EXHIBIT 10.1
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated September 1, 2005, is between DELTA PETROLEUM CORPORATION
("Delta"), having an address of 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, and SAVANT RESOURCES LLC, a Colorado limited liability
company ("Savant"), 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000-0000. Delta and Savant shall be referred to herein, individually, as a
"Party," and, collectively, as the "Parties."
Recitals
A. Savant owns or controls an undivided fifty percent (50%) of the
operating rights and working interests in approximately 279,160 gross acres
of certain leasehold estates created by the oil and gas leases (the "CRB
Leases") described in Exhibit A-1 hereto, insofar as the CRB Leases cover the
land (the "CRB Land") described in Exhibit A-1 hereto. The CRB Leases are
subject to and burdened by those certain agreements, contracts, instruments,
declarations and orders (collectively, the "CRB Contracts") described in
Exhibit A-2 hereto, including, that certain Acquisition and Exploration
Agreement, dated October 24, 2002, between Savant and EnCana Oil & Gas (USA)
Inc. ("EnCana"), as amended (collectively, the "EnCana Agreement") (a copy of
which is attached as Exhibit A-3 hereto). Also, Savant owns or controls an
undivided 0.75% of the operating rights and working interests (the "Savant
Reversion) after Project Payout (as defined in Section 14 of the EnCana
Agreement) in approximately 462,412 gross acres as described in Exhibit A-1
hereto. In addition, Savant has the right to acquire fifty percent (50%) of
the operating rights and working interests in additional CRB Leases of
additional CRB Lands consisting of approximately 141,000 gross acres acquired
directly by Delta from third parties for the benefit of Delta and Savant,
which additional CRB Leases and CRB Lands are also described on Exhibit A-1
hereto.
X. Xxxxxx desires to sell and assign, and Delta desires to purchase and
acquire all of Savant's right, title and interest in and to the CRB Leases
and CRB Contracts in accordance with the terms and conditions of this
Agreement.
C. Piceance Gas Resources, LLC, a Colorado limited liability company
("Piceance Gas"), was organized in accordance with that certain Piceance Gas
Resources, LLC Limited Liability Company Agreement (the "Piceance Gas
Agreement"), dated effective as of February 14, 2005, among Orion Energy
Partners L.P., Teton Piceance LLC and PGR Partners, LLC (a copy of which is
attached as Exhibit B-3 hereto). Piceance Gas owns certain rights and
interests in and to the leasehold estates created by the oil and gas leases
(the "Piceance Leases") described in Exhibit B-1 hereto, insofar as the
Piceance Leases cover the land (the "Piceance Land") described in Exhibit B-1
hereto. The Piceance Leases are subject to and burdened by those certain
agreements, contracts, instruments, declarations and orders (collectively,
the "Piceance Contracts") described in Exhibit B-2 hereto. The CRB Leases and
the Piceance Leases shall be referred to herein, collectively, as the
"Leases."
D. PGR Partners, LLC, a Colorado limited liability company ("PGR"), was
organized in accordance with that certain PGR Partners, LLC Operating
Agreement (the "PGR Agreement"), dated effective as of January 14, 2005, as
amended (a copy of which is attached as Exhibit B-4 hereto). PGR owns a 25%
membership interest in Piceance Gas (the "Piceance Gas Interest"). Savant
owns a 69.703125% membership interest in PGR (the "PGR Interest").
X. Xxxxxx desires to sell and assign, and Delta desires to purchase and
acquire the PGR Interest in accordance with the terms and conditions of this
Agreement.
Agreement
IN CONSIDERATION OF TEN DOLLARS ($10.00), the mutual premises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Purchase and Sale. In consideration of the payment by Delta to
Savant of the Purchase Price (as defined in Section 3 below), and subject to
the terms and conditions of this Agreement, at the Closing (as defined in
Section 9 below), Savant agrees to sell and assign, and Delta agrees to
purchase and acquire all of Savant's right, title and interest in and to the
following (collectively, the "Assets"), but reserving and excepting unto
Savant the Excluded Assets (as described in Section 1(g) below):
(a) CRB Leases. The CRB Leases;
(b) CRB Contracts. The CRB Contracts;
(c) Savant Reversion The Savant Reversion and the Relinquished
Override (as described in Section 15 of the EnCana Agreement).
(d) PGR Interest. The PGR Interest.
(e) Data. Subject to Section 1(g)(ii) below, copies of all
geological, geophysical, engineering and technical data, reports and
information in Savant's possession including, all raw and processed data, and
interpretations, write-ups, presentations and reports therefrom, the well
logs from the BN # 1-9 well, MT data, seismic data, magnetic tapes and field
notes (collectively, the "Data").
(f) Records. Subject to the Excluded Assets below, copies of the
CRB Leases, the CRB Contracts, the Piceance Leases, the Piceance Contracts
and all other documents related to the Assets in Savant's possession or
control or to which Savant has access through Piceance Gas or PGR
(collectively, the "Records").
(g) Excluded Assets. Notwithstanding anything to the contrary,
Savant hereby expressly reserves and excepts from the Assets all of the
following (the "Excluded Assets"):
(i) All existing overriding royalty interests, other than the
Relinquished Override (as described in the EnCana Agreement), reserved by
Savant or assigned by Savant to Savant's designees burdening the CRB Leases,
and all overriding royalty interests to be assigned to or reserved by Savant
pursuant to the terms of prior existing agreements or this Agreement to the
extent that such overriding royalty interests do not reduce the net revenue
attributable to the CRB Leases, below the net revenue interests reflected in
Exhibit A-1 hereto.
(ii) All agreements, data and other information that cannot
be disclosed or assigned to Delta as a result of confidentiality arrangements
under agreements between Savant and unaffiliated third parties.
Notwithstanding the foregoing, Savant shall use its commercially reasonable
efforts to obtain permission to deliver all such agreements, data and other
information to Delta. To the extent that Savant is required to pay a
transfer fee or additional license fee to obtain permission to deliver such
agreements, data and other information, Savant shall not be obligated to
deliver the same unless Delta shall agree to reimburse Savant for such fees.
(iii) All income, revenue, receipts, proceeds, benefits,
monies, refunds, credits, accounts receivable, gains, awards, settlements,
adjustments, production (including all oil, natural gas, natural gas liquids
or condensate inventory), or other amounts due or payable to Savant under,
with respect to, or attributable to, any of the Assets with respect to any
period prior to the Effective Date (as defined in Section 2 below).
(iv) All claims and causes of action of Savant arising from
or relating to the Assets and relating to and only to times prior to the
Effective Date.
2. Effective Date.
(a) Effective Date. The effective date of the purchase and sale
of the CRB Leases shall be August 15, 2005, and the effective date of the
purchase and sale of the PGR Interest shall be July 1, 2005 (as applicable,
the "Effective Date"). Savant shall be responsible for and shall pay for all
costs, expenses and charges allocable to the Assets for the period prior to
the Effective Date, and Delta shall assume and pay for all costs, expenses
and charges allocable to the Assets for the period on and after the Effective
Date. Savant shall pay Delta for Savant's share of all leasehold acquisitions
within the CRB Area reflected on Exhibit F hereto in which Savant elected to
participate prior to the Effective Date. Savant shall be entitled to all
cash, revenue, income, gain, refunds and benefits attributable to the Assets
for the period prior to the Effective Date, and Delta shall be entitled to
all cash, revenue, income, gain, refunds and benefits attributable to the
Assets for the period on or after the Effective Date. All real property, ad
valorem, personal property, severance, production and similar taxes arising
in connection with or related to the Assets shall be prorated as of the
Effective Date. Savant shall pay all such items for all periods prior to the
Effective Date, and shall be entitled to all refunds and rebates with regard
to such periods. If Delta pays additional taxes or charges assessed upon or
levied against any of the Assets after Closing with respect to any period
prior to the Effective Date, Savant shall promptly reimburse Delta the amount
thereof upon presentation of a receipt therefor. If Savant elects to
challenge the validity of such assessment or levy, or any portion thereof,
Delta shall extend reasonable cooperation to Savant in such efforts, at no
expense to Delta.
(b) Settlement Statement. On or before September 29, 2005, Delta
shall deliver to Savant a written settlement statement (the "Settlement
Statement") with a detailed description of all the adjustments described in
Section 2(a) above and any Defect Adjustment pursuant to Section 4(c) below.
Upon request, Delta shall deliver to Savant reasonable back-up detail on the
items contained in the Settlement Statement. On or before October 14, 2005,
Savant and Delta shall use their reasonable efforts in good faith to agree
upon all adjustments contained within the Settlement Statement, and the Party
owing any amount pursuant to the Settlement Statement shall pay such amount
to the other Party.
3. Purchase Price. In consideration of the assignment by Savant to
Delta of Savant's interest in the Assets (as defined in Section 1 above), and
subject to the terms and conditions of this Agreement, at the Closing (as
defined in Section 9 below), Delta shall pay to Savant an amount (the
"Purchase Price") equal to Seventy-Two Million Two Hundred and Seventy-Five
Thousand Three Hundred and Thirteen Dollars ($72,275,313.00 US) for Savant's
interest in the Assets in accordance with the allocation between the CRB
Leases and the PGR Interest described in Exhibit H hereto.
4. Title Review.
(a) Title Data. Savant shall make available to Delta in Savant's
office copies of all oil and gas leases, federal and state lease forms,
option agreements, proof of payment, affidavits of heirship, title opinions,
federal and state lease status reports, rental receipts, correspondence and
any other title material in Savant's possession relating to the Assets
(collectively, the "Title Data"). The Title Data shall be provided by Savant
to Delta hereunder without representation or warranty as to the accuracy,
completeness or correctness thereof.
(b) Title Defect Notice. If Delta determines that any of the CRB
Leases acquired after April 1, 2005 but prior to August 15, 2005, or any of
the Piceance Leases are subject to any Title Defects (as defined below), on
or before September 30, 2005, Delta shall deliver to Savant written notice
(the "Title Defect Notice") of such defects, along with written
documentation, to the extent available and in reasonable detail, describing
such Title Defects. Any Title Defect that is not contained in the Title
Defect Notice shall be deemed waived. The Parties, cooperatively, shall use
commercially reasonable efforts in good faith to curethe Title Defects to the
Parties' reasonable satisfaction.
(c) Defect Adjustment. If any Title Defects are not cured or
removed to Delta's reasonable satisfaction on or before the Closing, and
Delta does not waive such Title Defects, at the Closing, Savant and Delta
shall use their reasonable efforts in good faith to agree upon mutually
agreeable reduction in the Purchase Price for each of the Leases which are
affected by each such uncured and unwaived Title Defects (the "Defect
Adjustment"). Delta shall be deemed to have relinquished to Savant all of
Delta's right, title and interests in, to and under the CRB Leases to the
extent, and only to the extent, the CRB Leases are affected by such uncured
and unwaived Title Defects, and, at the Closing, Savant shall reserve unto
Savant all right, title and interest in and to the specific portion of such
CRB Leases which are affected by such Title Defect in the CRB Assignment (as
described in Section 8(a) below). . If the Defect Adjustment for the CRB
Leases is less than one percent (1%) of the Purchase Price allocable to the
CRB Leases, no adjustment shall be made to the Purchase Price. If the Defect
Adjustment for the CRB Leases is more than ten percent (10%) of the Purchase
Price allocable to the CRB Leases, either Delta or Savant shall have the
right to terminate this Agreement, by written notice delivered to the other
Party on or before the Closing. If the Defect Adjustment for the PGR Interest
is less than one percent (1%) of the Purchase Price allocable to the PGR
Interest, no adjustment shall be made to the Purchase Price. If the Defect
Adjustment for the PGR Interest is equal to or greater than one percent (1%)
of the Purchase Price allocable to the PGR Interest, Delta shall have the
right, in Delta's sole and absolute discretion, to terminate this Agreement
in its entirety. The Parties hereby acknowledge and agree that acceptance or
rejection of title to the PGR Interest is in toto with no proportionate
adjustment to be made. Further, the Parties acknowledge and agree that the
Title Defect procedure pursuant to this Section shall be Delta's sole and
exclusive remedy against Savant with respect to the Title Defects, and such
Title Defects shall not be deemed to be a breach of Savant's representations
pursuant to Section 5 below.
(d) Title Defect. For purposes of this Agreement, a "Title Defect"
shall mean any lien, encumbrance or defect which renders Savant's title to
the CRB Leases, or Piceance Gas' right to the Piceance Leases or Savant's
interest in PGR or PGR's interest in Piceance Gas less than marketable,
excluding Permitted Encumbrances (described in Section 4(e) below). If a
Title Defect may be cured or resolved by means of commercially reasonable
acts within the control of Buyer (i.e. obtaining instruments previously
missing in the chain of title), such defect shall not be considered a Title
Defect for purposes of this Agreement. For purposes of this Agreement,
"marketable" shall mean title:
(i) as to the CRB Leases (on a lease by lease basis)
obligates Savant to bear not more than that share of costs and expenses
relating to development of and operations on the land covered by each lease
equal to such Savant's net mineral acres covered by such lease divided by the
gross mineral acres in the land covered by such lease;
(ii) as to the CRB Leases (on a lease by lease basis)
entitles Savant to receive not less than that share of oil and gas produced
from the land covered by each lease equal to Savant's net mineral acres
covered by each lease divided by the gross mineral acres in the land covered
by the lease, multiplied by the net revenue interest reflected in Exhibit A-1
and B-1 hereto;
(iii) is free and clear of all mortgages and liens, except
liens for taxes not delinquent, excluding any and all mortgages, deeds of
trust, financing statements or security agreements covering a lessor's fee
estate in and under the leases to the extent placed of record after the
recording of the applicable lease;
(iv) entitles Savant to not less than 69.703125% of the rights
and benefits of membership in PGR;
(v) entitles PGR to not less than 25% of the rights and
benefits of membership in Piceance Gas;
(vi) as to the Piceance Leases (on a lease by lease basis)
obligates Piceance Gas to bear not more than a proportionate 100% working
interest; and
as to the Piceance Leases (on a lease by lease basis) entitles Piceance Gas
to receive not less than a proportionate 78.75% net revenue interest.
(e) Permitted Encumbrances. For purposes of this Agreement,
"Permitted Encumbrance" shall mean:
(i) the terms and conditions of the CRB Leases, the CRB
Contracts, the Piceance Leases and the Piceance Contracts;
(ii) lessor's royalties, overriding royalties, and net
profits interests, reversionary interests and similar burdens, if the effect
of such burdens do not reduce the net revenue interest described in Exhibits
A-1 or B-1 hereto;
(iii) preferential rights to purchase and required third
party consents to assignments and similar agreements, exclusive of
governmental consents or approvals, with respect to which prior to Closing:
(A) waivers or consents are obtained from the appropriate parties; or (B) the
appropriate time period for asserting such rights has expired without an
exercise of such rights;
(iv) all rights to consent by, required notices to, filings
with, or other actions by governmental entities in connection with the sale
or conveyance of oil and gas leases or interests therein, if the same are
customarily obtained subsequent to such sale or conveyance and neither
Savant nor Deltar has no reason to believe they cannot be obtained;
(v) conventional rights of reassignment requiring less than
one hundred eighty (180) days notice to the holders of such rights;
(vi) liens for taxes or assessments not yet due or delinquent
or, if delinquent, that are being contested in good faith in the normal
course of business;
(vii) vendors', carriers', warehousemen's, repairmen's
mechanics', workmen's, materialmen's, construction or other like liens
arising by operation of law in the ordinary course of business or incident to
the construction or improvement of any property in respect of obligations
which are not yet due;
(viii) any claim that those certain royalty deeds from Xxxxx
Shale Company to various parties conveying perpetual non-participation
royalty interests equal to 2.5% of all oil and gas produced from the
Piceance Land may be deemed to be an undivided 2.5% percent unleased fee
mineral interest in and under the Piceance Land: and
(ix) such Title Defects as Delta may have waived.
5. Savant's Representations. Savant hereby represents to Delta as
follows:
(a) Existence. Savant is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Colorado. PGR is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Colorado.
Piceance Gas is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Colorado.
(b) Authority. This Agreement has been duly authorized, executed
and delivered on behalf of Savant and, on or before the Closing, all
documents and instruments required hereunder to be executed and delivered by
Savant shall have been duly authorized, executed and delivered. This
Agreement does, and such documents and instruments will, constitute valid,
legal and binding obligations of Savant in accordance with their terms
subject to the effects of bankruptcy, insolvency, reorganization, moratorium
and similar laws, as well as to principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) No Conflict. Savant has the power and authority necessary to
enter into and perform this Agreement and the transactions contemplated
hereby, and the execution, delivery and performance of this Agreement by
Savant, and the transactions contemplated hereby, will not, with the passage
of time or the giving of notice or both: (i) violate any provision of
Savant's limited liability company operating agreement; (ii) violate any
judgment, order, ruling or decree applicable to Savant as a party in
interest; (iii) violate any law applicable to Savant or to this Agreement; or
(iv) result in the creation or imposition of any lien on Savant's interests
in the CRB Leases or the PGR Interest, as applicable.
(d) CRB Leases. Savant hereby warrants title to Savant's interest
in the CRB Leases, free and clear of all liens, encumbrances and defects of
title arising by, through or under Savant, but not otherwise, and subject to
the terms and conditions of this Agreement, the EnCana Agreement, the CRB
Contracts, the CRB Leases, the Permitted Encumbrances, and a proportionate
part of the landowners' and overriding royalties interests reflected in the
net revenue interests described in Exhibit A-1 hereto.
(e) PGR Interest. Savant owns all of the PGR Interest, and owns
such PGR Interest free and clear of all liens, claims and encumbrances, other
than those arising under: (a) the PGR Agreement; and (b) applicable federal
and state securities laws. The sale of the PGR Interest by Savant to Delta
will not violate the terms of any agreement with the other owners of
membership interests in PGR, or with PGR itself, cause a dissolution of PGR
or give rise to a right of first refusal or similar right on behalf of PGR or
any other member of PGR.
(f) Piceance Gas Interest. PGR owns all of the Piceance Gas
Interest, and owns such Piceance Gas Interest free and clear of all liens,
claims and encumbrances, other than those arising under: (a) the Piceance Gas
Agreement; and (b) applicable federal and state securities laws. The sale of
the PGR Interest by Savant to Delta will not violate the terms of any
agreement with the other owners of membership interests in Piceance Gas, or
with Piceance Gas itself, cause a dissolution of Piceance Gas or give rise to
a right of first refusal as to the Piceance Gas Interest, or similar right,
on behalf of Piceance Gas or any other member of Piceance Gas.
(g) Piceance Gas Leases. Piceance Gas owns the Piceance Gas
Leases, free and clear of all liens, encumbrances and defects of title
arising by, through or under Piceance Gas, but not otherwise, and subject to
the terms and conditions of this Agreement, the PGR Agreement, the Piceance
Gas Agreement, the Piceance Contracts and the Piceance Leases, the Permitted
Encumbrances and a proportionate part of the landowners' and overriding
royalties interests all as reflected in the net revenue interests described
in Exhibit B-1 hereto.
(h) PGR Financials. Savant has delivered to Delta the unaudited
financial statements of PGR (the "PGR Financials") dated June 30, 2005. To
Savant's knowledge, the PGR Financials: (i) are accurate, correct and
complete in all material respects and are in accordance with the books of
account and records of PGR; (ii) have been prepared on a consistent basis
throughout the indicated periods; and (iii) fairly present in all material
respects the financial condition, assets and liabilities, results of
operations and cash flows of PGR at the dates and for the relevant periods
indicated.
(i) Piceance Gas Financials. Savant has delivered to Delta the
unaudited financial statements of Piceance Gas (the "Piceance Gas
Financials") dated June 30, 2005. To Savant's knowledge, the Piceance Gas
Financials: (i) are accurate, correct and complete in all material respects
and are in accordance with the books of account and records of Piceance Gas;
(ii) have been prepared on a consistent basis throughout the indicated
periods; and (iii) fairly present in all material respects the financial
condition, assets and liabilities, results of operations and cash flows of
Piceance Gas at the dates and for the relevant periods indicated.
(j) Litigation. Except as disclosed in Exhibit C hereto, there is
no suit, action or proceeding by any person or entity or by an administrative
agency or governmental body, and no legal administrative or arbitration
proceeding pending or, to Savant's actual knowledge, threatened against
Savant or the Assets, which on the date hereof is still pending or
threatened, and which, if adversely determined, would impair or prohibit the
consummation of the transactions contemplated hereby.
(k) Brokers. Savant has not incurred any liability for brokers or
finders fees relating to the transactions contemplated by this Agreement for
which Delta shall have any responsibility whatsoever.
6. Delta Representations. Delta hereby represents to Savant as
follows:
(a) Existence. Delta is a corporation validly existing and in good
standing under the laws of the State of Colorado.
(b) Authority. This Agreement has been duly authorized, executed
and delivered on behalf of Delta and, at the Closing, all documents and
instruments required hereunder to be executed and delivered by Delta shall
have been duly authorized, executed and delivered. This Agreement does, and
such documents and instruments will, constitute valid, legal and binding
obligations of Delta in accordance with their terms subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and similar laws, as well
as to principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) No Conflict. Delta has the power and authority necessary to
enter into and perform this Agreement and the transactions contemplated
hereby, and the execution, delivery and performance of this Agreement by
Delta, and the transactions contemplated hereby, will not, with the passage
of time or the giving of notice or both: (i) violate any provision of the
organizational agreements of Delta; (ii) violate any judgment, order, ruling
or decree applicable to Delta as a party in interest; (iii) violate any law
applicable to Delta or to this Agreement; or (iv) result in the creation or
imposition of any lien on the Assets.
(d) Experience. By reason of Delta's experience and knowledge in
the evaluation, acquisition and operation of similar interests, Delta has
evaluated the merits and risks of the proposed investment in the Assets, and
has formed an opinion based solely upon Delta's experience and knowledge, and
not upon any representations or warranties by Savant, other than as
specifically set forth herein.
(e) Investment Representation. In acquiring an interest in the
Assets, Delta is acquiring such interest for Delta's own account for
investment purposes only and not with a view to resale or distribution. Delta
recognizes that such interest is speculative and involves substantial risk,
and that Savant has not made any guaranty upon which Delta has relied
concerning the possibility or probability of profit or loss as a result of
Delta's interest in the Assets.
(f) Financial Ability. Delta is an "accredited investor" as
defined in Rule 502 promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, has the financial ability to perform its
obligations pursuant to this Agreement, and has the financial ability to
sustain the loss of its entire investment hereunder.
(g) Due Diligence. Delta is sophisticated in the evaluation,
purchase, ownership and operation of oil and gas properties and securities of
entities involved in oil and gas matters. In entering into this Agreement
and consummating the transactions contemplated by this Agreement, Delta has
relied and shall rely solely on the express representations and covenants of
Savant in this Agreement, and the documents delivered by or made available to
Delta by Savant pursuant to this Agreement, Delta's independent investigation
of and judgment with respect to the investment hereunder and the advice of
Delta's own legal, tax, economic, environmental, engineering, geological and
geophysical advisors and not on any comments or statements of any
representatives of, or consultants or advisors engaged by Savant. Except for
the representations set forth in Section 5 above, or elsewhere as
specifically provided in this Agreement, Delta is acquiring Savant's interest
in the Assets "AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT RECOURSE."
(h) No Brokers. Delta has incurred no liability, contingent or
otherwise, for broker's, finder's or consultant's fees or other compensation
or interests in connection with this transaction for which Savant shall have
any responsibility whatsoever.
7. Covenants.
(a) Savant Covenants. Savant hereby covenants and agrees with
Delta as follows:
(i) Commencing immediately upon execution of tis Agreement,
Savant shall make available to Delta in Savant's offices all information in
its possession related to the Assets, including without limitation, all
information related to the CRB Leases and all information with respect to PRG
and Piceance in Savant's possession or control.
(ii) For all periods of time from the Effective Date through
and includingthe Closing, Savant represents that it has used, and that it
will, use, Savant's commercially reasonable efforts in good faith: (A) to
maintain the Assets in full force and effect; (B) to pay or cause to be paid
all costs and expenses incurred in connection therewith in substantially the
same manner as Savant has previously paid such costs and expense; (C) to
perform and comply with all material covenants and conditions contained in
the CRB Leases, the CRB Contracts, the PGR Agreement, the Piceance Agreement,
the Piceance Leases and the Piceance Contracts.
(iii) Prior to the Closing, without the prior written consent
of Delta (which consent shall not be unreasonably withheld by Delta), Savant
shall not: (A) enter into any new agreements or commitments with respect to
the Assets which extend beyond the Closing; (B) except in an emergency
situation, commit to any expenditures with respect to any of the Assets in
excess of Fifty Thousand Dollars ($50,000); (C) release or abandon all or any
portion of any of the CRB Leases; (D) modify, amend or terminate any of the
CRB Leases or the CRB Contracts; or (E) encumber, sell or otherwise dispose
of any of the Assets. Except as disclosed on Schedule 7.a.iii hereto, from
the Effective Date through the date of this Agreement, Savant and/ or
Piceance Gas has not committed to any expenditures with respect to any of the
Assets which exceed fifty thousand dollars ($50,000) , net to Savant's
interest.
(iv) Savant shall promptly notify Delta of any suit, action or
other proceeding before any court or governmental agency and any cause of
action that relates to the Assets or that might result in impairment or loss
of Savant's title to any portion of the Assets or the value thereof arising
or threatened between the date of this Agreement and the Closing.
(v) Savant shall use its commercially reasonable efforts to
take or cause to be taken all such actions as may be necessary or advisable
to consummate and make effective the sale of Savant's interest in the Assets
and the transactions contemplated by this Agreement and to assure that, as of
the Closing, Savant will not be under any material legal or contractual
restriction that would prohibit or delay the timely consummation of such
transactions.
(vi) Savant shall use commercially reasonable efforts to cause
Aall the representations and warranties of Savant contained in this Agreement
to be true and correct on and as of the Closing. To the extent the conditions
precedent to the obligations of Delta are within the control of Savant,
Savant shall use commercially reasonable efforts to cause such conditions to
be satisfied on or prior to the Closing and, to the extent the conditions
precedent to the obligations of Delta are not within the control of Savant,
Savant shall use Savant's commercially reasonable best efforts to cause such
conditions to be satisfied on or prior to the Closing Date.
(b) Delta Covenants. Delta hereby covenants and agrees with
Savant as follows:
(i) Delta shall use its commercially reasonable efforts to take
or cause to be taken all such actions as may be necessary or advisable to
consummate and make effective the purchase of Savant's interest in the Assets
and the transactions contemplated by this Agreement and to assure that, as of
the Closing Date, Delta will not be under any material corporate, legal or
contractual restriction that would prohibit or delay the timely consummation
of such transactions.
(ii) Delta shall use commercially reasonable efforts to cause
all the representations and warranties of Delta contained in this Agreement
to be true and correct on and as of the Closing. To the extent the conditions
precedent to the obligations of Savant are within the control of Delta, Delta
shall use commercially reasonable efforts to cause such conditions to be
satisfied on or prior to the Closing and, to the extent the conditions
precedent to the obligations of Savant are not within the control of Delta,
Delta shall use Delta's commercially reasonable best efforts to cause such
conditions to be satisfied on or prior to the Closing.
8. Conditions to Closing.
(a) Delta's Conditions. The obligations of Delta to consummate
the transactions contemplated by this Agreement are subject, at the option of
Delta, to the satisfaction or waiver of the following conditions:
(i) All representations and warranties of Savant contained in
this Agreement shall be true in all material respects at and as of the
Closing as if such representations and warranties were made at and as of the
Closing.
(ii) Savant shall have performed and satisfied all covenants
and agreements required by this Agreement to be performed and satisfied by
Savant at or prior to the Closing.
(iii) The Board of Directors of Delta shall have approved this
Agreement on or before August 31, 2005.
(iv) Delta shall have obtained the right to acquire one
hundred percent (100%) of the membership interests in PGR.
(v) Savant owns legal record title to a portion of the CRB
Leases as nominee for the benefit of Captiva Resources, Inc., JEL Resources,
LLC, MSW Resources, Inc., and VFC Company, LLC (collectively, the
"Participants"). Each of the Participants shall have entered into an
agreement with Savant whereby the Participants assign their beneficial
interests in the CRB Leases and ratify this Agreement with respect to the CRB
Leases including, without limitation, the provisions in Section 11 hereof.
The form of such ratification shall be delivered at the Closing.
(vi) Savant shall have entered into consulting agreement
satisfactory to Delta, covering a period of not less than two (2) years,
with Xxxx Xxxxxxxxxx.
(vii) Delta shall have received assurances which, in its
sole discretion, are acceptable to determine that the claims disclosed on
Exhibit C hereto, will not serve to divest Delta of title to any of the
Assets to be transferred pursuant to this Agreement. The Parties hereby
acknowledge and agree that this provision shall be Delta's sole and exclusive
remedy against Savant with respect to the claims disclosed on Exhibit C
hereto, and such claims shall not be deemed to be a breach of Savant's
representations pursuant to Sections 5(e) and 5(f) above.
(b) Savant's Conditions. The obligations of Savant to consummate
the transactions contemplated by this Agreement are subject, at the option of
Savant, to the satisfaction or waiver of the following conditions:
(i) All representations and warranties of Delta contained in
this Agreement shall be true in all material respects at and as of the
Closing as if such representations and warranties were made at and as of the
Closing.
(ii) Delta shall have performed and satisfied all covenants
and agreements required by this Agreement to be performed and satisfied by
Delta at or prior to the Closing.
(iii) The Board of Directors of Savant shall have approved
this Agreement on or before August 31, 2005.
(c) Mutual Conditions. The obligations of Delta and Savant to
consummate the transactions contemplated by this Agreement are subject, at
the option of each Party, to the satisfaction or waiver by Parties of the
following conditions:
(i) There shall not be pending or instituted, threatened or
proposed, any action or proceeding by or before any court or administrative
agency or any other person challenging or complaining of, or seeking to
collect damages or other relief in connection with, the transactions
contemplated by this Agreement or which, if successful, would materially
diminish the value of the Assets.
(ii) No state or federal statute, rule, regulation or action
shall exist or shall have been adopted or taken and no judicial or
administrative decision shall have been entered (whether on a preliminary or
final basis), that would prohibit, restrict or delay the consummation of the
transactions contemplated by this Agreement or make illegal the payments due
hereunder.
9. Closing. The closing (the "Closing") of the transactions described
herein shall occur at Delta's offices in Denver, Colorado, on September 30,
2005 at 10:00 AM Mountain Time. At the Closing, the following shall occur:
(a) CRB Assignment. Savant shall execute, acknowledge and deliver
to Delta an assignment (the "CRB Assignment") of Savant's interest in and to
the CRB Leases, the CRB Contracts Savant Reversion and the Relinquished
Override, reserving and excepting unto Savant the Excluded Assets,
substantially in the form of Exhibit D hereto. The CRB Assignment shall be
subject to and burdened by all of the terms and conditions of this Agreement,
the EnCana Agreement, the CRB Agreements and the CRB Leases, and Delta shall
assume and agree to bear all of Savant's duties, obligations and liabilities
arising in connection with or related thereto
(b) PGR Assignment. Savant shall execute and deliver an
assignment (the "PGR Assignment") of the PGR Interest in the form of Exhibit
E hereto. The PGR Assignment shall be subject to and burdened by all of the
terms and conditions of the PGR Agreement, and Delta shall assume and agree
to bear all of Savant's duties, obligations and liabilities arising in
connection with or related to the PGR Agreement.
(c) Purchase Price. Delta shall pay to Savant the Purchase Price
by cashier's or certified check, or wire transfer to the applicable Savant
account (as designated in writing by Savant). The Parties shall use their
commercially reasonable efforts to agree upon an allocation of the Purchase
Price among each of the CRB Leases.
(d) Data and Records. On or before ten (10) days after the
Closing, Savant shall deliver to Delta the Data (as described in Section 1(e)
above) and the Records (as described in Section 1(f) above).
(e) CRB Phase II Agreement. Upon Closing, the CRB Phase II
Agreement ("Phase II") dated March 1, 2004, by and between Savant and Delta
shall terminate as to all provisions save and except provisions requiring
assignment of interests between the parties. Upon completion of all
assignment obligations, the remainder of Phase II shall terminate.
10. Consent. The Parties hereby acknowledge and agree that EnCana has
previously consented to assignments from Savant to Delta of interests under
the EnCana Agreement, and EnCana's consent may not be required for the
transaction contemplated hereby. In the event Delta elects to close this
transaction prior to receiving consent from EnCana, after the Closing, the
Parties hereby agree to use their commercially reasonable efforts in good
faith to obtain the consent of EnCana to the assignment of Savant's interest
in the EnCana Agreement hereunder.
11. Standstill Period and Savant Override.
(a) Standstill Period. For a period commencing on the date of this
Agreement and expiring on August 31, 2007 (the "Standstill Period"), Savant
and/or the Participants shall not acquire any leasehold, working interests,
operating rights, lease option, seismic option, farm-out, option farm-out, or
acreage contribution agreements (collectively, "Additional Working
Interests") covering the land (the "CRB Area") depicted in Exhibit F hereto,
or covering the land (the "Piceance Area") depicted in Exhibit G hereto.
During the Standstill Period, if Savant or any of the Participants acquire
landowner royalty, overriding royalty or mineral interest in the CRB Area,
save and except transactions among Savant ,the Participants and/ or the
parties described in Section 11(c) below, Delta shall be entitled to acquire
an undivided fifty percent (50%) of such interest by paying fifty percent
(50%) of the acquisition costs.
(b) Savant Override. During the Standstill Period, if Delta
acquires any Additional Interests covering any of the land within the CRB
Area, Delta shall promptly execute, acknowledge and deliver to Savant an
assignment, in recordable form, of an overriding royalty interest (the
"Savant Override") equal to three and one-half percent (3.50%) of 8/8ths of
all oil, gas and other hydrocarbons produced, saved and marketed from the
land covered by such Additional Working Interests, and all lands pooled,
unitize or communitized therewith; provided, however, that the Savant
Override shall be reduced to the extent that the Savant Override would reduce
Delta's net revenue interest in such Additional Interest below a
proportionate 83.50% net revenue interest. The Savant Override shall be
proportionately reduced, on a lease-by-lease basis, to the extent a lease
covers less than the entire oil and gas fee mineral interest, and to the
extent that Delta acquires less than the entire leasehold estate created by
such lease. The Savant Override shall be free and clear of all costs of
drilling, development and operation, except for a proportionate share of
costs for processing, transportation and taxes in accordance with the
landowners' royalty under the applicable lease. The Savant Override shall not
be paid or accrued on oil, gas or other hydrocarbons unavoidably lost, or
used for operations, development or production purposes including, without
limitation, re-pressuring or recycling operations or pressure maintenance.
The Savant Override shall burden and apply to all extensions and renewals of
the Additional Leases taken with six (6) months of the expiration or
termination of such Additional Leases.
(c) Additional Royalties. For a period commencing on the date of
this Agreement and expiring on October 15, 2005, Delta shall not acquire any
mineral, landowner's royalty or overriding royalty interests (collectively,
"Additional Royalties") from Savant, the Participants, Xxxx X. Xxxxxxxxxx,
Xxxxx X. Xxxxx, Xxxx X. Xxxx, Xxx X. Xxxxxxxxxx, Xxx X. Law or Xxxxxx X.
Xxxxxx, their affiliates, or their spouses, children or trusts for such
parties, covering any land within the CRB Area. From and after October 15,
2005 and during the remainder of the Standstill Period (described in Section
11 above), if either Party (the "Acquiring Party") acquires any Additional
Royalties, either directly or indirectly, the Acquiring Party shall deliver
written notice thereof to the other Party (the "Receiving Party") describing
the interest acquired, the actual cost thereof, and the offering the
Receiving Party the opportunity to acquire the Receiving Party's
proportionate share of such Additional Royalties in accordance with the terms
and conditions hereof. For purposes of this Section 11(c), Savant's
proportionate share shall be equal to fifty percent (50%), and Delta's
proportionate share shall be equal to fifty percent (50%). The Receiving
Party shall have thirty (30) days after receipt of such notice in which to
elect to participate in such acquisition by written notice delivered to the
Acquiring Party of the Receiving Party's election to participate along with
payment of the Receiving Party's proportionate share of the cost of such
acquisition. The failure of the Receiving Party to deliver to the Acquiring
Party such written election, along with payment, within said time period
shall be deemed conclusively to be an election not to participate in such
acquisition. If the Receiving Party elects to participate in such Additional
Royalties hereunder, the Acquiring Party shall promptly execute, acknowledge
and deliver to the Receiving Party an assignment, in recordable form, of the
Receiving Party's proportionate share of such Additional Royalties.
(d) Information. Upon request by Savant, Delta shall deliver to
Savant a written description of all Additional Working Interests and
Additional Royalties acquired by Delta covering any land within the CRB Area.
Upon request by Savant, Delta shall deliver to Savant copies of all
information related to the CRB Area to which a working interest owner is
entitled pursuant to the applicable operating agreement including, without
limitation, daily reports, well data, tests and logs.
12. Technical Support. For a period of two years from and after the
date of the Closing, Savant agrees to make available to Delta Savant's
management and technical personnel, including specifically Xxxx Xxxxxxxxxx
from time to time, to assist Delta with evaluating, analyzing, interpreting,
acquiring, marketing, exploring and developing prospects (collectively, the
"Technical Support") on the CRB Land in accordance with the terms and
conditions of this Section. Upon the request of Delta, Savant and Delta shall
use their reasonable efforts in good faith to mutually agree upon an
appropriate time commitment, budget and schedule for the Technical Support.
Delta shall promptly reimburse Savant for costs and expenses incurred by
Savant in connection with or related to the Technical Services including,
without limitation, consulting fees, geologic and geophysical data, airfare,
rental car, hotel, meals and other out-of-pocket expense incurred to third
parties. Savant's obligation to perform the Technical Support for Delta
hereunder shall be non-exclusive, and Savant and Savant's employees and
consultants shall have the right to perform the Technical Support for
Savant's own account and for third parties.
13. Lynx Override. Pursuant to Section 17.2 of the Piceance Agreement,
following completion of the 8 Xxxxx (as described in the Piceance Agreement),
PGR has the right to request from the required third parties an approval of
an assignment (the "Lynx ORRI Assignment") of a proportionate 2.50%
overriding royalty interest burdening the Piceance Leases from Piceance Gas
to Lynx Energy Company, Inc. ("Lynx") or Lynx's designees. If all required
third parties approve the Lynx ORRI Assignment, then Piceance Gas will
execute the Lynx ORRI Assignment. Following the completion of the 8 Xxxxx,
Delta hereby agrees to request the required approvals for the Lynx ORRI
Assignment in accordance with Section 17.2 of the Piceance Agreement. Lynx
shall be deemed to be a third party beneficiary with respect to this Section
13, and Lynx shall have the right to enforce this covenant against Delta.
Notwithstanding anything to the contrary in this Section 13, the Lynx ORRI
Assignment shall not reduce the net revenue interest in the Piceance Leases
below a proportionate 78.75% as to leases currently in existence and subject
to the Piceance Agreement. As to leases hereafter acquired and subject to
the Piceance Agreement, Lynx shall be entitled to its proportionate 2.50%
overriding royalty interest regardless of whether the net revenue interest
of the leasehold would fall below a proportionate 78.75% . Further, Delta
shall designate Lynx or Lynx's designees as the party to receive the 2.5%
overriding royalty interest (or proceeds of the interest) pursuant to Section
4 of that certain Area Of Mutual Interest Agreement, dated effective as of
February 1, 2005, among PGR Partners, LLC, Teton Piceance LLC, and Orion
Energy Partners, L.P., covering the Piceance Area.
14. Termination. This Agreement and the transactions contemplated
hereby may be terminated in the following instances:
(a) By Delta if any condition set forth in Section 8(a) shall not
be satisfied at the Closing.
(b) By Savant if any condition set forth in Section 8(b) shall not
be satisfied at the Closing.
(c) By either Party if any condition set forth in Section 8(c)
above shall not be satisfied at the Closing.
(d) By the mutual written agreement of Delta and Savant.
(e) Without any further action by Delta or Savant, if the Closing
has not occurred on or before October 15, 2005.
15. Assumption and Indemnification.
(a) From and after Closing, Delta shall comply with all applicable
laws, rules, ordinances and regulations with respect to the Assets, and all
terms, provisions and covenants in the Leases and all instruments in the
chain of title to the Assets. Upon Closing, Delta shall assume and agree to
bear all duties, obligations and liabilities accruing in connection with or
related to the Assets from and after the Effective Date including, without
limitation, all operations, royalty payments, rental payments, environmental
matters, the proper plugging and abandonment of all xxxxx, and the
restoration of the surface of the land as may be required under the
applicable lease or as may be required by any federal, state or local agency
having jurisdiction. Subject to Section 15(b) below and any joint operating
agreement to which the parties are subject,, from and after Closing, Delta
shall indemnify, defend and hold harmless Savant and Savant's affiliates, and
their respective officers, directors, shareholders, managers, members,
employees, consultants, agents, representatives, accountants and attorneys
from and against any and all claims, demands, causes of action, suits,
judgments, fines, penalties, awards, settlements, losses, liabilities, costs
and expenses (including, without limitation, court costs and reasonable
attorneys' fees) (collectively, "Claims") arising in connection with or
related to the Assets including, without limitation, environmental damage,
property damage, personal injury or death and shall be Savant's sole and
exclusive remedy with respect to such Claims..
(b) Notwithstanding the foregoing, Savant shall indemnify, defend
and hold harmless Delta and Delta's affiliates, and their respective
officers, directors, shareholders, managers, members, employees, consultants,
agents, representatives, accountants and attorneys from and against any and
all Claims accruing in connection with or related to the Assets allocable to
the period of time prior to the Effective Date including, without limitation,
environmental damage, property damage, personal injury or death. Savant's
indemnity contained in this Section shall apply only to any and all Claims
arising from or related to this Agreement or the Assets (which in the case of
the Assets are allocable to the period prior to the Effective Date),
including, without limitation, matters related to the Assets accruing or
arising prior to the Effective Date, and breaches by Savant of its
representations, warranties and covenants contained herein, and shall be
Delta's sole and exclusive remedy with respect to such Claims. Savant shall
have no liability or obligation with respect to any such Claim hereunder
unless Savant has received written notice of such Claim from Delta within two
(2) years after the Closing Date. Savant's indemnification obligations
hereunder are subject to a One Million Dollar ($1,000,000.00) aggregate
deductible to be paid by Delta and a total aggregate cap of all amounts to be
paid by Savant pursuant to Savant's indemnification in this Section equal to
the Purchase Price paid for the CRB Leases set forth in Section 3 above, as
adjusted pursuant to the terms of this Agreement, and in no event shall
Savant be liable to any person or combination of persons under this Section
for more than said amount. Savant shall have no liability under this Section
after the expiration of two (2) years after the Closing Date; provided, that
nothing in this Section shall be deemed to extend the survival of any of
Savant's representations, warranties or covenants contained herein that
terminate at an earlier date pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary, Savant shall have no indemnity
obligation pursuant to this Section 15(b) with respect to the Title Defects,
the representations in Sections 5(d) and 5(g) above, or the claims described
in Exhibit C hereto.
16. Notices. All notices hereunder shall be deemed to be delivered, if
in writing, upon the earlier of actual receipt by the Party to be notified,
or three (3) days after deposit in the mail, postage prepaid, return receipt
requested, certified or Federal Express, addressed as set forth below:
Savant Resources LLC
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Delta Petroleum Corporation
000 Xxxxxxxxxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Either Party may, upon written notice to the other Party, change the address
and person to whom such communications are to be directed.
17. Miscellaneous.
(a) Recitals. The recitals set forth above are intended to be a
part of this Agreement and are hereby incorporated by reference in this
Agreement.
(b) Exhibits. All of the exhibits referred to in this Agreement
are hereby incorporated by reference as if set forth in their entirety
herein.
(c) Integration. This Agreement, the exhibits hereto, and the
documents to be delivered at the Closing constitute the entire understanding
between the Parties with respect to the subject matter hereof, and supersede
all prior negotiations, discussions and agreements relating to such subject
matter.
(d) Amendment. This Agreement may not be altered, or amended, nor
any rights hereunder waived, except by an instrument in writing executed by
the Party or Parties to be charged with such amendment or waiver.
(e) Covenants. This Agreement and the terms, conditions and
covenants herein shall be deemed to be covenants running with the Land, and a
burden upon each Party's interest in the Land, for the benefit of the other
Party's interest in the Land.
(f) Survival. None of the provisions of this Agreement shall be
deemed to have merged with any assignment or other instrument hereafter
executed. The representations contained in Sections 5 (d) and 5(g) above
shall terminate upon the Closing, and all of the other representations in
this Agreement shall expire automatically two (2) years after the date of the
Closing.
(g) No Assignment. No Party shall assign or delegate, or contract
to assign or delegate, any of its rights, interests, obligations or duties
under this Agreement without the prior written consent of the other Parties
which consent shall not be unreasonably withheld. A Party shall consent to an
assignment if the assignee has the technical and financial ability to perform
the duties and obligations of the assignor hereunder, and the assignor is in
compliance with the terms and conditions of this Agreement. If a Party fails
to respond to a request for consent to assignment hereunder on or before ten
(10) days after receipt of such request, such Party shall be deemed to have
consented to such assignment hereunder. Any attempted assignment in breach of
this provision shall be null and void. Any assignment hereunder shall be
subject to the terms and conditions of this Agreement. Notwithstanding
anything to the contrary herein, a Party shall have the right to assign to an
Affiliate hereunder, without the prior written consent of the other Parties;
provided, however that the assignor shall remain liable for all of the
duties, obligations and liabilities hereunder. For purposes of this
Agreement, "Affiliate" shall mean an entity which controls, is controlled by
or under common control with a Party including, without limitation, a
partnership in which a Party is the managing partner, or a limited liability
company in which a Party is the manager.
(h) Binding Effect. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the Parties, and
their respective successors and assigns.
(i) No Third Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to confer upon any third party any benefits,
rights or remedies except as provided in Section 13 above.
(j) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Colorado. The Parties
hereby irrevocably consent to venue and jurisdiction in the City and County
of Denver. In the event of any disputes between the Parties related to this
Agreement, the prevailing Party shall recover court costs and reasonable
attorneys' fees from the other Party. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
INDIRECT OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES
RESULTING FROM LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER OR NOT THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(k) Timing. Time is of the essence of this Agreement.
(l) Further Assurances. The Parties shall use their reasonable
efforts in good faith to execute all documents and take all other action
reasonably necessary to consummate the transactions contemplated by this
Agreement.
(m) Counterparts. This Agreement may be executed in
counterparts, and each counterpart shall be deemed to be an original, but all
of which shall be deemed to be one agreement. This Agreement shall be
binding upon all of the Parties executing a counterpart hereof. This
Agreement may be executed by telefax signatures.
EXECUTED on the dates below the signatures hereto, to be effective for
all purposes as of the Effective Date.
DELTA PETROLEUM CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
Date: September 29, 2005
SAVANT RESOURCES LLC
By: Savant Operating Company, Manager
By: /s/ Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxx, President
Date: September 29, 2005
