EACH COMPANY TO DISTRIBUTE SUBSTANTIALLY ALL OF THEIR CASH AND
ACCOUNTS RECEIVABLE TO SELLERS AND THAT SUCH DISTRIBUTION HAS BEEN CONTEMPLATED
BY BUYER IN CONNECTION WITH ITS DETERMINATION OF THE PURCHASE PRICE; PROVIDED,
HOWEVER, THAT AT CLOSING, THE COMPANIES WILL RETAIN AN AMOUNT OF CURRENT
ACCOUNTS RECEIVABLE EQUAL TO, AT MINIMUM, THE AMOUNT OF ACCOUNTS PAYABLE OF THE
COMPANIES AS OF THE CLOSING DATE.
(H)
DEFENSE OF CLAIMS.
AFTER THE CLOSING, IF PRISM OR PROVIDENT
BECOMES A DEFENDANT OR COUNTER-DEFENDANT IN CONNECTION WITH A LAWSUIT WITH
RESPECT TO THE MATTER DESCRIBED IN ITEM 1 OF SCHEDULE 5(H) AND FOR WHICH BUYER
IS SEEKING INDEMNIFICATION PURSUANT TO SECTION 8, THEN BUYER AGREES TO CAUSE
PRISM OR PROVIDENT, AS APPLICABLE, TO VIGOROUSLY DEFEND AGAINST THE CLAIMS MADE
IN SUCH LAWSUIT WITH ITS COMMERCIALLY REASONABLE BEST EFFORTS.
8.
INDEMNIFICATION.
(A)
SURVIVAL; RIGHT TO INDEMNIFICATION.
ALL REPRESENTATIONS,
WARRANTIES, COVENANTS AND OBLIGATIONS OF THE PARTIES CONTAINED IN THIS AGREEMENT
AND IN ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH
SHALL SURVIVE THE CLOSING, REGARDLESS OF ANY INVESTIGATION MADE BY THE PARTIES
HERETO.
THIS SECTION 8 SHALL HAVE NO EFFECT UPON ANY OTHER OBLIGATION OF THE
PARTIES HERETO, WHETHER TO BE PERFORMED BEFORE OR AFTER THE CLOSING.
NO PARTY
TO THIS AGREEMENT SHALL HAVE LIABILITY FOR INDEMNIFICATION TO ANY OTHER PARTY
WITH RESPECT TO ANY REPRESENTATION OR WARRANTY UNLESS, ON OR BEFORE THE DATE
EIGHTEEN (18) MONTHS FOLLOWING OF THE CLOSING DATE, THE PARTY SEEKING
INDEMNIFICATION NOTIFIES THE OTHER PARTIES OF A CLAIM IN WRITING SPECIFYING THE
BASIS THEREOF IN REASONABLE DETAIL TO THE EXTENT THEN KNOWN BY THE PARTY SEEKING
INDEMNIFICATION.
(B)
SELLERS' INDEMNIFICATION.
SELLERS, INDIVIDUALLY AND SEPARATELY
(NOT JOINTLY AND SEVERALLY), HEREBY INDEMNIFY AND HOLD HARMLESS BUYER, AND EACH
OF ITS REPRESENTATIVES, EMPLOYEES, OFFICERS, DIRECTORS; STOCKHOLDERS,
CONTROLLING PERSONS AND AFFILIATES (COLLECTIVELY, THE "BUYER INDEMNIFIED
PERSONS") FROM, AND WILL PAY TO BUYER INDEMNIFIED PERSONS, THE AMOUNT OF, ANY
LOSS, LIABILITY, CLAIM, DAMAGE (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND
CONSEQUENTIAL DAMAGES), COST, EXPENSE (INCLUDING; WITHOUT LIMITATION, INTEREST,
PENALTIES, COSTS OF INVESTIGATION AND DEFENSE AND THE REASONABLE FEES AND
EXPENSES OF ATTORNEYS AND OTHER PROFESSIONAL EXPERTS) OR DIMINUTION OF VALUE,
WHETHER OR NOT INVOLVING A THIRD-PARTY CLAIM (COLLECTIVELY, "DAMAGES"), DIRECTLY
OR INDIRECTLY ARISING FROM, ATTRIBUTABLE TO OR IN CONNECTION WITH:
13
(I)
ANY MATERIAL REPRESENTATION OR WARRANTY MADE BY A SELLER IN THIS
AGREEMENT OR ANY OF THE SELLERS' DELIVERIES AT THE CLOSING, THAT IS, OR WAS AT
THE TIME MADE, MATERIALLY FALSE OR INACCURATE, OR ANY BREACH OF, OR
MISREPRESENTATION WITH RESPECT TO, ANY SUCH REPRESENTATION OR WARRANTY;
(II)
ANY BREACH BY A SELLER OF ANY MATERIAL COVENANT, AGREEMENT OR
OBLIGATION OF THE SELLERS CONTAINED IN THIS AGREEMENT;
(III)
THE CLAIM BY PRODUCTION AND MAINTENANCE, INC. ("PMI") FOR A BONUS
EQUAL TO 5% OF THE NET PROFIT OF THE UNIT UNDER THAT CERTAIN MANAGEMENT AND
OPERATIONS AGREEMENT DATED OCTOBER 1, 1997 BETWEEN PMI AND PROVIDENT AND MORE
PARTICULARLY DESCRIBED IN EXHIBIT A ATTACHED HERETO.
Notwithstanding anything to the contrary contained in this Agreement, Buyer