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CAPLA SUMMIT NOV. 13, 2018 Complications with Conveyancing [email protected] COMPLICATIONS with CONVEYANCING

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CAPLA SUMMIT NOV. 13, 2018 Complications with Conveyancing Curt.Hamrell@Cenovus.Com COMPLICATIONS with CONVEYANCING CAPLA SUMMIT NOV. 13, 2018 Complications with Conveyancing [email protected] COMPLICATIONS WITH CONVEYANCING THREE THINGS THAT WILL ALWAYS EXIST: DEATH, TAXES & A&D. AS OUR INDUSTRY EVOLVES WE FIND NEW SOLUTIONS IN A&D 2 CAPLA Complications with Conveyancing 1. NON CONSENT on a Transaction (Land Contract) 2. AER STATEMENT OF CONCERN (SOC) 3. WELLS ABANDONED/STATE OF SUSPENSION 4. DELINQUENT PARTIES 5. NEW AER DIRECTIVE 067 3 COMPLICATIONS WITH CONVEYANCING NON CONSENT (LAND CONTRACT) BACKGROUND: IMPROVEMENTS IN LAND ADMINISTRATION Since the Assignment Procedure in 1993 was adopted by Industry with the use of the Notice of Assignment (NOA), the Assignment and Novation (A&N) has been nearly taken out of the equation in our Land Agreements. Accounting records that were a nightmare were eventually aligned with Land contractual records. UNSIGNED A&Ns CAUSED A BACKLOG AND THE ACCOUNTING NIGHTMARE WAS EASED WITH NOAS PAVING THE WAY. NOTICE OF ASSIGNMENT TOOK THE INDUSTRY BY STORM TIME CERTAINTY WITH BINDING DATE AND NO THIRD PARTY SIGNATURES 4 NOTICE OF ASSIGNMENT - CONSENT: ASSIGNOR – TRUSTEE AND ASSIGNEE – BENEFICIARY TO AGENT FOR ASSIGNEE FROM THE ASSIGNOR FROM THE EFFECTIVE EFFECTIVE DATE TO BINDING DATE DATE TO BINDING DATE AND AND REMAINS THE RECOGNIZED BECOMES RECOGNIZED INTO THE PARTY OF THE MASTER AGREEMENT MASTER AGREEMENT AS OF THE UNTIL THE BINDING DATE BINDING DATE EFFECTIVE BINDING DATE INTERESTS, DATE OBLIGATIONS, LIABILITIES THIRD PARTY – AGREES/CONSENTS TO RECOGNIZE AND ACCEPT ASSIGNOR AS TRUSTEE AND AGENT FOR ASSIGNEE. 5 COMPLICATIONS WITH CONVEYANCING A&N NOAS THIRD PARTY THIRD PARTY NON CONSENT - A&N PROBLEMATIC UNEXECUTED - PROBLEMATIC NOAS ASSIGNMENT CONSENT PROCEDURE 6 COMPLICATIONS WITH CONVEYANCING NON CONSENT (REFUSAL TO NOVATE) SENIOR, INTERMEDIATE, JUNIOR, START-UP COMPANIES ARE ALL AFFECTED UNTIL NOVATION OCCURS, THE VENDOR/ASSIGNOR REMAINS RECOGNIZED AND NOT THE PURCHASER/ASSIGNEE. CL 2.04 ASSIGN PROC UNDER APPLICATIONS, CONDITIONS AND FORM OF NOTICE – THE RATIONALE OR JUSTIFICATION IS THAT A THIRD PARTY MAY “PASS JUDGEMENT” ON A PROPOSED TRANSFER OF ASSIGNEE IN THE FORM OF REFUSING TO ALLOW THE TRANSACTION TO BE COMPLETED (WITHHOLDING CONSENT). SINCE THE OIL PRICE COLLAPSE AND NATURAL GAS PRICE CRASH IN 2014, WE’VE FALLEN ON TOUGH FINANCIAL TIMES AND MUCH HIGHER RISKS OF COMPANY INSOLVENCY. STRICTER MEASURES OF COMPLIANCE FROM THE GOVERNMENT HAS SET THE TONE FOR UNEASINESS IN OUR SEDIMENTARY BASIN IN WESTERN CANADA ‘S ENERGY INDUSTRY. COMPANIES ARE ALSO SETTING THE TONE TO PROTECT THEIR ASSETS. THIS HAS LED TO PARTNERS ABILITY TO PAY ITS SHARE OF - JOINT INTEREST BILLINGS (JIB) - ROYALTIES, RENTALS, ALL ENCUMBRANCES - ANY FUTURE CAPITAL COSTS - ASSET RETIREMENT OBLIGATIONS (ARO). 7 NOA - NON CONSENT: REFUSAL TO NOVATE ASSIGNOR BECOMES MIDDLEMAN FOR ASSIGNEE ASSIGNOR – TRUSTEE AND ASSIGNEE – AGENT FOR ASSIGNEE FROM THE BENEFICIARY TO ASSIGNOR FROM EFFECTIVE DATE TO BINDING DATE AND THE EFFECTIVE DATE TO BINDING REMAINS THE RECOGNIZED PARTY OF THE DATE AND BECOMES RECOGNIZED MASTER AGREEMENT UNTIL THE BINDING INTO THE MASTER AGREEMENT AS DATE EFFECTIVE OF THE BINDING DATE BINDING DATE INTERESTS, DATE OBLIGATIONS, LIABILITIES THIRD PARTY – DOES NOT AGREE/NON CONSENT TO RECOGNIZE AND ACCEPT ASSIGNOR AS TRUSTEE AND AGENT FOR ASSIGNEE. 8 THE IN FLUX OF NON CONSENTS. LIKE THE CANADIAN PIPELINE EGRESS, NO OR DELAYED RESOLUTION CREATES BOTTLENECKS/BLOCKADES - A&D TRANSACTIONS •SENIOR OIL AND • INTERMEDIATE OIL GAS COMPANY NOAS AND GAS •COMPLIANT? COMPANY •LMR 2+ •COMPLIANT? •LMR 2+ POTENTIAL VENDOR PURCHASER THIRD THIRD PARTY PARTY CONSENT NON CONSENT •JUNIOR OIL •START-UP • AND GAS •OIL AND GAS •COMPANY - •COMPANY - •COMPLIANT? SCRUTINIZED •COMPLIANT? SCRUTINIZED 9 COMPLICATIONS WITH CONVEYANCING NON CONSENT BY A CURRENT THIRD PARTY – PURCHASER IS NOT RECOGNIZED, VENDOR REMAINS RECOGNIZED. A GROWING LIST OF THIRD PARTIES ARE REFUSING TO PROVIDE PRIOR CONSENT ON A REASONABLE BELIEF THAT THE PROPOSED ASSIGNEE DOES NOT HAVE THE FINANCIAL ABILITY TO MEET THE OBLIGATIONS UNDER THE AGREEMENT: HERE’S AN ONGOING CASE THAT IS AN ADMINISTRATION BOTTLEKNECK! -THE TP (OPERATOR) REFUSES TO GIVE CONSENT (REFUSAL TO NOVATE) AND CONTINUES TO BILL (JIBS) VENDOR -TP CONTINUES TO SEND CORRESPONDENCE RELATED TO THE LANDS TO VENDOR -VENDOR ACTS AS MIDDLEMAN – FORWARDS/RECEIVES ELECTIONS FROM PURCHASER. - ANY QUERIES OR FOLLOW UP REMAINS WITH VENDOR FOR ANSWERS. - IF PURCHASER HAS ANY QUESTIONS - MUST GO THROUGH VENDOR TO ASK THIRD PARTY OPERATOR. - I.E. AFE QUESTIONS ON COSTS AND REVENUES, ETC. NEED TO BE TRACKED TO BE REFLECTED ON SOA OF THE SALE (VENDOR >PURCHASER). - THIS BECOMES A HUGE ADMINISTRATION NIGHTMARE AND BURDEN ON VENDORS DAILY WORK LOAD. THIS HEADACHE HAS BEEN GOING ON NOW FOR OVER ONE PLUS YEARS WITH NO END IN SIGHT. THIS CANNOT BE THE WAY INDUSTRY MOVES FORWARD AND A JOINT EFFORT TO CORRECT THIS MOVING FORWARD. 10 COMPLICATIONS WITH CONVEYANCING - IS NON CONSENT FAIR? - NON CONSENT BY A THIRD PARTY IS A PROTECTION FROM BRINGING IN A NEW POTENTIAL PURCHASER PARTY INTO THE SHOES OF A VENDOR. - WITH THE AMOUNT OF COMPANIES GOING INTO FINANCIAL DISTRESS, WITH BANKRUPCIES, THE INABLITITY OF MAINTAINING GOOD BUSINESS PRACTICE HAS CREATED AN UNCERTAINTY AND HAS BECOME MORE COMMON IN TODAY’S INDUSTRY. - IS NON CONSENT HOLDING UP DEALS? - ABSOLUTELY, MOST AFFECTED ARE NEW ENTITIES AND/OR SMALL CORPORATIONS. THEIR INABILITY TO PROCEED WITH DEALS HAS CREATED MORE COMPANIES JUMPING ON BOARD WITH PROTECTING THEIR ASSETS THAT THEY HOLD WITH PARTNERS, . 11 COMPLICATIONS WITH CONVEYANCING PROVIDE EVIDENCE FROM PURCHASER THAT IS SATISFACTORY: 1. BALANCE SHEET 2. FINANCIAL STATEMENTS 3. LMR/LLR RATING 4. LETTER OF CREDIT IN AMOUNT OF EXPECTED AOR (RECLAMATION OBLIGATIONS) OF AGREEMENTS. PROCESS/PROGRESS: 1) POTENTIAL PURCHASER PROVIDES INFORMATION LETTER TO THIRD PARTY. 2) THEN CONSENT IS GRANTED BY THIRD PARTY WITH A FOLLOW UP LETTER FROM TP TO ALL PARTIES TO THE AGREEMENT 3) NOA IS PROCESSED WITH CURRENT BINDING DATE. PURCHASER IS NOW RECOGNIZED INTO THE LAND AGREEMENT AND VENDOR IS DISCHARGED FROM THE ASSIGNED INTEREST. 12 COMPLICATIONS WITH CONVEYANCING QUERY DEFICIENCY RESOLUTION NON CONSENT POTENTIAL BY THIRD PARTY (TP) FINANCIAL PROOF PURCHASER/ASSIGNEE TO LAND PROVIDED AGREEMENT WILL NOT BE -LETTER T0 THIRD RECOGNIZED INTO AGT. PARTY TP CONSENTS 13 COMPLICATIONS WITH CONVEYANCING QUERY DEFICIENCY NO RESOLUTION REQUIRE POTENTIAL PURCHASER PROOF TO NO FINANCIAL THIRD PARTY IS UNABLE/UNWILLLING PROOF THEN TP TO PROVIDE BACKUP TO REMAINS THIRD PARTY NON CONSENT - PURCHASER NOT RECOGNIZED IN AGT 14 COMPLICATIONS WITH CONVEYANCING CONSENT LETTER WITH NOA - ASSIGNMENT PRODECURE (AP) - INITIALLY CALLS FOR – ISSUE CONSENT SEPARATELY THEN ISSUE NOA FOLLOWING CONSENT - TO EASE THE BURDEN COMMON PRACTICE BECAME THE NORM TO SEND OUT NOA WITH CONSENT AFTER CLOSING OF DEAL. - CRUISE CONTROL WITH NOAS AND CONSENTS UNTIL RECENTLY COMPANIES WITHOLD CONSENT. - WITHOLD CONSENT - NON CONSENT IS SUBJECT TO NOAS, ROFR LETTERS AND CHANGE OF OPERATOR LETTERS - WHY - IS IT REASONABLE? - FINANCES - VENDOR OR PURCHASER HAS PAST HISTORY OF $ OWED I.E. UNPAID AFE - INABILITY TO MEET FUTURE FINANCIAL OBLIGATIONS THAT MAY ARISE WITH JOINTLY HELD ASSETS 15 A&D PROCESS/TIMELINE – TYPICAL TRANSACTION – HIGH RISK LOI P&S PRE CLOSE PRE CLOSING POST POST FSOA CLOSE CLOSE CLOSE DUE DILIGENCE SALE SIGNE SIGNED ROFRS NOA/ NOA BD COMPLETE FINALIZED D CONSENT - PURCAHSER FINALIZE RECOGNIZE SENT TO TPS ENVIRONMENT, ISSUED, $ = PNG & D ASSETS, RECEIPT TANGIBLES -TITLE SENT TITLE VENDOR, OF FOR REGIST REGIST PURCHASER ELECTIO NS 16 A&D PROCESS/TIMELINE – DEALING WITH CONSENT PRO- ACTIVELY – AS PER THE 1993 ASSIGNMENT PROCEDURE CONSENT PRE-CLOSE – LESS RISK LOI P&S PRE CLOSE PRE CLOSING POST POST FSOA CLOSE CLOSE CLOSE DUE DILIGENCE SALE SIGNE SIGNED ROFRS NOA/ NOA BD COMPLETE FINALIZED D COVER PURCAHSER FINALIZE RECOGNIZE CONSENT LETTER - ENVIRONMENT, $ = PNG & D -SENT TO SENT TO TPS ASSETS, TANGIBLES TPS TITLE VENDOR, -TITLE SENT REGIST PURCHASER ISSUED, FOR REGIST RECEIPT OF CONSENT – PROCEED TO CLOSING 17 COMPLICATIONS WITH CONVEYANCING SOLUTIONS: - VENDOR AND PURCHASER ENSURES THE DEAL MUST CLOSE SMOOTHLY - PURCHASER IS RECOGNIZED ON ALL DOCUMENTS AND VENDOR DISCHARGED FROM ASSETS - DUE DILIGENCE: REPS AND WARRANTIES ON EACH: LMR SEARCH, PPR SEARCH, CORPORATE SEARCH - LIABILITIES OF THE ASSETS SOLD, AER – LMR DEPOSITS AND POSSIBLE THIRD PARTY LETTER OF CREDIT DEPOSITS - CONSENT LETTERS SENT OUT PRIOR TO THE CLOSING OF THE SALE THEN ONCE CONSENT IS GRANTED THEN PROCEED TO CLOSE THE DEAL. - SIMILAR TO ENVIRONMENTAL OR SECURITIES THAT HAVE NOT BEEN DISCHARGED THAT AFFECT TITLE, THE NON CONSENT IS A VALID REASON TO HOLD UP OR CANCEL A SALE OF THE ASSETS. IF YOU REFER TO PROPERTY TRANSFER IT IS UNDERSTOOD THAT A CONSENT WOULD BE SENT OUT EARLY IN THE SALE PROCESS. 18 COMPLICATIONS WITH CONVEYANCING STATEMENT OF CONCERN (SOC) (Well) If there are concerns about a company’s proposed energy development, i.e. taking on a well transfer, then a third party may submit a statement of concern (SOC) to the Alberta Energy Regulator (AER) a statement about a current AER application that describes specific concerns about a company. Normally a standard case is where a company has an interest in the well. Why is a SOC used? If a company has reason. i.e. transferee is a Purchaser in a sale in conjunction with a non consent on a land contract or another example is a low LMR rating then a SOC will be submitted and registered with AER. REBUTTAL? A rebuttal letter from transferee
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