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
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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.
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(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
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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.
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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.
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