EXHIBIT 10.3
ATTACHMENT A
TAX PARTNERSHIP PROVISIONS
1. Relationship of the Parties. This Attachment and the Drilling Program
Agreement of which it is a part (in this Attachment called the "Agreement") is
not intended to create, nor shall such be construed as creating, any mining
partnership, commercial partnership or other partnership relation or joint
venture among the parties, and the liabilities of each of the parties hereto
shall be several and not joint or collective. The relationship created by this
Attachment and the Agreement shall be considered as a partnership solely for
United States federal and state income tax reporting purposes (and shall be a
partnership for those purposes only so long as this Attachment remains in
effect), as provided in paragraph 2 hereinbelow, and such relationship shall not
be a partnership to any other extent or for any other purpose. The relationship
of the parties hereunder is sometimes herein called the "tax partnership".
2. Elections with Respect to Tax Status. Notwithstanding anything to the
contrary in this Attachment or in the Agreement, each party hereto agrees, so
long as the provisions of this Attachment remain in effect, with respect to all
operations conducted under the Agreement, (a) not to elect any status under
Treasury Regulation Section 301.7701-3 other than as a partnership for federal
tax purposes, (b) not to elect to be excluded from the application of Subchapter
K of Chapter 1 of Subtitle A of the Code, and any provisions of applicable state
laws comparable to Subchapter K of Chapter 1 of Subtitle A of the Code, and (c)
to join in the execution of such additional documents and elections as may be
required in order to effectuate the foregoing. With respect to activities
conducted on Leases in which parties other than the Participants have an
interest, the Program Manager shall be authorized to elect on behalf of all
Participants that any joint operation with respect to any such Lease shall be
excluded from the application of Subchapter K of Chapter 1 of Subtitle A of the
Code, but no such election by the Program Manager shall have any impact on or
result in any change in the relationship among the Participants as set forth in
the first sentence of this paragraph 2. (Capitalized terms used in this
paragraph 2, if not otherwise defined in this Attachment, shall have the same
meanings as are provided in the Agreement.)
3. Term. The provisions of this Attachment shall be effective as of the
effective date of the Agreement and shall continue in full force and effect from
and after such date until the earlier of (a) the termination of the Agreement
among the parties pursuant to its terms, (b) upon the mutual agreement of the
parties, or (c) upon the occurrence of an event described in Section 708(b)(1)
of the Code. Upon the occurrence of any of the above-enumerated events, the
provisions of paragraph 9 hereinbelow shall be applicable.
4. Capital Contributions and Capital Accounts.
(a) The capital contributions of each party shall be all amounts paid
by it pursuant to the Agreement. With respect to each oil and gas property and
the related assets subject to the Agreement, each party shall be treated as
having contributed to the tax partnership an amount of cash equal to such
party's share of any Lease acquisition or other property costs and the tax
partnership shall be treated as having purchased such property from the party to
whom such amounts are paid.
(b) An individual capital account shall be maintained for each party
in accordance with the following:
(i) The capital account of each party shall, except as otherwise
provided herein, be (A) credited by the amount of cash and fair market
value of any property contributed to the tax partnership (net of any
liabilities assumed by the parties hereto or to which such property is
subject at the time of contribution) as provided in subparagraph (a) of
this paragraph 4, and (B) credited with the amount of any item of taxable
income or gain and the amount of any item of income or gain exempt from tax
allocated to such party.
(ii) The capital account of each party shall be debited by (A)
the amount of any item of tax deduction or loss allocated to such party,
(B) such party's allocable share of expenditures not deductible in
computing taxable income and not properly chargeable as capital
expenditures, including any
1
non-deductible book amortizations of capitalized costs, and (C) the amount
of cash or the fair market value of any property (net of any liabilities
assumed by such party or to which such property is subject at the time of
distribution) distributed to such party (after making the adjustment
provided in subparagraph (b)(iii) in this paragraph 4).
(iii) Immediately prior to any distribution of property that is
not pursuant to a liquidation of the tax partnership, the parties' capital
accounts shall be adjusted by assuming that the distributed assets were
sold for cash at their respective fair market values as of the date of
distribution and crediting or debiting each party's capital account with
its respective share of the hypothetical gains or losses resulting from
such assumed sales determined in the same manner as gains or losses
provided for under paragraphs 4(b)(iv) and 6 for actual sales of such
properties.
(iv) The allocation of basis prescribed by Section 613A(c)(7)(D)
of the Code and provided for in paragraph 6 hereinbelow and each party's
depletion deductions shall not reduce such party's capital account, but
such party's capital account shall be decreased by an amount equal to the
product of (A) the depletion deductions that would otherwise be allocable
to the tax partnership in the absence of Section 613A(c)(7)(D) of the Code
(computed without regard to any limitations which theoretically could apply
to any party) and (B) such party's percentage share of the adjusted basis
of the property with respect to which such depletion is claimed (herein
called "Simulated Depletion"). The tax partnership's basis in any oil or
gas property, as adjusted from time to time for Simulated Depletion, is
herein called "Simulated Basis." No party's capital account shall be
decreased, however, by Simulated Depletion deductions attributable to any
depletable property to the extent such deductions exceed such party's
remaining Simulated Basis in such property. Upon the sale or other
disposition of an interest in a depletable property, each party's capital
account shall be credited with the gain ("Simulated Gain") or debited with
the loss ("Simulated Loss") determined by subtracting from its allocable
share of the amount realized on such sale or disposition its Simulated
Basis, as adjusted by Simulated Depletion.
(v) Any adjustments of basis of property provided for under
Sections 734 and 743 of the Code and comparable provisions of state law
(resulting from an election under Section 754 of the Code or comparable
provisions of state law) shall not affect the capital accounts of the
parties, and the parties' capital accounts shall be debited or credited as
if no such election had been made unless otherwise required by applicable
Treasury Regulations.
(vi) Capital accounts shall be adjusted, in a manner consistent
with subparagraph (b) of this paragraph 4, to reflect any adjustments in
items of income, gain, loss or deduction that result from amended returns
filed by the tax partnership or pursuant to an agreement with the Internal
Revenue Service or a final court decision.
(vii) In the case of property contributed to the tax partnership
by a party, the parties' capital accounts shall be debited or credited for
items of depreciation, Simulated Depletion, amortization and gain or loss
with respect to such property computed in the same manner as such items
would be computed if the adjusted tax basis of such property were equal to
its fair market value on the date of its contribution to the tax
partnership, in lieu of the capital account adjustments provided above for
such items, all in accordance with Section 704(c) of the Code and Treasury
Regulation 1.704-1(b)(2)(iv)(g).
5. Federal and State Income Tax Returns and Elections.
(a) The parties agree that the Program Manager shall prepare and file
the necessary federal and state partnership income tax returns and each party
agrees to furnish the Program Manager all pertinent information relating to
operations under the Agreement and this Attachment which is necessary for the
Program Manager to prepare and file such returns.
2
(b) The parties hereby authorize and direct the Program Manager to
make the following elections on the appropriate returns prepared and filed under
subparagraph (a) of this paragraph 5:
(i) To elect to adopt the accrual method of accounting, and such
accounting shall be maintained on a calendar year basis;
(ii) To elect, in accordance with Section 263(c) of the Code and
applicable federal income tax regulations and comparable provisions of
state law, to expense all intangible drilling and development costs;
(iii) To elect to compute the allowance for depreciation or cost
recovery under the most accelerated tax depreciation method and using the
shortest life authorized by law with respect to all depreciable assets; and
(iv) To make such other elections as may be deemed appropriate by
the Program Manager.
(c) The Program Manager shall be designated the tax matters partner
(in this paragraph 5(c) called the "TMP") as such term is defined in Section
6231(a)(7) of the Code with respect to operations conducted pursuant to the
Agreement and shall be indemnified by the other parties as provided in the
Drilling Program Agreement. The TMP is authorized to take such actions and to
execute and file all statements and forms on behalf of the tax partnership which
may be permitted or required by the applicable provisions of the Code or
Treasury regulations issued thereunder, and the parties to the Agreement will
take all other action that may be necessary or appropriate to effect the
designation of the Program Manager as the TMP. In the event of an audit of the
tax partnership's income tax returns by the Internal Revenue Service, the TMP
may, at the expense of the parties to the Agreement, retain accountants and
other professionals to participate in the audit.
6. Allocations. The parties agree that for United States federal and state
income tax reporting purposes the distributive share of each of the parties in
each item of income, gain, loss, deduction or credit, including, without
limitation, the items specifically mentioned below, shall be determined as
follows:
(a) Income realized from the sale of production of oil, gas or other
hydrocarbon substances shall be allocated to each party to whom proceeds from
the sale of such production are allocated or to whom such production is
distributed under the terms of the Agreement.
(b) Deductions attributable to intangible drilling and development and
production costs shall be allocated to each party in accordance with its
respective contributions to the payment of such costs.
(c) Depreciation or cost recovery deductions with respect to tangible
equipment shall be allocated to each party in accordance with its contribution
to the adjusted basis (within the meaning of Section 1011 of the Code) of such
equipment.
(d) The depletion deductions with respect to each oil and gas property
(as such term is defined in Section 614 of the Code) subject to the Agreement
shall be computed separately by each party. For purposes of such computation,
each party shall be considered to own, and shall be allocated, its proportionate
share of the adjusted basis in each oil and gas property subject to the
Agreement. A party's proportionate share of the adjusted basis of an oil or gas
property shall be equal to its relative interest in either (i) the capital used
to acquire (and capitalized in the adjusted basis of) such property (if the
property is acquired other than by way of a capital contribution by one or more
parties), or (ii) the adjusted basis of such property (if the property is
considered a capital contribution by one or more parties). Each party shall
separately keep records of its share of the adjusted basis in each oil and gas
property, adjust such share of the adjusted basis for any cost or percentage
depletion allowable on such property, and use such adjusted basis in the
computation of its gain or loss on the disposition of such property. For
purposes of computing such gain or loss, and notwithstanding anything in the
Agreement to the contrary, the amount realized from the sale or other taxable
disposition of a depletable oil and gas property (other than production of oil,
gas or other hydrocarbon substances) and depreciable tangible property, shall be
allocated in accordance with
3
the allocation of revenues from the sale or other taxable disposition of such
properties under Section 4(b) of the Agreement. Upon the request of the Program
Manager, each party shall advise the Program Manager of its adjusted basis in
each oil and gas property as computed in accordance with the provisions of this
subparagraph (d).
(e) Gains and losses from each sale, abandonment or other disposition
of property (other than depletable oil and gas properties and depreciable
tangible properties as provided in subparagraph (d) of this paragraph 6 and
production of oil, gas or other hydrocarbon substances as provided in
subparagraph (a) of this paragraph 6) shall be allocated to the parties in such
manner as will reflect the gains and the losses that would have been includable
in their respective income tax returns if such property were not subject to the
Agreement. In computing each party's gains and losses, each party shall take
into account its share of the proceeds derived from each sale, abandonment or
other disposition of such property during the year, selling expenses and its
respective contributions to the unadjusted cost basis of such property, less any
allowed or allowable depreciation, cost recovery, amortization, or other
deductions which have been allocated to it with respect to such property as
provided herein.
(f) Gains or losses realized on the taxable disposition of property
subject to this Agreement in excess of the gains or losses allocated under
subparagraphs (d) and (e) of this paragraph 6 with respect to such property, if
any, shall be allocated to the contributing party to the extent of such party's
pre-contribution gain or loss with respect to such property.
(g) All recapture of income tax deductions resulting from the sale or
other disposition of any property subject to the Agreement shall be allocated
among the parties in the ratios in which the deductions giving rise to such
recapture were allocated, but each party shall be allocated recapture only to
the extent that such party is allocated any gain from the sale or other
disposition of such property. The balance of such recapture, if any, shall be
allocated to the parties whose share of gain exceeds their share of recapture
("excess gain") and such balance shall be allocated among such parties in the
proportion which the excess gain of such party bears to the excess gains of all
parties.
(h) Income resulting from any dry hole or bottom hole monetary
contribution obtained from a third party in connection with the drilling of a
well or xxxxx on the oil and gas properties subject to the Agreement shall be
allocated in the same manner as the costs of drilling such well or xxxxx are
allocated.
(i) All other items of deduction and credit not falling within
subparagraphs (b) through (h) of this paragraph 6 shall be allocated to and
accounted for by each party in accordance with its respective contribution to
the costs resulting in such deductions and credits.
7. Sale of Program Prospects. The parties agree that any sale by a party of
any ownership interest in a Prospect held by such party as part of the Program
and subject to the Agreement shall be deemed to be a sale of all or a portion of
such party's interest in this tax partnership.
8. Termination of Party's Interest. Any distribution in termination of any
party's interest in the tax partnership other than pursuant to paragraph 9 shall
be in an amount of cash or fair market value of property equal to the capital
account balance of such party at the time such interest is terminated, after
such capital account balance has been adjusted in accordance with paragraph 4
and the applicable Treasury Regulations under Section 704(b) of the Code, and
shall be made by the later of (i) the end of the tax partnership taxable year in
which such termination occurs or (ii) within 90 days after the date of such
termination; provided, however, that if such capital account balance is less
than zero after taking into account such adjustments and the distribution
provided for in this paragraph 8, such party shall contribute an amount of cash
to the tax partnership sufficient to cause its capital account to have a zero
balance by the later of (i) the end of the tax partnership taxable year in which
such termination occurs or (ii) within 90 days after the date of such
termination.
4
9. Distributions upon Termination. Upon termination of the provisions of
this Attachment pursuant to paragraph 3 above, the activities of the parties
under this Attachment shall be concluded and the assets subject to the Agreement
and this Attachment shall be distributed to the parties in the manner and in the
order set forth below:
(a) Debts of the parties created pursuant to operations under the
Agreement, other than to the parties, shall be paid.
(b) Debts owed among the parties with respect to operations pursuant
to the Agreement shall be paid.
(c) All cash on hand representing unexpended contributions by any
party shall be returned to the contributor.
(d) The parties' capital accounts shall be adjusted by (i) assuming
the sale of all remaining assets subject to the Agreement for cash at their
respective fair market values as of the date of termination of the Agreement and
(ii) debiting or crediting each party's capital account with the party's
respective share of the hypothetical gains or losses resulting from such assumed
sales in the same manner as such party's capital account would be debited or
credited under subparagraph (b) of paragraph 4 for gains or losses on actual
dispositions of such properties.
(e) If the capital account of any party (stated as a percentage of the
aggregate capital accounts of all parties) is less than that party's undivided
interest in Leases owned by the Participants, as set forth in Section 2(a) of
the Agreement, then such party may elect, upon ten days notice to the other
parties, to contribute cash to the tax partnership for distribution to the other
parties in an amount sufficient to cause such contributing party's capital
account (stated as a percentage of the aggregate capital accounts of all
parties) and its undivided interest in Leases owned by the Participants, as set
forth in Section 2(a) of the Agreement, to be equal.
(f) Thereafter, all remaining assets shall be distributed to the
parties by the later of (i)the end of the tax partnership taxable year in which
the termination occurs or (ii) 90 days after the date of such termination, in
accordance with their respective capital account balances as so adjusted;
provided, however that any party that has a capital account of less than zero
after taking into account the adjustments and distributions provided for
pursuant to and in the subparagraphs of this paragraph 9 shall contribute an
amount of cash to the tax partnership sufficient to cause its capital account to
have a zero balance by the later of (i) the end of the tax partnership taxable
year in which the termination occurs or (ii) 90 days after the date of such
termination. Any such contributions by parties having deficit capital account
balances shall be distributed to the remaining parties in accordance with their
respective positive capital account balances by the later of (i) the end of the
tax partnership taxable year in which the termination occurs or (ii) 90 days
after the date of such termination.
If property subject to the Agreement is distributed pursuant to this
paragraph, the amount of the distribution shall be equal to the fair market
value of the distributed property. In the event the parties do not agree as to
the fair market value of such property, the Program Manager shall cause a
qualified independent petroleum engineer to prepare an evaluation of the fair
market value of such property.
It is understood and agreed that it shall be the obligation of each party
to make such assignments as are required upon termination of the provisions of
this Attachment in accordance with the provisions of this paragraph 9. Such
assignments shall be made subject to the liability of each assignee for costs,
expenses and liabilities theretofore incurred or for which commitment had been
made by the Program Manager prior to the date of termination and such costs,
expenses and liabilities shall be allocated to such assignee pursuant to this
Attachment.
10. Effect of this Attachment. It is understood and agreed that in the
event the terms of this Attachment conflict with any of the terms and conditions
of the Agreement as between the parties hereto the terms of this Attachment
shall control with respect to the terms in conflict.
5
