OIL SALES MASTER AGREEMENT

Transcription

1 University Oil Royalty In Kind Program OIL SALES MASTER AGREEMENT This OIL SALES MASTER AGREEMENT (this Agreement ) is made effective for all purposes as of April 1, 1998, by and between the ("Seller") and ("Buyer"). A. By authority granted in the Texas Education Code, Seller leases oil and gas in lands dedicated to the permanent university fund. B. Seller is authorized by law to take its royalty oil production in kind and Seller has elected to take royalty oil production in kind from certain leases. C. Seller wishes from time to time to solicit offers to purchase the royalty oil production it receives in kind and to sell the oil royalty production on the terms and conditions set out in this Agreement, and the bid documents and Award of Purchase Contract issued with respect to each specific sale. D. Buyer wishes to be eligible to receive Seller s solicitations for offers to purchase royalty oil production and to make one or more offers from time to time for Seller s consideration. Now, therefore, for and in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereby agree as follows: 1. Award of Purchase Contract. Seller may from time to time provide to Buyer bid documents, a sample of which is attached hereto as Exhibit A, for the purpose of soliciting one or more offers from Buyer to purchase oil royalty production taken in kind by Seller from one or more properties specified in the bid documents. If Buyer elects to make an offer to purchase any such oil and Seller accepts Buyer s offer, Seller shall issue an Award of Purchase Contract (the Award ) in substantially the form attached hereto as Exhibit B. Upon issuance of such an Award, Seller and Buyer agree that the purchase and sale of the specified oil royalty production shall be made and performed in accordance with the provisions of (i) this Agreement; (ii) the bid documents with respect to which Buyer s offer was made and that identify this Agreement (the relevant Bid Documents ); and (iii) the Award. Upon issuance of the Award, the relevant Bid Documents and Award will be incorporated herein by reference as if set out at length. All of the terms, conditions, and provisions of each of these documents shall be given full effect and shall be construed together as one document. If there is an express conflict among the terms, conditions, and provisions of the referenced documents, the terms and provisions of this Agreement shall control. The sample bid documents attached hereto as Exhibit A are intended to be a sample only and the form of the bid documents with respect to any particular solicitation for offers shall be in the sole discretion of Seller. 2. Representations and Warranties. Buyer and Seller have each relied on the representations and warranties made by the other in this Agreement and the relevant Bid Documents. 1

2 3. Term. The term of this Agreement shall commence on April 1, 1998, and shall remain in force and effect for a period of five (5) years thereafter, unless terminated by either party as provided herein. Either party may terminate this Agreement at any time there is no outstanding bid or offer by Buyer, Award of Purchase Contract in effect, or other then current contractual commitment by Buyer to purchase oil royalty production from Seller in effect as of the date of termination, by giving the other party fifteen (15) days advance written notice specifying the date of termination. 4. Quantity. Seller will timely provide to the operator of each lease covering the properties from which Buyer purchases royalty oil production pursuant to this Agreement a copy of the relevant Award and will direct the operator to tender all of the royalty oil production to which Seller is entitled for the properties subject to the Award to Buyer for delivery at the delivery point specified herein or in the relevant Bid Documents. Buyer will take, purchase, and arrange for transportation of all royalty oil production to which Seller is entitled under such leases. Seller agrees not to sell any part of its royalty entitlement from properties subject to an Award then in force and effect to any party other than Buyer as long as this Agreement is in force and effect and Buyer is accepting deliveries from the properties subject to the Award. 5. Title and Delivery Point. Buyer shall accept deliveries of oil royalty tendered at the outlet side of the flange by which production passes at the central tank battery or storage facility to the pipeline or truck outlet, unless otherwise specifically provided in the relevant Bid Documents. Seller represents and, to the extent authorized under the laws and Constitution of the State of Texas, warrants that Seller holds a valid royalty interest, free of claims, in the properties subject to the Award; is authorized to take Seller s oil royalty in kind; and has taken all actions necessary to cause Seller s oil royalty from such properties to be delivered in kind. Title to, risk of loss from any cause, and liability with respect to the oil royalty production tendered for delivery to Buyer shall pass to Buyer at the point of delivery. Seller shall not be responsible for transportation or any other costs that may be incurred beyond the delivery point with respect to the oil sold under this Agreement. 6. Payment. An amount equal to the number of Seller s oil royalty barrels tendered for delivery to Buyer in the immediately preceding month multiplied by the relevant price set out in the Award shall be due and payable by Buyer to the Board of Regents of The University of Texas System ( UT ) on or before the twenty-first (21st) day of each month. Within five (5) days after each such payment is made, Buyer shall provide to the University Lands Accounting Office documentation to verify the accuracy of payment amounts or for other accounting purposes, including without limitation documents evidencing the total volume of oil royalty tendered for delivery to Buyer such as truck or pipeline statements, documentation showing how the amount of each payment was determined and specifying the number of oil royalty barrels delivered from each property identified in the Award, and documentation used to determine the oil royalty volume to which Seller is entitled. It is Buyer s responsibility to assure that Buyer receives the full amount of royalty oil to which Seller is entitled for those properties subject to the Award. Seller shall cooperate reasonably with Buyer to assure delivery of such royalty oil to Buyer, provided that Seller shall not be required to expend funds in so doing. Within ninety (90) days after cessation of deliveries pursuant to an Award of Purchase Contract, Seller shall notify Buyer of Seller s best estimate of the total volume of royalty oil to which Seller was entitled under the Award and any unpaid amount then owed to Seller by Buyer. Within thirty (30) days after receipt of such notice from Seller, Buyer shall pay to Seller the amount specified in 2

3 the notice unless Buyer provides evidence satisfactory to Seller that the total volume of royalty oil to which Seller was entitled under the Award, as stated in the notice to Buyer, is inaccurate. Buyer may make payments by any method accepted by the Texas Comptroller of Public Accounts and in accordance with applicable law. 7. Electronic Funds Transfers. Notwithstanding anything herein to the contrary, if Buyer estimates that it will pay to UT amounts due hereunder in excess of the Annual EFT Amount for the current state fiscal year (September 1-August 31), Buyer shall remit any payments of the Minimum EFT Amount or more to UT by electronic funds transfer in accordance with instructions of the University Lands Accounting Office. The Annual EFT Amount and the Minimum EFT Amount shall be as specified in the relevant Bid Documents. Penalties for failure to timely make required payments by EFT will be assessed in accordance with applicable Rules and Regulations of the Board of Regents of The University of Texas System, if any, current at the time of the EFT payment was due. 8. Interest. Any amount payable under this Agreement shall be past due if not received in the University Lands Accounting Office on or before the due date, or if mailed by United States mail, postmarked before the due date. All past-due amounts shall accrue interest at the rate specified in the relevant Bid Documents, or the maximum rate allowed by law, whichever is lesser, such interest to be payable to UT immediately as it accrues without demand. Should Buyer fail to timely pay to UT any and all amounts due, Seller may, at Seller's option, terminate this Agreement at any time by giving written notice to Buyer specifying the termination date. 9. Audit. Buyer shall maintain all records and documents relating to the purchase of oil royalty production pursuant to any Award and this Agreement for a period of at least five (5) years after cessation of deliveries pursuant to the Award. Seller shall be entitled to review and copy any and all such records and documents at any reasonable time at the offices of Buyer. Buyer shall reasonably cooperate with Seller with respect to any such review and copying of such records and documents. Buyer will provide copies to Seller at Seller s address of such records and documents reasonably requested by Seller. The records of Seller and UT are maintained in accordance with law and are open as provided in Chapter 552, Texas Government Code. 10. Notices and Payments. Notices given hereunder shall be addressed to the appropriate party at the following addresses and shall be deemed given and received three (3) days after deposit in the United States Mail, certified mail return receipt requested, and postage paid, or upon actual delivery by hand or overnight delivery, or upon actual delivery by fax, as evidenced by a confirmation, provided that an original of the notice is deposited in the United States mail on the same day, certified mail return receipt requested, and postage paid. To Seller or UT: University Lands Accounting Office P.O. Box 579 Austin, Texas Attn: Marketing Coordinator Phone: Fax:

4 To Buyer: Attn: Phone: Fax: Payments made hereunder to the Board of Regents of The University of Texas System shall be addressed to the University Lands Accounting Office at the following addresses and payment shall be considered timely made if the payment is actually received in the University Lands Accounting Office or, if made by EFT, in the State of Texas Comptroller s custody, on or before the due date or if the payment is deposited in a postpaid wrapper addressed to University Lands Accounting Office, P.O. Box 579, Austin, Texas 78767, with a post office or official depository under the care and custody of, and postmarked by, the United States Postal Service before the applicable due date. Payments shall be addressed as follows: a. If delivered by United States mail, to: University Lands Accounting Office P.O. Box 579 Austin, Texas b. If delivered by means other than United States mail, to: University Lands Accounting Office 702 Colorado Street, Suite 300 Austin, Texas Either party may change its address as set out above by giving the other party written notice, in accordance with the provisions of this Paragraph 10, of such change of address. All checks and other instruments shall be made payable to the Board of Regents of The University of Texas System. 11. Default and Remedies. The following shall be deemed to be an Event of Default: a. Buyer ceases to continue the business of purchasing crude oil, is insolvent, or files for protection under any bankruptcy law; b. If Buyer is a partnership, Buyer is dissolved; c. Failure of Buyer to maintain financial assurance as required by UT as of the effective date of this Agreement; d. If Buyer is required to maintain a letter of credit, if a circumstance exists that allows UT to draw on the letter of credit; e. Failure of Buyer to pay any amount due hereunder within five (5) days after it is due, unless payment of such amount is disputed in good faith; or f. Failure of Buyer to perform any other obligation under this Agreement within fifteen (15) days after notice from Seller specifying such failure. 4

5 If an Event of Default occurs, UT may, at UT s option, and acting on behalf of Seller, cease deliveries of oil royalty production under the relevant Award by giving Buyer written notice of such cessation specifying the date upon which deliveries will cease. In such event, Buyer shall take and purchase all royalty oil pursuant to the Award until the time of cessation of deliveries and all amounts payable to UT shall then be payable in accordance with Paragraph Credit Insurance. Buyer acknowledges that UT may insure payment of amounts due to UT pursuant to any Award and this Agreement. Should such insurance be canceled or unavailable for any reason relating to the performance or insurability of Buyer, UT may demand that Buyer provide additional financial assurance to UT for deliveries made or to be made pursuant to an Award and this Agreement. Buyer agrees to immediately provide a letter of credit in favor of UT in a form and with a bank acceptable to UT within ten (10) days after receipt of notice from UT of cancellation of insurance. Such letter of credit shall be in an amount deemed satisfactory by UT, but in no event less than the amount paid (or payable) pursuant to the Award and this Agreement for the immediately preceding 3-month period or the amount of anticipated amounts due for a 3-month period if deliveries have been made for a period of less than two months. If Buyer fails to provide the letter of credit within such 10-day period, UT may at UT s option, acting on behalf of Seller, elect to cease deliveries pursuant to the Award by giving written notice to Buyer of such cessation of deliveries and specifying the date upon which such deliveries will cease. In such event, Buyer shall take and purchase all royalty oil pursuant to the Award until the time of cessation of deliveries and all amounts payable to UT shall then be payable in accordance with Paragraph Miscellaneous Provisions. a. Force Majeure. Neither party hereto shall be responsible to the other for damages caused by failure or delay in performance of any provision of this Agreement where such failure or delay is caused by or is attributable exclusively to an act of God, fire, flood, storm, earthquake, explosion, strike, lockout, differences or disputes with workmen (however arising or from whatever cause), war, rebellion, insurrection, riot, sabotage, acts of the public enemy, or another similar cause beyond the reasonable control of the party claiming force majeure. The party claiming force majeure shall immediately notify the other party of such force majeure event by telephone or fax, to be followed within three (3) days by written notice specifically describing the event. When the reason for force majeure ceases to exist, performance hereunder shall resume immediately. b. Compliance with Laws. Each party hereto and its employees, agents, and contractors shall at all times comply with all applicable laws, ordinances, statutes, rules, and regulations, including without limitation all applicable rules promulgated by Seller or the Board of Regents of The University of Texas System, applicable to the performance of such party s obligations hereunder. 5

6 c. Safety. Each party shall take all reasonably necessary steps to assure the safety of its employees, agents, and contractors and other on-site personnel with respect to deliveries of royalty oil and other activities under this Agreement and shall comply with all applicable laws and regulations intended to protect the health and safety of workers and other persons, including any rules and regulations that may be promulgated by UT, in this regard. d. Taxes. Buyer shall be solely responsible for any and all taxes, if any, imposed or assessed as a result of Buyer's purchase, transportation, or resale of Seller s oil royalty production. Seller represents, and to the extent allowed by the laws and constitution of the State of Texas, warrants that oil royalty production sold pursuant to an Award and this Agreement is exempt from all State production tax and Buyer shall not make any deduction for such taxes from payments due to UT. e. Governing Law and Venue. Each Award, relevant Bid Documents, and this Agreement shall be interpreted and construed and the rights of the parties hereto shall be governed by the laws of the state of Texas, except to the extent federal law may preempt state law. Venue shall be in Travis County, Texas. f. State Agency. Buyer acknowledges that Seller is an agency of the State of Texas and Buyer s ability to enforce the terms and provisions of this Agreement shall be as provided by the Constitution and laws of the State of Texas. g. Entire Agreement. This Agreement and any Award and relevant Bid Documents issued pursuant to or in connection with this Agreement constitute the entire understanding of the parties relating to the subject matter hereof. No modification or amendment of this Agreement shall be effective unless made in writing and signed by both Seller and Buyer. h. Severability. If any part, term, or provision of this Agreement is determined by a court of competent jurisdiction, or agreed upon by the parties, to be legally unenforceable, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular invalid and unenforceable part, term, or provision. i. Waiver. Waiver by either party of any act of default by the other party shall not operate as a waiver of any future or other default or act of default, whether of a like or different character. j. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of Buyer. Buyer may assign this Agreement only with the prior written approval of Seller, such approval to be given or withheld in the sole discretion of Seller, given at least ten (10) days prior to the effective date of the assignment. k. Oil Defined. The term oil, as used in this Agreement and any related Award and relevant Bid Documents, shall mean and refer to any hydrocarbons produced from the properties covered to the Award, regardless of gravity, capable of being produced in liquid form at the well by ordinary production methods including without 6

7 limitation condensate, distillate, and other liquid hydrocarbons recovered from oil or gas run through a separator or other equipment at the lease. l. Trucked Properties. Unless Buyer and the operator of the lease agree otherwise in writing, for properties from which production is transported by truck, Buyer shall use the transporter used by the lease operator. m. Authorized Signatures. The individual executing this Agreement on behalf of Buyer represents and warrants to Seller and UT that he is duly authorized by Buyer to execute this Agreement on behalf of Buyer and to bind Buyer by the terms, conditions, and provisions hereof. Buyer acknowledges that it is an experienced oil purchaser; is knowledgeable with respect to contracts for the purchase and sale of oil; and this contract was fully reviewed by Buyer and Buyer s attorney prior to execution on behalf of Buyer. The Commissioner of the General Land Office is authorized by law, specifically Section 66.79, Texas Education Code, to execute this Agreement on behalf of Seller. n. Authority to Act. Seller hereby authorizes UT or its authorized representative to act on its behalf with respect to any Award executed by the Commissioner of the General Land Office, bid documents issued by UT on behalf of Seller, and this Agreement. IN WITNESS THEREOF, Seller and Buyer have executed this Agreement to be effective for all purposes as of the date and year first above written. SELLER: By: David Dewhurst, Commissioner, General Land Office and Chairman, Board for Lease of University Lands BUYER: [TYPED OFFICIAL COMPANY NAME] By: [authorized representative signature] Typed Name: Title: 7

8 Exhibit A Issued: BID DOCUMENTS OIL ROYALTY IN KIND PROGRAM SALE NO. Seller: Terms and Conditions- Master Agreement: Available Properties: Beginning Delivery Date: Term: Delivery Point: Bid Price: Payment Terms: Interest Rate: Board for Lease of University Lands That certain Oil Sales Master Agreement dated effective April 1, 1998, relating to the sale and purchase of Seller s oil royalty production The oil and gas properties listed on the attached Listing of Oil Properties, 199 Six months ending, 199 At the outlet side of the flange by which production passes at the central tank battery or storage facility EDQ Koch Oil Company Monthly Posting for West Texas/New Mexico Intermediate with API gravity deemed at 40 degrees plus or minus the specified premium per barrel including bids made on sour crude. As provided in the Master Agreement, on or before the twenty-first (21st) day of the month following the month of delivery of the oil percent per annum Electronic Fund Transfers: Annual EFT Amount $ Minimum EFT Amount $ Bidder Qualifications: An original of the Master Agreement executed by the bidder must be on file in the offices of the University Lands Accounting Office as of the Bid Deadline and the bidder s performance must be insurable by the company providing credit insurance for the University. Bids made by prospective bidders that do not meet these qualifications will not be accepted. Bid Deadline: Bids must be received in the University Lands Accounting Office no later than 5:00 p.m.,. No bid may be withdrawn after the Bid Deadline and no bid received, other than a negotiated offer, after the deadline will be accepted. Awards: The University and Seller reserve the right to reject any and all bids. The University may consider Bidder s payment history in recommending a winning bid. After opening the bids, the winning bid may be selected on the basis of the bids initially submitted or on the basis of negotiation with one or more prospective purchasers. If the transportation method changes after the bid is submitted, the premium per barrel will be adjusted accordingly, as may be agreed upon by the parties. If the parties cannot agree on an appropriate adjustment to the premium per barrel, then the University reserves the right to terminate the Award. Award of winning bids will be announced on or after.

9 Exhibit "A" LISTING OF OIL PROPERTIES OIL ROYALTY IN KIND PROGRAM SALE NO. APPROX. APPROX. COUNTY DAILY API PROPERTY NAME TRANSPORTER VOLUME GRAVITY & & PIPELINE (PL) TRANSPORTER PROPERTY# (BBLS) GRADE RRC # OPERATOR TRUCKED (TR) COMPANY PIPELINE BARRELS ANDREWS WTI OIL FULLERTON CLEARFORK UNIT EXXON (PL) AMOCO & WTI MOBIL PIPELINE UNIVERSITY BLOCK 9 WOLFCAMP CROSS (PL) TEXACO WTI UNIT TIMBERS PIPELINE UNIVERSITY BLOCK 9 PENN UNIT CROSS TIMBERS (PL) TEXACO WTI PIPELINE TEXAS -Z- & -AA- CHEVRON (PL) AMOCO WTI 01794, 15135, 32499, PIPELINE 01793, 32128, 33104, STATE UNIVERSITY HUTEX FASKEN OIL & (PL) MOBIL CONSOLID. & UNIVERSITY W RANCH, LTD. PIPELINE WTI 21010, 04034, /27/99 Page 1

10 Exhibit "A" BID LIST OIL ROYALTY IN KIND BID DEADLINE -, 199- OIL ROYALTY IN KIND PROGRAM SALE NO. The bid and offer for each property is the EDQ Koch Oil Company Monthly Posting for the West Texas/New Mexico Intermediate with API gravity deemed at 40 Degrees plus or minus the specified premium per barrel. Property Actual Number Property Name Grade * Premium Per Barrel 1 Fullerton Clearfork Unit WTI $ 2 University Blk 9 Wolfcamp WTI $ Unit 3 University Blk 9 Penn Unit WTI $ 4 Texas -Z- & -AA- WTI $ 5 State University Hutex WTI $ Cons. & Univ W 6 Univ Cons. XII & Univ FW WTI $ 7 Texas University -M- & -Q- WTI $ 8 University BR, CF, BQ & BX WTI $ 9 State University -GA- & -GB- WTI $ 10 Univ 7, 9, 11, Univ Cons. IV, WTI $ V, VI & VII 11 University -ES- WTI $ The bid and offer for each property is the EDQ Koch Oil Company Monthly Posting for the West Texas/New Mexico Intermediate with API gravity deemed at 40 Degrees plus or minus the specified premium per barrel. Page 1

11 Exhibit A BID OIL ROYALTY IN KIND PROGRAM SALE NO. BID DEADLINE, 199 I hereby submit this bid and offer to purchase University royalty oil from each or any of the Properties for which a Premium per Barrel is indicated shown on the attached Bid List for a price equal to the EDQ Koch Oil Company Monthly Posting for West Texas/New Mexico Intermediate with API gravity deemed at 40º plus or minus the Premium per Barrel indicated on behalf of: Company: Mailing Street Address: (P.O. Box) Address: (City) (City) (State) (Zip code) (State) (Zip code) Telephone: / Fax: / I understand that each property will be awarded separately and the bid and offer submitted for any particular property stands alone and is not contingent on an award of any other property. I represent and certify to Seller and the University that I am a representative or agent of Company authorized to make this offer on Company s behalf; Company has submitted an original of the Master Agreement signed by Company to the University Lands Accounting Office for filing; and Company agrees to comply with the terms and conditions of the Master Agreement and the relevant Bid Documents should this offer be accepted. Signature: (Authorized Agent) Typed Name: Title: Submit Bid To: University Lands Accounting Office By mail: P.O. Box 579 or by Hand Delivery: 702 Colorado Street, Suite 300 Austin, TX Austin, TX ATTN: Marketing Coordinator ATTN: Marketing Coordinator OIL ROYALTY IN KIND OIL ROYALTY IN KIND PROGRAM BID PROGRAM BID Telephone: (512) Fax: (512) Bids must be received in the University Lands Accounting Office no later than 5:00 pm,. No bid received after the deadline will be accepted. The Award of winning bids will be announced on or after. Notwithstanding the foregoing, the University reserves the right to negotiate the sale of royalty oil from properties for which no acceptable bid was received.

12 Exhibit "B" PROPERTY AND PRICE LIST OIL ROYALTY IN KIND PROGRAM SALE NO. The bid and offer for each property is the EDQ Koch Oil Company Monthly Posting for the West Texas/New Mexico Intermediate with API gravity deemed at 40 Degrees plus or minus the specified premium per barrel. Property Actual Number Property Name Grade * Premium Per Barrel 1 Fullerton Clearfork Unit WTI $ 2 University Blk 9 Wolfcamp WTI $ Unit 3 University Blk 9 Penn Unit WTI $ 4 Texas -Z- & -AA- WTI $ 5 State University Hutex WTI $ Cons. & Univ W 6 Univ Cons. XII & Univ FW WTI $ 7 Texas University -M- & -Q- WTI $ 8 University BR, CF, BQ & BX WTI $ 9 State University -GA- & -GB- WTI $ 10 Univ 7, 9, 11, Univ Cons. IV, WTI $ V, VI & VII 11 University -ES- WTI $ The bid and offer for each property is the EDQ Koch Oil Company Monthly Posting for the West Texas/New Mexico Intermediate with API gravity deemed at 40 Degrees plus or minus the specified premium per barrel. Page 1

13 Exhibit B AWARD OF PURCHASE CONTRACT OIL ROYALTY IN KIND PROGRAM SALE NO. Buyer: Seller: Board for Lease of University Lands Master Agreement: That certain Oil Sales Master Agreement between Seller and Buyer dated effective April 1, 1998, relating to the sale and purchase of Seller s oil royalty production. Properties: Bid Documents: Beginning Date: The oil and gas properties listed on the Property and Price Schedule attached hereto and made a part hereof for all purposes. Those certain Bid Documents issued on behalf of Seller on,, relating to the sale of oil royalty production from certain oil and gas properties controlled by Seller., 199 NOW, THEREFORE, for and in consideration of the premises and Buyer s agreement to purchase Seller s oil royalty production from the Properties at the price shown in the attached Property and Price Schedule and Buyer s agreement to be bound by the terms and conditions of the Master Agreement and all other terms, conditions, and provisions set out in the Bid Documents, Seller hereby accepts Buyer s offer to purchase, and agrees to sell to Buyer Seller s oil royalty production from the Properties on the terms and conditions set out in the Master Agreement for the term specified in the Bid Documents commencing on the Beginning Date. This Award, the Master Agreement, and the Bid Documents, including Buyer s offer to purchase Seller s oil royalty production from the Properties, are intended to be read together as a single document. Copies of the Master Agreement, Bid Documents, Buyer s executed offer to purchase, and this Award of Purchase Contract are kept in the files of the University Lands Accounting Office and will be maintained for a period of at least five (5) years following the date of this Award of Purchase Contract. EXECUTED to be effective for all purposes on the Beginning Date. DATE OF EXECUTION: SELLER: By: David Dewhurst, Chairman and Commissioner of the General Land Office