NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation and Significant Accounting Policies
Basis of Presentation
We prepared this Quarterly Report on Form 10-Q under the rules and regulations of the United States Securities and Exchange Commission (SEC) and in accordance with United States generally accepted accounting principles (U.S. GAAP) as it applies to interim financial statements. Because this is an interim period report presented using a condensed format, it does not include all of the disclosures required by U.S. GAAP and should be read along with our 2018 Annual Report on Form 10-K. The condensed consolidated financial statements as of September 30, 2019 and 2018 are unaudited. The consolidated balance sheet as of December 31, 2018 has been derived from the audited consolidated balance sheet included in our 2018 Annual Report on Form 10-K. In our opinion, all adjustments which are of a normal, recurring nature are reflected to fairly present these interim period results. Our financial statements for prior periods include reclassifications that were made to conform to the current year presentation, none of which impacted our reported net income, stockholder’s equity or cash flows from operating activities. The results for any interim period are not necessarily indicative of the expected results for the entire year.
Significant Accounting Policies
In the first quarter of 2019, we adopted Accounting Standards Update (ASU) No. 2016-02, Leases, which requires lessees to recognize lease assets and liabilities on the balance sheet and disclose key information about leasing arrangements. We adopted this standard on a modified retrospective basis, allowing us to account for leases entered into before adoption under prior ASC 840 guidance. The adoption did not have a material impact on our consolidated financial statements, nor did the adoption result in a cumulative-effect adjustment to retained earnings. In addition, we made certain permitted elections upon adoption, the most significant of which were (i) exempting short-term leases (i.e., leases with an initial term of less than 12 months) from balance sheet recognition, (ii) maintaining existing accounting treatment for existing or expired land easements not previously accounted for as leases under prior guidance and (iii) accounting for lease and non-lease components in a contract as a single lease component when not readily determinable. For a further discussion on leases, see Note 8.
1A. Voluntary Reorganization under Chapter 11 Proceedings
Formation of Special Committee. In the second quarter 2019, our Board of Directors (the “Board”) appointed a special committee (the “Special Committee”) of three independent directors that are not affiliated with the Sponsors (affiliates of Apollo Global Management, Inc. (“Apollo”), Riverstone Holdings LLC, Access Industries, Inc. (“Access”) and Korea National Oil Corporation, collectively, the “Sponsors”), and we engaged financial and legal advisors to consider a number of potential actions and evaluate certain strategic alternatives to address our liquidity and balance sheet issues.
Covenant Violations, Forbearance, and Chapter 11 Proceedings. On August 15, 2019, we did not make the approximately $40 million cash interest payment due and payable with respect to the 8.000% Senior Secured Notes due 2025 (the “2025 1.5 Lien Notes”). On September 3, 2019, we did not make the approximately $7 million cash interest payment due and payable with respect to the 7.750% Senior Notes due 2022 (the “2022 Unsecured Notes”). Our failure to make these interest payments within thirty days after they were due and payable resulted in an event of default under the respective indentures governing the 2025 1.5 Lien Notes and 2022 Unsecured Notes. Each event of default under the indentures noted above also resulted in a cross-default under the Reserve-Based Facility (RBL Facility).
On September 14, 2019, we entered into forbearance agreements, extending through October 3, 2019, with (i) certain beneficial owners and/or investment advisors or managers of discretionary accounts for the beneficial owners of greater than 70% of the aggregate principal amount of the outstanding 2025 1.5 Lien Notes (collectively, the “Noteholders”) and (ii) certain lenders holding greater than a majority of the revolving commitments under our RBL Facility and the administrative agent and collateral agent under the RBL Facility (collectively, the “RBL Forbearing Parties”) pursuant to which each Noteholder and RBL Forbearing Party temporarily agreed to forbear from exercising any rights or remedies they may have occurred in respect of the failure to make the $40 million cash interest payment.
On October 3, 2019, we and certain of our direct and indirect subsidiaries (collectively with the Company, the “Debtors”) filed voluntary petitions (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the Southern District of
Texas (the “Bankruptcy Court”) seeking relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”). To ensure ordinary course operations, the Debtors have obtained approval from the Bankruptcy Court for a variety of “first day” motions, including motions to obtain customary relief intended to assure our ability to continue our ordinary course operations after the filing date. In addition, the Debtors have received authority to use cash collateral of the lenders under the RBL Facility.
The commencement of the Chapter 11 Cases constituted an immediate event of default, and caused the automatic and immediate acceleration of all debt outstanding under or in respect of a number of our instruments and agreements relating to our direct financial obligations, including our RBL Facility and indentures governing the 2025 1.5 Lien Notes, 7.750% Senior Secured Notes due 2026, 2024 1.5 Lien Notes, 9.375% Senior Secured Notes due 2024, 9.375% Senior Notes due 2020, 7.750% Senior Unsecured Notes due 2022 and 6.375% Senior Notes due 2023 (collectively, the “Senior Notes”). Any efforts to enforce such payment obligations were automatically stayed as a result of the filing of the Chapter 11 Cases and the creditors’ rights of enforcement in respect of the Senior Notes and the RBL Facility are subject to the applicable provisions of the Bankruptcy Code.
Plan Support Agreement. On October 18, 2019, the Debtors entered into a plan support agreement (the “PSA”) to support a restructuring on the terms of a chapter 11 plan (the “Plan”) with holders of approximately 52.0% of the 8.000% Senior Secured Notes due 2024 (the “2024 1.5 Lien Notes”) and approximately 79.3% of the 9.375% Senior Secured Notes due 2024 and the 2025 1.5 Lien Notes issued, in each case, by EP Energy LLC and Everest Acquisition Finance Inc. The holders of these notes included affiliates of, or funds managed by, Elliott Management Corporation, Apollo (together with Elliott, the “Initial Supporting Noteholders”), Access, and Avenue Capital Group (collectively, with the Initial Supporting Noteholders and Access, the “Supporting Noteholders”). Pursuant to the PSA, the Plan will be implemented in accordance with the plan term sheet annexed to the PSA, which is premised on (i) an equity rights offering (the “Rights Offering”), $463 million of which is backstopped by the Supporting Noteholders under a backstop commitment agreement (the “BCA”), and (ii) an approximately $629 million exit facility for which, as of October 18, 2019, over 90% of the lenders under the RBL Facility have committed to provide support, and which the RBL Facility and proposed DIP Facility discussed below will convert into on the effective date of the Plan. Capitalized terms used in this section but not otherwise defined shall have the meanings ascribed to such terms in the PSA (noted as an exhibit to this filing) or as noted below in the Backstop Commitment Agreement or Debtor-in-Possession Agreement discussions.
The PSA contemplates a Plan which would provide for the following treatment:
|
|
a)
|
Holders of RBL Claims will receive their Pro Rata share of the Exit Facility as a first lien, second-out term loan; provided that each holder of an Allowed RBL Claim that elects to participate in the Exit Facility by the Voting Deadline will receive its Pro Rata share (with the holders of Allowed DIP Claims) of first lien, first-out revolving loans and letter of credit participations under the Exit Credit Agreement.
|
|
|
b)
|
Holders of 1.125L Notes Claims will be reinstated in the principal amount of $1 billion and Holders of 1.25L Notes Claims will be reinstated in the principal amount of $500 million, provided that the Debtors may, with the consent of the Initial Supporting Noteholders, deliver a notice of redemption with respect to, or otherwise voluntarily prepay (including by way of tender offer), a portion of these notes, or (ii) receive new notes on terms acceptable to the Initial Supporting Noteholders and the Company.
|
|
|
c)
|
Holders of 1.5L Notes Claims will receive, on account of the secured portion of such 1.5L Notes Claims, their pro rata share of (i) 99.0% of the New Common Shares, subject to dilution by the Rights Offering Shares, the Private Placement, the Commitment Premium, the Jeter and EIP Shares, and (ii) the right to participate in the Rights Offering.
|
|
|
d)
|
Holders of Unsecured Claims will receive their pro rata share of 1.0% of the New Common Shares, subject to dilution by the Rights Offering Shares, the Commitment Premium, the Private Placement, the Jeter and EIP Shares (as defined below); provided, that a convenience class may be established under the Plan (with such Plan provisions being acceptable to the Initial Supporting Noteholders) to provide distributions up to an aggregate amount in Cash to be specified under the Plan.
|
|
|
e)
|
Holders of existing Class A common stock and restricted stock prior to reorganization will receive, on account of available assets of the Company, their pro rata share of $500,000 in cash.
|
The Plan will also provide for the following additional terms:
|
|
a)
|
Apollo and Access may contribute their equity interests in Wolfcamp Drillco Operating L.P. to the reorganized debtors in exchange for New Common Shares (the “Jeter Shares”), subject to the agreement of the Company, Access, and the Initial Supporting Noteholders.
|
|
|
b)
|
The Company may consummate a private placement of New Common Shares, subject to dilution by the Jeter and EIP Shares, for an aggregate purchase price of up to $75 million, in cash.
|
|
|
c)
|
Establishment of a post-emergence employee incentive plan (the “EIP”) on the effective date of the Plan. All awards issued under the EIP, including restricted stock units, options, New Common Shares, or other rights exercisable, exchangeable, or convertible into New Common Shares (“EIP shares”) will be dilutive of all other equity interests in the reorganized debtors in accordance with the Plan. Ten percent of the New Common Shares, on a fully diluted basis, shall be reserved for issuance in connection with the EIP.
|
The PSA contains certain covenants on the part of the Company and the Supporting Noteholders, including that the Supporting Noteholders vote in favor of the Plan and otherwise facilitate the restructuring transactions, subject to the terms of the PSA. The PSA also provides for termination by each party upon the occurrence of certain events, including without limitation the failure of the Company to achieve certain milestones and the termination of the BCA (discussed further below).
Backstop Commitment Agreement. On October 18, 2019 the Debtors entered into the BCA with the Commitment Parties pursuant to which they agreed to backstop $463 million of the Rights Offering. The BCA is subject to Bankruptcy Court approval. Capitalized terms used in this section but not otherwise defined herein shall have the meanings ascribed to such terms in the BCA noted as an exhibit to this filing.
The Commitment Parties have committed, in connection with the Rights Offering, to (i) exchange $138 million in principal amount of 2025 1.25 Lien Notes for New Common Shares at the Exchange Purchase Price (the "Exchange Transaction") and (ii) purchase additional New Common Shares at the Cash Purchase Price for cash consideration of up to $325 million (reduced dollar for dollar for cash proceeds received in the Rights Offering) (the "Cash Purchase Obligation"). The Special Committee approved entry into the PSA and BCA.
As consideration for their backstop commitment, the Commitment Parties shall be entitled to receive $26 million in the form of New Common Shares issued at the Cash Purchase Price (the “Commitment Premium”). Alternatively, if the BCA is terminated due to certain events specified therein, the Commitment Parties shall be entitled to receive a $26 million cash termination fee (the “Termination Fee”). The Commitment Premium and Termination Fee will be allocated among the Commitment Parties as provided in the BCA.
The Commitment Parties’ obligation to backstop the Rights Offering, and the other transactions contemplated by the BCA, are conditioned upon the satisfaction (or waiver) of all conditions to the effectiveness of the Plan, and other conditions precedent set forth in the BCA, including Bankruptcy Court approval of the BCA. The BCA may be terminated upon the occurrence of certain events, including termination of the PSA and material, uncured breaches by the parties under the BCA.
Debtor-in-Possession Agreement. In connection with the PSA and the Chapter 11 Cases, on October 18, 2019, the Debtors also received an underwritten commitment from certain of the lenders under the RBL Facility to provide (i) for an approximately $315 million Senior Secured Superpriority Debtor-in-Possession Facility (the “DIP Facility”), and (ii) support for an approximately $629 million Senior Secured Revolving Exit Facility (the “Exit Facility”), which will consist of a first-out revolving tranche provided by the lenders under the DIP Facility (whose remaining claims under the RBL Facility will automatically convert into such first-out revolving tranche upon effectiveness of the Exit Facility) and a second-out term loan tranche provided by the lenders under the RBL Facility which are not also lenders under the DIP Facility (whose claims under the RBL Facility will automatically convert into such second-out term loan tranche upon effectiveness of the Exit Facility) (if any). The Exit Facility is anticipated to be effective upon the Debtors’ emergence from the Chapter 11 Cases. The proceeds of the Exit Facility may be used to fund distributions under the Plan, for working capital and for other general corporate purposes, to issue letters of credit, for transaction fees and expenses and for fees related to the Debtors’ emergence from the Chapter 11 Cases. The DIP Facility and the Exit Facility are each subject to customary closing conditions and Bankruptcy Court approval.
Ability to Continue as a Going Concern. The significant risks and uncertainties related to the Company’s liquidity and Chapter 11 proceedings described above raise substantial doubt about the Company’s ability to continue as a going concern. For the duration of the Chapter 11 proceedings, our operations and our ability to develop and execute our business plan are subject to a high degree of risks and uncertainty associated with the Chapter 11 proceedings. The outcome of the Chapter 11 process is subject to a high degree of uncertainty and is dependent upon factors that are outside of the Company’s control, including actions of the Bankruptcy Court and the Company’s creditors. There can be no assurance that we will confirm and consummate the Plan under the PSA or complete another plan of reorganization with respect to the Chapter 11 proceedings.
Further, the Plan under the PSA, or completion of another plan of reorganization, could materially change the amounts and classifications of assets and liabilities reported in the consolidated financial statements. The accompanying consolidated financial statements have (i) been prepared on a going concern basis, which contemplates the realization of assets and satisfaction of liabilities and other commitments in the normal course of business and (ii) do not include any adjustments to reflect the possible future effects of this uncertainty on the recoverability or classification of recorded asset amounts or the amounts or classifications of liabilities.
2. Impairment Charges
We evaluate capitalized costs related to proved properties upon a triggering event (e.g., a significant continued decline in forward commodity prices or significant reduction to development capital) to determine if an impairment of such properties has occurred. Commodity price declines may cause changes to our capital spending levels, production rates, levels of proved reserves and development plans, which may result in an impairment of the carrying value of our proved and/or unproved properties in the future.
As a result of the filing of our Chapter 11 Cases (see Note 1A) and the uncertainties surrounding the availability of financing that would be available to develop our proved undeveloped reserves, we performed an impairment assessment of our asset groups under ASC 360. As a result, the undiscounted future cash flows related to our Northeastern Utah (NEU) proved properties were not in excess of the related carrying value of the asset. Accordingly, we have recorded a non-cash impairment charge for both the quarter and nine months ended September 30, 2019 of approximately $458 million related to this asset group, reflecting a reduction in the net book value of the proved property in this area to its estimated fair value.
3. Income Taxes
Effective Tax Rate. Interim period income taxes are computed by applying an anticipated annual effective tax rate to year-to-date income or loss, except for significant, unusual or infrequently occurring items, which income tax effects are recorded in the period in which they occur. Changes in tax laws or rates are recorded in the period they are enacted.
For both the quarters and nine months ended September 30, 2019 and 2018, our effective tax rates were approximately 0%. Our effective tax rates in 2019 and 2018 differed from the statutory rate of 21% primarily as a result of our recognition of a full valuation allowance on our net deferred tax assets. In addition, we recorded adjustments to the valuation allowance on our net deferred tax assets, which offset deferred income tax benefits by $135 million and $10 million, for the quarters ended September 30, 2019 and 2018, respectively, and by $174 million and $18 million for the nine months ended September 30, 2019 and 2018, respectively.
We evaluate the realization of our deferred tax assets and record any associated valuation allowance after considering cumulative book losses, the reversal of existing temporary differences, the existence of taxable income in prior carryback years, tax planning strategies and future taxable income for each of our taxable jurisdictions. Based upon the evaluation of the available evidence, we maintained a valuation allowance against our net deferred tax assets of $1,031 million as of September 30, 2019.
The Company's and certain subsidiaries' income tax years after 2014 remain open and subject to examination by both federal and state tax authorities, and in 2018 we were notified of an IRS examination of our 2016 U.S. tax return.
4. Earnings Per Share
We exclude potentially dilutive securities from the determination of diluted earnings per share (as well as their related income statement impacts) when their impact on net income per common share is antidilutive. Potentially dilutive securities consist of our stock options, restricted stock and performance share unit awards. For both the quarters and nine months ended September 30, 2019 and 2018, we incurred net losses and accordingly excluded all potentially dilutive securities from the determination of diluted earnings per share as their impact on loss per common share was antidilutive.
5. Fair Value Measurements
We use various methods to determine the fair values of our financial instruments. The fair value of a financial instrument depends on a number of factors, including the availability of observable market data over the contractual term of the underlying instrument. We separate the fair value of our financial instruments into three levels (Levels 1, 2 and 3) based on our assessment of the availability of observable market data and the significance of non-observable data used to determine fair value. As of September 30, 2019 and December 31, 2018, all of our derivative financial instruments were classified as Level 2. Our assessment of the level of an instrument can change over time based on the maturity or liquidity of the instrument.
The following table presents the carrying amounts and estimated fair values of our financial instruments:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
December 31, 2018
|
|
Carrying
Amount
|
|
Fair
Value
|
|
Carrying
Amount
|
|
Fair
Value
|
|
(in millions)
|
Current portion of long-term debt
|
$
|
4,882
|
|
|
$
|
1,684
|
|
|
$
|
58
|
|
|
$
|
44
|
|
|
|
|
|
|
|
|
|
Long-term debt (see Note 7)
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
4,380
|
|
|
$
|
2,532
|
|
|
|
|
|
|
|
|
|
Derivative instruments
|
$
|
58
|
|
|
$
|
58
|
|
|
$
|
114
|
|
|
$
|
114
|
|
As of September 30, 2019 and December 31, 2018, the carrying amount of cash and cash equivalents, accounts receivable, owner and royalties payable, and accounts payable represent fair value because of the short-term nature of these instruments. We hold debt obligations with various terms. We estimated the fair value of debt (representing a Level 2 fair value measurement) primarily based on quoted market prices for the same or similar issuances, considering our credit risk.
Oil, Natural Gas and NGLs Derivative Instruments. We attempt to mitigate a portion of our commodity price risk and stabilize cash flows associated with forecasted sales of oil, natural gas and NGLs through the use of financial derivatives. As of September 30, 2019, we had derivative contracts in the form of collars and three-way collars on 15 MMBbls of oil (3 MMBbls in 2019 and 12 MMBbls in 2020). In addition to our oil derivatives, we had derivative contracts in the form of fixed price swaps and collars on 6 TBtu of natural gas in 2019. As of December 31, 2018, we had derivative contracts for 16 MMBbls of oil and 26 TBtu of natural gas. In addition to the contracts above, we have derivative contracts related to locational basis differences on our oil and natural gas production. None of our derivative contracts are designated as accounting hedges.
The following table presents the fair value associated with our derivative financial instruments as of September 30, 2019 and December 31, 2018. All of our derivative instruments are subject to master netting arrangements, which provide for the unconditional right of offset for all derivative assets and liabilities with a given counterparty in the event of default. We present assets and liabilities related to these instruments in our consolidated balance sheets as either current or non-current assets or liabilities based on their anticipated settlement date, net of the impact of master netting agreements. On derivative contracts recorded as assets in the table below, we are exposed to the risk that our counterparties may not perform.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Level 2
|
|
Derivative Assets
|
|
Derivative Liabilities
|
|
Gross
Fair Value
|
|
|
|
Balance Sheet Location
|
|
Gross
Fair Value
|
|
|
|
Balance Sheet Location
|
|
|
Impact of
Netting
|
|
Current
|
|
Non-
current
|
|
|
Impact of
Netting
|
|
Current
|
|
Non-
current
|
|
(in millions)
|
|
(in millions)
|
September 30, 2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative instruments
|
$
|
60
|
|
|
$
|
(2
|
)
|
|
$
|
46
|
|
|
$
|
12
|
|
|
$
|
(2
|
)
|
|
$
|
2
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative instruments
|
$
|
116
|
|
|
$
|
(2
|
)
|
|
$
|
101
|
|
|
$
|
13
|
|
|
$
|
(2
|
)
|
|
$
|
2
|
|
|
$
|
—
|
|
|
$
|
—
|
|
For the quarters ended September 30, 2019 and 2018, we recorded derivative gains and losses of $32 million and $44 million, respectively. For the nine months ended September 30, 2019 and 2018, we recorded derivative losses of $34 million and $122 million, respectively. Derivative gains and losses on our oil, natural gas and NGLs financial derivative instruments are recorded in operating revenues in our consolidated income statements.
Other Fair Value Considerations. During the quarter and nine months ended September 30, 2019, we recorded a non-cash impairment charge on our proved properties in NEU. The estimate of fair value of our proved oil and natural gas properties used to determine the impairment was estimated using a discounted cash flow model. These estimates represented a Level 3 fair value measurement. Significant Level 3 inputs associated with the calculation of discounted cash flows used in the impairment analysis include management’s estimate of future crude oil and natural gas prices, production costs, development expenditures, anticipated production of proved reserves, appropriate risk-adjusted discount rates and other relevant data. See Note 2 for a further discussion of our impairment charge.
6. Property, Plant and Equipment
Oil and Natural Gas Properties. As of September 30, 2019 and December 31, 2018, we had approximately $3.5 billion and $3.8 billion, respectively, of total property, plant, and equipment, net of accumulated depreciation, depletion and amortization on our consolidated balance sheets, substantially all of which relates to proved oil and natural gas properties.
Our capitalized costs related to proved oil and natural gas properties by area were as follows:
|
|
|
|
|
|
|
|
|
|
|
September 30, 2019
|
|
December 31, 2018
|
|
(in millions)
|
Proved
|
|
|
|
Eagle Ford
|
$
|
4,250
|
|
|
$
|
3,898
|
|
Permian
|
1,791
|
|
|
1,787
|
|
Northeastern Utah
|
1,279
|
|
|
1,659
|
|
Total Proved
|
7,320
|
|
|
7,344
|
|
Less accumulated depletion
|
(3,880
|
)
|
|
(3,607
|
)
|
Net capitalized costs for oil and natural gas properties
|
$
|
3,440
|
|
|
$
|
3,737
|
|
Suspended well costs were not material as of September 30, 2019 or December 31, 2018.
Asset Retirement Obligations. We have legal asset retirement obligations associated with the retirement of our oil and natural gas wells and related infrastructure. We settle these obligations when production on those wells is exhausted, when we no longer plan to use them or when we abandon them. We accrue these obligations when we can estimate the timing and amount of their settlement.
Changes in estimates represent changes to the expected amount and timing of payments to settle our asset retirement obligations. Typically, these changes primarily result from obtaining new information about the timing of our obligations to plug and abandon oil and natural gas wells and the costs to do so, or reassessing our assumptions in light of changing market conditions. The net asset retirement liability as of September 30, 2019 on our consolidated balance sheet in other current and non-current liabilities and the changes in the net liability from January 1 through September 30, 2019 were as follows:
|
|
|
|
|
|
2019
|
|
(in millions)
|
Net asset retirement liability at January 1
|
$
|
42
|
|
Liabilities settled
|
(1
|
)
|
Accretion expense
|
3
|
|
Net asset retirement liability at September 30
|
$
|
44
|
|
Capitalized Interest. Interest expense is reflected in our consolidated financial statements net of capitalized interest. We capitalize interest primarily on the costs associated with drilling and completing wells until production begins using a weighted average interest rate on our outstanding borrowings. Capitalized interest for both the quarters ended September 30, 2019 and 2018 was approximately $2 million, and for the nine months ended September 30, 2019 and 2018 were approximately $5 million and $4 million, respectively.
7. Long-Term Debt
Listed below are our debt obligations as of the periods presented:
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate
|
|
September 30, 2019
|
|
December 31, 2018
|
|
|
|
(in millions)
|
RBL credit facility - due November 23, 2021(1)
|
Variable
|
|
$
|
602
|
|
|
$
|
100
|
|
Senior secured term loans:
|
|
|
|
|
|
2.0 Lien due April 30, 2019(2)
|
Variable
|
|
—
|
|
|
8
|
|
Senior secured notes:
|
|
|
|
|
|
1.5 Lien due May 1, 2024
|
9.375%
|
|
1,092
|
|
|
1,092
|
|
1.25 Lien due November 29, 2024
|
8.000%
|
|
500
|
|
|
500
|
|
1.5 Lien due February 15, 2025
|
8.000%
|
|
1,000
|
|
|
1,000
|
|
1.125 Lien due May 15, 2026
|
7.750%
|
|
1,000
|
|
|
1,000
|
|
Senior unsecured notes:
|
|
|
|
|
|
Due May 1, 2020
|
9.375%
|
|
182
|
|
|
232
|
|
Due September 1, 2022
|
7.75%
|
|
182
|
|
|
182
|
|
Due June 15, 2023
|
6.375%
|
|
324
|
|
|
324
|
|
Unamortized discount and debt issue costs(3)
|
|
|
—
|
|
|
(95
|
)
|
Total debt
|
|
|
4,882
|
|
|
4,343
|
|
Current portion of long-term debt(3)
|
|
|
(4,882
|
)
|
|
(58
|
)
|
Total long-term debt
|
|
|
$
|
—
|
|
|
$
|
4,285
|
|
|
|
(1)
|
Carries interest at a specified margin over LIBOR of 2.50% to 3.50%, based on borrowing utilization.
|
(2) Carries interest at a specified margin over the LIBOR of 3.50%, with a minimum LIBOR floor of 1.00%. As of December 31, 2018, the effective interest rate for the term loan was 6.21%. In April 2019, we retired the note in full.
|
|
(3)
|
Due to uncertainties at September 30, 2019 regarding default, event of default and cross-default provisions under our indentures and RBL Facility (including those discussed in Note 1A), we reclassified our debt as current and wrote off approximately $90 million in unamortized debt discount and debt issue costs.
|
Gain on extinguishment/modification of debt. During 2018, we completed an exchange of approximately $1.1 billion of certain senior unsecured notes for new 1.5 Lien Notes maturing in 2024. The exchange transaction was accounted for as a modification of debt and an extinguishment of debt depending on the senior unsecured notes exchanged. In conjunction with the exchange, we recorded a $12 million loss on debt considered modified for accounting purposes and a net gain of $53 million on debt considered extinguished for accounting purposes.
Additionally, during the nine months ended September 30, 2019 and 2018, we recorded a net gain on extinguishment/modification of debt of $10 million and $7 million, respectively, primarily related to repurchased debt. In the first quarter of 2019, we paid approximately $40 million in cash to repurchase a total of $50 million in aggregate principal amount of our senior unsecured notes due 2020. In the second quarter of 2018, we paid approximately $10 million in cash to repurchase a total of approximately $19 million in aggregate principal amount of our senior unsecured notes due 2022 and 2023.
Reserve-based Loan Facility. As of September 30, 2019, we had borrowed the remaining $268 million under our RBL Facility and had no capacity remaining with approximately $27 million of LCs issued and $602 million outstanding under the RBL Facility.
Covenant Violations, Forbearance, and Chapter 11 Proceedings. On August 15, 2019, we did not make the approximately $40 million cash interest payment due with respect to the 2025 1.5 Lien Senior Secured Notes. On September 3, 2019, we did not make the approximately $7 million cash interest payment due with respect to the 2022 Unsecured Notes. Our failure to make these interest payments within thirty days after they were due and payable resulted in an event of default under the respective indentures governing the 2025 1.5 Lien Notes and 2022 Unsecured Notes. Each event of default under the indentures noted above also resulted in a cross-default under the RBL Facility.
On September 14, 2019, we entered into forbearance agreements, extending through October 3, 2019, with the Noteholders and the RBL Forbearing Parties, pursuant to which each Noteholder and RBL Forbearing Party temporarily agreed, subject to certain terms and conditions, to forbear from exercising any rights or remedies they may have in respect of the failure to make the approximately $40 million cash interest payment.
On October 3, 2019, the Debtors filed the Chapter 11 Cases in the Bankruptcy Court seeking relief under the Bankruptcy Code. The commencement of the Chapter 11 Cases constituted an immediate event of default, and caused the automatic and immediate acceleration of all debt outstanding under or in respect of a number of our instruments and agreements relating to our direct financial obligations, including the RBL Facility and indentures governing the Senior Notes. Any efforts to enforce such payment obligations were automatically stayed as a result of the filing of the Chapter 11 Cases and the creditors’ rights of enforcement in respect of the Senior Notes and the RBL Facility are subject to the applicable provisions of the Bankruptcy Code. For a further discussion of the Chapter 11 Cases, see Note 1A.
8. Commitments and Contingencies
Chapter 11 Proceedings
On October 3, 2019, the Debtors filed the Chapter 11 Cases in the Bankruptcy Code seeking relief under the Bankruptcy Code. We expect to continue operations in the normal course during the pendency of the Chapter 11 Cases. In addition, commencement of the Chapter 11 Cases automatically stayed all of the proceedings and actions against the Company, including those noted below. For a further discussion of the Chapter 11 Cases, see Note 1A.
Legal Matters
We and our subsidiaries and affiliates are parties to various legal actions and claims that arise in the ordinary course of our business. For each matter, we evaluate the merits of the case or claim, our exposure to the matter, possible legal or settlement strategies and the likelihood of an unfavorable outcome. If we determine that an unfavorable outcome is probable and can be estimated, we establish the necessary accruals. While the outcome of our current matters cannot be predicted with certainty and there are still uncertainties related to the costs we may incur, based upon our evaluation and experience to date, we believe we have established appropriate reserves for these matters. It is possible, however, that new information or future developments could require us to reassess our potential exposure and adjust our accruals accordingly, and these adjustments could be material. As of September 30, 2019, we had approximately $26 million accrued for all outstanding legal matters.
FairfieldNodal v. EP Energy E&P Company, L.P. On March 3, 2014, Fairfield filed suit against one of our subsidiaries in the 157th District Court of Harris County, Texas, claiming we were contractually obligated to pay a transfer fee of approximately $21 million for seismic licensing, triggered by a change in control with the Sponsors’ (affiliates of Apollo, Riverstone Holdings LLC, Access and Korea National Oil Corporation, collectively, the Sponsors) acquisition of our predecessor entity in 2012. Prior to the change in control, we had unilaterally terminated the seismic licensing agreements, and we returned the applicable seismic data. Fairfield also claimed EP Energy did not properly maintain the confidentiality of the seismic data and interpretations made from it. In April 2015, the district court granted summary judgment to EP Energy, and Fairfield then appealed. On July 6, 2017, an intermediate court of appeals in Texas reversed the judgment related to the transfer fee and denied rehearing on October 5, 2017. We filed a petition for review in the Texas Supreme Court, which denied review in June 2019. We filed a motion for rehearing in the Texas Supreme Court on July 31, 2019. If denied, the case will be remanded to the trial court for further proceedings. As of September 30, 2019, we had accrued $21 million related to this matter.
Weyerhaeuser Company v. Pardee Minerals LLC, et al. On July 5, 2017, Weyerhaeuser filed suit against one of our subsidiaries, among other defendants, in the United States District Court for the Western District of Louisiana. Weyerhaeuser
seeks to recoup the value of production after November 2006 (approximately $15.6 million) plus judicial interest (approximately $7.8 million at this time) from certain wells drilled by EP Energy between 2002 and 2013 on leases Weyerhaeuser claims were invalid. Weyerhaeuser alleges that lessees prior to EP Energy had not drilled wells in good faith to perpetuate the associated mineral servitude (rights conveyed to produce minerals), rendering EP Energy’s subsequent lease invalid. We settled this matter in July 2019 for $3 million.
Storey Minerals, Ltd., et al. v. EP Energy E&P Company, L.P. On May 29, 2018, Storey Minerals, Ltd., Maltsberger/Storey Ranch, LLC, and Rene R. Barrientos, Ltd. (collectively, “MSB”) filed suit against EP Energy in the 81st Judicial District Court of La Salle County, Texas. MSB alleged that by acquiring certain oil and gas leases within the perimeter of the Storey Altito Ranch, EP Energy triggered the most favored nation clause (“MFN clause”) in the leases. After investigation, EP Energy agreed that the MFN clause had been triggered and tendered a lease amendment with a check for $4 million for increased lease bonus. EP Energy's calculation confirmed that no delay rentals were due. MSB, however, did not accept the tender and asserts that the MFN clause operates retroactively to the date of the lease and applies to all of the acreage leased at that time. EP Energy maintains that the unambiguous language in the MFN clause operates prospectively and supports its tendered amendment and calculation. The parties filed cross-motions for summary judgment. In June 2019, the court entered an order agreeing with EP Energy on delay rentals, but with MSB on lease bonus. The court entered a final judgment in July 2019 ordering EP Energy to pay MSB $43.8 million in increased lease bonus, attorney’s fees, expenses and interest to date. EP Energy filed an appeal to the Fourth Circuit Court of Appeals in San Antonio on July 17, 2019 and intends to pursue fully its appeal. As of September 30, 2019, EP Energy's accrual of $4 million related to this matter reflects the amount tendered to MSB with the lease amendment noted above, which EP Energy believes is the appropriate amount of increased bonus due to MSB.
Environmental Matters
We are subject to existing federal, state and local laws and regulations governing environmental quality, pollution control and greenhouse gas (GHG) emissions. Numerous governmental agencies, such as the Environmental Protection Agency (EPA), issue regulations which often require difficult and costly compliance measures that carry substantial administrative, civil and criminal penalties and may result in injunctive obligations for non-compliance. Our management believes that we are in substantial compliance with applicable environmental laws and regulations, and we have not experienced any material adverse effect from compliance with these environmental requirements. For additional details on certain environmental matters, including matters related to climate change, air quality and other emissions, hydraulic fracturing regulations and waste handling, refer to the Risk Factors section of our 2018 Annual Report on Form 10-K.
While our reserves for environmental matters are currently not material, there are still uncertainties related to the ultimate costs we may incur in the future in order to comply with increasingly strict environmental laws, regulations, and orders of regulatory agencies, as well as claims for damages to property and the environment or injuries to employees and other persons resulting from our current or past operations. Based upon our evaluation and experience to date, however, we believe our accruals for these matters are adequate. It is possible that new information or future developments could result in substantial additional costs and liabilities which could require us to reassess our potential exposure related to these matters and to adjust our accruals accordingly, and these adjustments could be material.
Other Matters
As of September 30, 2019, we had approximately $12 million accrued (in other accrued liabilities in our consolidated balance sheet) related to other contingent matters including, but not limited to, a number of examinations by taxing authorities on non-income matters and indemnifications that we periodically enter into as part of the divestiture of assets or businesses. These arrangements include, but are not limited to, indemnifications for income taxes, the resolution of existing disputes and other contingent matters. In addition, the decline in commodity prices has created an environment where there is an increased risk that owners and/or operators of assets previously purchased from us may no longer be able to satisfy plugging and abandonment obligations that attach to such assets. In that event, under various laws or regulations, we could be required to assume all, or a portion of the plugging or abandonment obligations on assets we no longer own or operate.
Lease Obligations
Our noncancellable leases classified as finance leases for accounting purposes include certain compressors under long-term arrangements which were capitalized upon commencement of the lease term at the fair value of the leased asset, which was lower than the present value of the minimum lease payments. The discount rate used for our finance leases was the incremental borrowing rate adjusted so that the present value of the corresponding lease payments did not exceed the fair value of the leased asset. For the quarter ended September 30, 2019, interest and depreciation expense associated with our finance leases was approximately $1 million and less than $1 million, respectively, and related cash payments were approximately $1
million. For the nine months ended September 30, 2019, interest and depreciation expense associated with our finance leases were approximately $3 million and $2 million , respectively, and related cash payments were approximately $4 million.
Our noncancellable leases classified as operating leases and capitalized upon commencement of the lease term for accounting purposes include those for office space, drilling rigs and field equipment. The discount rate used for our operating leases is either the discount rate implicit in the contract, or the applicable interest rate on a collateralized basis if not determinable. Operating lease costs for minimum lease payments are recognized as capital or expense on a straight-line basis over the lease term depending on the nature of the payment. For the quarter ended September 30, 2019, operating lease costs and related cash payments were approximately $3 million and $4 million, respectively, and $8 million and $7 million, respectively, for the nine months ended September 30, 2019. These were primarily capitalized as part of our oil and natural gas properties. Variable lease costs (amounts incurred beyond minimum lease payments such as utilities, usage, maintenance, mobilization fees, etc.) are recognized in the period incurred. For the quarter and nine months ended September 30, 2019, variable lease costs were approximately $1 million and $2 million, respectively.
Short-term lease costs for the quarter and nine months ended September 30, 2019 were approximately $3 million and $18 million, respectively, and were primarily capitalized as part of our oil and natural gas properties.
Supplemental balance sheet information related to leases was as follows:
|
|
|
|
|
|
|
|
September 30, 2019
|
|
|
(in millions)
|
Operating lease assets(1)(4)
|
|
$
|
21
|
|
Finance lease assets(2)
|
|
10
|
|
Total lease assets
|
|
$
|
31
|
|
|
|
|
Operating leases(3)(4)
|
|
|
Current liability
|
|
$
|
11
|
|
Noncurrent liability
|
|
10
|
|
Total operating lease liability
|
|
$
|
21
|
|
Finance leases(3)
|
|
|
Current liability
|
|
$
|
2
|
|
Noncurrent liability
|
|
9
|
|
Total finance lease liability
|
|
$
|
11
|
|
|
|
|
Weighted average remaining lease term
|
|
|
Operating leases
|
|
4 years
|
|
Finance leases
|
|
4 years
|
|
Weighted average discount rate
|
|
|
Operating leases
|
|
9.24
|
%
|
Finance leases
|
|
26.52
|
%
|
|
|
(1)
|
Operating lease assets are reflected in Operating lease assets and other in our consolidated balance sheet as of September 30, 2019.
|
|
|
(2)
|
Finance lease assets are reflected in Other property, plant and equipment in our consolidated balance sheet as of September 30, 2019.
|
|
|
(3)
|
Current and noncurrent operating and finance lease liabilities are reflected in Other accrued liabilities and Lease obligations and other, respectively, in our consolidated balance sheet as of September 30, 2019.
|
|
|
(4)
|
Upon adoption of ASU 2016-02 effective January 1, 2019, we recognized operating leases of approximately $10 million. For the nine months ended September 30, 2019, we also recorded an additional $16 million of operating leases.
|
Future minimum annual rental commitments under non-cancelable future operating and finance lease commitments at September 30, 2019, were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
Operating Leases
|
|
Finance Leases
|
|
|
(in millions)
|
2019
|
|
$
|
3
|
|
|
$
|
1
|
|
2020
|
|
10
|
|
|
5
|
|
2021
|
|
3
|
|
|
5
|
|
2022
|
|
2
|
|
|
5
|
|
Thereafter
|
|
6
|
|
|
2
|
|
Total
|
|
$
|
24
|
|
|
$
|
18
|
|
Less: imputed interest
|
|
(3
|
)
|
|
(7
|
)
|
Present value of operating and finance lease obligations
|
|
$
|
21
|
|
|
$
|
11
|
|
9. Incentive Compensation
Long-term Incentive Compensation
Our long-term incentive (LTI) programs consist of restricted stock, stock options, cash-based incentives and performance share units awards. Refer to our 2018 Annual Report on Form 10-K and on Form 10-K/A for further information regarding the terms and details of these awards. We record compensation expense on all of our LTI awards as general and administrative expense over the requisite service period. Pre-tax compensation expense related to all of our LTI awards (both equity and liability based), net of the impact of forfeitures, was approximately $2 million and $5 million for the quarters ended September 30, 2019 and 2018, respectively, and $7 million and $10 million for the nine months ended September 30, 2019 and 2018, respectively. As of September 30, 2019, we had unrecognized compensation expense of $13 million of which we will recognize $2 million during the remainder of 2019 and $11 million thereafter.
Restricted Stock. A summary of the changes in our non-vested restricted shares for the nine months ended September 30, 2019 is presented below:
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
Weighted Average
Grant Date Fair Value
per Share
|
Non-vested at December 31, 2018
|
|
7,060,334
|
|
|
$
|
2.69
|
|
Granted
|
|
103,000
|
|
|
$
|
0.70
|
|
Vested
|
|
(1,114,001
|
)
|
|
$
|
4.95
|
|
Forfeited
|
|
(905,338
|
)
|
|
$
|
2.46
|
|
Non-vested at September 30, 2019
|
|
5,143,995
|
|
|
$
|
2.20
|
|
Performance Share Units. In 2018, we granted 618,720 performance share units (PSUs) to certain EP Energy employees. The grant date fair value of the 2018 awards was approximately $5 million as determined by a Monte Carlo simulation, utilizing an expected volatility of approximately 90% and a risk free rate of approximately 3%. As of September 30, 2019, we had a total of 1,480,260 PSUs outstanding. PSUs will vest over a weighted average period of three years and earned only upon the achievement of specified stock price goals. Our PSUs are treated as an equity award with the expense recognized on an accelerated basis over the life of the award.
Key Employee Retention Program
On May 29, 2019, the Compensation Committee of the Board of Directors of the Company approved the implementation of a Key Employee Retention Program (a “KERP”) for all employees of the Company. KERP payments totaling approximately $21 million were made in July 2019 and were comprised of approximately $10 million in lieu of target bonus amounts for 2019 performance, which were already being accrued during the year, plus an incremental amount of approximately $11 million in lieu of long-term incentive compensation for 2019. KERP payments are subject to certain termination provisions through June 30, 2020 which would result in the repayment of the award in full.
As of September 30, 2019, our consolidated balance sheet reflects a deferred charge in the amount of approximately $15 million related to the KERP. For accounting purposes, deferred expense is being amortized over the 13 month term of the KERP agreement. During the quarter and nine months ended September 30, 2019, we recorded $5 million and $6 million, respectively, in expense related to the KERP.
10. Related Party Transactions
Chapter 11 Proceedings. As of September 30, 2019, affiliates of Apollo held approximately $675 million of the aggregate outstanding principal amount of approximately $2,092 million of our 9.375% 1.5 Lien Notes due 2024 and 2025 1.5 Lien Notes, and approximately $21 million of the outstanding principal amount of $500 million of our 2024 1.25 Lien Notes. As of September 30, 2019, affiliates of Access held approximately $48 million of our 1.5 Lien Notes. In connection with the Chapter 11 Cases, on October 18, 2019, we entered into the (i) PSA, to support a restructuring on the terms of the Plan described therein, and (ii) BCA, pursuant to which the Commitment Parties agreed to backstop the Rights Offering, in each case, with holders of certain of our debt, including affiliates of, or funds managed by, Apollo and Access. For a discussion of the Chapter 11 Cases as well as the PSA, BCA and other agreements, refer to Note 1A.
Joint Venture. We are party to a drilling joint venture to fund future oil and natural gas development with Wolfcamp Drillco Operating L.P. (the Investor, which is managed and controlled by an affiliate of Apollo) and indirectly through Access (through an indirect minority ownership interest in the Investor). At September 30, 2019 and December 31, 2018, we had accounts receivable of $1 million and $47 million, respectively, and payables to our owner of $6 million and $20 million, respectively, associated with our Investor reflected in our consolidated balance sheets. Refer to our 2018 Annual Report on Form 10-K and on Form 10-K/A for further information on the joint venture agreement.