and will be fully and effectively assigned and transferred to Buyer as of the Closing Date without expense to Buyer or imposition of any condition or restriction binding on Buyer. The copies of all Assumed Contracts that were required have been furnished to be fulfilled prior Buyer, and are full and complete copies, as amended, to the date hereof;present date. (b) All Assumed Contracts are now and on the Closing Date shall be in good standing and in full force and effect without amendment thereto (unless such amendments are clearly noted) and Seller has not defaulted is entitled to all benefits thereunder. All of the transactions of Seller with third persons have been conducted on an arms-length basis. All Assumed Contracts are valid and binding obligations of the parties thereto in accordance with their respective terms. (c) No material default or alleged material default exists on the part of Seller, nor, to the knowledge of Seller or its officers, on the part of any other party, under any Assumed Contract and there exists no state of the Assumed Contractsfacts, nor has any event occurred which, with the giving of notice, the which after notice or lapse of time and/or other action time, or inactionboth, would constitute a default by or breach in connection with any Assumed Contract. For purposes of this subsection, the word "default" includes, but is not limited to, the failure to comply with any condition precedent under the provisions of any such Assumed Contract. Seller under any of the Assumed Contracts; (c) has received no consent of information which might reasonably indicate that any party to a contract or commitment is unable or unwilling to perform under such Assumed Contract. (d) Seller has no information which might reasonably indicate that any customer or supplier of Seller intends to cease purchasing from, selling to or dealing with Seller, nor has any information been brought to the Assumed Contracts is required for attention of Seller which might reasonably lead Seller to believe that any customer or supplier intends to alter in any material respect, the executionamount of such purchases, delivery sales or performance the extent of this Agreementdealings with Seller or would alter in any material respect its purchases from, sales to, or dealings with Buyer in the event of the consummation of the transactions contemplated hereby, other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to such Assumed Contract other than Seller or Parent. Seller has provided Acquisition Sub or ITS with true, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date of each Business Contract.

Assumed Contracts. Except for any Seller has made available to Buyer true and correct copies of the Assumed Warranty Liabilities in existence on Contracts and has given, and will give, the date agents, employees and representatives of this Agreement Buyer access to the originals of the Assumed Contracts to the extent originals are available. Seller represents and except as disclosed on Schedule 2.15 attached hereto,warrants with respect to the Assumed Contracts that: (a) Seller has fulfilled all of its obligations under the The Assumed Contracts that were required to be fulfilled prior constitute legal, valid and binding obligations of the Seller Entities and, to the date hereofknowledge of Seller, the other parties with respect thereto, and are enforceable against the Seller Entities and, to the knowledge of Seller, the other parties with respect thereto in accordance with their terms; (b) Seller has not defaulted under Each Assumed Contract constitutes the entire agreement by and between the respective parties thereto with respect to the subject matter thereof; (c) Assuming the receipt of any consents required in connection with the assignment of the Assumed Contracts, nor has any event all obligations required to be performed by the Seller Entities and, to the knowledge of Seller, the other parties with respect thereto prior to the date hereof under the terms of the Assumed Contracts have been performed, and no acts or omissions by the Seller Entities and, to the knowledge of Seller, the other parties with respect thereto have occurred or failed to occur which, with the giving of notice, the lapse of time and/or other action or inaction, both would constitute a default by the Seller Entities and, to the knowledge of Seller, the other parties with respect thereto under any of the Assumed Contracts; (cd) no consent of any party to any Except as expressly set forth on Schedule 1.1(h), none of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect require consent to the assignment and assumption of the Scheduled such Assumed Contracts by Buyer, and Seller will use commercially reasonable efforts to Acquisition Sub, all such obtain any required consents have been obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed ContractsClosing; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any personExcept as expressly set forth on Schedule 1.1(h), and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to assumption of such Assumed Contract other than Seller Contracts by Buyer will not result in any penalty or Parent. Seller has provided Acquisition Sub premium, or ITS with true, correct and complete copies of all variation of the Assumed Contracts. All information regarding the Business Contracts rights, remedies, benefits or obligations of any party thereunder. (f) Except as expressly set forth in Schedule 1.1(a)(vi) is true1.3, correct and complete, including none of the commencement date of each Business ContractAssumed Contracts are characterized as capital leases under GAAP.

Assumed Contracts. Except for Schedule 1.1(a)(vi) lists all contracts, agreements and instruments, including all modifications, amendments and waivers thereto, to which Seller is a party or by which the Facility or any of the Assets are bound and which Buyer has agreed to assume (collectively, the "Assumed Warranty Liabilities in existence on the date Contracts"), complete copies of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled all of its obligations under which have been delivered to Buyer. Other than the Assumed Contracts that were required to be fulfilled prior to and the date hereof; (b) Seller has not defaulted under any of the Assumed Excluded Contracts, nor has any event occurred whichthere are no other contracts, with the giving of notice, the lapse of time and/or other action or inaction, would constitute agreements and instruments to which Seller is a default by Seller under any of the Assumed Contracts; (c) no consent of any party to any of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, other than party. Except as set forth in Schedule 2.41.1 (a)(vi), and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, (a) all such consents have been obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, are in full force and effect and valid, binding are valid and enforceable in accordance with their respective written terms; (b) Seller is not, to the best of Seller's knowledge, nor is any other party thereto, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to default under any such Assumed Contract other than and no event, occurrence, condition or act now exists or, upon the consummation of the transactions contemplated by this Agreement will exist which, with the giving of notice or the lapse of time or both, would give rise to a default thereunder on the part of Seller or Parentany other party thereto or would give rise to the right of any party or parties thereto to cancel or terminate thereunder, (c) Seller has no knowledge that there are any anticipated cancellations or terminations of any such Assumed Contract and there are any outstanding disputes thereunder; (d) no consent or approval of any party or parties thereto is required for the consummation of the transactions contemplated by this Agreement; and (e) no officer, director, stockholder, subsidiary or Affiliate of Seller has any financial interest, whether direct or indirect, in any such Assumed Contracts. Seller has provided Acquisition Sub no agreements with any patients or ITS with trueprospective patients which obligate or would obligate Seller to provide skilled nursing services at rates below Seller's current and standard rates for similar services or which are for terms longer than one month. Notwithstanding anything to the contrary contained herein, correct and complete copies of all of Buyer shall have the Assumed Contracts. All information regarding the Business Contracts as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date of each Business Contractright to cause Seller to terminate any contract not being assumed by Buyer under this Agreement.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date True and complete copies of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled all of its obligations under the Assumed Contracts that were required to be fulfilled prior to have been (or, in the date hereof; (b) Seller has not defaulted under any case of the Assumed ContractsOpen Purchase Orders, nor has any event occurred which, with the giving of notice, the lapse of time and/or other action will be) delivered or inaction, would constitute a default by Seller under any made available to Purchaser. Except as set forth in Section 3.8(a) of the Assumed Contracts; (c) no consent of any party to any Seller Disclosure Letter, each of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, (other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by Seller on or prior to the date of this Agreement; (dOpen Purchase Orders) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and is valid, binding and enforceable in accordance with their respective termsits terms (except to the extent that enforcement may be affected by Laws relating to bankruptcy, in each casereorganization, except for such failure to be insolvency and creditors' rights and by the availability of injunctive relief, specific performance and other equitable remedies) on Seller and the other parties thereto and is in full force and effect and valideffect. Neither Seller nor, binding and enforceable that have been caused by a to Seller's Knowledge, any other party to such thereto is in default in any material respect under any Assumed Contract (other than the Open Purchase Orders) (and no condition exists that, with notice or lapse of time or both, would become such a default by Seller or Parentor, to Seller's Knowledge, any such other party). Seller has provided Acquisition Sub or ITS with true, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts Except as set forth in Schedule 1.1(a)(viSection 3.8(b) of the Seller Disclosure Letter, none of the Assumed Contracts (other than the Open Purchase Orders) is truecurrently being renegotiated. Except as set forth in Section 3.8(c) of the Seller Disclosure Letter, correct no party to any of the Assumed Contracts (other than the Open Purchase Orders) has made, asserted or, to Seller's Knowledge, has any defense, setoff or counterclaim under its Assumed Contract (other than the Open Purchase Orders) or has exercised any option granted to it to cancel, terminate or shorten the term of its Assumed Contract (other than the Open Purchase Orders). Section 3.8(d) of the Seller Disclosure Letter sets forth a true and completecomplete list of all rebate, allowance, customer payment and other similar programs currently offered by Seller in respect of any Products sold under any of the Assumed Contracts (other than the Open Purchase Orders). Section 3.8(e) of the Seller Disclosure Letter sets forth a description (including the commencement date amounts) of each Business Contractall prepaid items under the Assumed Contracts (other than the Open Purchase Orders). The aggregate amount payable to Seller under all Open Purchase Orders, net of freight costs, will exceed the aggregate value (determined in accordance with the accounting principles set forth on Schedule 2.4 hereof) of the Inventory to which such Open Purchase Orders relate by at least 10%.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled Section 1.1(a) of the Disclosure Schedule contains a true and correct list of all of its obligations under the Assumed Contracts that were required to be fulfilled prior to the date hereof;Contracts. (b) Seller has not defaulted under any Each of the Assumed ContractsContracts was entered into in the ordinary course of business on terms substantially consistent with Seller’s practice prior thereto, nor has any event occurred whichis in full force and effect, with the giving and there exists no breach or violation of notice, the lapse of time and/or other action or inaction, would constitute a default by Seller under any of such Assumed Contracts nor, to the Assumed Contracts; (c) no consent Knowledge of Seller, by any other party to such Assumed Contract or any event which, with notice or the lapse of the Assumed Contracts is required for the execution, delivery or performance of this Agreementtime, or both, will create a breach or violation thereof or default thereunder by Seller or, to the Knowledge of Seller, by any other party to such Assumed Contract. To the Knowledge of Seller, there is no Assumed Contract that contains any contractual requirement with which there is a reasonable likelihood that Seller or, to Seller’s Knowledge, any other party thereto will be unable to comply. The continuation, validity, and effectiveness of each Assumed Contract will in no way be affected by the consummation of the transactions contemplated herebyby this Agreement and the assignment of such Assumed Contract to Purchaser. (c) Section 4.13(c) of the Disclosure Schedule contains a true and correct list of all customers of Seller party to an Assumed Contract (each, other than a “Customer”). Except as set forth in Schedule 2.4Section 4.13(c) of the Disclosure Schedule, and except under there exists no actual or, to the Scheduled Contracts Knowledge of Seller, any threatened termination, cancellation, or limitation of, or any amendment, modification, or change to any Assumed Contract. (d) Except to its secured lenders set forth on Section 4.13(d) of the Disclosure Schedule, Seller has not granted any power of attorney affecting or with respect to any of its business, affairs, or assets, or any combination thereof, that remains outstanding. (e) A true, correct, and legible copy (and if oral, a description of material terms) of each Assumed Contract and all modifications, amendments, renewals, or extensions thereof has been provided to Purchaser prior to the assignment Closing. (f) Except as set forth in Section 4.13(f) of the Scheduled Disclosure Schedule, each of the Assumed Contracts may be assigned to Acquisition SubPurchaser without the prior approval or consent of any other party. With respect to any Assumed Contract that may not be assigned to Purchaser without the prior approval or consent of any other party, all such necessary approvals or consents have been been, or will be, obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to such Assumed Contract other than Seller or Parent. Seller has provided Acquisition Sub or ITS with true, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date of each Business ContractClosing Date.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date of this Other than its Management Agreement and except ------------------ Franchise Agreement, if any, the schedule of Assumed Contracts attached to this Contract as disclosed on Schedule 2.15 attached Exhibit C, as such Exhibit may be supplemented from time to time in accordance with Section 4.01 (true, accurate and complete copies of which are included in the Property Records), to the extent it pertains to such Seller's Property, constitutes a list of all of the agreements, leases or other contracts affecting such Property and there are no other agreements, leases or other contracts with respect to such Property. Except as set forth herein or as provided in any Exhibit hereto, (a) , such Seller has fulfilled all of its obligations under the neither received nor delivered any written notice that any party to any Ground Lease or restaurant lease set forth in Exhibit C (as such Exhibit may be supplemented from time to time in accordance with Section 4.01) is currently in default thereunder or that any party to any other Assumed Contracts that were required Contract is currently in material default thereunder, and to be fulfilled prior to the date hereof; (b) Seller such Seller's knowledge, no event has not defaulted under any of the Assumed Contracts, nor has any event occurred or circumstance exists which, with the giving of notice, the lapse notice or passage of time and/or other action or inaction, would constitute a default by Seller under any of the Assumed Contracts; (c) no consent of any party to any of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inactiontime, would constitute a material default under thereunder. Such Seller has received no notice that any party to any such Assumed Contract intends to cancel or terminate such Assumed Contract. Such Seller shall not assign any Assumed Contract or any claim, right or benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party thereto, would constitute a breach or other contravention of such Assumed Contract or in any way adversely affect the Assumed Contracts rights of Buyer or such Seller thereunder. Such Seller and Buyer will use commercially reasonable good faith efforts (but without any payment of money by such Seller or Buyer other than incidental out-of-pocket expenses related thereto) to obtain any required consent of the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to such Assumed Contract other than Seller for the assignment thereof, or Parent. Seller has provided Acquisition Sub any claim, right or ITS with truebenefit arising thereunder or resulting therefrom, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts to Buyer as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date of each Business ContractBuyer may reasonably request.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date All of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled all of its obligations under the Assumed Contracts that were required to be fulfilled prior are legal, valid and binding on the Seller and, to the date hereof; (b) Seller's knowledge, the other parties thereto. Seller has is not defaulted and, to Seller's knowledge, no other party to the Assumed Contracts is, in violation of or default under any of the Assumed Contracts. No event, nor has any event occurred occurrence or condition exists which, with the lapse of time, the giving of notice, or both, or the lapse happening of time and/or other action any further event or inactioncondition, would constitute become a violation or default by the Seller or to Seller's knowledge, any other party under any Assumed Contract. Seller has not released any rights under any Assumed Contract. Seller is not subject to any legal obligations to renegotiate, nor does Seller have knowledge of a claim for a legal right to renegotiate, any Assumed Contract. Seller is not subject to any liability, or claim therefor, for or with respect to price adjustment under any Assumed Contract with the government of the Assumed Contracts; (c) no consent of United States or agency thereof, including any party to any of liability for defective pricing. Except as set forth in the Contracts Schedule, the Assumed Contracts is required constitute all of the contracts, leases and agreements necessary for the execution, delivery or performance conduct of this Agreement, or the Business in the manner currently conducted by Seller. Upon consummation of the transactions contemplated herebyby this Agreement and the Related Agreements including, other than as set forth in Schedule 2.4if necessary, and except under the Scheduled Contracts with respect obtaining Seller Consents, Buyer will succeed to the assignment all of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by rights and privileges of Seller on or prior to the date of this Agreement; (d) There has been no material default under any of the Assumed Contracts by the other parties to and all rights of Seller under the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts will be enforceable by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately Buyer after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and valid, binding and enforceable in accordance with their respective terms, in each case, except for such failure to be in full force and effect and valid, binding and enforceable that have been caused by a party to such Assumed Contract other than Seller or ParentClosing. Seller has provided Acquisition Sub or ITS with true, correct delivered to Buyer true and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts as set forth in Schedule 1.1(a)(vi) is true, correct and complete, including the commencement date any amendments or waivers. There are no unwritten amendments or waivers of each Business any Assumed Contract.

Assumed Contracts. Except for any Assumed Warranty Liabilities in existence on the date True and complete copies of this Agreement and except as disclosed on Schedule 2.15 attached hereto, (a) Seller has fulfilled all of its obligations under the Assumed Contracts that were required to be fulfilled prior to have been (or, in the date hereof; (b) Seller has not defaulted under any case of the Assumed ContractsOpen Purchase Orders, nor has any event occurred which, with the giving of notice, the lapse of time and/or other action will be) delivered or inaction, would constitute a default by Seller under any made available to Purchaser. Except as set forth in Section 3.8(a) of the Assumed Contracts; (c) no consent of any party to any Seller Disclosure Letter, each of the Assumed Contracts is required for the execution, delivery or performance of this Agreement, or the consummation of the transactions contemplated hereby, (other than as set forth in Schedule 2.4, and except under the Scheduled Contracts with respect to the assignment of the Scheduled Contracts to Acquisition Sub, all such consents have been obtained by Seller on or prior to the date of this Agreement; (dOpen Purchase Orders) There has been no material default under any of the Assumed Contracts by the other parties to the Assumed Contracts at any time after January 1, 2009, and no event has occurred since January 1, 2009 which, with the giving of notice, the lapse of time and/or other action or inaction, would constitute a material default under any of the Assumed Contracts by the other parties to the Assumed Contracts; and (e) Seller has not assigned any of its rights or interests in any Assumed Contract to any person, and all of the Assumed Contracts are, and immediately after the sale and assignment of the Assumed Contracts to Acquisition Sub as contemplated by this Agreement shall continue to be, in full force and effect and is valid, binding and enforceable in accordance with their respective termsits terms (except to the extent that enforcement may be affected by Laws relating to bankruptcy, in each casereorganization, except for such failure to be insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies) on Seller and the other parties thereto and is in full force and effect and valideffect. Neither Seller nor, binding and enforceable that have been caused by a to Seller’s Knowledge, any other party to such thereto is in default in any material respect under any Assumed Contract (other than the Open Purchase Orders) (and no condition exists that, with notice or lapse of time or both, would become such a default by Seller or Parentor, to Seller’s Knowledge, any such other party). Seller has provided Acquisition Sub or ITS with true, correct and complete copies of all of the Assumed Contracts. All information regarding the Business Contracts Except as set forth in Schedule 1.1(a)(viSection 3.8(b) of the Seller Disclosure Letter, none of the Assumed Contracts (other than the Open Purchase Orders) is truecurrently being renegotiated. Except as set forth in Section 3.8(c) of the Seller Disclosure Letter, correct no party to any of the Assumed Contracts (other than the Open Purchase Orders) has made, asserted or, to Seller’s Knowledge, has any defense, setoff or counterclaim under its Assumed Contract (other than the Open Purchase Orders) or has exercised any option granted to it to cancel, terminate or shorten the term of its Assumed Contract (other than the Open Purchase Orders). Section 3.8(d) of the Seller Disclosure Letter sets forth a true and completecomplete list of all rebate, allowance, customer payment and other similar programs currently offered by Seller in respect of any Products sold under any of the Assumed Contracts (other than the Open Purchase Orders). Section 3.8(e) of the Seller Disclosure Letter sets forth a description (including the commencement date amounts) of each Business Contractall prepaid items under the Assumed Contracts (other than the Open Purchase Orders). The aggregate amount payable to Seller under all Open Purchase Orders, net of freight costs, will exceed the aggregate value (determined in accordance with the accounting principles set forth on Schedule 2.4 hereof) of the Inventory to which such Open Purchase Orders relate by at least 10%.