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Oil and Gas Due Diligence
F ll St t & J h T itt
This webcast will begin promptly at 12:00 PM EDT
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Today’s Presenters
Thomas A. WilsonSouthpointe, PA724‐749‐3109
Kurt L. Krieger Charleston, WV304‐353‐8124
thomas.wilson@steptoe‐johnson.com kurt.krieger@steptoe‐johnson.com
Major Due Diligence Issues
• Deal Documents• Different Deal Structures• Asserting Defects• Curative Process• Curative Process• Title Opinions• Record Room Work• Lease Analysis• Production Analysis
Li• Liens• Pending Litigation• Deal Termination
Scope
• Oil and Gas • Most due diligenceOil and Gas Transactions in the Appalachian Basin
Most due diligence principles are generally applicable
– Ohio– Pennsylvania
• Focused on real estate attorneys, often acting
– West Virginia
• Focused on the Buyeras local counsel to the deal counsel
• Transactions include fee properties and leases
Overview
• Centered on acquisition • Time is of the essenceqof net acres
• Gross acres are not the k
• Attempt to complete as much due diligence as
bl hmeasuring stick• Price is based on a per net acre basis
possible in the timeframe given
• Some smaller interestsnet acre basis• Different prices for dry gas vs. wet gas
• Some smaller interests (small net acreage) will be omitted or picked up g g
• Net revenue interests once other tracts are examined
Purpose of Due Diligence
• The quality of the assets • The accuracy andThe quality of the assets being sold?
• Should the deal be
The accuracy and completeness of the records?
consummated?• What kind of business
• How much are the assets worth?
risk exists?• What kind issues will be present post‐closing?
Deal Documents
• Deal documents control • Definitions of terms are every aspect of the due diligence
P h d S l
key• Local real estate
f– Purchase and Sale Agreement (PSA)
– Asset Purchase
attorneys are often not involved in the negotiations or drafting
Agreement (APA)– Asset Acquisition Agreement (AAA)
negotiations or drafting of the PSA
Agreement (AAA)– Form Documents (Deed, Assignment, Lease)
Deal Structures
• Due diligence is • Closing is not alwaysDue diligence is generally performed prior to closing
Closing is not always the end of the due diligence process
• Post‐closing due diligence that can
• Subsequent closings• Escrow accounts
extend months after closing
l
• Cleanup work
• Post‐closing curative work
Asserting Defects
• End goal of a due • Unasserted defects gdiligence
• Definition of a Defect l
cannot be asserted later• Uncured defects result
d f hcontrols• Title DefectsE i t l D f t
in a reduction of the purchase price
• Process is very• Environmental Defects• Timeline / deadline• Defected property
• Process is very specifically laid out in the PSA
• Defected property might be excluded from Closingg
Title Defects
• Interest is owned by a • Gap in the chain of titleInterest is owned by a third‐party
• Lease has expired or
Gap in the chain of title• Unrecorded documents• Lack of estatep
been released• Lack of production
Lack of estate information for previous ownersp
– definition of Held by Production (HBP)
p• Target depths are not owned by Seller
• Unreleased lien on the interest
Environmental Defects
• Spills • Inspection of allSpills• Contamination• Old wells
Inspection of all properties / wells not possible due to large Old wells
• Abandoned or unplugged wells
amount of acreage involved
unplugged wells• Water disposal / containment
• Notice of Violation (NOV)( )
Curative Process
• Seller has the right to • Cure can be complete gcure defects
• If a cure is not accepted b f
por partial cure
• Seller can also accept a d f d hby Buyer, often move to
arbitration process• Cures
defect and waive the right to cure
• Buyer does not get• Cures– release of a lien– record a document
• Buyer does not get reduction in price for cured defects
– corrective document– substitute lease
Title Opinions
• Submitted by Seller • Buyer incorporates title Sub ed by Se e• Quality and completeness
can vary greatly
uye co po a es edefects from prior title opinions
• Title opinions do not always certify working i t t f l
• Buyer can update title opinions via record room workinterest of lease
• Buyer must make decision on extent to rely on prior
work
on extent to rely on prior title opinions
Record Room Work
• Buyer checks documents • Run limited titleyof record
• Update prior title opinions
• Establish chain of title
opinions• Search for liens and
pending litigation– Mortgages– Deeds of Trust– Judgments– Judgments– Mechanic’s Liens
• Verify ownership of assets
Lease Analysis
• Royalty • Does memorandum of y y• Overrides• Pooling and Unitization
i i
lease comply with statute?
• Are leases modern orprovisions– amendments– completeness of rights
• Are leases modern or turn‐of‐the‐century?
• Are leases consistent or p g• Deductions• Term leases
varied in the form used?• Are leases released or
forfeited by statutory• HBP leases• Unenforceable leases or
provisions
forfeited by statutory process?
• Are term leases paid‐up?provisions
Midstream – Pipeline – DD Focus
“Reserves are valuable –Reserves are valuable –but there is no revenue stream or cash flow(for the producer or pipeline company)
if the gas does not flow through pipelinesif the gas does not flow through pipelines, and under contracts with permissible and
li bl t ”reliable terms.”
17
Regulation – Two Types
FEDERAL STATE• Permitting • Construction
• Permitting• Construction• Construction
CertificationS f t
• Construction CertificationS f t• Safety
• Rates or Pricing• Safety• Rates or Pricing
• Services• Tariffs
• Services• TariffsTariffs Tariffs
19
Why Care About Regulation?
WHO? • Party contracting for services
– Producer (shipper)– Party buying interest in producer acreage/wells (taking in kind/gas marketing by operator)End use customer (commercial or industrial)– End‐use customer (commercial or industrial)
– Power generation (quality of service)• Party buying or building pipelinesParty buying or building pipelines
– O&G acquisitions• Party lending to any of the above
20
Why Care About Regulation?Why Care About Regulation?
WHAT? – Regulation Impacts• Regulation materially affects the answers to all
questions about midstream/pipeline facilities and their pricing and servicespricing and services
• Permissible rates and contract terms of serviceG lit• Gas quality
• Priority of the service (firm/interruptible)Ti i d i ibilit f f ilit t ti• Timing and permissibility of facility construction
• Assignability of contracts
21
Assignment of Midstream Contracts & Assignment of Midstream Contracts & DD in O&G TransactionsDD in O&G TransactionsDD in O&G TransactionsDD in O&G Transactions
• Selling all acreage/wells dedicated?• Who needs what contracts/capacity?• Multiple ‘producer’ rights; if partial assignment, which party gets to exercise which rights?
• Assignable?• FERC pipeline contracts/capacity
– Capacity release regulations; shipper must have title– Waiver requests
• Form JDA/JOA provisions (in‐kind, gathering, processing, f k )fractionation, transportation, marketing)
Confidential Attorney‐Client Privileged
EX: Purchase of ‘Gathering’ PipelinesPurchase of ‘Gathering’ Pipelinesin an O&G Transactionin an O&G Transactionin an O&G Transactionin an O&G Transaction
• Jurisdictional status? Federal or state regulated?Maps– Maps
– Interconnections– State boundariesState boundaries– Commercial agreements and shippers– Serving end‐use customers/consumers– Regulatory filings
• Who needs what capacity? Is it available? Contracted?• Was it permissibly constructed• Safety regulation• ROWs• ROWs
Confidential Attorney‐Client Privileged
EX: Precedent and Service AgreementsPrecedent and Service Agreements
Non‐Conforming and Material Deviations• Enforceability of rates and terms of service• Enforceability of rates and terms of service• Is it in or otherwise contemplated by the tariff and the pro forma service agreement?and the pro forma service agreement?
• Discriminatory and interfere with service to h hi ?other shippers, or not?
• Side agreements?• Filing requirement• Impacts binding effectp g
Confidential Attorney‐Client Privileged
EX: FERC Jurisdiction EX: FERC Jurisdiction –– Within StateWithin State
• Caution – FERC jurisdiction may apply• Effect of crossing state lines
h h b f• Interstate service within the boundaries of a state
• State boundaries not determinative as to FERC jurisdictionFERC jurisdiction
• Examples. . .
25
Production Analysis
• Production defect is ll f l
• Paying quantities may have l l d ftypically a type of title
defect• Necessary production for
HBP i t i ll d fi d b
a legal definition separate from the PSA
• Buyer does not want to pay f i i d lHBP is typically defined by
the PSA– Barrels of oil per year
MCF of gas per year
for or acquire expired leases• Production analysis is not
necessary for paid‐up term leases– MCF of gas per year
• Most of the information comes from the State (ODNR PADEP or WVDEP)
leases
(ODNR, PADEP, or WVDEP)• Lack of reporting may not
be an assertable defect
Liens
• Mortgages / Deeds of • Some liens may be g g /Trust
• Judgments
yexplicitly accepted and/or unassertable
D ll l h h ld• Mechanic’s Liens• PSA usually addresses
li th t S ll
– Dollar value threshold
some liens that Seller will acquire a release for before Closingg
• Record room search for liens
Pending Litigation
• Some pending matters • Some pending litigation is will be listed in a schedule to the PSA
• Some pending matters
on a global scale and would affect all assets– Tawney case in WVp g
will typically be discovered by a record room search
– Butler case in PA– ODMA in OH
• Seller will often have to make a judgment call or the possible risk / liability the possible risk / liabilitypresented by pending litigation
Deal Termination
• PSA will usually offer a • Buyer may terminate ifPSA will usually offer a mechanism for one or both sides to terminate
Buyer may terminate if quality of assets is too poor
the deal• Threshold for defects if
– Usually forfeit earnest money or other upfront money to cover Seller’sexceed a certain
percentage of the deal value
money to cover Seller s costs
value– allows Seller to terminate deal
Odds ands Ends
• Document management • Seller’s organization ofDocument management• Personnel management• Technology
Seller s organization of documents (or lack thereof)Technology
• Responsiveness of Seller to requests
• Personality conflicts
Seller to requests• Onsite examination of documents
THANK YOU!
Thomas A. WilsonSouthpointe, PA724‐749‐3109
Kurt L. Krieger Charleston, WV304‐231‐0442
thomas.wilson@steptoe‐johnson.com kurt.krieger@steptoe‐johnson.com
Material Disclaimer
These materials are public information and have been prepared solely for educational purposes to contribute to the understanding of energy and oileducational purposes to contribute to the understanding of energy and oil and gas law. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that each case is fact‐specific, and that the appropriate solution in any case will vary. Therefore,specific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney‐client relationship with the authors or Steptoe & Johnson PLLC. While every attempt was made to insure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.