shall be
made by Buyer with respect to the due and timely performance of the covenants
and agreements, or with respect to the correctness of or due compliance with any
of its representations and warranties, contained herein and such default or
breach cannot be cured and has not been waived;
provided, however, no such party may exercise any right of termination pursuant
to this Section 9(m)(i) if the event giving rise to such termination right shall
be due to the willful failure of such party to perform or observe in any
material respect any of the covenants or agreements set forth herein to be
performed or observed by such party.
(II)
IN THE EVENT OF TERMINATION OF THIS AGREEMENT PURSUANT TO
SECTION 9(M)(I) (A), 9(M)(I)(B) OR 9(M)(I)(D), THE EARNEST MONEY DEPOSIT WILL BE
FORFEITED TO SELLERS (IN EQUAL PROPORTIONS) BY BUYER, AND THIS AGREEMENT WILL
FORTHWITH BECOME VOID AND THERE WILL BE NO LIABILITY OR OBLIGATION ON THE PART
OF BUYER, SELLERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS OR SHAREHOLDERS,
EXCEPT THAT SECTIONS 7(C), 8, 9(B), 9(C) AND THIS SECTION 9(M) WILL SURVIVE ANY
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
(N)
AS USED IN THIS AGREEMENT, THE TERM "BUSINESS DAY" MEANS A DAY
WHICH IS NOT A SATURDAY, SUNDAY OR LEGAL HOLIDAY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Signatures
To evidence the binding effect of the foregoing terms and conditions, the
parties hereto have caused this Agreement to be executed and delivered as of,
but not necessarily on, the date first above written.
Sellers:
/s/ Billie J. Eustice
Billie J. Eustice, Individually
THE GARY L. LITTLE TRUST
By:
/s/ Glen Stoner
Glen Stoner, Trustee
Buyer:
ARKANOVA ACQUISITION CORPORTION
By:
/s/ Pierre Mulacek
Pierre Mulacek, President
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Schedule 5(h)
1.
THERE HAVE BEEN CONTRACTUAL AGREEMENTS IN THE PAST BETWEEN
PROVIDENT AND PRODUCTION AND MANUFACTURING, INC., AN INDEPENDENT CONTRACTOR,
CONCERNING OPERATIONAL ACTIVITIES RELATED TO THE UNIT, WHICH INCLUDE A
MANAGEMENT AND OPERATIONS AGREEMENT DATED OCTOBER 1, 1997., AS AMENDED.
IT IS
SELLERS', PROVIDENT'S AND PRISM'S POSITION THAT THEY ARE NOT SUBJECT TO THE 5%
NET PROFITS TERMS OF SAID MANAGEMENT AND OPERATIONS AGREEMENT.
2.
THE COMPANIES ARE
THE PLAINTIFFS IN A LAWSUIT
FILED IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, GREAT FALLS DIVISION,
AGAINST MURPHY PHILLIPS, INDIVIDUALLY, AS EXECUTOR OF THE ESTATE OF FLOYD
FULLINGIM AND AS TRUSTEE OF THE FORD
AND MYRTLE FULLINGIM TRUST, WALLACE
BULLINGTON, O.O "RED" THOMPSON AND MONTEX ENERGY TECHNOLOGIES, INC. INVOLVING A
LISTING AGREEMENT RELATING TO THE SALE OF PROVIDENT'S OIL AND GAS PROPERTIES.
IT IS SELLERS', PRISM'S AND PROVIDENT'S POSITION THAT THIS LISTING AGREEMENT HAS
EXPIRED AND IS UNENFORCEABLE.
IT IS THE POSITION OF THE DEFENDANTS THAT THE
LISTING AGREEMENT HAS NOT EXPIRED.
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