CORRECT IN ALL RESPECTS, ON THE DATE OF THIS AGREEMENT (EXCEPT TO THE EXTENT
CURED PRIOR TO THE CLOSING DATE AND UNLESS IN EACH CASE SUCH REPRESENTATIONS AND
WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE PARTHENON WARRANTIES) SPEAK AS OF
AN EARLIER DATE) AND ON THE CLOSING DATE OR SUCH EARLIER DATE AS THOUGH MADE ON
SUCH DATE; PROVIDED, HOWEVER, THAT THE BUYERS SHALL BE OBLIGATED TO PROCEED WITH
THE CLOSING UNLESS THE FAILURE OF ANY REPRESENTATION OR WARRANTY TO BE TRUE OR
CORRECT CONSTITUTES A MATERIAL ADVERSE EFFECT; (II) THE SELLERS SHALL HAVE
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS CONTAINED IN THIS AGREEMENT
TO BE PERFORMED BY IT PRIOR TO THE CLOSING (IT BEING AGREED THAT, PROVIDED THE
SELLERS COMPLY WITH THEIR OBLIGATIONS UNDER THIS AGREEMENT TO USE COMMERCIALLY
REASONABLY EFFORTS TO OBTAIN SUCH CONSENTS, THE FAILURE TO DELIVER ANY CONSENT
SHALL NOT BE DEEMED TO CONSTITUTE NONCOMPLIANCE OF ANY COVENANT); AND (III) THE
BUYERS SHALL HAVE RECEIVED A CERTIFICATE SIGNED BY AN OFFICER OF EACH OF THE
SELLERS AND IHI CERTIFYING THE MATTERS SET FORTH IN CLAUSE (II) HEREOF AND
CERTIFYING THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS OR, IF ANY SUCH REPRESENTATIONS
AND WARRANTIES ARE QUALIFIED BY MATERIALITY, IN ALL RESPECTS, AS OF THE CLOSING
DATE (UNLESS SUCH REPRESENTATIONS AND WARRANTIES SPEAK AS OF AN EARLIER DATE)
AND EXCEPT TO THE EXTENT OTHERWISE DISCLOSED IN SUCH CERTIFICATE.
NOTWITHSTANDING THE FOREGOING: (A) IF THE CLOSING SHALL OCCUR AFTER THE SELLERS'
DISCLOSURE OF BREACHES OF A REPRESENTATION OR WARRANTY BY THE SELLERS THAT DID
NOT CONSTITUTE A MATERIAL ADVERSE EFFECT OR BECAUSE OF A FAILURE OF THE SELLERS
TO SO OBTAIN A CONSENT, SUCH BREACH OR FAILURE SHALL NOT BE DEEMED WAIVED FOR
ANY PURPOSE AND THE SELLERS AND IHI SHALL BE FULLY RESPONSIBLE FOR SUCH BREACH
OR NON PERFORMANCE AND BE RESPONSIBLE TO INDEMNIFY THE BUYERS IN ACCORDANCE WITH
SECTION 8 HEREOF; AND (B) IF ANY OF THE ASSETS ARE DAMAGED OR SUFFER A LOSS
COVERED BY INSURANCE BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE,
THE BUYERS SHALL HAVE THE RIGHT TO ELECT TO EITHER: (I) RECEIVE THE FULL
INSURANCE PROCEEDS WHEN RECEIVED BY THE SELLERS AND THE AMOUNT OF THE NET
TANGIBLE ASSET VALUE UNDER SECTION 2 SHALL BE CALCULATED AS IF SUCH LOSS HAD NOT
OCCURRED TO THE EXTENT OF THE INSURANCE PROCEEDS PAID OR PAYABLE TO THE BUYERS;
OR (II) ALLOW THE SELLERS TO RETAIN SUCH PROCEEDS AND REQUIRE THAT THE FULL
AMOUNT OF THE LOSS BE REFLECTED IN REDUCING THE CALCULATION OF THE NET TANGIBLE
ASSET VALUE.
(B)
BILL OF SALE.
THE SELLERS SHALL HAVE
EXECUTED A BILL OF SALE AND ASSIGNMENTS, SUBSTANTIALLY IN THE FORM OF EXHIBIT D
HERETO;
(C)
RELEASE OF LIENS.
ALL ENCUMBRANCES
EXISTING WITH RESPECT TO THE ASSETS SHALL HAVE BEEN DISCHARGED AND RELEASED AS
OF THE CLOSING DATE PURSUANT TO (I) THE CREDIT
40
AGREEMENT, DATED AS OF SEPTEMBER 24, 1999, AMONG IHI,