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EX-32 - EX-32 - WHITING USA TRUST I | d71538exv32.htm |
EX-31 - EX-31 - WHITING USA TRUST I | d71538exv31.htm |
EX-99 - EX-99 - WHITING USA TRUST I | d71538exv99.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
for The Fiscal Year Ended December 31, 2009 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
for the transition period from to |
Commission File Number 001-34026
WHITING USA TRUST I
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) |
26-6053936 (I.R.S. Employer Identification No.) |
|
The Bank of New York Mellon Trust Company, N.A., Trustee Global Corporate Trust 919 Congress Avenue Austin, Texas (Address of principal executive offices) |
78701 (Zip Code) |
Registrants telephone number, including area code: (800) 852-1422
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class | Name of Each Exchange on which Registered | |
Units of Beneficial Interest | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of class)
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule
405 of the Securities Act. Yes o No þ.
Indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act. Yes o No þ.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation
S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Act). Yes o No þ
The aggregate market value of Units of Beneficial Interest in Whiting USA Trust I held by
non-affiliates at the closing sales price on June 30, 2009 of $11.10 was $153,889,168.
As of March 10, 2010, 13,863,889 Units of Beneficial Interest in Whiting USA Trust I were
outstanding.
Documents Incorporated By Reference: None
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References to the Trust in this document refer to Whiting USA Trust I. References to
Whiting in this document refer to Whiting Petroleum Corporation and its wholly-owned subsidiary,
Whiting Oil and Gas Corporation. References to Whiting Oil and Gas in this document refer to
Whiting Oil and Gas Corporation, a wholly owned subsidiary of Whiting Petroleum Corporation and the
successor to Equity Oil Company. Equity Oil Company was merged into Whiting Oil and Gas
Corporation effective September 30, 2009. The merger did not have an effect on the Trust.
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. All statements other than statements of historical facts included in this
Form 10-K, including without limitation the statements under Trustees Discussion and Analysis of
Financial Condition and Results of Operation are forward-looking statements. No assurance can be
given that such expectations will prove to have been correct. When used in this document, the words
believes, expects, anticipates, intends or similar expressions are intended to identify
such forward-looking statements. The following important factors, in addition to those discussed
elsewhere in this Form 10-K, could affect the future results of the energy industry in general, and
Whiting and the Trust in particular, and could cause actual results to differ materially from those
expressed in such forward-looking statements:
| the effect of changes in commodity prices and conditions in the capital markets; |
| the effects of global credit, financial and economic issues; |
| uncertainty of estimates of oil and natural gas reserves and production; |
| risks incident to the operation of oil and natural gas wells; |
| future production costs; |
| the inability to access oil and natural gas markets due to market conditions or operational impediments; |
| failure of the underlying properties to yield oil or natural gas in commercially viable quantities; |
| the effect of existing and future laws and regulatory actions; |
| competition from others in the energy industry; |
| risks arising out of the hedge contracts; |
| inflation or deflation; and |
| other risks described under the caption Risk Factors in this Form 10-K. |
This Form 10-K describes other important factors that could cause actual results to differ
materially from expectations of Whiting and the Trust, including under the caption Risk Factors.
All subsequent written and oral forward-looking statements attributable to Whiting or the Trust or
persons acting on behalf of Whiting or the Trust are expressly qualified in their entirety by such
factors. The Trust assumes no obligation, and disclaims any duty, to update these forward-looking
statements.
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GLOSSARY OF CERTAIN OIL AND NATURAL GAS TERMS
In this Form 10-K the following terms have the meanings specified below.
Bbl One stock tank barrel, or 42 U.S. gallons liquid volume, used in this report in
reference to oil and other liquid hydrocarbons.
Bcf One billion cubic feet of natural gas.
BOE One stock tank barrel of oil equivalent, computed on an approximate energy equivalent
basis that one Bbl of crude oil equals six Mcf of natural gas and one Bbl of crude oil equals one
Bbl of natural gas liquids.
BOE/d One BOE per day.
Completion The installation of permanent equipment for the production of oil or natural
gas, or in the case of a dry hole, the reporting of abandonment to the appropriate agency.
COPAS The Council of Petroleum Accountants Societies.
Costless collar An options position where the proceeds from the sale of a call option fund
the purchase of a put option.
Differential The difference between a benchmark price of oil and natural gas, such as the
NYMEX crude oil spot, and the wellhead price received.
Estimated Future Net Revenues Also referred to as estimated future net cash flows. The
result of applying current prices of oil, natural gas and natural gas liquids to estimated future
production from oil, natural gas and natural gas liquids proved reserves, reduced by estimated
future expenditures, based on current costs to be incurred, in developing and producing the proved
reserves, excluding overhead.
Farm-in or Farm-out Agreement An agreement under which the owner of a working interest in
an oil or natural gas lease typically assigns the working interest or a portion of the working
interest to another party who desires to drill on the leased acreage. Generally, the assignee is
required to drill one or more wells in order to earn its interest in the acreage. The assignor
usually retains a royalty or reversionary interest in the lease. The interest received by an
assignee is a farm-in while the interest transferred by the assignor is a farm-out.
FASB Financial Accounting Standards Board.
FASB ASC The FASB Accounting Standards Codification.
Field An area consisting of either a single reservoir or multiple reservoirs, all grouped
on or related to the same individual geological structural feature and/or stratigraphic condition.
GAAP Generally accepted accounting principles in the United States.
Gross Acres or Gross Wells The total acres or wells, as the case may be, in which a working
interest is owned.
IRS The Internal Revenue Service of the United States federal government.
MBbl One thousand barrels of crude oil or other liquid hydrocarbons.
MBOE One thousand BOE.
MMBOE One million BOE.
Mcf One thousand standard cubic feet of natural gas.
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MMcf One million standard cubic feet of natural gas.
Net Profits Interest (NPI) A nonoperating interest that creates a share in gross production
from an operating or working interest in oil and natural gas properties. The share is measured by
net profits from the sale of production after deducting costs associated with that production.
Net Revenue Interest An interest in all oil, natural gas and natural gas liquids produced
and saved from, or attributable to, a particular property, net of all royalties, overriding
royalties, net profits interests, carried interests, reversionary interests and any other burdens
to which the persons interest is subject.
Plugging and Abandonment Refers to the sealing off of fluids in the strata penetrated by a
well so that the fluids from one stratum will not escape into another or to the surface.
Regulations of many states require plugging of abandoned wells.
Pre-tax PV10% The present value of estimated future revenues to be generated from the
production of proved reserves calculated in accordance with Securities and Exchange Commission
(SEC) guidelines, net of estimated lease operating expense, production taxes and future
development costs, using price and costs as of the date of estimation without future escalation,
without giving effect to non-property related expenses such as general and administrative expenses,
debt service and depreciation, depletion and amortization, or Federal income taxes and discounted
using an annual discount rate of 10%. Pre-tax PV10% may be considered a non-GAAP financial measure
as defined by the SEC.
Proved developed reserves Proved reserves that can be expected to be recovered through
existing wells with existing equipment and operating methods or in which the cost of the required
equipment is relatively minor compared to the cost of a new well.
Proved reserves Those reserves which, by analysis of geoscience and engineering data, can be
estimated with reasonable certainty to be economically produciblefrom a given date forward, from
known reservoirs and under existing economic conditions, operating methods and government
regulationsprior to the time at which contracts providing the right to operate expire, unless
evidence indicates that renewal is reasonably certain, regardless of whether deterministic or
probabilistic methods are used for the estimation. The project to extract the hydrocarbons must
have commenced, or the operator must be reasonably certain that it will commence the project,
within a reasonable time.
The area of the reservoir considered as proved includes all of the following: |
a. | The area identified by drilling and limited by fluid contacts, if any, and |
b. | Adjacent undrilled portions of the reservoir that can, with reasonable certainty, be judged to be continuous with it and to contain economically producible oil or gas on the basis of available geoscience and engineering data. |
Reserves that can be produced economically through application of improved recovery techniques (including, but not limited to, fluid injection) are included in the proved classification when both of the following occur: |
a. | Successful testing by a pilot project in an area of the reservoir with properties no more favorable than in the reservoir as a whole, the operation of an installed program in the reservoir or an analogous reservoir, or other evidence using reliable technology establishes the reasonable certainty of the engineering analysis on which the project or program was based, and |
b. | The project has been approved for development by all necessary parties and entities, including governmental entities. |
Existing economic conditions include prices and costs at which economic producibility from a reservoir is to be determined. The price shall be the average price during the 12-month period before the ending date of the period covered by the report, determined as an unweighted arithmetic average of the first-day-of-the-month price for each month within such period, unless prices are defined by contractual arrangements, excluding escalations based upon future conditions. |
Reasonable certainty If deterministic methods are used, reasonable certainty means a high
degree of confidence that the quantities will be recovered. If probabilistic methods are used,
there should be at least a 90 percent probability that the quantities
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actually recovered will equal or exceed the estimate. A high degree of confidence exists if
the quantity is much more likely to be achieved than not, and, as changes due to increased
availability of geoscience (geological, geophysical and geochemical) engineering, and economic data
are made to estimated ultimate recovery with time, reasonably certain estimated ultimate recovery
is much more likely to increase or remain constant than to decrease.
Recompletion The completion for production of an existing well bore in another formation
from which that well has been previously completed.
Reserves Estimated remaining quantities of oil and gas and related substances anticipated to
be economically producible, as of a given date, by application of development projects to known
accumulations. In addition, there must exist, or there must be a reasonable expectation that there
will exist, the legal right to produce or a revenue interest in the production, installed means of
delivering oil and gas or related substances to market, and all permits and financing required to
implement the project.
Reservoir A porous and permeable underground formation containing a natural accumulation of
producible crude oil and/or natural gas that is confined by impermeable rock or water barriers and
is individual and separate from other reservoirs.
Standardized Measure of Discounted Future Net Cash Flows Also referred to herein as
standardized measure. The discounted future net cash flows relating to proved reserves based on,
the average price during the 12 month period before the ending date of the period covered by the
report, determined as an unweighted arithmetic average of the first-day-of-the-month price for each
month within such period (unless prices are defined by contractual arrangements, excluding
escalations based upon future conditions), current costs and statutory tax rates, and a 10% annual
discount rate.
Working Interest The interest in a crude oil and natural gas property (normally a leasehold
interest) that gives the owner the right to drill, produce and conduct operations on the property
and to share in production, subject to all royalties, overriding royalties and other burdens and to
share in all costs of exploration, development and operations and all risks in connection
therewith.
Workover Operations on a producing well to restore or increase production.
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PART I
Item 1. | Business |
General
Whiting USA Trust I is a statutory trust formed in October 2007 under the Delaware Statutory
Trust Act, pursuant to a trust agreement (the Trust agreement) among Whiting Oil and Gas as
trustor, The Bank of New York Trust Company, N.A., as Trustee (subsequently renamed The Bank of New
York Mellon Trust Company, N.A., and hereinafter referred to as Trustee), and Wilmington Trust
Company, as Delaware Trustee (the Delaware Trustee). The initial capitalization of the Trust
estate was funded by Whiting in November 2007. The Trust maintains its offices at the office of
the Trustee, at 919 Congress Avenue, Austin, Texas 78701. The telephone number of the Trustee is
1-800-852-1422.
The Trust makes copies of its reports under the Exchange Act available at
www.businesswire.com/cnn/whx.htm. The Trusts filings under the Exchange Act are also
available electronically from the website maintained by the Securities and Exchange Commission
(SEC) at http://www.sec.gov. In addition, the Trust will provide electronic and paper
copies of its recent filings free of charge upon request to the Trustee.
As of December 31, 2007, the Trust had no assets other than a de minimus cash balance from the
initial capitalization and had conducted no operations other than organizational activities. In
April 2008, the Trust issued 13,863,889 units of beneficial interest in the Trust (Trust units)
to Whiting in exchange for the conveyance of a term net profits interest (NPI) by Whiting Oil and
Gas. The NPI represents the right for the Trust to receive 90% of the net proceeds from Whitings
interests in certain existing oil, natural gas and natural gas liquid producing properties which we
refer to as the underlying properties. The underlying properties are located in the Rocky
Mountains, Mid-Continent, Permian Basin and Gulf Coast regions. The underlying properties include
interests in 3,086 gross (381.7 net) producing oil and gas wells. Immediately after the conveyance,
Whiting completed an initial public offering of Trust units selling 11,677,500 such units. Whiting
retained ownership of 2,186,389 Trust units, or 15.8% of the total Trust units issued and
outstanding.
The NPI will terminate when 9.11 MMBOE have been produced and sold from the underlying
properties (which amount is the equivalent of 8.20 MMBOE in respect of the Trusts right to receive
90% of the net proceeds from such reserves pursuant to the NPI), and the Trust will soon thereafter
wind up its affairs and terminate. As of December 31, 2009, on an accrual basis 2.77 MMBOE of the
Trusts total 8.20 MMBOE have been produced and sold and 0.02 MMBOE have been divested. Further
detail on the reserves is provided herein under the section titled Properties-Description of the
Underlying Properties Reserves, and such reserve information is based upon a reserve report
prepared by independent reserve engineers Cawley, Gillespie & Associates, Inc. for the underlying
properties at December 31, 2009, which we refer to as the reserve report. According to the
reserve report, the portion of the 9.11 MMBOE (8.20 MMBOE at the 90% NPI) reserve quantities
attributable to the NPI not yet produced or sold as divestitures at December 31, 2009 are projected
to be produced from the underlying properties by October 31, 2017. However, the reserve report is
based on the assumptions included therein, and no assurance can be given regarding the amount or
timing of actual production from the underlying properties. See Risk Factors in Item 1A of this
Annual Report on Form 10-K for additional discussion. Production from the underlying properties for
the year ended December 31, 2009, was approximately 58% oil and approximately 42% natural gas.
Net proceeds payable to the Trust depend upon production quantities, sales prices of oil,
natural gas and natural gas liquids, costs to develop and produce the oil, natural gas and natural
gas liquids and realized cash settlements from commodity derivative contracts. In calculating net
proceeds, Whiting deducts from gross oil and natural gas sales proceeds, all royalties, lease
operating expenses (including costs of workovers), production and property taxes, hedge payments
made by Whiting to the hedge contract counterparty, maintenance expenses, postproduction costs
(including plugging and abandonment liabilities) and producing overhead. If at any time costs
should exceed gross proceeds, neither the Trust nor the Trust unitholders would be liable for the
excess costs; the Trust however, would not receive any net proceeds until future net proceeds
exceed the total of those excess costs, plus interest at the prime rate. For more information on
the net proceeds calculation, see -Computation of Net Proceeds.
The Trust makes quarterly cash distributions of substantially all of its quarterly cash
receipts, after the deduction of fees and expenses for the administration of the Trust, to holders
of its Trust units. Because payments to the Trust are generated by depleting assets and the Trust
has a finite life with the production from the underlying properties diminishing over time, a
portion of each distribution represents a return of the original investment in the Trust units.
The Trustee can authorize the Trust to borrow money to pay Trust administrative or incidental
expenses that exceed cash held by
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the Trust. The Trustee may authorize the Trust to borrow from the Trustee, Whiting or the
Delaware Trustee as a lender, provided the terms of the loan are similar to the terms it would
grant to a similarly situated commercial customer with whom it did not have a fiduciary
relationship. The Trustee may also deposit funds awaiting distribution in an account with itself
and make other short-term investments with the funds awaiting distribution.
The Trust was created to acquire and hold the term NPI for the benefit of the Trust
unitholders pursuant to a conveyance to the Trust from Whiting Oil and Gas. The NPI is the only
asset of the Trust, other than cash held for Trust expenses. The NPI is passive in nature, and the
Trustee has no management control over and no responsibility relating to the operation of the
underlying properties. The business and affairs of the Trust are managed by the Trustee, and
Whiting and its affiliates have no ability to manage or influence the operations of the Trust. The
oil and gas properties comprising the underlying properties for which Whiting is designated the
operator are currently operated by Whiting and its subsidiaries on a contract operator basis.
Whiting, as a matter of course, does not make public projections as to future sales, earnings or
other results relating to the underlying properties.
Marketing and Major Customers
Pursuant to the terms of the conveyance creating the NPI, Whiting has the responsibility to
market, or cause to be marketed, the oil, natural gas and natural gas liquid production
attributable to the underlying properties. The terms of the conveyance creating the NPI do not
permit Whiting to charge any marketing fee, other than fees for marketing paid to non-affiliates,
when determining the net proceeds upon which the NPI is calculated. As a result, the net proceeds
to the Trust from the sales of oil, natural gas and natural gas liquid production from the
underlying properties are determined based on the same price that Whiting receives for oil, natural
gas and natural gas liquid production attributable to Whitings remaining interest in the
underlying properties.
Whiting principally sells its oil and natural gas production to end users, marketers and other
purchasers that have access to nearby pipeline facilities. In areas where there is no practical
access to pipelines, oil is trucked to storage facilities. Whitings marketing of oil and natural
gas can be affected by factors beyond its control, the effects of which cannot be accurately
predicted. During 2009, sales to Teppco Crude Oil LLC and Lion Oil Company each accounted for 12%
of total oil and natural gas sales from the underlying properties. During 2008, sales to the same
two customers accounted for 14% and 13%, respectively, of total oil and natural gas sales from the
underlying properties. During 2007, sales to the same two customers accounted for 13% and 11%,
respectively, of total oil and natural gas sales from the underlying properties. There is
significant competition among purchasers of crude oil and natural gas in the areas of the
underlying properties, and if the underlying properties were to lose one or both of their largest
purchasers, several entities could reasonably be expected purchase crude oil and natural gas
produced from the underlying properties with little or no interruption to the sales.
Competition and Markets
The oil and natural gas industry is highly competitive. Whiting competes with major oil and
gas companies and independent oil and gas companies for oil and natural gas, equipment, personnel
and markets for the sale of oil and natural gas. Many of these competitors are financially stronger
than Whiting, but even financially troubled competitors can affect the market because of their need
to sell oil and natural gas at any price to attempt to maintain cashflow. The Trust is subject to
the same competitive conditions as Whiting and other companies in the oil and natural gas industry.
Oil and natural gas compete with other forms of energy available to customers, primarily based
on price. These alternate forms of energy include electricity, coal and fuel oils. Changes in the
availability or price of oil, natural gas or other forms of energy, as well as business conditions,
conservation, legislation, regulations and the ability to convert to alternate fuels and other
forms of energy may affect the demand for oil and natural gas. Future price fluctuations for oil,
natural gas and natural gas liquids will directly impact Trust distributions, estimates of reserves
attributable to the Trusts interests and estimated and actual future net revenues to the Trust.
Description of Trust Units
Each Trust unit is a unit of beneficial interest in the Trust and is entitled to receive cash
distributions from the Trust on a pro rata basis. Each Trust unitholder has the same rights
regarding his or her Trust units as every other Trust unitholder has regarding his or her units.
The Trust units are in book-entry form only and are not represented by certificates.
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Periodic Reports
The Trustee files all required Trust federal and state income tax and information returns. The
Trustee prepares and mails to Trust
unitholders annual reports that Trust unitholders need to correctly report their share of the
Trusts income and deductions. The Trustee also causes to be prepared and filed reports required
under the Securities Exchange Act of 1934, as amended, and by the rules of any securities exchange
or quotation system on which the Trust units are listed or admitted to trading, and is responsible
for causing the Trust to comply with all of the provisions of the Sarbanes-Oxley Act, including but
not limited to, establishing, evaluating and maintaining a system of internal controls over
financial reporting in compliance with the requirements of Section 404 thereof. Each Trust
unitholder and his or her representatives may examine, for any proper purpose, during reasonable
business hours, the records of the Trust and the Trustee.
Liability of Trust Unitholders
Under the Delaware Statutory Trust Act, Trust unitholders are entitled to the same limitation
of personal liability extended to stockholders of private corporations for profit under the General
Corporation Law of the State of Delaware. No assurance can be given, however, that the courts in
jurisdictions outside of Delaware would give effect to such limitation.
Voting Rights of Trust Unitholders
The Trustee or Trust unitholders owning at least 10% of the outstanding Trust units may call
meetings of Trust unitholders. The Trust is responsible for all costs associated with calling a
meeting of Trust unitholders, unless such meeting is called by the Trust unitholders in which case
the Trust unitholders are responsible for all costs associated with calling such meeting. Meetings
must be held in such location as is designated by the Trustee in the notice of such meeting. The
Trustee must send written notice of the time and place of the meeting and the matters to be acted
upon to all of the Trust unitholders at least 20 days and not more than 60 days before the meeting.
Trust unitholders representing a majority of Trust units outstanding must be present or represented
to have a quorum. Each Trust unitholder is entitled to one vote for each Trust unit owned.
Unless otherwise required by the Trust agreement, a matter may be approved or disapproved by
the vote of a majority of the Trust units held by the Trust unitholders at a meeting where there is
a quorum. This is true even if a majority of the total Trust units did not approve it. In
determining whether the holders of the required number of units have approved any matter that is
submitted to a vote of unitholders, those units owned by Whiting will be disregarded if such matter
either would result in increased costs and expenses to the Trust or would adversely affect the
economic interests of Trust unitholders. The affirmative vote of the holders of a majority of the
outstanding Trust units is required to:
| dissolve the Trust; | ||
| remove the Trustee or the Delaware Trustee; | ||
| amend the Trust agreement (except with respect to certain matters that do not adversely affect the rights of Trust unitholders in any material respect); | ||
| merge or consolidate the Trust with or into another entity; | ||
| approve the sale of assets of the Trust unless the sale involves the release of less than or equal to 0.25% of the total production from the underlying properties for the last twelve months and the aggregate asset sales do not have a fair market value in excess of $500,000 for the last twelve months; or | ||
| agree to amend or terminate the conveyance. |
In addition, certain amendments to the Trust agreement, conveyance, administrative services
agreement and registration rights agreement may be made by the Trustee without approval of the
Trust unitholders. The Trustee must consent before all or any part of the Trust assets can be sold,
except in connection with the dissolution of the Trust or limited sales directed by Whiting in
conjunction with its sale of underlying properties.
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Termination of the Trust; Sale of the Net Profits Interest
The NPI will terminate at the time when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) have been
produced and sold from the underlying properties, and the Trust will soon thereafter wind up its
affairs and terminate. The Trust will dissolve prior to the termination of the NPI if:
| the Trust sells the NPI; | ||
| annual gross proceeds to the Trust attributable to the NPI are less than $1.0 million for each of any two consecutive years; | ||
| the holders of a majority of the outstanding Trust units vote in favor of dissolution; or | ||
| the Trust is judicially terminated. |
The Trustee would then sell all of the Trusts assets, either by private sale or public
auction, and distribute the net proceeds of the sale to the Trust unitholders.
Computation of Net Proceeds
The provisions of the conveyance governing the computation of net proceeds are detailed and
extensive. The following information summarizes the material information contained in the
conveyance related to the computation of net proceeds. For more detailed provisions concerning the
NPI, we make reference to the conveyance agreement, which is filed as an exhibit to this Annual
Report on Form 10-K.
Net Profits Interest
The term NPI was conveyed to the Trust by Whiting Oil and Gas in April 2008 by means of a
conveyance instrument that has been recorded in the appropriate real property records in each
county where the underlying properties are located. The NPI burdens the interests owned by Whiting
in the underlying properties.
The conveyance creating the NPI provides that the Trust is entitled to receive an amount of
cash for each quarter equal to 90% of the net proceeds (calculated as described below) from the
sale of oil, natural gas and natural gas liquid production attributable to the underlying
properties.
The amounts paid to the Trust for the NPI are based on the definitions of gross proceeds and
net proceeds contained in the conveyance and described below. Under the conveyance, net proceeds
are computed quarterly, and 90% of the aggregate net proceeds attributable to a computation period
are paid to the Trust no later than 60 days following the end of the computation period (or the
next succeeding business day). Whiting does not pay to the Trust any interest on the net proceeds
held by Whiting prior to payment to the Trust. The Trustee makes distributions to Trust unitholders
quarterly.
Gross proceeds means the aggregate amount received by Whiting from sales of oil, natural gas
and natural gas liquids produced from the underlying properties (other than amounts received for
certain future non-consent operations). Gross proceeds does not include any amount for oil, natural
gas or natural gas liquids lost in production or marketing or used by Whiting in drilling,
production and plant operations. Gross proceeds includes take-or-pay or ratable take payments
for future production in the event that they are not subject to repayment due to insufficient
subsequent production or purchases.
Net proceeds means gross proceeds less Whitings share of the following:
| all payments to mineral or landowners, such as royalties or other burdens against production, delay rentals, shut-in oil and natural gas payments, minimum royalty or other payments for drilling or deferring drilling; | ||
| any taxes paid by the owner of an underlying property to the extent not deducted in calculating gross proceeds, including estimated and accrued general property (ad valorem), production, severance, sales, gathering, excise and other taxes; | ||
| the aggregate amounts paid by Whiting upon settlement of the hedge contracts on a quarterly basis, as specified in the hedge contracts; |
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| any extraordinary taxes or windfall profits taxes that may be assessed in the future that are based on profits realized or prices received for production from the underlying properties; | ||
| costs paid by an owner of an oil and natural gas property comprising the underlying properties under any joint operating agreement; | ||
| costs and expenses, costs and liabilities of workovers, operating and producing oil, natural gas and natural gas liquids, including allocated expenses such as labor, vehicle and travel costs and materials and any plugging and abandonment liabilities other than costs and expenses for certain future non-consent operations; | ||
| costs or charges associated with gathering, treating and processing oil, natural gas and natural gas liquids; | ||
| a producing overhead charge in accordance with existing operating agreements; | ||
| to the extent Whiting is the operator of an underlying property and there is no operating agreement covering such underlying property, the overhead charges allocated by Whiting to such underlying property calculated in the same manner Whiting allocates overhead to other similarly owned property; | ||
| costs for recording the conveyance and costs estimated to record the termination and/or release of the conveyance; | ||
| costs paid to the counterparty under the hedge contracts or to the persons that provide credit to maintain any hedge contracts, excluding any hedge settlement amounts; | ||
| amounts previously included in gross proceeds but subsequently paid as a refund, interest or penalty; and | ||
| costs and expenses for renewals or extensions of leases. |
All of the hedge payments received by Whiting from the counterparty upon settlements of hedge
contracts and certain other non-production revenues, as detailed in the conveyance, will offset the
operating expenses outlined above in calculating the net proceeds. If the hedge payments received
by Whiting and certain other non-production revenues exceed the operating expenses during a
quarterly period, the ability to use such excess amounts to offset operating expenses may be
deferred, with interest accruing on such amounts at the prevailing money market rate, until the
next quarterly period when such amounts are less than such expenses. If any excess amounts have not
been used to offset costs at the time when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) have been
produced and sold from the underlying properties, which is the time when the NPI will terminate,
then unitholders will not be entitled to receive the benefit of such excess amounts.
Capital expenditures for the testing, drilling, completion, equipping, plugging back or
recompletion of any well that is a part of the underlying properties will not be deducted from
gross proceeds. During 2009 and 2008, Whiting incurred capital expenditures of $1.1 million and
$5.4 million, respectively, on the underlying properties that were not deducted from gross proceeds
and were not deducted from Whitings NPI distributions to the Trust, accordingly. The Trust cannot
provide any assurance that future capital expenditures will be consistent with historical levels.
Pursuant to the terms of the applicable operating agreements, Whiting deducts from the gross
proceeds an overhead fee to operate those underlying properties for which Whiting has been
designated as the operator. Additionally, for those underlying properties for which Whiting is the
operator but for which there is no operating agreement, Whiting deducts from the gross proceeds an
overhead fee calculated in the same manner Whiting allocates overhead to other similarly owned
properties, as is customary in the oil and gas industry. The operating overhead activities include
various engineering, legal, and administrative functions. The Trusts portion of the monthly charge
averaged $404 per active operated well, which totaled $1.7 million for the four distributions made
during the year ended December 31, 2009 compared to $391 per active operated well, which totaled
$1.4 million for the three distributions made during the year ended December 31, 2008. The fee is
adjusted annually pursuant to COPAS guidelines and will increase or decrease each year based on
changes in the year-end index of average weekly earnings of crude petroleum and natural gas
workers.
In the event that the net proceeds for any computation period is a negative amount, the Trust
will receive no payment for that period, and any such negative amount plus accrued interest at the
prevailing money market rate will be deducted from gross proceeds in the following computation
period for purposes of determining the net proceeds for that following computation period.
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Gross proceeds and net proceeds are calculated on a cash basis, except that certain costs,
primarily ad valorem taxes and expenditures of a material amount, may be determined on an accrual
basis.
Commodity Hedge Contracts
Whiting has entered into certain costless collar hedge contracts, and Whiting has in turn
conveyed to the Trust the rights to future hedge payments Whiting makes or receives under such
costless collar hedge contracts. These contracts were entered into to reduce the exposure to
volatility in the underlying properties oil and gas revenues due to fluctuations in crude oil and
natural gas prices, and to achieve more predictable cash flows. Historically, prices received for
oil and gas production have been volatile because of seasonal weather patterns, supply and demand
factors, worldwide political factors and general economic conditions. Costless collars are designed
to establish floor and ceiling prices on anticipated future oil and gas production. While the use
of these derivative instruments limits the downside risk of adverse price movements, they may also
limit future revenues from favorable price movements. The hedge contracts are placed with a single
trading counterparty, JPMorgan Chase Bank National Association. Whiting cannot provide assurance
that this trading counterparty will not become a credit risk in the future. No additional hedges
are allowed to be placed on Trust assets, and the Trust does not enter into derivative contracts
for trading or speculative purposes.
Crude oil costless collar arrangements settle based on the average of the closing settlement
price for each commodity business day in the contract period. Natural gas costless collar
arrangements settle based on the closing settlement price on the second to last scheduled trading
day of the month prior to delivery. In a collar arrangement, the counterparty is required to make a
payment to Whiting for the difference between the fixed floor price and the settlement price if the
settlement price is below the fixed floor price. Whiting is required to make a payment to the
counterparty for the difference between the fixed ceiling price and the settlement price if the
settlement price is above the fixed ceiling price.
The amounts received by Whiting from the hedge contract counterparty upon settlements of the
hedge contracts will reduce the operating expenses related to the underlying properties in
calculating the net proceeds. In addition, the aggregate amounts paid by Whiting on settlement of
the hedge contracts can reduce the amount of net proceeds paid to the Trust. Whitings crude oil
and natural gas price risk management positions in collar arrangements through December 31, 2012
(which collars have the potential to affect Whitings future distributions to the Trust subsequent
to December 31, 2009) are detailed in Quantitative and Qualitative Disclosures About Market Risk
in Item 7A of this Annual Report on Form 10-K.
Additional Provisions
If a controversy arises as to the sales price of any production, then for purposes of
determining gross proceeds:
| Amounts withheld or placed in escrow by a purchaser are not considered to be received by Whiting until actually collected; | ||
| amounts received by Whiting and promptly deposited with a nonaffiliated escrow agent will not be considered to have been received until disbursed to Whiting by the escrow agent; and | ||
| amounts received by Whiting and not deposited with an escrow agent will be considered to have been received. |
The Trustee is not obligated to return any cash received from the NPI. Any overpayments made
to the Trust by Whiting due to adjustments to prior calculations of net proceeds or otherwise will
reduce future amounts payable to the Trust until Whiting recovers the overpayments plus interest at
the prevailing money market rate. Whiting may make such adjustments to prior calculations of net
proceeds without the consent of the Trust unitholders or the Trustee but is required to provide the
Trustee with notice of such adjustments and supporting data.
As the designated operator of a property comprising the underlying properties, Whiting may
enter into farm-out, operating, participation and other similar agreements to develop the property.
Whiting may enter into any of these agreements without the consent or approval of the Trustee or
any Trust unitholder.
Whiting has the right to abandon any well or property if it reasonably believes the well or
property ceases to produce or is not capable of producing in commercially paying quantities. In
making such decisions, Whiting is required under the applicable conveyance to operate the
underlying properties as a reasonably prudent operator in the same manner it would if these
properties were not burdened by the NPI. Upon termination of the lease, the portion of the NPI
relating to the abandoned property will be
extinguished.
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Whiting must maintain books and records sufficient to determine the amounts payable under the
NPI to the Trust. Quarterly and annually, Whiting must deliver to the Trustee a statement of the
computation of net proceeds for each computation period. The Trustee has the right to inspect and
copy the books and records maintained by Whiting during normal business hours and upon reasonable
notice.
Federal Income Tax Matters
Classification and Taxation of the Trust
Tax counsel to the Trust advised the Trust at the time of formation that, for federal income
tax purposes, in its opinion the Trust would be treated as a grantor trust and not as an
unincorporated business entity. No ruling has been or will be requested from the IRS with respect
to the federal income tax treatment of the Trust, including as to the status of the Trust as a
grantor trust for such purposes. Thus, no assurance can be provided that the tax treatment of the
Trust would be sustained by a court if contested by the IRS. As a grantor trust, the Trust is not
subject to federal income tax at the Trust level. Rather, each Trust unitholder is considered for
federal income tax purposes to own its proportionate share of the Trusts assets directly as though
no Trust were in existence. Thus, each Trust unitholder is subject to tax on its proportionate
share of the income and gain attributable to the assets of the Trust and is entitled to claim its
proportionate share of the deductions and expenses attributable to the assets of the Trust, subject
to applicable limitations, in accordance with the Trust unitholders tax method of accounting and
taxable year without regard to the taxable year or accounting method employed by the Trust.
On the basis of that advice, the Trust will file annual information returns, reporting to the
Trust unitholders all items of income, gain, loss, deduction and credit. The Trust will allocate
items of income, gain, loss, deductions and credits to Trust unitholders based on record ownership
at each quarterly record date. It is possible that the IRS or another tax authority could disagree
with this allocation method and could assert that income and deductions of the Trust should be
determined and allocated on a daily, prorated or other basis, which could require adjustments to
the tax returns of the Trust unitholders affected by the issue and result in an increase in the
administrative expense of the Trust in subsequent periods.
Classification of the Net Profits Interest
Tax counsel to the Trust also advised the Trust at the time of formation that, for federal
income tax purposes, based upon representations made by Whiting regarding the expected economic
life of the underlying properties and the expected duration of the NPI, in its opinion the NPI
should be treated as a production payment under Section 636 of the Internal Revenue Code of 1986,
as amended, or otherwise as a debt instrument. On the basis of that advice, the Trust treats the
NPI as indebtedness subject to tax regulations applicable to contingent payment debt instruments,
and by purchasing Trust units, a Trust unitholder agrees to be bound by the Trusts application of
those regulations, including the Trusts determination of the rate at which interest will be deemed
to accrue on the NPI. No assurance can be given that the IRS will not assert that the NPI should be
treated differently. Any such different treatment could affect the timing and character of income,
gain or loss in respect of an investment in Trust units and could require a Trust unitholder to
accrue income at a rate different than that determined by the Trust.
Reporting Requirements for Widely-Held Fixed Investment Trusts
Under Treasury Regulations, the Trust is classified as a widely-held fixed investment trust.
Those Treasury Regulations require the sharing of tax information among Trustees and intermediaries
that hold a Trust interest on behalf of or for the account of a beneficial owner or any
representative or agent of a trust interest holder of fixed investment trusts that are classified
as widely-held fixed investment trusts. These reporting requirements provide for the dissemination
of Trust tax information by the Trustee to intermediaries who are ultimately responsible for
reporting the investor-specific information through Form 1099 to the investors and the IRS. Every
Trustee or intermediary that is required to file a Form 1099 for a Trust unitholder must furnish a
written tax information statement that is in support of the amounts as reported on the applicable
Form 1099 to the Trust unitholder. Any generic tax information provided by the Trustee of the Trust
is intended to be used only to assist Trust unitholders in the preparation of their federal and
state income tax returns.
Available Trust Tax Information
In compliance with the Treasury Regulation reporting requirements for widely-held fixed
investment trusts and the dissemination of Trust tax reporting information, the Trustee provides a
generic tax information reporting booklet which is intended to be used only to assist Trust
unitholders in the preparation of their 2009 federal and state income tax returns. The projected
payment schedule for the
NPI is included with the tax information booklet. This tax information booklet can be obtained
at
www.businesswire.com/cnn/whx.htm.
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Environmental Matters and Regulation
The operations of the properties comprising the underlying properties are subject to stringent
and complex federal, state and local laws and regulations governing environmental protection as
well as the discharge of materials into the environment. These laws and regulations may, among
other things:
| restrict the types, quantities and concentration of various substances that can be released into the environment in connection with oil and natural gas drilling and production activities; | ||
| limit or prohibit drilling activities on certain lands lying within wilderness, wetlands and other protected areas; | ||
| require remedial measures to mitigate pollution from former and ongoing operations, such as requirements to close pits and plug abandoned wells; and | ||
| enjoin some or all of the operations of the underlying properties deemed in non-compliance with permits issued pursuant to such environmental laws and regulations. |
Failure to comply with these laws and regulations may trigger a variety of administrative,
civil and criminal enforcement measures, including the assessment of monetary penalties, the
imposition of remedial requirements and the issuance of orders enjoining future operations or
imposing additional compliance requirements on such operations. Certain environmental statutes
impose strict joint and several liability for costs required to clean up and restore sites where
hazardous substances have been disposed or otherwise released. Moreover, these laws, rules and
regulations may also restrict the rate of oil and natural gas production below the rate that would
otherwise be possible. The regulatory burden on the oil and natural gas industry increases the cost
of doing business in the industry and consequently affects profitability. Additionally, Congress
and federal and state agencies frequently revise environmental laws and regulations, and any
changes that result in more stringent and costly waste handling, disposal and cleanup requirements
for the oil and natural gas industry could have a significant impact on the operating costs of the
properties comprising the underlying properties.
The following is a summary of the existing laws, rules and regulations to which the operations
of the properties comprising the underlying properties are subject that are material to the
operation of the underlying properties.
Waste Handling. The Resource Conservation and Recovery Act, or RCRA, and comparable state
statutes, regulate the generation, transportation, treatment, storage, disposal and cleanup of
hazardous and non-hazardous wastes. Under the auspices of the federal Environmental Protection
Agency, or EPA, the individual states administer some or all of the provisions of RCRA, sometimes
in conjunction with their own, more stringent requirements. Drilling fluids, produced waters and
most of the other wastes associated with the exploration, development and production of crude oil
or natural gas are currently regulated under RCRAs non-hazardous waste provisions. However, it is
possible that certain oil and natural gas exploration and production wastes now classified as
non-hazardous could be classified as hazardous wastes in the future. Any such change could result
in an increase in the costs to manage and dispose of wastes, which could have a material adverse
effect on the cash distributions to the Trust unitholders.
Comprehensive Environmental Response, Compensation and Liability Act. The Comprehensive
Environmental Response, Compensation and Liability Act, or CERCLA, also known as the Superfund law,
imposes joint and several liability, without regard to fault or legality of conduct, on classes of
persons who are considered to be responsible for the release of a hazardous substance into the
environment. These persons include the owner or operator of the site where the release occurred,
and anyone who disposed or arranged for the disposal of a hazardous substance released at the site.
Under CERCLA, such persons may be subject to joint and several liability for the costs of cleaning
up the hazardous substances that have been released into the environment, for damages to natural
resources and for the costs of certain health studies. In addition, it is not uncommon for
neighboring landowners and other third-parties to file claims for personal injury and property
damage allegedly caused by the hazardous substances released into the environment.
The underlying properties of the Trust may have been used for oil and natural gas exploration
and production for many years. Although Whiting believes that it has utilized operating and waste
disposal practices that were standard in the industry at the time, hazardous substances, wastes or
hydrocarbons may have been released on or under the properties, or on or under other locations,
including off-site locations, where such substances have been taken for disposal. In addition, the
underlying properties of the Trust may have been operated by third parties or by previous owners or
operators whose treatment and disposal of hazardous substances, wastes or hydrocarbons was not
under Whitings control. These properties and the substances disposed or released on them may be
subject to CERCLA, RCRA and analogous state laws. Under such laws, Whiting could be required
to remove previously disposed substances and wastes, remediate contaminated property, or perform
remedial plugging or pit closure operations to prevent future contamination.
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Water Discharges. The Federal Water Pollution Control Act, or the Clean Water Act, and
analogous state laws, impose restrictions and strict controls with respect to the discharge of
pollutants, including spills and leaks of oil and other substances, into state waters or waters of
the United States. The discharge of pollutants into regulated waters is prohibited, except in
accordance with the terms of a permit issued by the EPA or an analogous state agency. Spill
prevention, control and countermeasure requirements under federal law require appropriate
containment berms and similar structures to help prevent the contamination of navigable waters in
the event of a petroleum hydrocarbon tank spill, rupture or leak. In addition, the Clean Water Act
and analogous state laws require individual permits or coverage under general permits for
discharges of storm water runoff from certain types of facilities. Federal and state regulatory
agencies can impose administrative, civil and criminal penalties for non-compliance with discharge
permits or other requirements of the Clean Water Act and analogous state laws and regulations.
Global Warming and Climate Control. Recent scientific studies have suggested that emissions of
certain gases, commonly referred to as greenhouse gases, including carbon dioxide and methane,
may be contributing to warming of the Earths atmosphere. In response to such studies, President
Obama has expressed support for, and it is anticipated that the current session of Congress will
consider legislation to regulate emissions of greenhouse gases. In addition, more than one-third
of the states, either individually or through multi-state regional initiatives, have already taken
legal measures to reduce emission of these gases, primarily through the planned development of
greenhouse gas emission inventories and/or regional greenhouse gas cap and trade programs. Also,
as a result of the U.S. Supreme Courts decision on April 2, 2007 in Massachusetts, et al. v. EPA,
the EPA may be required to regulate greenhouse gas emissions from mobile sources (e.g., cars and
trucks) even if Congress does not adopt new legislation specifically addressing emissions of
greenhouse gases. The Courts holding in Massachusetts that greenhouse gases fall under the
federal Clean Air Acts definition of air pollutant may also result in future regulation of
greenhouse gas emissions from stationary sources under certain Clean Air Act programs. As a result
of the Massachusetts decision, in April 2009, the EPA published a Proposed Endangerment and Cause
or Contribute Findings for Greenhouse Gases Under the Clean Air Act. New legislation or regulatory
programs that restrict emissions of greenhouse gases in areas where the underlying properties
operate could adversely affect demand for oil and gas products that, in turn, could limit cash
distributions to the Trust unitholders. The cost increases would result from the potential new
requirements to install additional emission control equipment and by increasing Whitings
monitoring and record-keeping burden.
Air Emissions. The Federal Clean Air Act, and comparable state laws, regulate emissions of
various air pollutants from various industrial sources through air emissions permitting programs
and also impose other monitoring and reporting requirements. Operators of the underlying properties
may be required to incur certain capital expenditures in the future for air pollution control
equipment in connection with obtaining and maintaining operating permits and approvals for air
emissions. In addition, EPA has developed, and continues to develop, stringent regulations
governing emissions of toxic air pollutants at specified sources. Federal and state regulatory
agencies can impose administrative, civil and criminal penalties for non-compliance with air
permits or other requirements of the federal Clean Air Act and associated state laws and
regulations.
OSHA and Other Laws and Regulation. Whiting is subject to the requirements of the federal
Occupational Safety and Health Act, or OSHA, and comparable state statutes. The OSHA hazard
communication standard, the EPA community right-to-know regulations under the Title III of CERCLA
and similar state statutes require that Whiting organize and/or disclose information about
hazardous materials used or produced in its operations. Whiting believes that it is in substantial
compliance with these applicable requirements and with other OSHA and comparable requirements.
Consideration of Environmental Issues in Connection with Governmental Approvals. Whitings
operations frequently require licenses, permits and/or other governmental approvals. Several
federal statutes, including the Outer Continental Shelf Lands Act and the National Environmental
Policy Act require federal agencies to evaluate environmental issues in connection with granting
such approvals and/or taking other major agency actions. The Outer Continental Shelf Lands Act, for
instance, requires the U.S. Department of Interior to evaluate whether certain proposed activities
would cause serious harm or damage to the marine, coastal or human environment. Similarly, the
National Environmental Policy Act requires the Department of Interior and other federal agencies to
evaluate major agency actions having the potential to significantly impact the environment. In the
course of such evaluations, an agency would have to prepare an environmental assessment and,
potentially, an environmental impact statement.
Whiting believes that it is in substantial compliance with all existing environmental laws and
regulations applicable to the current operations of the underlying properties and that its
continued compliance with existing requirements will not have a material adverse effect on the cash
distributions to the Trust unitholders. For instance, Whiting did not incur any material capital
expenditures for
remediation or pollution control activities for the year ended December 31, 2009 with respect
to these properties. Additionally, Whiting has informed the Trust that Whiting is not aware of any
environmental issues or claims that will require material capital expenditures during 2010 with
respect to these properties. However, there is no assurance that the passage of more stringent laws or
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implementing regulations in the future will not have a negative impact on the operations of
these properties and the cash distributions to the Trust unitholders.
Item 1A. | Risk Factors |
The amounts of cash distributions by the Trust are subject to fluctuation as a result of changes in
oil, natural gas and natural gas liquid prices.
The reserves attributable to the underlying properties and the quarterly cash distributions of
the Trust are highly dependent upon the prices realized from the sale of oil, natural gas and
natural gas liquids. Prices of oil, natural gas and natural gas liquids can fluctuate widely on a
quarter-to-quarter basis in response to a variety of factors that are beyond the control of the
Trust and Whiting. These factors include, among others:
| changes in global supply and demand for oil and gas; | ||
| the actions of the Organization of Petroleum Exporting Countries; | ||
| the price and quantity of imports of foreign oil and gas; | ||
| political and economic conditions, including embargoes, in oil-producing countries or affecting other oil-producing activity; | ||
| the level of global oil and gas exploration and production activity; | ||
| the level of global oil and gas inventories; | ||
| weather conditions; | ||
| technological advances affecting energy consumption; | ||
| domestic and foreign governmental regulations; | ||
| proximity and capacity of oil and gas pipelines and other transportation facilities; | ||
| the price and availability of competitors supplies of oil and gas in captive market areas; and | ||
| the price and availability of alternative fuels. |
Furthermore, the continued economic slowdown worldwide has reduced worldwide demand for energy
and resulted in lower oil and natural gas prices. Oil and natural gas prices have fallen
significantly since their third quarter 2008 levels. For example, the daily average NYMEX oil
price was $118.13 per Bbl for the third quarter of 2008, $58.75 per Bbl for the fourth quarter of
2008, and $61.93 per Bbl for 2009. Similarly, daily average NYMEX natural gas prices have declined
from $10.27 per Mcf for the third quarter of 2008 to $6.96 per Mcf for the fourth quarter of 2008
and $3.99 per Mcf for 2009.
Lower prices of oil, natural gas and natural gas liquids will reduce the amount of the net
proceeds to which the Trust is entitled and may ultimately reduce the amount of oil, natural gas
and natural gas liquids that is economic to produce from the underlying properties. As a result,
the operator of any of the underlying properties could determine during periods of low commodity
prices to shut in or curtail production from the underlying properties. In addition, the operator
of these properties could determine during periods of low commodity prices to plug and abandon
marginal wells that otherwise may have been allowed to continue to produce for a longer period
under conditions of higher prices. Because these properties are mature, decreases in commodity
prices could have a more significant effect on the economic viability of these properties as
compared to more recently discovered properties. The commodity price sensitivity of these mature
wells is due to a culmination of factors that vary from well to well, including the additional
costs associated with water handling and disposal, chemicals, surface equipment maintenance,
downhole casing repairs and reservoir pressure maintenance activities that are necessary to
maintain production. As a result, the volatility of commodity prices may cause the amount of future
cash distributions to Trust unitholders to fluctuate, and a substantial decline in the price of
oil, natural gas or natural gas liquids will reduce the amount of cash available for distribution
to the Trust unitholders.
Moreover, government regulations, such as regulation of natural gas gathering and
transportation and possible price controls, can affect commodity prices in the long term.
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Financial returns to purchasers of Trust units will vary in part based on how quickly 9.11 MMBOE
are produced and sold from the underlying properties, and it is not known when that will occur.
The NPI will terminate at the time when 9.11 MMBOE have been produced and sold from the
underlying properties (which amount is the equivalent of 8.20 MMBOE in respect of the Trusts right
to receive 90% of the net proceeds from such reserves pursuant to the NPI). The reserve report
prepared by the Trusts independent petroleum engineer dated as of December 31, 2009 (the reserve
report) projects that 9.11 MMBOE will have been produced and sold from the underlying properties
by October 31, 2017. However, the exact rate of production cannot be predicted with certainty and
such amount may be produced before or after the date projected by the reserve report. If production
attributable to the underlying properties is slower than estimated, then financial returns to Trust
unitholders will be lower assuming constant prices because cash distributions attributable to such
production will occur at a later date.
Actual reserves and future production may be less than current estimates, which could reduce cash
distributions by the Trust and the value of the Trust units.
The value of the Trust units and the amount of future cash distributions to the Trust
unitholders will depend upon, among other things, the accuracy of the production and reserves
estimated to be attributable to the underlying properties and the NPI. Estimating production and
reserves is inherently uncertain. Ultimately, actual production, revenues and expenditures for the
underlying properties will vary both positively and negatively from estimates and those variations
could be material. Petroleum engineers consider many factors and make assumptions in estimating
production and reserves. Those factors and assumptions include:
| historical production from the area compared with production rates from other producing areas; | ||
| the assumed effect of governmental regulation; and | ||
| assumptions about future prices of oil, natural gas and natural gas liquids, including differentials, production and development expenses, gathering and transportation costs, severance and excise taxes and capital expenditures. |
Changes in these assumptions can materially increase or decrease production and reserve
estimates. The estimated reserves attributable to the NPI and the estimated future net revenues
attributable to the NPI are based on estimates of reserve quantities and revenues for the
underlying properties. The quantities of reserves attributable to the underlying properties and the
NPI may decrease in the future as a result of future decreases in the price of oil, natural gas or
natural gas liquids.
Risks associated with the production, gathering, transportation and sale of oil, natural gas and
natural gas liquids could adversely affect cash distributions by the Trust and the value of the
Trust units.
The revenues of the Trust, the value of the Trust units and the amount of cash distributions
to the Trust unitholders will depend upon, among other things, oil, natural gas and natural gas
liquid production and prices and the costs incurred to exploit oil and natural gas reserves
attributable to the underlying properties. Drilling, production or transportation accidents that
temporarily or permanently halt the production and sale of oil, natural gas and natural gas liquids
at any of the underlying properties will reduce Trust distributions by reducing the amount of net
proceeds available for distribution. For example, accidents may occur that result in personal
injuries, property damage, damage to productive formations or equipment and environmental damages.
Any costs incurred in connection with any such accidents that are not insured against will have the
effect of reducing the net proceeds available for distribution to the Trust. In addition,
curtailments or damage to pipelines used to transport oil, natural gas and natural gas liquid
production to markets for sale could reduce the amount of net proceeds available for distribution.
Any such curtailment or damage to the gathering systems could also require finding alternative
means to transport the oil, natural gas and natural gas liquid production from the underlying
properties, which alternative means could result in additional costs that will have the effect of
reducing net proceeds available for distribution.
The Trust and the Trust unitholders have no voting or managerial rights with respect to the
underlying properties. As a result, neither the Trust nor the unitholders have any ability to
influence the operation of the underlying properties.
Oil and natural gas properties are typically managed pursuant to an operating agreement among
the working interest owners of oil and natural gas properties. The typical operating agreement
contains procedures whereby the owners of the working interests in the property designate one of
the interest owners to be the operator of the property. Under these arrangements, the operator is
typically responsible for making decisions relating to drilling activities, sale of production,
compliance with regulatory requirements and other matters that affect the property. Neither the
Trustee nor the Trust unitholders have any contractual ability to influence or control the
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field operations of, and sale of oil and natural gas from, the underlying properties. Also,
the Trust unitholders have no voting rights with respect to the operators of these properties and,
therefore, have no managerial, contractual or other ability to influence the activities of the
operators of these properties.
Whiting has limited control over activities on certain of the underlying properties Whiting does
not operate, which could reduce production from the underlying properties and cash available for
distribution to Trust unitholders.
Whiting is currently designated as the operator of approximately 57% of the underlying
properties based on the December 31, 2009 standardized measure of discounted future net cash flows.
However, for the 43% of the underlying properties that Whiting does not operate, Whiting does not
have control over normal operating procedures or expenditures relating to such properties. The
failure of an operator to adequately perform operations or an operators breach of the applicable
agreements could reduce production from the underlying properties and the cash available for
distribution to Trust unitholders. The success and timing of operational activities on properties
operated by others therefore depends upon a number of factors outside of Whitings control,
including the operators timing and amount of capital expenditures, expertise and financial
resources, inclusion of other participants in drilling wells, and use of technology. Because
Whiting does not have a majority interest in most of the non-operated properties comprising the
underlying properties, Whiting may not be in a position to remove the operator in the event of poor
performance.
Whiting is not required to make capital expenditures on the underlying properties at historical
levels or at all. If Whiting does not make capital expenditures, then the timing of production from
the underlying properties may not be accelerated.
Whiting has made capital expenditures on the underlying properties, which has increased
production from the underlying properties. However, Whiting has no contractual obligation to make
capital expenditures on the underlying properties in the future. Furthermore, for properties on
which Whiting is not designated as the operator, the decision whether to make capital expenditures
is made by the operator and Whiting has no control over the timing or amount of those capital
expenditures. Whiting also has the right to non-consent and not participate in the capital
expenditures on these properties, in which case Whiting and the Trust will not receive the
production resulting from such capital expenditures. Accordingly, it is likely that capital
expenditures with respect to the underlying properties will vary from and may be less than
historical levels.
Whiting may abandon individual wells or properties that it reasonably believes to be uneconomic.
Whiting may abandon any well if it reasonably believes that the well can no longer produce oil
or natural gas in commercially economic quantities. This could result in termination of the NPI
relating to the abandoned well.
The reserves attributable to the underlying properties are depleting assets and production from
those reserves will diminish over time. Furthermore, the Trust is precluded from acquiring other
oil and natural gas properties or net profits interests to replace the depleting assets and
production.
The net proceeds payable to the Trust from the NPI are derived from the sale of oil, natural
gas and natural gas liquids produced from the underlying properties and proceeds, if any, received
by Whiting upon settlement of the hedge contracts. The reserves attributable to the underlying
properties are depleting assets, which means that those reserves will decline over time. For
example, the current year reserve report reflects an aggregate depletion percentage of 94.1%, which
is the percentage of the estimated ultimate total production from the underlying properties on a
full economic life basis that has been produced from the properties inception through December 31,
2009. In addition, the reserves attributable to the underlying properties on a full life basis
declined 34.8% from December 31, 2007 to December 31, 2008. However, these same reserves increased
slightly by 2.7% from December 31, 2008 to December 31, 2009 primarily related to changes in prices
and costs. Total oil and natural gas production attributable to the underlying properties declined
6.3% from 2007 to 2008 and 9.2% from 2008 to 2009. Also based on the 2009 reserve report,
production attributable to the underlying properties is expected to decline at an average year over
year rate of approximately 14.6% between 2010 and 2017. However, cash distributions to unitholders
may decline at a faster rate than the rate of production due to fixed and semi-variable costs
attributable to the underlying properties. Also, the anticipated rate of decline is an estimate and
actual decline rates will likely vary from those estimated. The NPI will terminate at the time when
9.11 MMBOE (8.20 MMBOE at the 90% NPI) have been produced and sold from the underlying properties.
Future maintenance projects on the underlying properties beyond those which are currently
estimated may affect the quantity of proved reserves that can be economically produced from the
underlying properties. The timing and size of these projects will depend on, among other factors,
the market prices of oil, natural gas and natural gas liquids. If operators of the underlying
properties do not implement required maintenance projects when warranted, the future rate of
production decline of proved reserves may be higher than
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the rate currently expected by Whiting or estimated in the reserve report. In addition,
Whiting is not required to make any capital expenditures.
The Trust agreement provides that the Trusts business activities are limited to owning the
NPI and any activity reasonably related to such ownership, including activities required or
permitted by the terms of the conveyance related to the NPI. As a result, the Trust is not
permitted to acquire other oil and natural gas properties or NPI to replace the depleting assets
and production attributable to the NPI.
Because the net proceeds payable to the Trust are derived from the sale of depleting assets,
the portion of the distributions to unitholders attributable to depletion should be considered a
return of capital as opposed to a return on investment. Eventually, the NPI may cease to produce in
commercial quantities and the Trust may, therefore, cease to receive any distributions of net
proceeds.
The amount of cash available for distribution by the Trust is reduced by the amount of any
royalties, lease operating expenses, production and property taxes, maintenance expenses,
post-production costs and producing overhead, and payments made with respect to the hedge
contracts.
Production costs on the underlying properties are deducted in the calculation of the Trusts
share of net proceeds. In addition, production and property taxes and any costs or payments
associated with post-production costs are deducted in the calculation of the Trusts share of net
proceeds. Accordingly, higher or lower production expenses, taxes and post-production costs
directly decrease or increase the amount received by the Trust in respect of its NPI. The amount of
net proceeds subject to the NPI is also reduced by all payments made by Whiting to the hedge
contract counterparty upon settlement of the hedge contracts.
If production costs of the underlying properties and payments made by Whiting to the hedge
contract counterparty exceed the proceeds of production, the Trust will not receive net proceeds
until future proceeds from production exceed the total of the excess costs plus accrued interest
during the deficit period.
If the payments received by Whiting under the hedge contracts and certain other non-production
revenue exceed operating expenses during a quarterly period, then the ability to use such excess
amounts to offset operating expenses will be deferred until the next quarterly period when such
amounts are less than such expenses.
If the hedge payments received by Whiting and certain other non-production revenue exceed the
operating expenses during a quarterly period, the ability to use such excess amounts to offset
operating expenses will be deferred until the next quarterly period when such amounts are less than
such expenses. If such amounts are deferred, then the applicable quarterly distribution will be
less than it would have otherwise been. However, if any excess amounts have not been used to offset
costs at the time when 9.11 MMBOE have been produced and sold from the underlying properties, which
is the time when the NPI will terminate, then unitholders will not be entitled to receive the
benefit of such excess amounts. Such a scenario could occur if oil and natural gas prices decline
significantly through December 31, 2012 and remained low for the remainder of the term.
An increase in the differential between the NYMEX or other benchmark price of oil and natural gas
and the wellhead price received could reduce cash distributions by the Trust and the value of Trust
units.
The prices received for oil and natural gas production from the underlying properties is
usually sold at a discount to the relevant benchmark prices, such as NYMEX, that are used for
calculating hedge positions. The difference between the benchmark price and the price received is
called a differential. The differential may vary significantly due to market conditions, the
quality and location of production and other factors. Whiting cannot accurately predict oil and
natural gas differentials. Increases in the differential between the benchmark price for oil and
natural gas and the wellhead price received could reduce cash distributions by the Trust and the
value of the Trust units.
Shortages or increases in costs of oil field equipment, services and qualified personnel could
reduce the amount of cash available for distribution.
The demand for qualified and experienced field personnel to conduct field operations,
geologists, geophysicists, engineers and other professionals in the oil and natural gas industry
can fluctuate significantly, often in correlation with oil and natural gas prices, causing periodic
shortages. Historically, there have been shortages of drilling rigs and other oilfield equipment as
demand for rigs and equipment has increased along with the number of wells being drilled. These
factors also cause significant increases in costs for equipment, services and personnel. Higher oil
and natural gas prices generally stimulate demand and result in increased prices for drilling rigs,
crews and associated supplies, equipment and services. Shortages of field personnel and equipment
or price increases could significantly decrease the amount of cash available for distribution to
the Trust unitholders, or restrict operations on the underlying properties.
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The hedge contracts will limit the potential for increases in cash distributions due to oil and
natural gas price increases through December 31, 2012 but will not provide any price support after
December 31, 2012.
Whiting has entered into hedge contracts, which are structured as costless collar
arrangements, that will hedge approximately 80% of the oil and natural gas volumes expected to be
produced from the underlying properties through December 31, 2012. These hedge contracts, however,
do not cover all of the oil and natural gas volumes that are expected to be produced during the
term of the Trust. Because of the differential between NYMEX or other benchmark prices of oil and
natural gas and the wellhead price received, hedge contracts may not totally offset the effects of
price fluctuations. Whiting has not entered into any hedge contracts relating to oil and natural
gas volumes expected to be produced after 2012, and the terms of the conveyance of the NPI prohibit
Whiting from entering into new hedging arrangements. As a result, the amounts of the cash
distributions may fluctuate significantly after 2012 as a result of changes in commodity prices
because there will be no hedge contracts in place to reduce the effects of any changes in commodity
prices. The hedge contracts may also limit the amount of cash available for distribution if prices
increase. In addition, the hedge contracts are subject to the nonperformance of the counterparty
and other risks. For a discussion of the hedge contracts, see Quantitative and Qualitative
Disclosures About Market Risk in Item 7A of this Annual Report on Form 10-K.
Under certain circumstances, the Trust provides that the Trustee may be required to sell the NPI
and dissolve the Trust prior to the expected termination of the Trust. As a result, Trust
unitholders may not recover their investment.
The Trustee must sell the NPI if the holders of a majority of the Trust units approve the sale
or vote to dissolve the Trust. The Trustee must also sell the NPI if the annual gross proceeds
attributable to the NPI are less than $1.0 million for each of any two consecutive years. The sale
of the NPI will result in the dissolution of the Trust. The net proceeds of any such sale will be
distributed to the Trust unitholders.
The NPI will terminate at the time when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) have been
produced and sold from the underlying properties. The Trust unitholders will not be entitled to
receive any net proceeds from the sale of production from the underlying properties following the
termination of the NPI. Therefore, the market price of the Trust units will likely diminish towards
the end of the term of the NPI because the cash distributions from the Trust will cease at the
termination of such NPI and the Trust will have no right to any additional production from the
underlying properties after the term of the NPI.
The disposal by Whiting of its remaining Trust units may reduce the market price of the Trust
units.
Whiting owns 15.8% of the Trust units. If Whiting sells these units, then the market price of
the Trust units may be reduced. Whiting and the Trust have entered into a registration rights
agreement pursuant to which the Trust has agreed to file a registration statement or shelf
registration statement to register the resale of the remaining Trust units held by Whiting and any
transferee of the Trust units upon request by such holders.
The market price for the Trust units may not reflect the value of the NPI held by the Trust.
The trading price for publicly traded securities similar to the Trust units tends to be tied
to recent and expected levels of cash distributions. The amounts available for distribution by the
Trust will vary in response to numerous factors outside the control of the Trust, including
prevailing prices for sales of oil, natural gas and natural gas liquid production attributable to
the underlying properties. Consequently, the market price for the Trust units may not necessarily
be indicative of the value that the Trust would realize if it sold the NPI to a third-party buyer.
In addition, such market price may not necessarily reflect the fact that since the assets of the
Trust are depleting assets, a portion of each cash distribution paid on the Trust units should be
considered by investors as a return of capital, with the remainder being considered as a return on
investment. As a result, distributions made to a unitholder over the life of these depleting assets
may not equal or exceed the purchase price paid by the unitholder.
Conflicts of interest could arise between Whiting and the Trust unitholders.
The interests of Whiting and the interests of the Trust and the Trust unitholders with respect
to the underlying properties could at times differ. For example, Whiting has the right, subject to
significant limitations, to cause the Trust to release a portion of the NPI in connection with a
sale of a portion of the oil and natural gas properties comprising the underlying properties to
which such NPI relates. In such an event, the Trust is entitled to receive its proportionate share
of the proceeds from the sale attributable to the NPI released. Additionally, the Trust has no
employees and is reliant on Whitings employees to operate those underlying properties for which
Whiting is designated as the operator. Whitings employees are also responsible for the operation
of other oil and gas properties Whiting owns, which may require a significant portion or all of
their time and resources. Whiting has broad discretion over the timing
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and amount of operating expenditures and activities, including workover expenses and
activities, which could result in higher costs being attributed to the NPI. The documents governing
the Trust generally do not provide a mechanism for resolving these conflicting interests.
The Trust is managed by a Trustee who cannot be replaced except at a special meeting of Trust
unitholders.
The business and affairs of the Trust are managed by the Trustee. The voting rights of a Trust
unitholder are more limited than those of stockholders of most public corporations. For example,
there is no requirement for annual meetings of Trust unitholders or for an annual or other periodic
re-election of the Trustee. The Trust agreement provides that the Trustee may only be removed and
replaced by the holders of a majority of the outstanding Trust units at a special meeting of Trust
unitholders called by either the Trustee or the holders of not less than 10% of the outstanding
Trust units. Whiting owns approximately 15.8% of the outstanding Trust units. As a result, it may
be difficult to remove or replace the Trustee without the approval of Whiting.
Trust unitholders have limited ability to enforce provisions of the NPI.
The Trust agreement permits the Trustee to sue Whiting on behalf of the Trust to enforce the
terms of the conveyance creating the NPI. If the Trustee does not take appropriate action to
enforce provisions of the conveyance, the recourse of a Trust unitholder likely would be limited to
bringing a lawsuit against the Trustee to compel the Trustee to take specified actions. The Trust
agreement expressly limits the Trust unitholders ability to directly sue Whiting or any other
third party other than the Trustee. As a result, the unitholders will not be able to sue Whiting to
enforce these rights.
Courts outside of Delaware may not recognize the limited liability of the Trust unitholders
provided under Delaware law.
Under the Delaware Statutory Trust Act, Trust unitholders are entitled to the same limitation
of personal liability extended to stockholders of private corporations under the General
Corporation Law of the State of Delaware. Courts in jurisdictions outside of Delaware, however, may
not give effect to such limitation.
The operations of the underlying properties may result in significant costs and liabilities with
respect to environmental and operational safety matters, which could reduce the amount of cash
available for distribution to Trust unitholders.
Significant costs and liabilities can be incurred as a result of environmental and safety
requirements applicable to the oil and natural gas exploration, development and production
activities of the underlying properties. These costs and liabilities could arise under a wide range
of federal, state and local environmental and safety laws, regulations, and enforcement policies,
which legal requirements have tended to become increasingly strict over time. Failure to comply
with these laws and regulations may result in the assessment of administrative, civil and criminal
penalties, imposition of cleanup and site restoration costs and liens, and to a lesser extent,
issuance of injunctions to limit or cease operations. In addition, claims for damages to persons,
property or natural resources may result from environmental and other impacts on the operations of
the underlying properties.
Strict, joint and several liability may be imposed under certain environmental laws and
regulations, which could result in liability for the conduct of others or for the consequences of
ones own actions that were in compliance with all applicable laws at the time those actions were
taken. New laws, regulations or enforcement policies could be more stringent and impose unforeseen
liabilities or significantly increase compliance costs. If it were not possible to recover the
resulting costs for such liabilities or non-compliance through insurance or increased revenues,
then these costs could have a material adverse effect on the cash distributions to the Trust
unitholders.
The operations of the underlying properties are subject to complex federal, state, local and other
laws and regulations that could adversely affect the cash distributions to the Trust unitholders.
The development and production operations of the underlying properties are subject to complex
and stringent laws and regulations. In order to conduct the operations of the underlying properties
in compliance with these laws and regulations, Whiting and the other operators must obtain and
maintain numerous permits, approvals and certificates from various federal, state, local and
governmental authorities. Whiting and the other operators may incur substantial costs and
experience delays in order to maintain compliance with these existing laws and regulations, which
could decrease the cash distributions to the Trust unitholders. In addition, the costs of
compliance may increase or the operations of the underlying properties may be otherwise adversely
affected if existing laws and regulations are revised or reinterpreted, or if new laws and
regulations become applicable to such operations. Such costs could have a material adverse effect
on the cash distributions to the Trust unitholders.
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The operations of the underlying properties are subject to federal, state and local laws and
regulations as interpreted and enforced by governmental authorities possessing jurisdiction over
various aspects of the exploration for, and the production of, oil and natural gas. Failure to
comply with such laws and regulations, as interpreted and enforced, could have a material adverse
effect on the cash distributions to the Trust unitholders.
The Trust has not requested a ruling from the IRS regarding the tax treatment of ownership of the
Trust units. If the IRS were to determine (and be sustained in that determination) that the Trust
is not a grantor trust for federal income tax purposes, or that the NPI is not a debt instrument
for federal income tax purposes, the Trust unitholders may receive different and less advantageous
tax treatment than they anticipated.
If the NPI were not treated as a debt instrument, the deductions allowed to an individual
Trust unitholder in their recovery of basis in the NPI may be itemized deductions, the
deductibility of which would be subject to limitations that may or may not apply depending upon the
unitholders circumstances. Neither Whiting nor the Trust has requested a ruling from the IRS
regarding these tax questions, and neither Whiting nor the Trust can assure you that such a ruling
would be granted if requested or that the IRS will not challenge this position on audit. Trust
unitholders should be aware of the possible state tax implications of owning Trust units, and
should consult their own tax advisors for advice regarding the state as well as federal tax
implications of owning Trust units.
The Trusts NPI may be characterized as an executory contract in bankruptcy, which could be
rejected in bankruptcy, thus relieving Whiting from its obligations to make payments to the Trust
with respect to the NPI.
Whiting has recorded the conveyance of the NPI in the states where the underlying properties
are located in the real property records in each county where these properties are located. The NPI
is a non-operating, non-possessory interest carved out of the oil and natural gas leasehold estate,
but certain states have not directly determined whether an NPI is a real or a personal property
interest. Whiting believes that the delivery and recording of the conveyance should create a fully
conveyed and vested property interest under the applicable states laws, but certain states have
not directly determined whether this would be the result. If in a bankruptcy proceeding in which
Whiting becomes involved as a debtor a determination were made that the conveyance constitutes an
executory contract and the NPI is not a fully conveyed property interest under the laws of the
applicable state, and if such contract were not to be assumed in a bankruptcy proceeding involving
Whiting, the Trust would be treated as an unsecured creditor of Whiting with respect to such NPI in
the pending bankruptcy proceeding.
If the financial position of Whiting degrades in the future, Whiting may not be able to satisfy its
obligations to the Trust.
Whiting operates approximately 57% of the underlying properties based on the December 31, 2009
standardized measure of discounted future net cash flows. The conveyance provides that Whiting will
be obligated to market, or cause to be marketed, the production related to underlying properties
for which it operates. In addition, Whiting is obligated to use the proceeds it receives upon the
settlement of the hedge contracts to offset operating expenses relating to the underlying
properties, with certain restrictions.
Whiting has entered into hedge contracts, consisting of costless collar arrangements, with an
institutional counterparty to reduce the exposure of the revenue from oil and natural gas
production from the underlying properties to fluctuations in crude oil and natural gas prices in
order to achieve more predictable cash flow. Crude oil collar arrangements settle based on the
average of the settlement price for each commodity business day in the contract period, while
natural gas collar arrangements settle based on an end of month price. In the collar arrangements,
the counterparty is required to make a payment to Whiting for the difference between the fixed
floor price and the settlement price if the settlement price is below the fixed floor price.
Whiting is required to make a payment to the counterparty for the difference between the fixed
ceiling price and the settlement price if the settlement price is above the fixed ceiling price.
Whitings ability to perform its obligations related to the operation of the underlying
properties, its obligations to the counterparty related to the hedge contracts and its obligations
to the Trust will depend on Whitings future financial condition and economic performance, which in
turn will depend upon the supply and demand for oil and natural gas, prevailing economic conditions
and upon financial, business and other factors, many of which are beyond the control of Whiting.
Whiting cannot provide any assurance that its financial condition and economic performance will not
deteriorate in the future. For example, Whitings net income decreased from $252.1 million in
income during 2008 to a $117.2 million loss for 2009. The primary reasons for this decrease
include a 34% decrease in oil prices (net of hedging), a 51% decrease in natural gas prices (net of
hedging) and higher unrealized commodity derivative losses between periods. A substantial or
extended decline in oil or natural gas prices may materially and adversely affect Whitings future
business, financial condition, results of operations, liquidity or ability to finance planned
capital expenditures.
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The Trusts receipt of payments based on the hedge contracts depends upon the financial position of
the hedge contract counterparty and Whiting. A default by the hedge contract counterparty or
Whiting could reduce the amount of cash available for distribution to the Trust unitholders.
In the event that the counterparty to the hedge contracts defaults on its obligations to make
payments to Whiting under the hedge contracts, the cash distributions to the Trust unitholders
could be materially reduced as the hedge payments are intended to provide additional cash to the
Trust during periods of lower crude oil and natural gas prices. In addition, because the hedge
contracts are with a single counterparty, JPMorgan Chase Bank National Association, the risk of
default is concentrated with one financial institution. Whiting cannot provide any assurance that
this counterparty will not become a credit risk in the future. The hedge contracts also have
default terms applicable to Whiting, including customary cross default provisions. If Whiting were
to default, the counterparty to the hedge contracts could terminate the hedge contracts and the
cash distributions to Trust unitholders could be materially reduced during periods of lower crude
oil and natural gas prices.
Under certain circumstances, the Trust provides that the Trustee may be required to reconvey to
Whiting a portion of the NPI, which may impact how quickly 9.11 MMBOE are produced from the
underlying properties for purposes of the NPI.
If Whiting is notified by a person with whom Whiting is a party to a contract containing a
prior reversionary interest that Whiting is required to convey any of the underlying properties to
such person or cease production from any well, then Whiting may provide such conveyance with
respect to such underlying property or permanently cease production from such well. Such a
reversionary interest typically results from the provisions of a joint operating agreement that
governs the drilling of wells on jointly owned property and financial arrangements for instances
where all owners may not want to make the capital expenditure necessary to drill a new well. The
reversionary interest is created because an owner that does not consent to capital expenditures
will not have to pay its share of the capital expenditure, but instead will relinquish its share of
proceeds from the well until the consenting owners receive payout (or a multiple of payout) of
their capital expenditures. In such case, Whiting may request the Trustee to reconvey to Whiting
the NPI with respect to any such underlying property or well. The Trust will not receive any
consideration for such reconveyance of a portion of the NPI. Such reconveyance of a portion of the
NPI may extend the time it takes for 9.11 MMBOE (8.20 MMBOE at the 90% NPI) to be produced from the
underlying properties for purposes of the NPI.
Item 1B. | Unresolved Staff Comments. |
None.
Item 2. | Properties. |
Description of the Underlying Properties
The underlying properties consist of Whitings net interests in certain oil and natural gas
producing properties as of the date of the conveyance of the NPI to the Trust, which are located
primarily in the Rocky Mountains, Mid-Continent, Permian Basin and Gulf Coast regions of the United
States. The underlying properties include interests in 3,086 gross (381.7 net) producing oil and
natural gas wells located in 170 fields on approximately 216,500 gross (80,700 net) acres in 14
states. Whiting has acquired interests in these properties through various acquisitions that have
occurred during its 28 year existence prior to the conveyance. For the year ended December 31,
2009, the net production attributable to the underlying properties was 1,443 MBOE or 3.9 MBOE/d.
Whiting operates approximately 57% of the underlying properties based on the December 31, 2009
standardized measure of discounted future net cash flows.
Whitings interests in the oil and natural gas properties comprising the underlying properties
require Whiting to bear its proportionate share, along with the other working interest owners, of
the costs of development and operation of such properties. Many of the properties comprising the
underlying properties that are operated by Whiting are burdened by non-working interests owned by
third parties, consisting primarily of royalty interests retained by the owners of the land subject
to the working interests. These landowners royalty interests typically entitle the landowner to
receive at least 12.5% of the revenue derived from oil and natural gas production from wells
drilled on the landowners land, without any deduction for drilling costs or other costs related to
production of oil and natural gas. A working interest percentage represents a working interest
owners proportionate ownership interest in a property in relation to all other working interest
owners in that property, whereas a net revenue interest is a working interest owners percentage of
production after reducing such interest by the percentage of burdens on production such as
royalties and overriding royalties.
The NPI entitles the Trust to receive 90% of the net proceeds from the sale of 9.11 MMBOE
(8.20 MMBOE at the 90% NPI) of production. As of December 31, 2009, on an accrual basis 2.77 MMBOE
of the Trusts total 8.20 MMBOE have been produced and sold, 0.02 MMBOE have been divested, and the
remaining balance is expected to be produced by October 31, 2017, based on the
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Trusts year-end 2009 reserve report. However, the reserve report is based on the assumptions
included therein, and no assurance can be given regarding the amount or timing of actual production
from the underlying properties. See Risk Factors in Item 1A of this Annual Report on Form 10-K
for additional discussion. The rate of production cannot be predicted with certainty, and 9.11
MMBOE may be produced before or after the currently projected date. The proved reserves
attributable to the underlying properties include all proved reserves expected to be economically
produced during the full life of the properties, whereas the Trust is entitled to only receive 90%
of the net proceeds from the sale of production of oil, natural gas and natural gas liquids
attributable to the underlying properties during the term of the NPI.
Whitings interest in the underlying properties, after deducting the NPI, entitles it to 10%
of the net proceeds from the sale of oil, natural gas and natural gas liquids production
attributable to the underlying properties during the term of the NPI and all of the net proceeds
thereafter. The Trust units retained by Whiting represent 15.8% of the Trust units outstanding.
Whitings retained ownership interests in the underlying properties and its ownership of Trust
units considered together entitle Whiting to receive approximately 24.2% of the net proceeds from
the underlying properties during the term of the Trust, thereby providing Whiting an incentive to
operate (or cause to be operated) the underlying properties in an efficient and cost-effective
manner. In addition, Whiting has agreed to operate these properties as a reasonably prudent
operator in the same manner that it would operate them if these properties were not burdened by the
NPI, and Whiting has agreed to use commercially reasonable efforts to cause the other operators to
operate these properties in the same manner.
In general, the producing wells to which the underlying properties relate have established
production profiles. Based on the reserve report, annual production from the underlying properties
is expected to decline at an average year over year rate of approximately 14.6% from 2010 through
2017. However, cash distributions to unitholders may decline at a faster rate than the rate of
production due to fixed and semi-variable costs attributable to the underlying properties.
Reserves
As of December 31, 2009, all of our oil and gas reserves are attributable to properties within
the United States. The following table summarizes estimated proved reserves (developed and
undeveloped) and the standardized measure of discounted future net cash flows as of December 31,
2009 based on average fiscal-year prices (calculated as the unweighted arithmetic average of the
first-day-of-the-month price for each month within the 12-month period ended December 31, 2009)
attributable to the Trust and underlying properties full economic life (dollars in thousands):
Summary of Oil and Gas Reserves as of Fiscal-Year End Based on Average Fiscal-Year Prices
Whiting USA Trust I | Underlying Properties | |||||||||||||||||||||||
(90% NPI through October 2017) | (Full Economic Life) | |||||||||||||||||||||||
Oil | Natural Gas | Oil | Natural Gas | |||||||||||||||||||||
(MBbl) | (Mcf) | MBOE | (MBbl) | (Mcf) | MBOE | |||||||||||||||||||
Proved reserves: |
||||||||||||||||||||||||
Developed |
3,604 | 10,976 | 5,433 | 6,264 | 18,056 | 9,274 | ||||||||||||||||||
Undeveloped |
| | | | | | ||||||||||||||||||
Total provedDecember 31, 2009 |
3,604 | 10,976 | 5,433 | 6,264 | 18,056 | 9,274 | ||||||||||||||||||
Standardized measure (1) |
$ | 77,551 | $ | 101,002 | ||||||||||||||||||||
(1) | Values as of December 31, 2009. No provision for federal or state income taxes has been provided because taxable income is passed through to the unitholders of the Trust. Therefore, the standardized measure of Whiting USA Trust I and of the underlying properties is equal to their corresponding pre-tax PV 10% values. |
Notable changes in proved reserves for the year ended December 31, 2009 included:
| Revisions to previous estimates. In 2009, revisions to previous estimates decreased proved reserves by a net amount of 40 MBOE. Included in these revisions, were 3.8 Bcf of downward adjustments to natural gas primarily due to lower gas prices of $3.15 per Mcf in reserve estimates at December 31, 2009, as compared to gas prices of $4.96 per Mcf at December 31, 2008. This downward revision in natural gas was almost entirely offset, however, by 597 MBbl of upward adjustments to crude oil reserves primarily due to higher oil prices of $51.58 per Bbl in reserve estimates at December 31, 2009, as compared to $36.27 per Bbl of oil at December 31, 2008. |
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Estimates of proved reserves are inherently imprecise and are continually subject to revision
based on production history, results of additional exploration and development, price changes and
other factors. Oil and gas reserve quantities and related discounted future net cash flows have
been derived from oil and gas prices calculated using an average of the first-day-of-the month
price for each month within the most recent 12 months, pursuant to current SEC and FASB guidelines.
Assumptions used to estimate reserve quantities and related discounted future net cash flows also
include costs for estimated future production expenditures required to produce the proved reserves
as of December 31, 2009. Future net cash flows are discounted at an annual rate of 10%. There is no
provision for federal income taxes with respect to the future net cash flows attributable to the
underlying properties or to the NPI because future net revenues are not subject to taxation at the
Trust level. See Federal Income Tax Matters in Item 1 of this Annual Report on Form 10-K for more
information.
A rollforward of changes in net proved reserves attributable to the Trust from January 1, 2008
to December 31, 2009, and the calculation of the standardized measure of the related discounted
future net revenues are contained in the Supplemental Oil And Gas Reserve Information in the notes
to the financial statements of the Trust included in this Annual Report on Form 10-K. Whiting has
not filed reserve estimates covering the underlying properties with any other federal authority or
agency.
Preparation of reserves estimates. Whiting has advised the Trust that it maintains adequate
and effective internal controls over the reserve estimation process as well as the underlying data
upon which reserve estimates are based. The primary inputs to the reserve estimation process are
comprised of technical information, financial data, ownership interests and production data. All
field and reservoir technical information, which is updated annually, is assessed for validity when
the reservoir engineers hold technical meetings with geoscientists, operations and land personnel
to discuss field performance. Current revenue and expense information is obtained from Whitings
accounting records, which are subject to external quarterly reviews, annual audits and their own
set of internal controls over financial reporting. Internal controls over financial reporting are
assessed for effectiveness annually using the criteria set forth in Internal Control Integrated
Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. All
current financial data such as commodity prices, lease operating expenses, production taxes and
field commodity price differentials are updated in the reserve database and then analyzed to ensure
that they have been entered accurately and that all updates are complete. Whitings current
ownership in mineral interests and well production data are also subject to the aforementioned
internal controls over financial reporting, and they are incorporated in the reserve database as
well and verified to ensure their accuracy and completeness. Once the reserve database has been
entirely updated with current information, and all relevant technical support material has been
assembled, the Trusts independent engineering firm Cawley, Gillespie & Associates, Inc. (CG&A)
meets with Whitings technical personnel in Whitings Denver and Midland offices to review field
performance. Following these reviews the reserve database is furnished to CG&A so that they can
prepare their independent reserve estimates and final report. Access to Whitings reserve database
is restricted to specific members of the reservoir engineering department.
CG&A is a Texas Registered Engineering Firm. The primary contact at CG&A is Mr. Robert
Ravnaas, Executive Vice President. Mr. Ravnaas is a State of Texas Licensed Professional Engineer.
See Appendix 1 and Exhibit 99 of this Annual Report on Form 10-K for the Report of Cawley,
Gillespie & Associates, Inc. and further information regarding the professional qualifications of
Mr. Ravnaas.
Whitings Vice President of Reservoir Engineering/ Acquisitions is responsible for overseeing
the preparation of the reserves estimates. He has over 36 years of experience, the majority of
which has involved reservoir engineering and reserve estimation, holds a Bachelors Degree in
Petroleum Engineering from the University of Wyoming, holds an MBA from the University of Denver
and is a registered Professional Engineer. He has also served on the national Board of Directors
of the Society of Petroleum Evaluation Engineers.
As noted above, the current reserve report projects that 9.11 MMBOE attributable to the NPI
will be produced from the underlying properties by October 31, 2017, which differs from the
December 31, 2021 projected date in the December 31, 2008 reserve report. This change is due to the
higher price assumptions being used in the independent engineers report as of December 31, 2009 as
compared to the reserve report prepared as of December 31, 2008. The application of the higher
prices in the reserve estimates extends the estimated economic producing lives and increases the
estimated overall recoverable reserve quantities of wells producing at lower rates. The projected
time to produce the remaining reserves attributable to the Trust is therefore reduced. Numerous
uncertainties are inherent in estimating reserve volumes and values, and the estimates are subject
to change as additional information becomes available. The reserves actually recovered and the
timing of production of the reserves may vary significantly from the estimates. In addition, the
reserves and net revenues attributable to the NPI include only 90% of the reserves attributable to
the underlying properties that are expected to be produced within the term of the NPI.
23
Table of Contents
Producing Acreage and Well Counts
For the following data, gross refers to the total wells or acres in the oil and natural gas
properties in which Whiting owns a working interest and net refers to gross wells or acres
multiplied by the percentage working interest owned by Whiting and in turn attributable to the
underlying properties. Although many wells produce both oil and natural gas, a well is categorized
as an oil well or a natural gas well based upon the ratio of oil to natural gas production.
The underlying properties are interests in developed properties located in oil and natural gas
producing regions outlined in the chart below. The following is a summary of the number of fields
and approximate acreage of these properties by region at December 31, 2009. Undeveloped acreage is
not significant.
Number of | Total Acreage | |||||||||||
Regions | Fields | Gross | Net | |||||||||
Rocky Mountains |
61 | 86,851 | 34,423 | |||||||||
Mid-Continent |
55 | 69,058 | 32,571 | |||||||||
Permian Basin |
27 | 23,974 | 8,090 | |||||||||
Gulf Coast |
27 | 36,572 | 5,617 | |||||||||
Total |
170 | 216,455 | 80,701 | |||||||||
The following is a summary of the producing wells on the underlying properties as of December
31, 2009:
Operated Wells | Non-Operated Wells | Total Wells | ||||||||||||||||||||||
Gross | Net | Gross | Net | Gross | Net | |||||||||||||||||||
Oil |
278 | 176.3 | 2,099 | 83.2 | 2,377 | 259.5 | ||||||||||||||||||
Natural Gas |
81 | 57.8 | 628 | 64.4 | 709 | 122.2 | ||||||||||||||||||
Total |
359 | 234.1 | 2,727 | 147.6 | 3,086 | 381.7 | ||||||||||||||||||
The following is a summary of the number of developmental wells drilled on the underlying
properties during the last three years. A dry well is an exploratory, development or extension well
that proves to be incapable of producing either oil or gas in sufficient quantities to justify
completion as an oil or gas well. A productive well is an exploratory, development or extension
well that is not a dry well. The information should not be considered indicative of future
performance, nor should it be assumed that there is necessarily any correlation between the number
of productive wells drilled and quantities of reserves found. Whiting did not drill any
exploratory wells on the underlying properties during the periods presented. There were no wells
being drilled as of December 31, 2009.
Year Ended December 31, | ||||||||||||||||||||||||
2009 | 2008 | 2007 | ||||||||||||||||||||||
Gross | Net | Gross | Net | Gross | Net | |||||||||||||||||||
Productive |
||||||||||||||||||||||||
Oil wells |
4 | 0.1 | 11 | 1.2 | 8 | 0.4 | ||||||||||||||||||
Natural gas wells |
2 | 0.2 | 5 | 0.8 | 10 | 2.6 | ||||||||||||||||||
Dry |
0 | 0.0 | 3 | 0.1 | 0 | 0.0 | ||||||||||||||||||
Total |
6 | 0.3 | 19 | 2.1 | 18 | 3.0 | ||||||||||||||||||
Oil and Natural Gas Production
The table below shows total oil and gas production, average sales prices and average
production costs attributable to underlying properties. The underlying properties information for
the year ended December 31, 2009 and 2008 is presented in the table below on a cash basis, as this
basis of accounting is consistent with the Trusts 2009 and 2008 financial statements which have
been prepared on a modified cash basis.
24
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The information for the underlying properties for the year ended December 31, 2007, however,
is presented in the table below on the accrual basis of accounting.
Year Ended December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
Net production (1): |
||||||||||||
Oil production (MBbls) |
838 | 884 | 956 | |||||||||
Natural gas production (MMcf) |
3,632 | 4,228 | 4,441 | |||||||||
Total production (MBOE) |
1,443 | 1,589 | 1,696 | |||||||||
Average daily production including transfers (MBOE/d) |
3.9 | 4.3 | 4.6 | |||||||||
Average Sales Prices (including transfers): |
||||||||||||
Oil (per Bbl) |
$ | 47.86 | $ | 92.97 | $ | 62.17 | ||||||
Natural gas (per Mcf) |
$ | 3.58 | $ | 8.16 | $ | 6.36 | ||||||
Production costs per BOE (2) |
$ | 16.65 | $ | 16.41 | $ | 13.73 |
(1) | No field contained 15% or more of the total proved reserve volumes at December 31, 2009 | |
(2) | Production costs reported above exclude from lease operating expenses ad valorem taxes of $0.9 million ($0.65/BOE), $1.3 million ($0.82/BOE) and $0.4 million ($0.26/BOE) for the years ended December 31, 2009, 2008 and 2007, respectively. |
Producing wells the Trust has an interest in are part of 11 enhanced oil recovery waterflood
projects, and aggregate production from such enhanced oil recovery fields averaged 602 BOE/d during
2009 or 15% of our 2009 daily production. For these areas, we need to use enhanced recovery
techniques in order to maintain oil and gas production from these fields.
Major Producing Areas
The underlying properties are located in several major onshore producing basins in the
continental United States. Whiting believes this broad distribution provides a buffer against
regional trends that may negatively impact production or prices. Based on the standardized measure
of discounted future net cash flows at December 31, 2009, approximately 57% of these properties
were operated by Whiting. Based on annual 2009 production attributable to the underlying
properties, approximately 58% was oil and natural gas liquids and 42% was natural gas. These
properties are located in mature fields and have established production profiles. However,
production and distributions to the Trust will decline over time.
Mid-Continent Region. The underlying properties in the Mid-Continent region are located in
Arkansas, Oklahoma, Kansas and Michigan. These properties include 55 fields of which Whiting
operates wells in 29 of these fields. There are two significant fields located in Arkansas. The
Magnolia Smackover Pool Unit, the largest single field in the underlying properties, produces from
the Smackover Lime. The second Arkansas field is the Stephens-Smart field, producing from the
Buckrange and Travis Peak. The major fields and areas in Oklahoma are located in the Anadarko Basin
and include Putnam Field, Mocane-Laverne Gas Area, Sho-Vel-Tum Field and Nobscot Northwest Field,
which primarily produce from the Oswego, Hunton, Penn, Morrow, Red Fork and Cottage Grove zones.
Case Field is the major Michigan field in the region and produces from the Silurian Niagaran zone.
For the year ended December 31, 2009, the net production attributable to the underlying properties
in the region was 559.9 MBOE or 1.5 MBOE/d.
Rocky Mountains Region. The underlying properties in the Rocky Mountains region are located in
two distinct areas. The first, from which crude oil is primarily produced, includes the Williston
Basin in North Dakota and Montana as well as the Bighorn and Powder River Basins of Wyoming, while
the second, from which natural gas is primarily produced, includes southwest Wyoming, Colorado and
Utah. These properties include 61 fields of which Whiting operates wells in 31 of these fields. The
major North Dakota fields in this region include Bell Field and Fryberg Field that produce from
Tyler sandstone; Whiskey Joe, Teddy Roosevelt, Sherwood and Davis Creek Fields that produce from
various intervals in the Madison; Hiline Unit that produces from the Lodgepole; and Big Dipper
Field that produces from the Duperow and Red River zones. In Montana, the major fields include the
Bainville Field and Palomino Fields that produce primarily from the Nisku zone, and Oxbow Field
that produces from the Nisku and Red River zones. The major Wyoming fields in this region include
the Sage Creek Field in the Bighorn Basin that produces from the Tensleep and Madison zones and the
Kiehl Field in the Powder River Basin, which produces from the Minnelusa formation and is under
waterflood. The Ignacio Blanco Field is the major Colorado field in this region and produces from
the Fruitland Coal zone. For the year ended December 31, 2009, the net production attributable to
the underlying properties in the region was 482.0 MBOE or 1.3 MBOE/d.
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Gulf Coast Region. The underlying properties in the Gulf Coast region are located in Texas,
Louisiana, Mississippi and Alabama. These properties include 27 onshore fields of which Whiting
operates wells in one of these fields. The major field in this region is the Mestena Grande Field
located in Texas, which produces from the Queen City zone. For the year ended December 31, 2009,
the net production attributable to the underlying properties in the region was 204.0 MBOE or 0.6
MBOE/d.
Permian Basin Region. The Permian Basin Region of West Texas and New Mexico is one of the
major hydrocarbon producing provinces in the continental United States. The underlying properties
in the Permian Basin region are located in Texas and New Mexico. These properties include 27 fields
of which Whiting operates wells in 10 of these fields. The major fields in this region include
Iatan East Howard Field, which produces from the San Andres, Glorieta and Clearfork zones; the
Fullerton Field, which is unitized and produces from the Clearfork zone; and Patricia Field, which
produces from the Sprayberry and Fusselman zones. For the year ended December 31, 2009, the net
production attributable to the underlying properties in the region was 197.4 MBOE or 0.5 MBOE/d.
Abandonment and Sale of Underlying Properties
Whiting has the right to abandon its interest in any well or property comprising a portion of
the underlying properties if, in its opinion, such well or property ceases to produce or is not
capable of producing in commercially paying quantities. To reduce or eliminate the potential
conflict of interest between Whiting and the Trust in determining whether a well is capable of
producing in commercially paying quantities, Whiting has agreed to operate the underlying
properties as a reasonably prudent operator in the same manner that it would operate if these
properties were not burdened by the NPI and Whiting has agreed to use commercially reasonable
efforts to cause the other operators to operate these properties in the same manner. For the years
ended December 31, 2009, 2008 and 2007, seventeen, seven and five gross wells, respectively, were
plugged and abandoned on the underlying properties, based on the determination that such wells were
no longer economic to operate.
In addition, Whiting may, without the consent of the Trust unitholders, require the Trust to
release the NPI associated with any lease that accounts for less than or equal to 0.25% of the
total production from the underlying properties in the prior 12 months and provided that the NPI
covered by such releases cannot exceed, during any 12-month period, an aggregate fair market value
to the Trust of $500,000. These releases will be made only in connection with a sale by Whiting of
the relevant underlying properties and are conditioned upon the Trust receiving an amount equal to
the fair value to the Trust of such NPI. Any net sales proceeds paid to the Trust are distributable
to Trust unitholders for the quarter in which they are received. During 2009, Whiting received
aggregate sale proceeds of $16,884 in exchange for its divestiture of Trust properties that held 21
MBOE of proved reserves but which properties were producing only marginally positive net operating
profits. Whiting includes all such proceeds from Trust property divestitures in its NPI
distributions to the Trust.
Title to Properties
The underlying properties are subject to certain burdens that are described in more detail
below. To the extent that these burdens and obligations affect Whitings rights to production and
the value of production from the underlying properties, they have been taken into account in
calculating the Trusts interests and in estimating the size and the value of the reserves
attributable to the underlying properties.
Whitings interests in the oil and natural gas properties comprising the underlying properties
are typically subject, in one degree or another, to one or more of the following:
| royalties, overriding royalties and other burdens, express and implied, under oil and natural gas leases; | ||
| overriding royalties, production payments and similar interests and other burdens created by Whiting or its predecessors in title; | ||
| a variety of contractual obligations arising under operating agreements, farm-out agreements, production sales contracts and other agreements that may affect the underlying properties or their title; | ||
| liens that arise in the normal course of operations, such as those for unpaid taxes, statutory liens securing unpaid suppliers and contractors, and contractual liens under operating agreements that are not yet delinquent or, if delinquent, are being contested in good faith by appropriate proceedings; |
26
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| pooling, unitization and communitization agreements, declarations and orders; | ||
| easements, restrictions, rights-of-way and other matters that commonly affect property; | ||
| conventional rights of reassignment that obligate Whiting to reassign all or part of a property to a third party if Whiting intends to release or abandon such property; and | ||
| rights reserved to or vested in the appropriate governmental agency or authority to control or regulate the underlying properties and the NPI therein. |
Whiting has informed the Trustee that Whiting believes the burdens and obligations affecting
the properties comprising the underlying properties are conventional in the industry for similar
properties. Whiting also has informed the Trustee that Whiting believes that the existing burdens
and obligations do not, in the aggregate, materially interfere with the use of the underlying
properties and do not materially adversely affect the value of the NPI.
Whiting acquired the underlying properties in various transactions that have occurred during
its 28 year existence prior to the conveyance. At the time of its acquisitions of the underlying
properties, Whiting undertook a title examination of these properties.
Net profits interests are non-operating, non-possessory interests carved out of the oil and
natural gas leasehold estate, but some jurisdictions have not directly determined whether a NPI is
a real or a personal property interest. Whiting has recorded the conveyance of the NPI in the
relevant real property records of all applicable jurisdictions. Whiting has informed the Trustee
that Whiting believes the delivery and recording of the conveyance creates a fully conveyed and
vested property interest under the applicable states laws, but because there is no direct
authority to this effect in some jurisdictions, this may not always be the result. Whiting has also
informed the Trustee that Whiting believes that it is possible the NPI may not be treated as a real
property interest under the laws of certain of the jurisdictions where the underlying properties
are located. Whiting has also informed the Trustee that Whiting believes that, if, during the term
of the Trust, Whiting becomes involved as a debtor in a bankruptcy proceeding, the NPI relating to
the underlying properties in most, if not all, of the jurisdictions should be treated as a fully
conveyed property interest. In such a proceeding, however, a determination could be made that the
conveyance constitutes an executory contract and that the NPI is not a fully conveyed property
interest under the laws of the applicable jurisdiction, and if such contract were not to be assumed
in a bankruptcy proceeding involving Whiting, the Trust would be treated as an unsecured creditor
of Whiting with respect to such NPI in the pending bankruptcy proceeding. Although no assurance can
be given, Whiting has informed the Trustee that Whiting believes that the conveyance of the NPI
relating to the underlying properties in most, if not all, of the jurisdictions of which these
properties are located should not be subject to rejection in a bankruptcy proceeding as an
executory contract.
Item 3. Legal Proceedings.
Currently, there are not any legal proceedings pending to which the Trust is a party or of
which any of its property is the subject.
Item 4. Removed and Reserved.
27
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PART II
Item 5. Market for Registrants Common Equity, Related Unitholder Matters and Issuer Purchases of
Equity Securities.
The Trust units commenced trading on the New York Stock Exchange on April 30, 2008 under the
symbol WHX. Prior to April 30, 2008, there was no established public trading market for the Trust
units. The high and low sales prices per unit for each quarter in 2009 and 2008 were as follows:
For the Year Ended December 31, | ||||||||||||||||
2009 | 2008 | |||||||||||||||
High | Low | High | Low | |||||||||||||
First Quarter (January 1 through March 31) |
$ | 14.75 | $ | 8.36 | $ | | $ | | ||||||||
Second Quarter (April 30 through June 30) |
$ | 13.13 | $ | 10.00 | $ | 25.30 | $ | 20.00 | ||||||||
Third Quarter (July 1 through September 30) |
$ | 15.43 | $ | 10.05 | $ | 23.49 | $ | 14.13 | ||||||||
Fourth Quarter (October 1 through December 31) |
$ | 17.99 | $ | 14.40 | $ | 17.50 | $ | 10.00 |
At December 31, 2009, the 13,863,889 units outstanding were held by two unitholders of record.
Distributions
Each quarter, the Trustee determines the amount of funds available for distribution to the
Trust unitholders. Available funds are the excess cash, if any, received by the Trust from the NPI
and other sources (such as interest earned on any amounts reserved by the Trustee) that quarter,
over the Trusts expenses for that quarter. Available funds are reduced by any cash the Trustee
decides to hold as a reserve against future liabilities. Quarterly cash distributions during the
term of the Trust are made by the Trustee generally no later than 60 days following the end of each
quarter (or the next succeeding business day) to the Trust unitholders of record on the 50th day
following the end of each quarter (or the next succeeding business day). The table below presents
the net cash proceeds for each quarter of 2009 and 2008 attributable to the 90% NPI, the estimated
Trust expenses, Montana state income taxes reserved for by the Trustee and the resulting
distributable income per Trust unit (dollars in thousands, except distributable income per unit).
Montana State | ||||||||||||||||
Net Cash Proceeds | Estimated | Income Tax | Distributable | |||||||||||||
2009 Quarterly Distributions | (90% NPI) | Trust Expense | Withholdings | Income per Unit | ||||||||||||
First Quarter |
$ | 11,148 | $ | 175 | $ | 58 | $ | 0.787316 | ||||||||
Second Quarter |
9,683 | 300 | 20 | 0.675401 | ||||||||||||
Third Quarter |
8,732 | 300 | 35 | 0.605667 | ||||||||||||
Fourth Quarter |
8,784 | 275 | 68 | 0.608855 | ||||||||||||
Total |
$ | 38,347 | $ | 1,050 | $ | 181 | $ | 2.677239 | ||||||||
Montana State | ||||||||||||||||
Net Cash Proceeds | Estimated | Income Tax | Distributable | |||||||||||||
2008 Quarterly Distributions | (90% NPI) | Trust Expense | Withholdings | Income per Unit | ||||||||||||
Second Quarter |
$ | 14,779 | $ | 300 | $ | 96 | $ | 1.037433 | ||||||||
Third Quarter |
21,546 | 250 | 139 | 1.526032 | ||||||||||||
Fourth Quarter |
21,956 | 375 | 141 | 1.546515 | ||||||||||||
Total |
$ | 58,281 | $ | 925 | $ | 376 | $ | 4.109980 | ||||||||
Subsequent to year end, on February 26, 2010, a distribution of $0.663181 per Trust unit was
paid to Trust unitholders owning Trust units as of February 19, 2010. The distribution consisted of
net cash proceeds of $9.5 million paid by Whiting to the Trust, which included cash receipts of
$1.4 million (90% of $1.6 million) for commodity derivative contracts settled for October 1, 2009
through December 31, 2009, less a provision of $200,000 for estimated Trust expenses and $71,337
for Montana state income tax withholdings.
28
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Equity Compensation Plans
The Trust does not have any employees and, therefore, does not maintain any equity
compensation plans.
Recent Sales of Unregistered Securities
On April 23, 2008, the registration statement on Form S-1/S-3 (Registration No. 333-147543)
filed by Whiting and the Trust in connection with the initial public offering of the Trust units
was declared effective by the Securities and Exchange Commission. On April 30, 2008, the Trust
issued 13,863,889 Trust units to Whiting in exchange for the conveyance by Whiting of the NPI in
underlying properties discussed elsewhere in this Annual Report on Form 10-K. Immediately
thereafter, Whiting completed an initial public offering of units of beneficial interest in the
Trust, selling 11,677,500 Trust units. Whiting retained an ownership in 2,186,389 Trust units, or
15.8% of the total Trust units issued and outstanding. The sale of the trust units to Whiting was
exempt from registration by virtue of Section 4(2) of the Securities Act of 1933.
Purchases of Equity Securities
There were no purchases of Trust units by the Trust or any affiliated purchaser during the
fourth quarter of 2009.
Item 6. Selected Financial Data.
The Trust was formed on October 18, 2007. The conveyance of the NPI, however, did not occur
until April 30, 2008. As a result, the Trust did not recognize any income or make any distributions
during 2007 or during the first quarter of 2008. The following table sets forth selected data for
the Trust for the years ended December 31, 2009, 2008 and 2007 and as of December 31, 2009, 2008
and 2007 based on the Trusts audited financial statements (dollars and shares in thousands, except
distributable income per unit).
Period from | ||||||||||||
Year Ended | Year Ended | October 18, 2007 | ||||||||||
December 31, | December 31, | (inception) through | ||||||||||
2009 | 2008 | December 31, 2007 | ||||||||||
Income from net profits interest |
$ | 38,348 | $ | 58,282 | $ | | ||||||
Distributable income |
$ | 37,117 | $ | 56,980 | $ | | ||||||
Distributable income per unit |
$ | 2.677239 | $ | 4.109980 | $ | |
December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
Trust corpus |
$ | 79,346 | $ | 97,798 | $ | | ||||||
Total assets at year-end |
$ | 79,584 | $ | 97,930 | $ | | ||||||
Trust units outstanding |
13,864 | 13,864 | |
29
Table of Contents
Item 7. Trustees Discussion and Analysis of Financial Condition and Results of Operation.
This document contains forward-looking statements, which give our current expectations or
forecasts of future events. Please refer to Forward-Looking Statements which follows the Table of
Contents of this Form 10-K for an explanation of these types of statements.
Overview
The Trust does not conduct any operations or activities. The Trusts purpose is, in general,
to hold the NPI, to distribute to the Trust unitholders cash that the Trust receives in respect of
the NPI, and to perform certain administrative functions in respect of the NPI and the Trust units.
The Trust derives substantially all of its income and cash flows from the NPI, which is in turn
subject to commodity hedge contracts.
Although oil prices fell significantly after reaching highs in the third quarter 2008, they
have experienced a rebound in the second half of 2009. For example, the daily average NYMEX oil
price was $118.13 and $58.75 per Bbl for the third and fourth quarters of 2008, respectively, and
$43.21, $59.62, $68.29 and $76.17, for the first, second, third and fourth quarters of 2009,
respectively. Additionally, natural gas prices have fallen significantly since their third quarter
2008 levels and remained low throughout 2009. For example, daily average NYMEX natural gas prices
have declined from $10.27 per Mcf for the third quarter of 2008 to $6.96 per Mcf for the fourth
quarter of 2008 and $3.99 per Mcf for 2009. Lower oil and gas prices on production from the
underlying properties could cause the following: (i) a reduction in the amount of the net proceeds
to which the Trust is entitled; (ii) an extension of the length of time required to produce 9.11
MMBOE (8.20 MMBOE at the 90% NPI); and (iii) a reduction in the amount of oil, natural gas and
natural gas liquids that is economic to produce from the underlying properties.
For a discussion of the estimated date when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) will be
produced and sold from the underlying properties and when the Trust will soon thereafter wind up
its affairs and terminate, see Description of the Underlying
Properties in Item 2 of this Annual Report on Form 10-K. For a
discussion of material changes to proved reserves, see Reserves in Item 2 of this Annual Report
on Form 10-K. Additionally, for a discussion of the need to use enhanced recovery techniques, see
Oil and Natural Gas Production in Item 2 of this Annual Report on Form 10-K.
Results of Trust Operations
Results of the Trust for the Year Ended December 31, 2009 and 2008
The Trust was formed in October 2007. The conveyance of the NPI, however, did not occur until
April 2008. As a result, the Trust did not recognize any income or make any distributions during
2007 or during the first quarter of 2008. The following is a summary of income from net profits
interest received by the Trust for the years ended December 31, 2009, consisting of the February,
May, August and November 2009 distributions, and December 31, 2008, consisting of the May, August
and November 2008 distributions (dollars in thousands, except per Bbl, per Mcf and per BOE
amounts):
Trust Results
Year Ended December 31, | ||||||||
2009 | 2008 | |||||||
Sales Volumes: |
||||||||
Oil from underlying properties (MBbls) |
847 | (a) | 640 | (c) | ||||
Natural gas from underlying properties (MMcf) |
3,664 | (b) | 2,832 | (d) | ||||
Total production (MBOE) |
1,458 | 1,112 | ||||||
Average Sales Prices: |
||||||||
Oil (per Bbl) |
$ | 48.29 | $ | 102.04 | ||||
Effect of oil hedges on average price (per Bbl) |
14.21 | (0.28 | ) | |||||
Oil net of hedging (per Bbl) |
$ | 62.50 | $ | 101.76 | ||||
Natural gas (per Mcf) |
$ | 4.13 | $ | 8.94 | ||||
Effect of natural gas hedges on average price (per Mcf) |
1.26 | | ||||||
Natural gas net of hedging (per Mcf) |
$ | 5.39 | $ | 8.94 | ||||
Costs (per BOE): |
||||||||
Lease operating expenses |
$ | 17.96 | $ | 17.38 | ||||
Production taxes |
$ | 2.70 | $ | 5.71 | ||||
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Year Ended December 31, | ||||||||
2009 | 2008 | |||||||
Revenues: |
||||||||
Oil sales |
$ | 40,922 | (a) | $ | 65,276 | (c) | ||
Natural gas sales |
15,133 | (b) | 25,322 | (d) | ||||
Total revenues |
$ | 56,055 | $ | 90,598 | ||||
Costs: |
||||||||
Lease operating expenses |
$ | 26,179 | $ | 19,319 | ||||
Production taxes |
3,930 | 6,346 | ||||||
Cash settlement payments (gains received) on commodity derivatives |
(16,663 | ) | 176 | |||||
Total costs |
$ | 13,446 | $ | 25,841 | ||||
Net proceeds |
$ | 42,609 | $ | 64,757 | ||||
Net profits percentage |
90 | % | 90 | % | ||||
Income from net profits interest |
$ | 38,348 | $ | 58,282 | ||||
(a) | Oil volumes and sales for the twelve months ended December 31, 2009 (consisting of Whitings February, May, August and November 2009 NPI distributions to the Trust) generally represent crude oil production from October 2008 through September 2009. | |
(b) | Natural gas volumes and sales for the twelve months ended December 31, 2009 (consisting of Whitings February, May, August and November 2009 NPI distributions to the Trust) generally represent gas production from September 2008 through August 2009. | |
(c) | Oil volumes and sales for the twelve months ended December 31, 2008 (consisting of Whitings May, August and November 2008 NPI distributions to the Trust) generally represent crude oil production from January through September 2008. | |
(d) | Natural gas volumes and sales for the twelve months ended December 31, 2008 (consisting of Whitings May, August and November 2008 NPI distributions to the Trust) generally represent gas production from January through August 2008. |
Income from Net Profits Interest. Income from net profits interest is recorded on a cash basis
when NPI proceeds are received by the Trust from Whiting. NPI proceeds that Whiting remits to the
Trust are based on the oil and gas production Whiting has received payment for within one month
following the end of the most recent fiscal quarter. Whiting receives payment for its crude oil
sales generally within 30 days following the month in which it is produced, and Whiting receives
payment for its natural gas sales generally within 60 days following the month in which it is
produced. Income from net profits interest is generally a function of oil and gas revenues, lease
operating expenses, production taxes and cash settlements on commodity derivatives as follows:
Revenues. Oil and natural gas revenues decreased $34.5 million or 38% in 2009 compared to 2008.
Revenues are a function of average sales prices and volumes sold. In 2009, oil and gas revenues
and NPI distributions were negatively impacted by a substantial decline in realized commodity
prices. The average price realized for oil before the effects of hedging decreased 53% between
periods, and the average price realized for natural gas before the effects of hedging decreased
54%. Partially offsetting the significant decline in commodity prices was an increase in
production volumes sold between periods. Oil sales volumes increased 32% or 208 MBOE, and gas
sales volumes increased 29% or 832 MMcf for the twelve months ended December 31, 2009 as
compared to 2008. These volume increases were due to the fact that there were four NPI
distributions and therefore twelve months of oil and gas production during 2009 compared to
only three NPI distributions, which included nine months of oil and eight months of gas
production, during 2008. There were only three NPI distributions during 2008 because the NPI
was conveyed effective for production from the underlying properties beginning January 1, 2008.
Despite this increase in production volumes between periods, oil and gas production
attributable to the underlying properties is estimated to decline at a rate of approximately
14.6% annually from 2010 to 2017, based on the reserve report at December 31, 2009.
Lease Operating Expenses. Lease operating expenses increased $6.9 million or 36% from 2008 to
2009 because there were four NPI distributions and therefore twelve months of LOE during 2009,
as compared to three NPI distributions and only nine months of LOE during 2008. Lease operating
expenses per BOE increased from $17.38 in 2008 to $17.96 for 2009. The 3% increase on a BOE
basis was primarily caused by the timing of receipts and cash disbursements for expenditures.
Production Taxes. Production taxes are generally calculated as a percentage of oil and gas
revenues before the effects of hedging. All credits and exemptions allowed in the various
taxing jurisdictions are fully utilized. Production taxes during 2009
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decreased $2.4 million or 38% compared to 2008, primarily due to lower oil and natural gas
sales between periods. Production taxes as a percent of oil and gas revenues, however, remained
constant for both 2009 and 2008 at 7.0%.
Cash Settlements on Commodity Derivatives. Whiting entered into certain costless collar hedge
contracts for the benefit of the Trust prior to the conveyance. Cash settlements relating to
the hedges resulted in a gain of $16.7 million for the twelve months ended December 31, 2009,
which had the effect of increasing average sales prices net of hedging by $14.21 per Bbl for
oil and $1.26 per Mcf of gas. Cash settlements relating to the hedges resulted in a deduction
of $175,949, or $0.28 per Bbl of oil, compared to 2008.
Distributable Income. For the twelve months ended December 31, 2009, the Trusts distributable
income was $37.1 million and was based on income from net profits interest of $38.3 million less
general and administrative expenses of $1.1 million and Montana state income tax withholdings of
$180,801. This compares to distributable income of $57.0 million during 2008, which was based on
income from net profits interest of $58.3 million less general and administrative expenses of
$925,017 and $376,200 for Montana state income tax withholdings.
Results of Underlying Property Operations
Because (i) the Trust had not engaged in any activities during 2007 other than organizational
activities, and (ii) the 2008 Trust results do not include a full 12 months of NPI distributions
and related property results, the Trust is providing financial information with respect to the
underlying properties for each of the three years in the period ended December 31, 2009 so that
investors can review comparative results of operations for the years ended December 31, 2009, 2008
and 2007. The underlying properties results of operations for the year ended December 31, 2009 and
2008 are presented on a cash basis of accounting in the table below and in the Comparison of
Results of the Underlying Properties for the Year Ended December 31, 2009 and 2008, and this cash
basis presentation is consistent with the Trusts 2009 and 2008 financial statements, which have
been prepared on a modified cash basis. The 2009 cash basis results generally consist of crude oil
sales earned from December 2008 through November 2009 but received during 2009, and natural gas
sales earned from November 2008 through October 2009 but received in 2009. The 2008 cash basis
results generally consist of crude oil sales earned from December 2007 through November 2008 but
received during 2008, and natural gas sales earned from November 2007 through October 2008 but
received in 2008. The results of operations for the underlying properties for the year ended
December 31, 2007, however, are presented below on the accrual basis of accounting, which is
consistent with the underlying properties statements of historical revenues and direct operating
expenses for 2007 that were also prepared on the accrual basis before the effects of the NPI
conveyance. Although the basis of accounting is not consistent between all years, the Trustee
believes that the presentation below allows for a reasonable basis of comparison.
The table below sets forth revenues and direct operating expenses, as well as operating data,
relating to the underlying properties for each of the three years in the period ended December 31,
2009. Results for 2008 include the effects of hedging activities subsequent to the April 30, 2008
conveyance. Information for the year ended December 31, 2007 is derived from the underlying
properties audited statements of historical revenues and direct operating expenses included in
Financial Statements and Supplementary Data of this Form 10-K. There were no hedges or other
derivative activity attributable to the underlying properties
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during the year ended December 31,
2007. The table also provides average sales prices, per BOE data, and capital expenditures relating
to the underlying properties for each period.
Underlying Properties Results
Year Ended December 31, | ||||||||||||
2009(1) | 2008(1) | 2007(1) | ||||||||||
Revenues (dollars in thousands): |
||||||||||||
Oil sales |
$ | 40,097 | $ | 82,208 | $ | 59,428 | ||||||
Natural gas sales |
13,001 | 34,514 | 28,224 | |||||||||
Total revenues |
$ | 53,098 | $ | 116,722 | $ | 87,652 | ||||||
Direct operating expenses (dollars in thousands): |
||||||||||||
Lease operating |
$ | 24,972 | $ | 27,383 | $ | 23,733 | ||||||
Production taxes |
3,806 | 8,100 | 6,262 | |||||||||
Cash settlement payments (gains received) on commodity derivatives |
(14,321 | ) | (3,719 | ) | | |||||||
Total direct operating expenses |
$ | 14,457 | $ | 31,764 | $ | 29,995 | ||||||
Excess of revenues over direct operating expenses |
$ | 38,641 | $ | 84,958 | $ | 57,657 | ||||||
Operating data: |
||||||||||||
Oil (MBbls) |
838 | 884 | 956 | |||||||||
Natural gas sales (MMcf) |
3,632 | 4,228 | 4,441 | |||||||||
Total production (MBOE) |
1,443 | 1,589 | 1,696 | |||||||||
Average Sales Price: |
||||||||||||
Oil (per Bbl) |
$ | 47.86 | $ | 92.97 | $ | 62.17 | ||||||
Effect of oil hedges (per Bbl) |
10.16 | 3.86 | | |||||||||
Oil net of hedging (per Bbl) |
$ | 58.02 | $ | 96.83 | $ | 62.17 | ||||||
Natural gas (per Mcf) |
$ | 3.58 | $ | 8.16 | $ | 6.36 | ||||||
Effect of natural gas hedges (per Mcf) |
1.60 | 0.07 | | |||||||||
Natural gas net of hedging (per Mcf) |
$ | 5.18 | $ | 8.23 | $ | 6.36 | ||||||
Per BOE data: |
||||||||||||
Lease operating expenses |
$ | 17.30 | $ | 17.23 | $ | 13.99 | ||||||
Production taxes |
$ | 2.64 | $ | 5.10 | $ | 3.69 | ||||||
Drilling and development capital expenditures (in thousands) (2) |
$ | 1,074 | $ | 5,381 | $ | 8,269 |
(1) | The results of operations for 2009 and 2008 are presented on a cash basis of accounting and differ from the historical results for 2007, which is on an accrual basis. | |
(2) | The Trust cannot provide any assurance that future capital expenditures will be consistent with historical levels. |
Comparison of Results of the Underlying Properties for the Year Ended December 31, 2009 and 2008.
Revenues. Oil and natural gas revenues decreased $63.6 million or 55% from 2008 to 2009.
Sales are a function of average sales prices and volumes sold. In 2009, oil and gas revenues were
negatively impacted by a substantial decline in realized commodity prices. The average price
realized for oil before the effects of hedging decreased 49% from 2008 to 2009, and the average
price realized for natural gas before the effects of hedging decreased 56% between periods. In
addition, oil sales volumes decreased 5% or 46 MBbls between periods due to normal field production
decline, and gas sales volumes decreased 14% or 595 MMcf between periods also due to normal field
decline. Based upon the reserve report at December 31, 2009, oil and gas production attributable to
the underlying properties is expected to decline at a year over year rate of approximately 14.6%
between 2010 and 2017.
Lease Operating Expenses. Lease operating expenses decreased $2.4 million or 9% from 2008 to
2009, which was consistent with a 9% decrease in overall oil and gas production. Accordingly, lease
operating expenses per BOE remained consistent between periods, increasing only 0.4% from $17.23
during 2008 to $17.30 during 2009.
Production Taxes. Production taxes are generally calculated as a percentage of oil and gas
revenues before the effects of hedging. All credits and exemptions allowed in the various taxing
jurisdictions are fully utilized. Production taxes for 2009 decreased $4.3 million or 53% over the
same period in 2008, primarily due to lower oil and natural gas sales. Production taxes for the
year ended December 31, 2009 and 2008 were 7.2% and 6.9%, respectively, of oil and gas sales.
Cash Settlements on Commodity Derivatives. Whiting entered into certain costless collar hedge
contracts in which the rights to any future hedge payments made or received were conveyed to the
Trust on April 30, 2008. Cash settlements relating to the conveyed
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hedges resulted in a gain of
$14.3 million during the year ended December 31, 2009, which had the effect of increasing average
sales prices net of hedging during 2009 by $10.16 per Bbl of oil and $1.60 per Mcf of gas. Cash
settlements relating to the conveyed hedges resulted in a gain of $3.7 million during the year
ended December 31, 2008, which had the effect of increasing average sales prices net of hedging
during 2008 by $3.86 per Bbl of oil and $0.07 per Mcf of gas.
Excess of Revenues Over Direct Operating Expenses. Excess of revenues over direct operating
expenses decreased $46.3 million from 2008 to 2009. The reasons for this decrease included a 9%
decrease in equivalent volumes sold, a 40% decrease in oil prices net of hedging and a 37% decrease
in gas prices net of hedging between periods. The decreased production and pricing was partially
offset by reduced lease operating expenses and production taxes.
Comparison of Results of the Underlying Properties for the Year Ended December 31, 2008 and 2007
Revenues. Oil and natural gas revenues increased $29.1 million or 33% from 2007 to 2008. Sales
are a function of average sales prices and volumes sold. The average price realized for oil before
the effects of hedging increased 50% from 2007 to 2008, and the average price realized for natural
gas before the effects of hedging increased 28% between periods. Offsetting this increase, oil
sales volumes decreased 8% or 72 MBbls between periods due to normal field production decline. In
addition, gas sales volumes decreased 6% or 278 MMcf between periods also due to normal field
decline, offset by production from new wells drilled during 2008 of 65 MMcf.
Lease Operating Expenses. Lease operating expenses increased $3.7 million or 15% from 2007 to
2008, which was caused by higher energy costs and inflation in the cost of oil field goods and
services. Energy costs increased 12% between periods, and costs of oil field goods and services
increased 11% due to higher demand in the industry experienced during the first three quarters of
2008. Lease operating expenses per BOE increased from $13.99 during 2007 to $17.23 during 2008. The
23% increase on a BOE basis was caused by lower production volumes combined with the increased
costs of energy and oil and field goods and services.
Production Taxes. Production taxes are generally calculated as a percentage of oil and gas
revenues. All credits and exemptions allowed in the various taxing jurisdictions are fully
utilized. Production taxes increased $1.8 million or 29% over the same period in 2007, primarily
due to higher oil and natural gas sales. Production taxes for 2008 and 2007 were 6.9% and 7.1%,
respectively, of oil and gas sales.
Cash Settlements on Commodity Derivatives. Whiting entered into certain costless collar hedge
contracts in which the rights to any future hedge payments made or received were conveyed to the
Trust on April 30, 2008. Cash settlements relating to the conveyed hedges resulted in a gain of
$3.7 million during the year ended December 31, 2008, which had the effect of increasing average
sales prices net of hedging during 2008 by $3.86 per Bbl of oil and $0.07 per Mcf of gas. There
were no hedges in effect on the underlying properties during 2007.
Excess of Revenues Over Direct Operating Expenses. Excess of revenues over direct operating
expenses increased $27.3 million from 2007 to 2008. The reasons for this increase included a 56%
increase in oil prices net of hedging and a 29% increase in gas prices net of hedging between
periods. The increased pricing was partially offset by a 6% decrease in equivalent volumes sold and
higher lease operating expense and production taxes.
Liquidity and Capital Resources
The Trust has no source of liquidity or capital resources other than cash flows from the NPI.
Other than Trust administrative expenses, including any reserves established by the Trustee for
future liabilities, the Trusts only use of cash is for distributions to Trust unitholders.
Administrative expenses include payments to the Trustee and the Delaware Trustee as well as a
quarterly fee to Whiting pursuant to an administrative services agreement. Each quarter, the
Trustee determines the amount of funds available for distribution. Available funds are the excess
cash, if any, received by the Trust from the NPI and other sources (such as interest earned on any
amounts reserved by the Trustee) that quarter, over the Trusts expenses for that quarter.
Available funds are reduced by any cash the Trustee decides to hold as a reserve against future
liabilities. The Trustee may borrow funds required to pay liabilities if the Trustee determines
that the cash on hand and the cash to be received are insufficient to cover the Trusts
liabilities. If the Trustee borrows funds, the Trust unitholders will not receive distributions
until the borrowed funds are repaid.
Income to the Trust from the NPI is based on the calculation and definitions of gross
proceeds and net proceeds contained in the conveyance, the form of which is filed as an exhibit
to this report, and reference is hereby made to the conveyance for the actual definitions of gross
proceeds and net proceeds.
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Although capital expenditures for the testing, drilling, completion, equipping, plugging back
or recompletion of any well that is a part of the underlying properties cannot be deducted from
gross proceeds pursuant to the terms of the conveyance agreement, Whiting incurred capital
expenditures of $1.1 million on the underlying properties that were not deducted from gross
proceeds during 2009 compared to $5.4 million in 2008, but which may have the effect of ultimately
accelerating the receipt of NPI net proceeds and thereby benefiting Trust unitholders by
accelerating their return on investment. The Trust cannot provide any assurance that future
capital expenditures will be consistent with historical levels.
The Trust does not have any transactions, arrangements or other relationships with
unconsolidated entities or persons that could materially affect the Trusts liquidity or the
availability of capital resources.
Off-Balance Sheet Arrangements
The Trust has no off-balance sheet arrangements. The Trust has not guaranteed the debt of any
other party, nor does the Trust have any other arrangements or relationships with other entities
that could potentially result in unconsolidated debt, losses or contingent obligations other than
the commodity hedge contracts disclosed in the section Quantitative and Qualitative Disclosures
About Market Risk in Item 7A of this Annual Report on Form 10-K.
Contractual Obligations
Pursuant to the Trust agreement, the Trust is obligated to pay the Trustee an administrative
fee of $160,000 per year, and the Trust is obligated to pay the Delaware Trustee a fee of $3,500
per year. Additionally, pursuant to the terms of the administrative services agreement with
Whiting, the Trust is obligated throughout the term of the Trust to pay Whiting quarterly an
administrative services fee of $50,000 for accounting, engineering, legal and other professional
services performed by Whiting on behalf of the Trust. The administrative services agreement will
expire upon the termination of the NPI unless terminated early by mutual agreement of the Trustee
and Whiting.
New Accounting Pronouncements
In December 2008, the SEC issued Modernization of Oil and Gas Reporting: Final Rule, which
published the final rules and interpretations updating its oil and gas reporting requirements. The
final rule includes updates to definitions in the existing oil and gas rules to make them
consistent with the petroleum resource management system, which is a widely accepted standard for
the management of petroleum resources that was developed by several industry organizations. Key
revisions include the ability to include nontraditional resources in reserves, the use of new
technology for determining reserves, permitting disclosure of probable and possible reserves, and
changes to the pricing used to determine reserves in that companies must use a 12-month average
price. The average is calculated using the first-day-of-the-month price for each of the 12 months
that make up the reporting period. The Trust adopted the new rules effective December 31, 2009,
and as a result (i) prepared its reserve estimates as of December 31, 2009 based on the new reserve
definitions, (ii) estimated its December 31, 2009 reserve quantities using the 12-month average
price and (iii) included additional disclosures in Item 2 of this Annual Report on Form 10-K, as
required by the new rule. As a result of the change in reserve pricing from using year-end oil and
gas prices to now using 12-month average prices, the estimated date when 9.11 MMBOE (8.20 MMBOE at
the 90% NPI) will be produced and sold from the underlying properties would have been accelerated
from October 31, 2017 to July 31, 2016 if year-end oil and gas prices were used to prepare December
31, 2009 reserve estimates. The adoption of this new rule, however, had no impact on the Trusts
statements of assets, liabilities and trust corpus, statements of distributable income, or
statements of changes in trust corpus.
In January 2010, the FASB issued Accounting Standards Update No. 2010-03, Oil and Gas Reserve
Estimation and Disclosures (ASU 2010-03), which provides amendments to FASB ASC topic Extractive
Activities-Oil and Gas. The objective of ASU 2010-03 is to align the oil and gas reserve
estimation and disclosure requirements of the FASB ASC with the requirements in the SECs
Modernization of Oil and Gas Reporting: Final Rule. The Trust adopted ASU 2010-03 effective
December 31, 2009, and as a result (i) has estimated its December 31, 2009 reserve quantities using
the 12-month average price, (ii) has prepared its reserve estimates as of December 31, 2009 based
on the new and amended reserve definitions in ASU 2010-03 that conform to the SECs revised reserve
definitions, and (iii) has calculated its future cash inflows, which are incorporated into the
standardized measure of future cash flows, using 12-month average rather than year-end oil and gas
prices. As a result of the change in reserve pricing from using year-end oil and gas prices to now
using 12-month average prices, the estimated date when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) will
be produced and sold from the underlying properties would have been accelerated from October 31,
2017 to July 31, 2016 if year-end oil and gas prices were used to prepare December 31, 2009 reserve
estimates. The adoption of ASU 2010-03, however, had no impact on
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the Trusts statements of
assets, liabilities and trust corpus, statements of distributable income, or statements of changes
in trust corpus.
In June 2009, the FASB issued SFAS No. 168, The FASB Accounting Standards Codification and the
Hierarchy of Generally Accepted Accounting Principles, as codified in FASB ASC topic Generally
Accepted Accounting Principles, a replacement of FASB Statement No. 162. This standard establishes
only two levels of GAAP, authoritative and nonauthoritative. The FASB ASC was not intended to
change or alter existing GAAP, and the Trusts adoption effective July 1, 2009 did not therefore
have any impact on its financial statements other than to modify certain existing disclosures. The
FASB ASC is now the source of authoritative, nongovernmental GAAP, except for rules and
interpretive releases of the SEC, which are sources of authoritative GAAP for SEC registrants. All
other nongrandfathered, non-SEC accounting literature not included in the FASB ASC will become
nonauthoritative. FASB ASC is effective for financial statements for interim or annual reporting
periods ending after September 15, 2009. Upon adoption in the third quarter of 2009, the Trust
began to use the new guidelines and numbering system prescribed by the FASB ASC when referring to
GAAP.
In May 2009, the FASB issued SFAS No. 165, Subsequent Events (SFAS 165), as codified in FASB
ASC topic Subsequent Events. This standard is intended to establish general standards of accounting
for and disclosure of events that occur after the balance sheet date but before financial
statements are issued or are available to be issued. Specifically, this standard sets forth the
period after the balance sheet date during which management of a reporting entity should evaluate
events or transactions that may occur for
potential recognition or disclosure in the financial statements, the circumstances under which
an entity should recognize events or transactions occurring after the balance sheet date in its
financial statements, and the disclosures that an entity should make about events or transactions
that occurred after the balance sheet date. SFAS 165 is effective for fiscal years and interim
periods ended after June 15, 2009. The Trust adopted SFAS 165 effective April 1, 2009, as amended
by ASU 2010-09, which did not have an impact on the Trusts financial statements.
Critical Accounting Policies and Estimates
The financial statements of the Trust are significantly affected by its basis of accounting
and estimates related to its oil and gas properties and proved reserves, as summarized below.
Basis of Accounting. The Trusts financial statements are prepared on a modified cash basis,
which is a comprehensive basis of accounting other than GAAP. This method of accounting is
consistent with reporting of taxable income to the Trust unitholders. The most significant
differences between the Trusts financial statements and those prepared in accordance with GAAP
are:
a) | Income from net profits interest is recognized when NPI distributions are received by the Trust rather than accrued in the month of production; | ||
b) | Distributions to Trust unitholders are recorded when paid by the Trust; | ||
c) | Trust general and administrative expenses (which include the Trustees fees as well as accounting, engineering, legal, and other professional fees) are recorded when paid by the Trust rather than when incurred; and | ||
d) | Cash reserves for Trust expenses may be established by the Trustee for certain expenditures that would not be recorded as contingent liabilities under GAAP. |
While these statements differ from financial statements prepared in accordance with GAAP,
based on the judgment of the Trustee the modified cash basis of reporting revenues and
distributions is considered to be the most meaningful because quarterly distributions to the Trust
unitholders are based on net cash receipts. This comprehensive basis of accounting other than GAAP
corresponds to the accounting permitted for royalty trusts by the U.S. Securities and Exchange
Commission, as specified by Staff Accounting Bulletin Topic 12:E, Financial Statements of Royalty
Trusts. For further information regarding the Trusts basis of accounting, see Note 2 to the
Financial Statements included in this Annual Report on Form 10-K.
All amounts included in the Trusts financial statements are based on cash amounts received or
disbursed, or on the carrying value of the net profits interests, which was derived from the
historical cost of the interests at the date of their transfer from Whiting, less accumulated
amortization to date. Accordingly, there are no fair value estimates included in the Trusts
financial statements.
Oil and Gas Reserves. The proved oil and gas reserves for the underlying properties are
estimated by independent petroleum
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engineers. Reserve engineering is a subjective process that is
dependent upon the quality of available data and the interpretation thereof. Estimates by different
engineers often vary, sometimes significantly. In addition, physical factors such as the results of
drilling, testing and production subsequent to the date of an estimate, as well as economic factors
such as changes in product prices and production costs, may justify revision of such estimates.
Accordingly, oil and gas quantities ultimately recovered and the timing of production may be
substantially different from estimates.
The standardized measure of discounted future net cash flows is prepared using assumptions
required by the FASB and SEC. Such assumptions include using average fiscal-year oil and gas prices
(calculated as the unweighted arithmetic average of the first-day-of-the-month price for each month
within the 12-month reporting period) and year-end costs for estimated future production
expenditures. Discounted future net cash flows are calculated using a 10% discount rate. Changes in
any of these assumptions could have a significant impact on the standardized measure. The
standardized measure does not necessarily result in an estimate of the current fair market value of
proved reserves.
Amortization of Net Profits Interest. We amortize the investment in net profits interest using
the units-of-production method. Our rate of recording amortization is dependent upon our estimates
of total proved reserves, which incorporates various assumptions and future projections. If the
estimates of total proved reserves decline significantly, the rate at which we record amortization
expense may increase, reducing Trust corpus. Such a decline in reserves may result from lower
commodity prices, which may make it uneconomic to drill for and produce higher cost fields. We are
unable to predict changes in reserve quantity estimates as such quantities are
dependent on future economic conditions.
Impairment of Investment in Net Profits Interest. We review the value of our investment in net
profits interest whenever the Trustee judges that events and circumstances indicate that the
recorded carrying value of the investment in net profits interest may not be recoverable. Potential
impairments of the investment in net profits interest are determined by comparing future net
undiscounted cash flows to the net book value at the end of each period. If the net capitalized
cost exceeds undiscounted future cash flows, the cost of the investment in net profits interest is
written down to fair value, which is determined using net discounted future cash flows from the
net profits interest. Different pricing assumptions or discount rates could result in a different
calculated impairment.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Commodity Hedge Contracts
The primary asset of and source of income to the Trust is the term NPI, which generally
entitles the Trust to receive 90% of the net proceeds from oil and gas production from the
underlying properties. Consequently, the Trust is exposed to market risk from fluctuations in oil
and gas prices. Through 2012, however, the NPI is subject to commodity hedge contracts in the form
of costless collars, which reduce its exposure to commodity price volatility.
The revenues derived from the underlying properties depend substantially on prevailing crude
oil, natural gas and natural gas liquid prices. As a result, commodity prices also affect the
amount of cash flow available for distribution to the Trust unitholders. Lower prices may also
reduce the amount of oil, natural gas and natural gas liquids that Whiting can economically
produce. Whiting sells the oil, natural gas and natural gas liquid production from the underlying
properties under floating market price contracts each month. Whiting has entered into certain hedge
contracts through December 31, 2012 to manage the exposure to crude oil and natural gas price
volatility associated with revenues generated from the underlying properties and to achieve more
predictable cash flow. However, these contracts limit the amount of cash available for distribution
if prices increase above the fixed ceilings. The hedge contracts consist of costless collar
arrangements placed with a single trading counterparty, JPMorgan Chase Bank National Association.
Whiting cannot provide assurance that this trading counterparty will not become a credit risk in
the future. No additional hedges are allowed to be placed on Trust assets.
Crude oil costless collar arrangements settle based on the average of the closing settlement
price for each commodity business day in the contract period. Natural gas costless collar
arrangements settle based on the closing settlement price on the second to last scheduled trading
day of the month prior to delivery. In a collar arrangement, the counterparty is required to make a
payment to Whiting for the difference between the fixed floor price and the settlement price if the
settlement price is below the fixed floor price. Whiting is required to make a payment to the
counterparty for the difference between the fixed ceiling price and the settlement price if the
settlement price is above the fixed ceiling price. Whitings crude oil and natural gas price risk
management positions in collar
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arrangements through December 31, 2012 (which collars have the
potential to affect Whitings future distributions to the Trust) are as follows:
Oil Collars | Natural Gas Collars | |||||||||||||||
Weighted | Weighted | |||||||||||||||
Average Price | Average Price | |||||||||||||||
Volumes | (per Bbl) | Volumes | (per Mcf) | |||||||||||||
(Bbls) | Floor / Ceiling | (Mcf) | Floor / Ceiling | |||||||||||||
Three Months Ending December 31, 2009 |
138,720 | $ | 76.00/$135.72 | 556,290 | $ | 7.00/$14.85 | ||||||||||
Three Months Ending March 31, 2010 |
135,252 | $ | 76.00/$135.09 | 536,709 | $ | 7.00/$18.65 | ||||||||||
Three Months Ending June 30, 2010 |
131,934 | $ | 76.00/$134.85 | 518,619 | $ | 6.00/$13.20 | ||||||||||
Three Months Ending September 30, 2010 |
128,898 | $ | 76.00/$134.89 | 502,749 | $ | 6.00/$14.00 | ||||||||||
Three Months Ending December 31, 2010 |
125,772 | $ | 76.00/$135.11 | 488,991 | $ | 7.00/$14.20 | ||||||||||
Three Months Ending March 31, 2011 |
122,934 | $ | 74.00/$139.68 | 472,800 | $ | 7.00/$17.40 | ||||||||||
Three Months Ending June 30, 2011 |
120,198 | $ | 74.00/$140.08 | 458,109 | $ | 6.00/$13.05 | ||||||||||
Three Months Ending September 30, 2011 |
117,510 | $ | 74.00/$140.15 | 444,489 | $ | 6.00/$13.65 | ||||||||||
Three Months Ending December 31, 2011 |
114,726 | $ | 74.00/$140.75 | 428,361 | $ | 7.00/$14.25 | ||||||||||
Three Months Ending March 31, 2012 |
112,236 | $ | 74.00/$141.27 | 413,820 | $ | 7.00/$15.55 | ||||||||||
Three Months Ending June 30, 2012 |
109,716 | $ | 74.00/$141.73 | 402,609 | $ | 6.00/$13.60 | ||||||||||
Three Months Ending September 30, 2012 |
107,226 | $ | 74.00/$141.70 | 390,519 | $ | 6.00/$14.45 | ||||||||||
Three Months Ending December 31, 2012 |
105,084 | $ | 74.00/$142.21 | 379,839 | $ | 7.00/$13.40 |
The collared hedges shown above have the effect of providing a protective floor while allowing
Trust unitholders to share in
upward pricing movements. Consequently, while these hedges are designed to decrease exposure
to price decreases, they also have the effect of limiting the benefit of price increases beyond the
ceiling. For the 2010 crude oil contracts listed above, a hypothetical $5.00 change in the NYMEX
price above the ceiling price or below the floor price applied to the notional amounts could cause
a change in the cash settlement payments (gains received) on hedging activities in 2010 of $2.6
million to Whiting, of which 90% would be transferred to the Trust. For the 2010 natural gas
contracts listed above, a hypothetical $1.00 change in the NYMEX price above the ceiling price or
below the floor price applied to the notional amounts could cause a change in the cash settlement
payments (gains received) on hedging activities in 2010 of $2.0 million to Whiting, of which 90%
would be transferred to the Trust.
Amounts received by Whiting from the counterparty upon settlements of the hedge contracts will
reduce the operating expenses related to the underlying properties in calculating the net proceeds.
However, if the hedge payments received by Whiting under the hedge contracts and other
non-production revenue exceed operating expenses during a quarterly period, the ability to use such
excess amounts to offset operating expenses may be deferred, with interest accruing on such amounts
at the prevailing money market rate, until the next quarterly period where the hedge payments and
the other non-production revenue are less than such expenses. In addition, the aggregate amounts
paid by Whiting on settlement of the hedge contracts will reduce the amount of net proceeds paid to
the Trust.
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Item 8. Financial Statements and Supplementary Data.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Trustees and Unit Holders of
Whiting USA Trust I
c/o The Bank of New York Mellon Trust Company, N.A., Trustee
Austin, Texas
Whiting USA Trust I
c/o The Bank of New York Mellon Trust Company, N.A., Trustee
Austin, Texas
We have audited the accompanying statements of assets, liabilities and trust corpus modified
cash basis of Whiting USA Trust I (the Trust) as of December 31, 2009 and 2008, and the related
statements of distributable income and changes in trust corpus modified cash basis for the years
ended December 31, 2009 and 2008 and for the period from October 18, 2007 (date of inception)
through December 31, 2007. These financial statements are the responsibility of the Corporate
Trustee. Our responsibility is to express an opinion on the financial statements based on our
audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by the trustee, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
As described in Note 2 to the financial statements, these financial statements were prepared on the
modified cash basis of accounting, which is a comprehensive basis of accounting other than
accounting principles generally accepted in the United States of America.
In our opinion, such financial statements present fairly, in all material respects, the assets,
liabilities and trust corpus of Whiting USA Trust I as of December 31, 2009 and 2008, and its
distributable income and changes in trust corpus for the years ended December 31, 2009 and 2008 and
for the period from October 18, 2007 (date of inception) through December 31, 2007, on the
comprehensive basis of accounting described in Note 2 to the financial statements.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight
Board (United States), the Trusts internal control over financial reporting as of December 31,
2009, based on the criteria established in Internal ControlIntegrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission and
our report dated March 15,
2010 expressed an unqualified opinion on the Trusts internal control over financial reporting.
Deloitte & Touche LLP
Houston, Texas
March 15, 2010
March 15, 2010
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WHITING USA TRUST I
Statements of Assets, Liabilities and Trust Corpus - Modified Cash Basis
December 31, | ||||||||
2009 | 2008 | |||||||
ASSETS |
||||||||
Cash and short-term investments |
$ | 237,302 | $ | 131,584 | ||||
Investment in net profits interest, net |
79,346,416 | 97,798,149 | ||||||
Total assets |
$ | 79,583,718 | $ | 97,929,733 | ||||
LIABILITIES AND TRUST CORPUS |
||||||||
Reserve for Trust expenses |
$ | 237,292 | $ | 131,574 | ||||
Trust corpus (13,863,889 Trust units issued and outstanding ) |
79,346,426 | 97,798,159 | ||||||
Total liabilities and Trust corpus |
$ | 79,583,718 | $ | 97,929,733 | ||||
Statements of Distributable Income - Modified Cash Basis
Period from | ||||||||||||
Year Ended | Year Ended | October 18, 2007 | ||||||||||
December 31, | December 31, | (inception) through | ||||||||||
2009 | 2008 | December 31, 2007 | ||||||||||
Income from net profits interest |
$ | 38,347,743 | $ | 58,281,524 | $ | | ||||||
General and administrative expenses |
(944,282 | ) | (793,443 | ) | | |||||||
Cash reserves (withheld) used for future Trust expenses |
(105,718 | ) | (131,574 | ) | | |||||||
State income tax withholding |
(180,801 | ) | (376,200 | ) | | |||||||
Distributable income |
$ | 37,116,942 | $ | 56,980,307 | $ | | ||||||
Distributable income per unit |
$ | 2.677239 | $ | 4.109980 | $ | | ||||||
Statements of Changes in Trust Corpus - Modified Cash Basis
Period from | ||||||||||||
Year Ended | Year Ended | October 18, 2007 | ||||||||||
December 31, | December 31, | (inception) through | ||||||||||
2009 | 2008 | December 31, 2007 | ||||||||||
Trust corpus, beginning of period |
$ | 97,798,159 | $ | 10 | $ | | ||||||
Investment in net profits interest |
| 111,223,059 | 10 | |||||||||
Distributable income |
37,116,942 | 56,980,307 | | |||||||||
Distributions to unitholders |
(37,116,942 | ) | (56,980,307 | ) | | |||||||
Amortization of investment in net profits interest |
(18,451,733 | ) | (13,424,910 | ) | | |||||||
Trust corpus, end of period |
$ | 79,346,426 | $ | 97,798,159 | $ | 10 | ||||||
The accompanying notes are an integral part of these modified cash basis financial statements.
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WHITING USA TRUST I
NOTES TO MODIFIED CASH BASIS FINANCIAL STATEMENTS
1. ORGANIZATION OF THE TRUST
Formation of the Trust Whiting USA Trust I (the Trust) is a statutory trust formed in
October 2007 under the Delaware Statutory Trust Act, pursuant to a trust agreement (the Trust
agreement) among Whiting Oil and Gas Corporation and Equity Oil Company, as trustors, The Bank of
New York Trust Company, N.A., as Trustee (subsequently renamed The Bank of New York Mellon Trust
Company, N.A., and hereinafter referred to as Trustee), and Wilmington Trust Company as Delaware
Trustee (the Delaware Trustee). The initial capitalization of the Trust estate was funded by
Whiting Petroleum Corporation (Whiting) in November 2007. Effective September 30, 2009, Equity
Oil Company merged into Whiting Oil and Gas Corporation (Whiting Oil and Gas) with Whiting Oil
and Gas as the surviving corporation. Whiting Oil and Gas, as referred to herein, is a subsidiary
of Whiting and the successor to Equity Oil Company.
The Trust was created to acquire and hold a term net profits interest (NPI) for the benefit
of the Trust unitholders pursuant to a conveyance to the Trust from Whiting Oil and Gas. The term
NPI is an interest in underlying oil and natural gas properties located in the Rocky Mountains,
Mid-Continent, Permian Basin and Gulf Coast regions (the underlying properties). The NPI is the
only asset of the Trust, other than cash held for Trust expenses. These oil and gas properties
include interests in 3,086 gross (381.7 net) producing oil and gas wells.
The NPI is passive in nature, and the Trustee has no management control over and no
responsibility relating to the operation of the underlying properties. The NPI entitles the Trust
to receive 90% of the net proceeds from the sale of production from the underlying properties. The
NPI will terminate when 9.11 MMBOE have been produced and sold from the underlying properties
(which amount is the equivalent of 8.20 MMBOE in respect of the Trusts right to receive 90% of the
net proceeds from such reserves pursuant to the NPI), and the Trust will soon thereafter wind up
its affairs and terminate. As of December 31, 2009, on an accrual basis 2.77 MMBOE of the Trusts
total 8.20 MMBOE have been produced and sold and 0.02 MMBOE have been sold in divestitures. The
remaining reserve quantities are projected to be produced by October 31, 2017, based on the reserve
report for the underlying properties as of December 31, 2009.
The Trustee can authorize the Trust to borrow money to pay Trust administrative or incidental
expenses that exceed cash held by the Trust. The Trustee may authorize the Trust to borrow from the
Trustee, Whiting, or the Delaware Trustee as a lender provided the terms of the loan are similar to
the terms it would grant to a similarly situated commercial customer with whom it did not have a
fiduciary relationship. The Trustee may also deposit funds awaiting distribution in an account with
itself and make other short-term investments with the funds distributed to the Trust.
Initial Issuance of Trust Units and Net Profits Interest Conveyance In April 2008, the
registration statement on Form S-1/S-3 (Registration No. 333-147543) filed by Whiting and the Trust
in connection with the initial public offering of the Trust units was declared effective by the
SEC. Subsequently, the Trust issued 13,863,889 Trust units to Whiting in exchange for the
conveyance of the term NPI from Whiting Oil and Gas, as discussed above. Immediately thereafter,
Whiting completed an initial public offering of units of beneficial interest in the Trust, selling
11,677,500 Trust units to the public. Whiting retained an ownership in 2,186,389 Trust units, or
15.8% of the total Trust units issued and outstanding.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Term Net Profits Interest The Trust uses the modified cash basis of accounting to report
Trust receipts from the term NPI and payments of expenses incurred. The actual cash distributions
to the Trust are made based on the terms of the conveyance creating the Trusts NPI. The term NPI
entitles the Trust to receive revenues (oil, gas and natural gas liquid sales) less expenses (the
amount by which all royalties, lease operating expenses including well workover costs, production
and property taxes, payments made by Whiting to the hedge counterparty upon settlements of hedge
contracts, maintenance expenses, post-production costs including plugging and abandonment, and
producing overhead, exceed hedge payments received by Whiting under hedge contracts and other
non-production revenue) of the underlying properties multiplied by 90% (term NPI percentage).
Actual cash receipts may vary due to timing delays of cash receipts from the property operators or
purchasers and due to wellhead and pipeline volume balancing agreements or practices.
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Modified Cash Basis of Accounting The financial statements of the Trust, as prepared on a
modified cash basis, reflect the Trusts assets, liabilities, Trust corpus, earnings and distributions, as follows:
a) | Income from net profits interest is recorded when NPI distributions are received by the Trust; | ||
b) | Distributions to Trust unitholders are recorded when paid by the Trust; | ||
c) | Trust general and administrative expenses (which include the Trustees fees as well as accounting, engineering, legal, and other professional fees) and are recorded when paid; | ||
d) | Cash reserves for Trust expenses may be established by the Trustee for certain expenditures that would not be recorded as contingent liabilities under GAAP; | ||
e) | Amortization of the investment in net profits interest is calculated based on the units-of- production method. Such amortization is charged directly to Trust corpus and does not affect cash earnings; and | ||
f) | The Trust evaluates impairment of the investment in net profits interest by comparing the undiscounted cash flows expected to be realized from the investment in net profits interest to the carrying value. If the expected future undiscounted cash flows are less than the carrying value, the Trust recognizes an impairment loss for the difference between the carrying value and the estimated fair value of the investment in net profits interest. At December 31, 2009 and 2008, the Trustee believes no such impairment has occurred. The determination of whether the NPI is impaired requires a significant amount of judgment by the Trustee and is based on the best information available to the Trustee at the time of the evaluation. If market conditions deteriorate, write-downs could be required in the future. |
While these statements differ from financial statements prepared in accordance with GAAP, the
modified cash basis of reporting revenues and distributions is considered to be the most meaningful
because quarterly distributions to the Trust unitholders are based on net cash receipts. This
comprehensive basis of accounting other than GAAP corresponds to the accounting permitted for
royalty trusts by the SEC as specified by FASB ASC topic Extractive Activities Oil and Gas:
Financial Statements of Royalty Trusts.
Most accounting pronouncements apply to entities whose financial statements are prepared in
accordance with GAAP, directing such entities to accrue or defer revenues and expenses in a period
other than when such revenues were received or expenses were paid. Because the Trusts financial
statements are prepared on the modified cash basis, as described above, most accounting
pronouncements are not applicable to the Trusts financial statements.
Cash and Short-Term Investments. Cash and short-term investments include all highly liquid
short-term investments with original maturities of three months or less.
Concentration of Credit Risk. The underlying properties from which the NPI is derived
principally sell their oil and natural gas production to end users, marketers and other purchasers
that have access to nearby pipeline facilities. During 2009, sales to Teppco Crude Oil LLC and Lion
Oil Company each accounted for 12% of total oil and natural gas sales related to the underlying
properties. During 2008, sales to Teppco Crude Oil LLC and Lion Oil Company accounted for 14% and
13%, respectively, of total oil and natural gas sales related to the underlying properties. The
loss of one or both of these purchasers does not present a material risk because there is
significant competition among purchasers of crude oil and natural gas in the areas of the
underlying properties, and if they were to lose one or both of their largest purchasers, several
entities could purchase crude oil and natural gas produced from the underlying properties with
little or no interruption to their business.
The underlying properties oil and gas revenues, which are included in the NPI net proceeds
computation, are subject to commodity hedge contracts through December 31, 2012. The hedge
contracts consist of costless collar arrangements that are placed with a single trading
counterparty, JPMorgan Chase Bank National Association, and there is no assurance that this trading
counterparty will not become a credit risk in the future.
Use of Estimates. The preparation of financial statements requires estimates and assumptions
that affect reported amounts of assets and liabilities, the disclosure of contingent assets and
liabilities at the date of the financial statements, and the reported amounts of revenue and
expenses during the reporting period. Significant estimates affecting these financial statements
include estimates of proved oil and gas reserves, which are used to compute the Trusts
amortization of net profits interest and its impairment assessments. Although the Trustee believes
that these estimates are reasonable, actual results could differ from those estimates.
Recent Accounting Pronouncements. In December 2008, the SEC issued Modernization of Oil and
Gas Reporting: Final Rule, which published the final rules and interpretations updating its oil and
gas reporting requirements. The final rule includes updates to
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definitions in the existing oil and gas rules to make them consistent with the petroleum resource management system, which is a
widely accepted standard for the management of petroleum resources that was developed by
several industry organizations. Key revisions include the ability to include nontraditional
resources in reserves, the use of new technology for determining reserves, permitting disclosure of
probable and possible reserves, and changes to the pricing used to determine reserves in that
companies must use a 12-month average price. The average is calculated using the
first-day-of-the-month price for each of the 12 months that make up the reporting period. The
Trust adopted the new rules effective December 31, 2009, and as a result (i) prepared its reserve
estimates as of December 31, 2009 based on the new reserve definitions, (ii) estimated its December
31, 2009 reserve quantities using the 12-month average price and (iii) included additional
disclosures in Item 2 of this Annual Report on Form 10-K, as required by the new rule. As a result
of the change in reserve pricing from using year-end oil and gas prices to now using 12-month
average prices, the estimated date when 9.11 MMBOE (8.20 MMBOE at the 90% NPI) will be produced and
sold from the underlying properties would have been accelerated from October 31, 2017 to July 31,
2016 if year-end oil and gas prices were used to prepare December 31, 2009 reserve estimates. The
adoption of this new rule, however, had no impact on the Trusts statements of assets, liabilities
and trust corpus, statements of distributable income, or statements of changes in trust corpus.
In January 2010, the FASB issued Accounting Standards Update No. 2010-03, Oil and Gas Reserve
Estimation and Disclosures (ASU 2010-03), which provides amendments to FASB ASC topic Extractive
Activities-Oil and Gas. The objective of ASU 2010-03 is to align the oil and gas reserve
estimation and disclosure requirements of the FASB ASC with the requirements in the SECs
Modernization of Oil and Gas Reporting: Final Rule. The Trust adopted ASU 2010-03 effective
December 31, 2009, and as a result (i) has estimated its December 31, 2009 reserve quantities using
the 12-month average price, (ii) has prepared its reserve estimates as of December 31, 2009 based
on the new and amended reserve definitions in ASU 2010-03 that conform to the SECs revised reserve
definitions, and (iii) has calculated its future cash inflows, which are incorporated into the
standardized measure of discounted future net cash flows, using 12-month average rather than
year-end oil and gas prices. As a result of the change in reserve pricing from using year-end oil
and gas prices to now using 12-month average prices, the estimated date when 9.11 MMBOE (8.20 MMBOE
at the 90% NPI) will be produced and sold from the underlying properties would have been
accelerated from October 31, 2017 to July 31, 2016 if year-end oil and gas prices were used to
prepare December 31, 2009 reserve estimates. The adoption of ASU 2010-03, however, had no impact
on the Trusts statements of assets, liabilities and trust corpus, statements of distributable
income, or statements of changes in trust corpus.
In June 2009, the FASB issued SFAS No. 168, The FASB Accounting Standards Codification and the
Hierarchy of Generally Accepted Accounting Principles, as codified in FASB ASC topic Generally
Accepted Accounting Principles, a replacement of FASB Statement No. 162. This standard establishes
only two levels of GAAP, authoritative and nonauthoritative. The FASB ASC was not intended to
change or alter existing GAAP, and the Trusts adoption effective July 1, 2009 did not therefore
have any impact on its financial statements other than to modify certain existing disclosures. The
FASB ASC is now the source of authoritative, nongovernmental GAAP, except for rules and
interpretive releases of the SEC, which are sources of authoritative GAAP for SEC registrants. All
other nongrandfathered, non-SEC accounting literature not included in the FASB ASC will become
nonauthoritative. FASB ASC is effective for financial statements for interim or annual reporting
periods ending after September 15, 2009. Upon adoption in the third quarter of 2009, the Trust
began to use the new guidelines and numbering system prescribed by the FASB ASC when referring to
GAAP.
In May 2009, the FASB issued SFAS No. 165, Subsequent Events (SFAS 165), as codified in FASB
ASC topic Subsequent Events. This standard is intended to establish general standards of accounting
for and disclosure of events that occur after the balance sheet date but before financial
statements are issued or are available to be issued. Specifically, this standard sets forth the
period after the balance sheet date during which management of a reporting entity should evaluate
events or transactions that may occur for potential recognition or disclosure in the financial
statements, the circumstances under which an entity should recognize events or transactions
occurring after the balance sheet date in its financial statements, and the disclosures that an
entity should make about events or transactions that occurred after the balance sheet date. SFAS
165 is effective for fiscal years and interim periods ended after June 15, 2009. The Trust adopted
SFAS 165 effective April 1, 2009, as amended by ASU 2010-09, which did not have an impact on the
Trusts financial statements other than additional disclosures.
3. INVESTMENT IN NET PROFITS INTEREST
Whiting Oil and Gas conveyed the NPI to the Trust in exchange for 13,863,889 Trust units. The
investment in net profits interest was recorded at the historical cost of Whiting on April 30,
2008, the date of conveyance, and was determined to be $123.6 million, of which $111.2 million (90%
of the NPI) was attributed to the Trust. Accumulated amortization as of December 31, 2009 and 2008
was $31.9 million and $13.4 million, respectively.
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4. INCOME FROM NET PROFITS INTEREST
The Trust received income from net profits interest as follows (dollars in thousands):
Year Ended December 31, | ||||||||
2009 | 2008 | |||||||
Revenues: |
||||||||
Oil sales |
$ | 40,922 | (a) | $ | 65,276 | (c) | ||
Natural gas sales |
15,133 | (b) | 25,322 | (d) | ||||
Total Revenues |
$ | 56,055 | $ | 90,598 | ||||
Costs: |
||||||||
Lease operating expense |
$ | 26,179 | $ | 19,319 | ||||
Production taxes |
3,930 | 6,346 | ||||||
Cash settlement payments (gains received) on commodity derivatives |
(16,663 | ) | 176 | |||||
Total Costs |
$ | 13,446 | $ | 25,841 | ||||
Net proceeds |
$ | 42,609 | $ | 64,757 | ||||
Net profits percentage |
90 | % | 90 | % | ||||
Income from net profits interest |
$ | 38,348 | $ | 58,282 | ||||
(a) | Because of the one-month interval between the time crude oil volumes are produced and the receipt of oil sales proceeds by Whiting, oil sales for the twelve months ended December 31, 2009 (consisting of Whitings February, May, August and November 2009 NPI distributions to the Trust) generally represent crude oil production from October 2008 through September 2009. | |
(b) | Because of the two-month interval between the time natural gas volumes are produced and the receipt of gas sales proceeds by Whiting, natural gas sales for the twelve months ended December 31, 2009 (consisting of Whitings February, May, August and November 2009 NPI distributions to the Trust) generally represent gas production from September 2008 through August 2009. | |
(c) | Because of the one-month interval between the time crude oil volumes are produced and the receipt of oil sales proceeds by Whiting, oil sales for the twelve months ended December 31, 2008 (consisting of Whitings May, August and November 2008 NPI distributions to the Trust) generally represent crude oil production from January 2008 through September 2008. | |
(d) | Because of the two-month interval between the time natural gas volumes are produced and the receipt of gas sales proceeds by Whiting, natural gas sales for the twelve months ended December 31, 2008 (consisting of Whitings May, August and November 2008 NPI distributions to the Trust) generally represent gas production from January 2008 through August 2008. |
5. INCOME TAXES
The Trust is a grantor trust and therefore is not subject to federal income taxes.
Accordingly, no recognition has been given to federal income taxes in the Trusts financial
statements or in the Trusts standardized measure of discounted future net cash flows. The Trust
unitholders are treated as the owners of Trust income and corpus, and the entire federal taxable
income of the Trust is reported by the Trust unitholders on their respective tax returns.
For Montana state income tax purposes, Whiting must withhold from the NPI payable to the
Trust, an amount equal to 6% of the net amount payable to the Trust from the sale of oil and gas in
Montana. Whiting withheld $180,801 and $376,200 related to Montana state income taxes for the
twelve months ended December 31, 2009 and 2008, respectively. For North Dakota, Oklahoma, Arkansas,
Michigan, New Mexico, Alabama, Louisiana, Colorado, Kansas, Utah and Mississippi, neither the Trust
nor Whiting is withholding the income tax due such states on distributions made to an individual
resident or nonresident Trust unitholder, as long as the Trust is taxed as a grantor trust under
the Internal Revenue Code.
6. DISTRIBUTION TO UNITHOLDERS
Actual cash distributions to the Trust unitholders depend on the volumes of and prices
received for oil, natural gas and natural gas liquids produced from the underlying properties,
among other factors. Quarterly cash distributions during the term of the Trust are made by the
Trustee generally no later than 60 days following the end of each quarter (or the next succeeding
business day) to the Trust unitholders of record on the 50th day following the end of each quarter.
Such amounts equal the excess, if any, of the cash received by the Trust during the quarter, over
the expenses of the Trust paid during such quarter, subject to adjustments for changes made by the
Trustee during such quarter in any cash reserves established for future expenses of the Trust.
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7. RELATED PARTY TRANSACTIONS
Capital Expenditures During the twelve months ended December 31, 2009 and 2008, Whiting
incurred $1.1 million and $5.4 million, respectively, of capital expenditures on the underlying
properties related to the drilling and completing of oil and gas wells, capital workovers, facility
upgrades and well recompletions performed to secure production from new horizons, which may have
the effect of ultimately increasing current and future period NPI net proceeds and thereby
benefiting the Trust unitholders by accelerating their return on investment. Pursuant to the terms
of the conveyance agreement, however, Whiting did not deduct, nor will it deduct in the future,
such capital expenditures from the NPI gross proceeds or related distributions to the Trust. The
Trust cannot provide any assurance that future capital expenditures will be consistent with
historical levels.
Operating Overhead Pursuant to the terms of the applicable joint operating agreements,
Whiting deducts from the gross proceeds an overhead fee to operate those underlying properties for
which Whiting has been designated as the operator. Additionally, for those underlying properties
for which Whiting is the operator but for which there is no operating agreement, Whiting deducts
from the gross proceeds an overhead fee calculated in the same manner Whiting allocates overhead to
other similarly owned properties, as is customary in the oil and gas industry. The operating
overhead activities include various engineering, legal, and administrative functions. For the
twelve months ended December 31, 2009, the Trusts portion of the monthly charge totaled $1.7
million and averaged $404 per active operated well. For the three distributions made during the
year ended December 31, 2008, the Trusts portion of the monthly charge totaled $1.4 million and
averaged $391 per active operated well. The fee is adjusted annually pursuant to COPAS guidelines
and will increase or decrease each year based on changes in the year-end index of average weekly
earnings of crude petroleum and natural gas workers.
Administrative Services Fee Under the terms of the administrative services agreement, the
Trust pays a quarterly administration fee of $50,000 to Whiting 60 days following the end of each
calendar quarter. General and administrative expenses in the Trusts statements of distributable
income for the twelve months ending December 31, 2009 and 2008 include $200,000 and $150,000,
respectively, for quarterly administrative fees paid to Whiting.
Trustee Administrative Fee Under the terms of the Trust agreement, the Trust pays an annual
administrative fee to the Trustee of $160,000, paid in four quarterly installments of $40,000 each
and is billed in arrears. General and administrative expenses in the Trusts statements of
distributable income for the twelve months ending December 31, 2009 and 2008 include $160,000 and
$80,000, respectively, for quarterly administrative fees paid to the Trustee.
Whiting Advance During September 2008, the Trustee determined that the Trusts cash on hand
was not sufficient to fund its current general and administrative liabilities due. Accordingly, the
Trust entered into a transaction with Whiting in the ordinary course of business, whereby Whiting
advanced $100,000 to the Trust on September 19, 2008. The Trust repaid Whiting the $100,000 advance
on November 26, 2008 plus interest.
8. SUBSEQUENT EVENTS
The Trustee has evaluated subsequent events through the date that these financial statements
were issued. The following information is disclosed as a nonrecognized subsequent event:
On February 26, 2010, a distribution of $0.663181 per Trust unit was paid to Trust unitholders
owning Trust units as of February 19, 2010. The distribution consisted of net cash proceeds of $9.5
million paid by Whiting to the Trust, which included cash receipts of $1.4 million (90% of $1.6
million) for commodity derivative contracts settled for October 1, 2009 through December 31, 2009,
less a provision of $200,000 for estimated Trust expenses and $71,337 for Montana state income tax
withholdings.
9. SUPPLEMENTAL OIL AND GAS RESERVE INFORMATION (UNAUDITED)
Estimates of proved reserves attributable to the Trust and the related valuations were based
100% on reports prepared by the Trusts independent petroleum engineers Cawley, Gillespie &
Associates, Inc. Proved reserve estimates included herein conform to the definitions prescribed by
the FASB and SEC. The estimates of proved reserves are inherently imprecise and are continually
subject to revision based on production history, results of additional exploration and development,
price changes and other factors.
As of December 31, 2009, all of the underlying properties oil and gas reserves are
attributable to properties within the United States. Proved reserves attributable to the Trust and
related standardized measure valuations are prepared on an accrual basis, which is
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the basis on which Whiting and the underlying properties maintain their production records and
is different from the cash basis on which the Trust production records are computed.
The following is a summary of the changes in quantities of proved oil and gas reserves
attributable to the Trust for the years ended December 31, 2008 and 2009:
Natural | ||||||||||||
Oil | Gas | |||||||||||
(MBbl) | (MMcf) | MBOE | ||||||||||
Balance January 1, 2008 (1) |
5,110 | 18,559 | 8,203 | |||||||||
Revisions to previous estimates |
(594 | ) | 3,277 | (47 | ) | |||||||
Extensions and discoveries |
69 | 197 | 102 | |||||||||
Production |
(800 | ) | (3,779 | ) | (1,430 | ) | ||||||
Balance December 31, 2008 (1) |
3,785 | 18,254 | 6,828 | |||||||||
Revisions to previous estimates |
597 | (3,816 | ) | (40 | ) | |||||||
Extensions and discoveries |
10 | 6 | 11 | |||||||||
Divestitures (2) |
(4 | ) | (102 | ) | (21 | ) | ||||||
Production |
(784 | ) | (3,366 | ) | (1,345 | ) | ||||||
Balance December 31, 2009 (1) |
3,604 | 10,976 | 5,433 | |||||||||
Proved developed reserves: |
||||||||||||
January 1, 2008 |
5,110 | 18,559 | 8,203 | |||||||||
December 31, 2008 |
3,785 | 18,254 | 6,828 | |||||||||
December 31, 2009 |
3,604 | 10,976 | 5,433 | |||||||||
(1) | Reserves related to the underlying properties on a full economic life basis as of January 1, 2008, December 31, 2008 and December 31, 2009 were 13.9 MMBOE, 9.0 MMBOE and 9.3 MMBOE, respectively. | |
(2) | During 2009, Whiting received aggregate sale proceeds of $16,884 in exchange for its divestiture of Trust properties that held 21 MBOE of proved reserves but which properties were producing only marginally positive net operating profits. Whiting includes all such proceeds from Trust property divestitures in its NPI distributions to the Trust. |
Notable changes in proved reserves for the year ended December 31, 2009 included:
| Revisions to previous estimates. In 2009, revisions to previous estimates decreased proved reserves by a net amount of 40 MBOE. Included in these revisions were 3.8 Bcf of downward adjustments to natural gas primarily due to lower gas prices of $3.15 per Mcf in reserve estimates at December 31, 2009, as compared to gas prices of $4.96 per Mcf at December 31, 2008. This downward revision in natural gas was almost entirely offset, however, by 597 MBbl of upward adjustments to crude oil reserves primarily due to higher oil prices of $51.58 per Bbl in reserve estimates at December 31, 2009, as compared to $36.27 per Bbl of oil at December 31, 2008. |
Notable changes in proved reserves for the year ended December 31, 2008 included:
| Revisions to previous estimates. In 2008, revisions to previous estimates decreased proved reserves by a net amount of 47 MBOE. Included in these revisions were 594 MBbl of downward adjustments to crude oil primarily due to lower oil prices of $36.27 per Bbl in reserve estimates at December 31, 2008, as compared to $86.17 per Bbl of oil at December 31, 2007, causing a decrease in the estimated economic life of many of the oil wells. This downward revision in crude oil reserves was almost entirely offset, however, by 3.3 Bcf of net upward adjustments to natural gas reserve quantities. This is because the loss of oil reserves from the price-affected oil wells extended the estimated Trust termination date at year-end 2008 by four years to December 31, 2021, and the shorter lives of the oil wells were then generally replaced by production from natural gas wells over the extended life of the Trust. As a result, there was a change in the relative composition of future oil and gas production leading to the ultimate recovery of the Trusts 8.20 MMBOE, with the natural gas reserves increase of 3.3 Bcf generally offsetting the 594 MBbl decrease in oil reserves. |
The standardized measure of discounted future net cash flows relating to proved oil and gas
reserves and the changes in standardized measure of discounted future net cash flows relating to
proved oil and natural gas reserves were prepared in accordance with the provisions of FASB ASC
topic Extractive ActivitiesOil and Gas. Future cash inflows as of December 31, 2009 were
computed by applying average fiscal-year prices (calculated as the unweighted arithmetic average of
the first-day-of-the-month price for each month within the 12-month period ended December 31, 2009)
to estimated future production. Future cash inflows as of December 31, 2008 and 2007, however,
were computed by applying prices at year end to estimated future production. Future production and
development costs are computed by estimating the expenditures to be incurred in developing and
producing the proved oil and natural gas reserves at year end, based on year-end costs and assuming
the continuation of existing economic conditions.
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The standardized measure of discounted future net cash flows relating to proved oil and
gas reserves attributable to the Trust is as follows (dollars in thousands):
December 31, | ||||||||||||
2009 | 2008 | 2007 | ||||||||||
Future cash inflows |
$ | 220,502 | $ | 227,803 | $ | 561,796 | ||||||
Future production costs |
(118,476 | ) | (127,731 | ) | (210,788 | ) | ||||||
Future development costs |
| | | |||||||||
Future net cash flows |
102,026 | 100,072 | 351,008 | |||||||||
10% annual discount for estimated timing of cash flows |
(24,475 | ) | (29,525 | ) | (101,245 | ) | ||||||
Standardized measure of discounted future net cash flows (1) |
$ | 77,551 | $ | 70,547 | $ | 249,763 | ||||||
(1) | No provision for federal or state income taxes has been provided because taxable income is passed through to the unitholders of the Trust. |
The changes in standardized measure of discounted future net cash flows relating to proved oil
and gas reserves attributable to the Trust are as follows (dollars in thousands):
December 31, | ||||||||
2009 | 2008 | |||||||
Beginning of year (1) |
$ | 70,547 | $ | 249,763 | ||||
Sale of oil and gas produced, net of production costs |
(22,664 | ) | (68,220 | ) | ||||
Sale of minerals in place |
(17 | ) | | |||||
Net changes in prices and production costs |
23,120 | (136,572 | ) | |||||
Extensions and discoveries less related costs |
188 | 1,125 | ||||||
Changes in estimated future development costs, net |
| | ||||||
Revisions of previous quantity estimates |
(678 | ) | (525 | ) | ||||
Accretion of discount |
7,055 | 24,976 | ||||||
End of year |
$ | 77,551 | $ | 70,547 | ||||
(1) | Because the effective date of the NPI conveyance was January 1, 2008, changes in the standardized measure of discounted future net cash flows for 2007 have not been presented. |
Future cash inflows included in the standardized measure of discounted future net cash flows
relating to proved oil and natural gas reserves incorporate weighted average sales prices
(inclusive of adjustments for quality and location) in effect at December 31, 2009, 2008 and 2007
as follows:
2009 | 2008 | 2007 | ||||||||||
Oil (per Bbl). |
$ | 51.58 | $ | 36.27 | $ | 86.17 | ||||||
Gas (per Mcf) |
$ | 3.15 | $ | 4.96 | $ | 6.33 |
11. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
Three Months Ended (1) | ||||||||||||||||||||
Year ended December 31, 2009 | March 31 | June 30 | September 30 | December 31 | Total | |||||||||||||||
Income from net profits interest |
$ | 11,148 | $ | 9,683 | $ | 8,732 | $ | 8,784 | $ | 38,348 | ||||||||||
Distributable income |
$ | 10,915 | $ | 9,364 | $ | 8,397 | $ | 8,441 | $ | 37,117 | ||||||||||
Distributions per unit |
$ | 0.787316 | $ | 0.675401 | $ | 0.605667 | $ | 0.608855 | $ | 2.677239 | ||||||||||
Year ended December 31, 2008 |
||||||||||||||||||||
Income from net profits interest |
$ | | $ | 14,779 | $ | 21,546 | $ | 21,956 | $ | 58,282 | ||||||||||
Distributable income |
$ | | $ | 14,383 | $ | 21,157 | $ | 21,441 | $ | 56,980 | ||||||||||
Distributions per unit |
$ | | $ | 1.037433 | $ | 1.526032 | $ | 1.546515 | $ | 4.109980 |
(1) | Dollars in thousands, except for distributions per unit. |
******
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Report of Independent Registered Public Accounting Firm
To the Board of Directors of
Whiting Petroleum Corporation
Denver, Colorado
Whiting Petroleum Corporation
Denver, Colorado
We have audited the accompanying statement of historical revenues and direct operating
expenses of the Underlying Properties (the Properties) of Whiting Petroleum Corporation (the
Company) for the year ended December 31, 2007. This statement is the responsibility of the
Companys management. Our responsibility is to express an opinion on this statement based on our
audit.
We conducted our audit in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of material
misstatement. The Properties are not required to have, nor were we engaged to perform, an audit of
the Properties internal control over financial reporting. Our audit included consideration of
internal control over financial reporting as a basis for designing audit procedures that are
appropriate in the circumstances, but not for the purpose of expressing an opinion on the
effectiveness of the Properties internal control over financial reporting. Accordingly, we express
no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements, assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
The accompanying statement was prepared for the purpose of complying with the rules and
regulations of the Securities and Exchange Commission as described in the notes to the statement
and is not intended to be a complete presentation of the Companys interests in the Properties.
In our opinion, the statement referred to above presents fairly, in all material respects, the
historical revenues and direct operating expenses, described in the notes, of the Properties for
the year ended December 31, 2007, in conformity with accounting principles generally accepted in
the United States of America.
/s/ Deloitte & Touche LLP
Denver, Colorado
March 7, 2008
March 7, 2008
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UNDERLYING PROPERTIES
STATEMENT OF HISTORICAL REVENUES
AND DIRECT OPERATING EXPENSES
AND DIRECT OPERATING EXPENSES
2007 | ||||
Revenues: |
||||
Oil sales |
$ | 59,428,424 | ||
Natural gas sales |
28,224,189 | |||
Total revenues |
87,652,613 | |||
Direct operating expenses: |
||||
Lease operating |
23,733,082 | |||
Production taxes |
6,262,267 | |||
Total direct operating expense |
29,995,349 | |||
Excess of revenues over direct operating expense |
$ | 57,657,264 | ||
The accompanying notes are an integral part of this statement.
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UNDERLYING PROPERTIES
NOTES TO STATEMENT OF HISTORICAL REVENUES
AND DIRECT OPERATING EXPENSES
AND DIRECT OPERATING EXPENSES
1. UNDERLYING PROPERTIES
The underlying properties are net interests in oil and natural gas producing properties owned
by Whiting Petroleum Corporations wholly-owned subsidiaries Whiting Oil and Gas Corporation and
Equity Oil Company (Whiting) and are located in mature producing fields that have established
production profiles in the Rocky Mountains, Mid-Continent, Permian Basin and Gulf Coast regions of
the United States. Immediately prior to the closing of the initial public offering of units of
beneficial interest in Whiting USA Trust I (the Trust), Whiting conveyed to the Trust the right
to receive 90% of the term net proceeds from these underlying properties (Net Profits Interest),
with Whiting retaining title to the underlying properties.
2. BASIS OF PRESENTATION
The accompanying statements of historical revenues and direct operating expenses of the
underlying properties were derived from the historical accounting records of Whiting and are
presented on the accrual basis of accounting before the effects of conveyance of the Net Profits
Interest. Revenue from oil, natural gas and natural gas liquid sales is recognized when sold. The
statements do not include depreciation, depletion and amortization, general and administrative
expenses, interest expense or other expenses of an indirect nature. Such amounts may not be
representative of future operations.
Historical financial statements representing financial position, results of operations and
cash flows required by generally accepted accounting principles are not presented as such
information is not readily available on an individual property basis, and full historical financial
statements are not relevant since the Net Profits Interest conveyance was valued by the Trust at
Whitings historical cost. The statements of historical revenues and direct operating expenses are
presented in accordance with Staff Accounting Bulletin Topic 2-D, Financial Statements of Oil and
Gas Exchange Offers.
The preparation of financial statements in conformity with GAAP requires management to make
estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure
of contingent assets and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Items subject to such estimates and
assumptions include accrued revenue and expenses and oil and gas reserves, and oil and gas reserves
in turn are used to derive the standardized measure of discounted future net cash flows. Although
management believes these estimates are reasonable, actual results could differ from these
estimates.
The underlying properties are exposed to credit risk in the event of nonpayment by
counterparties, a significant portion of which are concentrated in energy related industries. The
creditworthiness of customers and other counterparties is subject to continuing review, including
the use of master netting agreements, where appropriate. During 2007, sales to Teppco Crude Oil LLC
and Lion Oil Company each accounted for 13% and 11%, respectively, of the underlying properties
total oil and natural gas sales.
3. SUPPLEMENTAL OIL AND GAS RESERVE INFORMATION (UNAUDITED)
The estimates of proved reserves and related valuations were based 100% on reports prepared by
Cawley, Gillespie & Associates, Inc., independent petroleum engineers. Proved reserve estimates
included herein conform to the definitions prescribed by the U.S. Securities and Exchange
Commission. The estimates of proved reserves are inherently imprecise and are continually subject
to revision based on production history, results of additional exploration and development, price
changes and other factors.
As of December 31, 2007, all of the underlying properties oil and gas reserves are
attributable to properties within the United States. A summary of the changes in quantities of
proved oil and gas reserves for the year ended December 31, 2007 are as follows:
Oil | Natural Gas | |||||||
(MBbl) | (MMcf) | |||||||
Balance January 1, 2007 |
8,855 | 31,890 | ||||||
Revisions to previous estimates |
1,071 | 198 | ||||||
Extensions and discoveries |
64 | 1,276 | ||||||
Production |
(956 | ) | (4,441 | ) | ||||
Balance December 31, 2007 |
9,034 | 28,923 | ||||||
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Oil | Natural Gas | |||||||
(MBbl) | (MMcf) | |||||||
Proved developed reserves: |
||||||||
January 1, 2007 |
8,849 | 31,546 | ||||||
December 31, 2007 |
9,034 | 28,923 | ||||||
As of December 31, 2007, upward revisions to proved oil reserves of 1,071 MBbl mainly related
to longer economic lives for the majority of oil wells due to higher year-end prices being used in
proved reserve estimates. Average wellhead oil prices in effect at December 31, 2007 were $86.17
per barrel as compared to $53.18 per barrel at December 31, 2006. In addition, 18 successful wells
were drilled during 2007 that added 1,276 MMcf of proved natural gas reserves and 64 MBbl of oil
reserves.
The standardized measure of discounted future net cash flows relating to proved oil and gas
reserves and the changes in standardized measure of discounted future net cash flows relating to
proved oil and gas reserves were prepared in accordance with the provisions of SFAS No. 69, as
codified in FASB ASC topic Extractive ActivitiesOil and Gas. Future cash inflows were computed by
applying prices at year end to estimated future production. Future production and development costs
are computed by estimating the expenditures to be incurred in developing and producing the proved
oil and gas reserves at year end, based on year-end costs and assuming continuation of existing
economic conditions. The standardized measure of discounted future net cash flows relating to
proved oil and gas reserves is as follows (dollars in thousands):
2007 | ||||
Future cash inflows |
$ | 894,098 | ||
Future production costs |
(350,637 | ) | ||
Future development costs |
| |||
Future net cash flows |
543,461 | |||
10% annual discount for estimated timing of cash flows |
(232,014 | ) | ||
Standardized measure of discounted future net cash flows (1) |
$ | 311,447 | ||
(1) | No provision for federal or state income taxes has been provided for in the calculation because taxable income is passed through to the unitholders of the Trust. |
The changes in standardized measure of discounted future net cash flows relating to proved oil
and gas reserves are as follows (dollars in thousands):
2007 | ||||
Beginning of year |
$ | 199,664 | ||
Sale of oil and gas produced, net of production costs |
(57,657 | ) | ||
Net changes in prices and production costs |
119,875 | |||
Extensions and discoveries less related costs |
5,842 | |||
Changes in estimated future development costs, net |
447 | |||
Revisions of previous quantity estimates |
23,310 | |||
Accretion of discount |
19,966 | |||
End of year |
$ | 311,447 | ||
Future cash inflows included in the standardized measure of discounted future net cash flows
relating to proved oil and natural gas reserves incorporate weighted average sales prices
(inclusive of adjustments for quality and location) in effect at December 31, 2007 as follows:
2007 | ||||
Oil (per Bbl) |
$ | 86.17 | ||
Gas (per Mcf) |
$ | 6.33 |
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Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. |
None.
Item 9A. | Controls and Procedures. |
Evaluation of Disclosure Controls and Procedures. The Trustee maintains disclosure controls
and procedures designed to ensure that information required to be disclosed by the Trust in the
reports that it files or submits under the Securities Exchange Act of 1934, as amended, is
recorded, processed, summarized and reported within the time periods specified in the SECs rules
and regulations promulgated by the SEC. Disclosure controls and procedures include controls and
procedures designed to ensure that information required to be disclosed by the Trust is accumulated
and communicated by Whiting to The Bank of New York Mellon Trust Company, N.A., as Trustee of the
Trust, and its employees who participate in the preparation of the Trusts periodic reports as
appropriate to allow timely decisions regarding required disclosure.
As of the end of the period covered by this report, the Trustee carried out an evaluation of
the Trustees disclosure controls and procedures. Mike Ulrich, as Trust Officer of the Trustee, has
concluded that the disclosure controls and procedures of the Trust are effective.
Due to the contractual arrangements of (i) the Trust agreement and (ii) the conveyance of the
NPI, the Trustee relies on (A) information provided by Whiting, including historical operating
data, plans for future operating and capital expenditures, reserve information and information
relating to projected production, and (B) conclusions and reports regarding reserves by the Trusts
independent reserve engineers. See Risk Factors The Trust and the Trust unitholders have no voting
or managerial rights with respect to the underlying properties. As a result, Trust unitholders have
no ability to influence the operation of the underlying properties and Trustees Discussion and
Analysis of Financial Condition and Results of Operations in this Annual Report on Form 10-K, for
a description of certain risks relating to these arrangements and reliance on information when
reported by Whiting to the Trustee and recorded in the Trusts results of operation.
Changes in Internal Control over Financial Reporting. During the quarter ended December 31,
2009, there has been no change in the Trustees internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Trustees internal control
over financial reporting relating to the Trust. The Trustee notes for purposes of clarification
that it has no authority over, and makes no statement concerning, the internal control over
financial reporting of Whiting.
Trustees Annual Report on Internal Control Over Financial Reporting. A registrants internal
control over financial reporting is a process designed to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. A registrants internal
control over financial reporting includes those policies and procedures that (i) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions
and dispositions of the assets of the registrant; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles, and that receipts and expenditures of the registrant
are being made only in accordance with authorizations of management and directors of the
registrant; and (iii) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the registrants assets that could have a material
effect on the financial statements.
The Corporate Trustee is responsible for establishing and maintaining adequate internal
control over financial reporting, as such term is defined in Rule 13a-15(f) promulgated under the
Securities and Exchange Act of 1934, as amended. The Corporate Trustee conducted an evaluation of
the effectiveness of the Trusts internal control over financial reporting based on the criteria
established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission. Based on the Corporate Trustees evaluation under the
framework in Internal ControlIntegrated Framework, the Corporate Trustee concluded that the
Trusts internal control over financial reporting was effective as of December 31, 2009.
Deloitte & Touche, LLP, the Trusts independent registered public accounting firm that audited
the financial statements included in this Annual Report on Form 10-K, has issued an attestation
report on the effectiveness of the Trusts internal control over financial reporting.
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Because of its inherent limitations, internal control over financial reporting may not prevent
or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are
subject to the risk that controls may become inadequate because of changes in conditions, or that
the degree of compliance with the policies or procedures may deteriorate.
March 15, 2010
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Trustees and Unit Holders of
Whiting USA Trust I
c/o The Bank of New York Mellon Trust Company, N.A., Trustee
Austin, Texas
Whiting USA Trust I
c/o The Bank of New York Mellon Trust Company, N.A., Trustee
Austin, Texas
We have audited the internal control over financial reporting of Whiting USA Trust I (the Trust)
as of December 31, 2009 based on criteria established in Internal ControlIntegrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Trustee is
responsible for maintaining effective internal control over financial reporting and for its
assessment of the effectiveness of internal control over financial reporting, included in the
accompanying Trustees Report on Internal Control over Financial Reporting. Our responsibility is
to express an opinion on the Trusts internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial reporting was
maintained in all material respects. Our audit included obtaining an understanding of internal
control over financial reporting, assessing the risk that a material weakness exists, testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk,
and performing such other procedures as we considered necessary in the circumstances. We believe
that our audit provides a reasonable basis for our opinion.
A trusts internal control over financial reporting is a process designed by, or under the
supervision of, the trusts trustee, and effected by the trustee and other personnel to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with the comprehensive basis of accounting
described in Note 2 to the financial statements. A trusts internal control over financial
reporting includes those policies and procedures that (1) pertain to the maintenance of records
that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the
assets of the trust; (2) provide reasonable assurance that transactions are recorded as necessary
to permit preparation of financial statements in accordance with the comprehensive basis of
accounting described in Note 2 of the financial statements, and that receipts and expenditures of
the trust are being made only in accordance with authorization of the Trustee; and (3) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or
disposition of the trusts assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including the
possibility of collusion or improper trustee override of controls, material misstatements due to
error or fraud may not be prevented or detected on a timely basis. Also, projections of any
evaluation of the effectiveness of the internal control over financial reporting to future periods
are subject to the risk that the controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Trust maintained, in all material respects, effective internal control
over financial reporting as of December 31, 2009, based on the criteria established in Internal
ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight
Board (United States), the financial statements as of and for the year ended December 31, 2009 of
the Trust and our report dated March 15, 2010 expressed an unqualified opinion on those financial
statements and included an explanatory paragraph regarding the Trusts basis of accounting.
Deloitte & Touche LLP
Houston, Texas
March 15, 2010
March 15, 2010
54
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Item 9B. | Other Information. |
None.
PART III
Item 10. | Directors, Executive Officers and Corporate Governance. |
The Trust has no directors or executive officers. The Trustee is a corporate trustee that may
be removed by the affirmative vote of the holders of not less than a majority of the outstanding
Trust units at a meeting at which a quorum is present.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act of 1934 requires the holders of more than 10 percent of the
Trust units to file with the SEC reports regarding their ownership and changes in ownership of the
Trust units. The Trustee is not aware of any 10 percent unitholder having failed to comply with all
Section 16(a) filing requirements in 2009.
Audit Committee and Nominating Committee
Because the Trust does not have a board of directors, it does not have an audit committee, an
audit committee financial expert or a nominating committee.
Code of Ethics
The Trust does not have a principal executive officer, principal financial officer, principal
accounting officer or controller and, therefore, has not adopted a code of ethics applicable to
such persons. However, employees of the Trustee must comply with the banks code of ethics.
Item 11. | Executive Compensation. |
During the year ended December 31, 2009 the Trustee received administrative fees from the
Trust in the amount of $160,000. The Trust does not have any executive officers, directors or
employees. Because the Trust does not have a board of directors, it does not have a compensation
committee.
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Unitholder Matters. |
(a) | Security Ownership of Certain Beneficial Owners. |
Based on filings with the SEC, the Trustee is not aware of any holders of 5% or more of the
units except as set forth below. The following information has been obtained from filings with the
SEC on Schedule 13G.
Trust Units | ||||||||
Beneficially | Percent of | |||||||
Beneficial Owner | Owned | Class | ||||||
Whiting Petroleum Corporation
1700 Broadway, Suite 2300 |
||||||||
Denver, CO 80290-2300 |
2,186,389 | 15.8 | % |
(b) Security Ownership of Management.
Not applicable.
(c) Changes in Control.
The registrant knows of no arrangement, including any pledge by any person of securities of
the registrant or any of its parents, the operation of which may at a subsequent date result in a
change of control of the registrant.
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Item 13. | Certain Relationships, Related Transactions and Director Independence. |
Capital Expenditures
During the twelve months ended December 31, 2009, Whiting incurred $1.1 million of capital
expenditures on the underlying properties related to the drilling and completing of oil and gas
wells, capital workovers, facility upgrades and well recompletions performed to secure production
from new horizons, which may have the effect of ultimately increasing current and future period NPI
net proceeds and thereby benefiting the Trust unitholders by accelerating their return on
investment. Pursuant to the terms of the conveyance agreement, however, Whiting did not deduct, nor
will it deduct in the future, such capital expenditures from the NPI gross proceeds or related
distributions to the Trust.
Operating Overhead
Pursuant to the terms of the applicable operating agreements, Whiting deducts from the gross
proceeds an overhead fee to operate those underlying properties for which Whiting has been
designated as the operator. Additionally, for those underlying properties for which Whiting is the
operator but for which there is no operating agreement, Whiting deducts from the gross proceeds an
overhead fee calculated in the same manner Whiting allocates overhead to other similarly owned
properties, as is customary in the oil and gas industry. The operating overhead activities include
various engineering, legal, and administrative functions. For the twelve months ended December 31,
2009, the Trusts portion of the monthly charge totaled $1.7 million and averaged $404 per active
operated well. The fee is adjusted annually pursuant to COPAS guidelines and will increase or
decrease each year based on changes in the year-end index of average weekly earnings of crude
petroleum and natural gas workers.
Administrative Services
Under the terms of the administrative services agreement, the Trust pays a quarterly
administration fee of $50,000 to Whiting 60 days following the end of each calendar quarter.
General and administrative expenses in the Trusts statements of distributable income for the
twelve months ending December 31, 2009 include $200,000 for quarterly administrative fees paid to
Whiting.
The administrative services agreement will expire upon the termination of the net profits
interest unless earlier terminated by mutual agreement of the Trustee and Whiting.
Trustee Administration Fee
Under the terms of the Trust agreement, the Trust pays an annual administrative fee to the
Trustee of $160,000, paid in four quarterly installments of $40,000 each and is billed in arrears.
General and administrative expenses in the Trusts statements of distributable income for the
twelve months ending December 31, 2009 include $160,000 for quarterly administrative fees paid to
the Trustee.
Registration Rights
The Trust entered into a registration rights agreement with Whiting in connection with
Whitings conveyance to the Trust of the net profits interest. In the registration rights
agreement, the Trust agreed, for the benefit of Whiting and any transferee of its Trust units
(each, a holder), to register the Trust units it holds. Specifically, the Trust agreed:
| to use its reasonable best efforts to file a registration statement, including, if so requested, a shelf registration statement, with the SEC as promptly as practicable following receipt of a notice requesting the filing of a registration statement from holders representing a majority of the then outstanding registrable Trust units; | ||
| to use its reasonable best efforts to cause the registration statement or shelf registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof; and notice requesting the filing of a registration statement from holders representing a majority of the then outstanding registrable Trust units; | ||
| to continuously maintain the effectiveness of the registration statement under the Securities Act for 90 days (or for three years if a shelf registration statement is requested) after the effectiveness thereof or until the Trust units covered by the registration statement have been sold pursuant to such registration statement or until all registrable Trust units: |
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| have been sold pursuant to Rule 144 under the Securities Act if the transferee thereof does not receive restricted securities; or | ||
| have been sold in a private transaction in which the transferors rights under the registration rights agreement are not assigned to the transferee of the Trust units. |
The holders will have the right to require the Trust to file up to three registration
statements and will have piggyback registration rights in certain circumstances.
In connection with the preparation and filing of any registration statement, Whiting will bear
all costs and expenses incidental to any registration statement, excluding certain internal
expenses of the Trust, which will be borne by the Trust, and any underwriting discounts and
commissions, which will be borne by the seller of the Trust units.
Director Independence
The Trust does not have a board of directors and therefore no determination been made relative
to director independence.
Item 14. | Principal Accountant Fees and Services. |
The Trust does not have an audit committee. Any pre-approval and approval of all services
performed by the principal auditor or any other professional service firms and related fees are
granted by the Trustee. The Trustee has appointed Deloitte & Touche, LLP, the member firm of
Deloitte & Touche Tohmatsu, and their respective affiliates (collectively Deloitte) as the
independent registered public accounting firm to audit the Trusts financial statements for the
fiscal year ending December 31, 2010. During fiscal 2009 and 2008, Deloitte served as the Trusts
independent registered public accounting firm.
The following table presents the aggregate fees billed to the Trust for the fiscal years ended
December 31, 2009 and 2008 by Deloitte (dollars in thousands):
2009 | 2008 | |||||||
Audit fees (1) |
$ | 190 | $ | 175 | ||||
Audit-related fees |
| | ||||||
Tax fees |
| | ||||||
All other fees |
| | ||||||
Total fees |
$ | 190 | $ | 175 | ||||
(1) | Fees for audit services in 2009 and 2008 consisted of the audit of the Trusts annual financial statements and reviews of the Trusts quarterly financial statements. |
57
Table of Contents
PART IV
Item 15. | Exhibits and Financial Statement Schedules |
(a)(1) Financial Statements
The following financial statements are set forth under Financial Statements and Supplementary
Data in Item 8 of this Annual Report on Form 10-K on the pages indicated:
Page in this | ||||
Form 10-K | ||||
Whiting USA Trust I
Financial Statements as of December 31, 2009 and 2008 and for the Years ended December 31, 2009 and 2008 and the Period from October 18, 2007 (inception) through December 31, 2007 |
||||
39 | ||||
40 | ||||
40 | ||||
40 | ||||
41 | ||||
Underlying Properties of Whiting Petroleum Corporation Statement of
Historical Revenues and Direct Operating Expenses for the Year ended
December 31, 2007 |
||||
48 | ||||
49 | ||||
50 |
(a)(2) Schedules
Schedules have been omitted because they are not required, not applicable or the information
required has been included elsewhere herein.
(a)(3) Exhibits
See Exhibit Index
58
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
WHITING USA TRUST I By THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
||||
By: | /s/ MIKE ULRICH | |||
Mike Ulrich | ||||
Vice President | ||||
March 15, 2010
The Registrant, Whiting USA Trust I, has no principal executive officer, principal financial
officer, board of directors or persons performing similar functions. Accordingly, no additional
signatures are available and none have been provided. In signing the report above, the Trustee does
not imply that it has performed any such function or that such function exists pursuant to the
terms of the Trust agreement under which it serves.
59
Table of Contents
Appendix 1
Cawley, Gillespie & Associates, Inc.
petroleum consultants
petroleum consultants
1000 LOUISIANA STREET, SUITE 625 HOUSTON, TEXAS 77002-5008 713-651-9944 FAX 713-651-9980 |
306 WEST SEVENTH STREET, SUITE 302 FORT WORTH, TEXAS 76102-4987 817-336-2461 FAX 817-877-3728 |
9601 AMBERGLEN BLVD., SUITE 117 AUSTIN, TEXAS 78729-1106 512-249-7000 FAX 512-233-2618 |
March 3, 2010
Whiting USA Trust I
1700 Broadway, Suite 2300
Denver, Colorado 80290-2300
1700 Broadway, Suite 2300
Denver, Colorado 80290-2300
Re: | Evaluation Summary SEC Price Whiting USA Trust I Interests Proved Producing Reserves Certain Properties Located in Various States As of December 31, 2009 |
||
Pursuant to the Guidelines of the Securities and Exchange Commission for Reporting Corporate Reserves and Future Net Revenue |
Gentlemen:
As requested, we are submitting our estimates of proved producing reserves and forecasts of
economics attributable to the underlying properties, from which a net profits interest has been
formed and conveyed by Whiting Petroleum Corporation to the Whiting USA Trust I. These certain oil
properties are located in North Dakota, Texas, Oklahoma, Arkansas, Montana, Wyoming, Michigan, New
Mexico, Alabama, Louisiana, Colorado, Kansas, Utah and Mississippi. Also included in the table
below are the proved reserves attributable to the same underlying properties estimated to be
produced by October 31, 2017, which is the estimated date of termination for Whiting USA Trust I.
This report, completed March 3, 2010 covers 100% of the proved producing reserves estimated for
Whiting USA Trust I. This report includes results for an SEC pricing scenario. The results of
this evaluation are presented in the accompanying tabulations, with a composite summary presented
below:
Proved Developed Producing | ||||||||||||
Underlying | Underlying Properties | |||||||||||
Properties | Reserves Estimated to be Produced | |||||||||||
Full Economic Life | By October 31, 2017 | |||||||||||
Net Reserves |
||||||||||||
Oil |
- Mbbl | 5,885.5 | 3,705.0 | |||||||||
Gas |
- MMcf | 18,056.4 | 12,195.2 | |||||||||
NGL |
- Mbbl | 378.6 | 299.1 | |||||||||
Equivalent* |
- Mbbl | 9,273.5 | 6,036.7 | |||||||||
Revenue |
||||||||||||
Oil |
- M$ | 314,126.2 | 197,749.7 | |||||||||
Gas |
- M$ | 57,338.6 | 38,472.9 | |||||||||
NGL |
- M$ | 11,121.8 | 8,779.1 | |||||||||
Other |
- M$ | 0.0 | 0.0 | |||||||||
Severance Taxes |
- M$ | 30,192.6 | 18,692.8 | |||||||||
Ad Valorem Taxes |
- M$ | 5,158.8 | 3,135.9 | |||||||||
Operating Expenses |
- M$ | 181,887.4 | 109,811.1 | |||||||||
Investments |
- M$ | 0.0 | 0.0 | |||||||||
Net Operating Income |
- M$ | 165,347.9 | 113,362.1 | |||||||||
Discounted @ 10% |
- M$ | 101,001.9 | 86,167.7 |
* | Calculated based on an energy equivalent that one Bbl of crude oil equals six Mcf of natural gas and one Bbl of crude oil equals one Bbl of natural gas liquids. |
60
Table of Contents
Whiting USA Trust I
March 3, 2010
Page 2
March 3, 2010
Page 2
The discounted cash flow value shown in the previous table should not be construed to
represent an estimate of the fair market value by Cawley, Gillespie & Associates, Inc.
Hydrocarbon Pricing
As requested for the SEC scenario, initial WTI spot oil and Henry Hub Gas Daily prices of
$61.18 per bbl and $3.87 per MMBtu, respectively, were adjusted individually to WTI posted pricing
at $57.90 per bbl and Houston Ship Channel pricing at $3.64 per MMBtu, as of December 31, 2009.
Prices were not escalated in the SEC scenario. Oil price differentials, gas price differentials
and heating values were applied as furnished by your office.
Expenses and Taxes
Lease operating expenses and Ad Valorem tax values were forecast as provided by your office.
Lease operating expenses were held constant in accordance with SEC guidelines. Severance tax rates
were applied at normal state percentages of oil and gas revenue.
Miscellaneous
An on-site field inspection of the properties has not been performed. The mechanical operation
or conditions of the wells and their related facilities have not been examined nor have the
wells been tested by Cawley, Gillespie & Associates, Inc. Possible environmental liability related
to the properties has not been investigated nor considered. The cost of plugging and the salvage
value of equipment at abandonment have not been included.
The proved reserve classifications used conform to the criteria of the Securities and Exchange
Commission (SEC). The estimates were prepared based on the definitions and regulations contained
in the United States Securities and Exchange Commission Modernization of Oil and Gas Reporting;
Final Rule, Title 17 CFR Parts 210, 211 et al. released January 14, 2009 in the Federal Register.
Proved oil and gas reserves are those quantities of oil and gas, which, by analysis of geoscience
and engineering data, can be estimated with reasonable certainty to be economically producible from
a given date forward. The reserves and economics are predicated on regulatory agency
classifications, rules, policies, laws, taxes and royalties in effect as noted herein. The
possible effects of changes in legislation or other Federal or State restrictive actions have not
been considered. All reserve estimates represent our best judgment based on data available at the
time of preparation, and assumptions as to future economic and regulatory conditions. It should be
realized that the reserves actually recovered, the revenue derived therefrom and the actual cost
incurred could be more or less than the estimated amounts.
The reserve estimates were based on interpretations of factual data furnished by your office.
We have used all methods and procedures as we considered necessary under the circumstances to
prepare the report. We believe that the assumptions, data, methods and procedures were appropriate
for the purpose served by this report. Production data, gas prices, gas price differentials,
expense data, tax values and ownership interests were also supplied by you and were accepted as
furnished. To some extent information from public records has been used to check and/or supplement
these data. The basic engineering and geological data were subject to third party reservations and
qualifications. Nothing has come to our attention, however, that would cause us to believe that we
are not justified in relying on such data.
Table of Contents
Whiting USA Trust I
March 3, 2010
Page 3
March 3, 2010
Page 3
The professional qualifications of the undersigned, the technical person primarily responsible
for the preparation of this report, are included as an attachment to this letter.
Yours very truly, |
||||
Robert D. Ravnaas, P.E. | ||||
Executive Vice President Cawley, Gillespie & Associates Texas Registered Engineering Firm F-693 |
||||
Table of Contents
Cawley,
Gillespie & Associates, Inc.
petroleum consultants
petroleum consultants
9601 AMBERGLEN BLVD., SUITE 117 AUSTIN, TEXAS 78729-1106 512-249-7000 FAX 512-233-2618 |
306 WEST SEVENTH STREET, SUITE 302 FORT WORTH, TEXAS 76102-4987 817-336-2461 FAX 817-877-3728 |
1000 LOUISIANA STREET, SUITE 625 HOUSTON, TEXAS 77002-5008 713-651-9944 FAX 713-651-9980 |
Professional Qualifications of Robert D. Ravnaas, P.E.
Executive Vice President of Cawley, Gillespie & Associates
Executive Vice President of Cawley, Gillespie & Associates
Mr. Ravnaas has been a Petroleum Consultant for Cawley, Gillespie & Associates (CG&A) since
1983, and became Executive Vice President in 1999. He has completed numerous field studies,
reserve evaluations and reservoir simulation, waterflood design and monitoring, unit equity
determinations and producing rate studies. He has testified before the Texas Railroad Commission
in unitization and field rules hearings. Prior to CG&A he worked as a Production Engineer for
Amoco Production Company. Mr. Ravnaas received a B.S. with special honors in Chemical Engineering
from the University of Colorado at Boulder, and a M.S. in Petroleum Engineering from the University
of Texas at Austin. He is a registered professional engineer in Texas, No. 61304, and a member of
the Society of Petroleum Engineers (SPE), the Society of Petroleum Evaluation Engineers, the
American Association of Petroleum Geologists and the Society of Professional Well Log Analysts.
Table of Contents
INDEX TO EXHIBITS
Exhibit | ||||
Number | Description | |||
3.1
|
| Certificate of Trust of Whiting USA Trust I (Incorporated herein by reference to Exhibit 3.4 to the Registration Statement on Form S-1 (Registration No. 333-147543)) | ||
3.2
|
| Amended and Restated Trust Agreement, dated April 30, 2008, among Whiting Oil and Gas Corporation, Equity Oil Company, The Bank of New York Mellon Trust Company, N.A. (formerly known as (f/k/a) The Bank of New York Trust Co., N.A.) as Trustee and Wilmington Trust Company as Delaware Trustee. (Incorporated herein by reference to Exhibit 3.1 to the Trusts Current Report on Form 8-K filed on April 30, 2008 (File No. 001-34026)) | ||
10.1
|
| Conveyance of Net Profits Interest, dated April 30, 2008, from Whiting Oil and Gas Corporation and Equity Oil Company to The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Co., N.A.) as Trustee of Whiting USA Trust I. (Incorporated herein by reference to Exhibit 10.1 to the Trusts Current Report on Form 8-K filed on April 30, 2008 (File No. 001-34026)) | ||
10.2
|
| Administrative Services Agreement, dated April 30, 2008, by and between Whiting Oil and Gas Corporation and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Co., N.A.) as Trustee of Whiting USA Trust I. (Incorporated herein by reference to Exhibit 10.2 to the Trusts Current Report on Form 8-K filed on April 30, 2008 (File No. 001-34026)) | ||
10.3
|
| Registration Rights Agreement, dated April 30, 2008, by and between Whiting Petroleum Corporation and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Co., N.A.) as Trustee of Whiting USA Trust I. (Incorporated herein by reference to Exhibit 10.3 to the Trusts Current Report on Form 8-K filed on April 30, 2008 (File No. 001-34026)) | ||
31*
|
| Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | ||
32*
|
| Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | ||
99*
|
| Report of Cawley, Gillespie & Associates, Inc., Independent Petroleum Engineers |
* | Filed Herewith |