NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1.BASIS OF PRESENTATION, SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND LIQUIDITY, MANAGEMENT'S PLANS AND GOING CONCERN
Basis of Presentation
The accompanying unaudited consolidated financial statements have been prepared by Gulfport Energy Corporation (the “Company” or “Gulfport”) pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”), and reflect all adjustments that, in the opinion of management, are necessary for a fair presentation of the results for the interim periods reported in all material respects, on a basis consistent with the annual audited consolidated financial statements. All such adjustments are of a normal, recurring nature. Certain information, accounting policies, and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles ("GAAP") have been omitted pursuant to such rules and regulations, although the Company believes that the disclosures are adequate to make the information presented not misleading.
The consolidated financial statements should be read in conjunction with the consolidated financial statements and the summary of significant accounting policies and notes included in the Company’s most recent annual report on Form 10-K. Results for the three and nine months ended September 30, 2020 are not necessarily indicative of the results expected for the full year.
Certain reclassifications have been made to prior period financial statements and related disclosures to conform to current period presentation. These reclassifications have no impact on previous reported total assets, total liabilities, net loss or total operating cash flows.
COVID-19
In March 2020, the World Health Organization classified the outbreak of COVID-19 as a pandemic and recommended containment and mitigation measures worldwide. The measures have led to worldwide shutdowns and halting of commercial and interpersonal activity, as governments around the world have imposed regulations in efforts to control the spread of COVID-19 such as shelter-in-place orders, quarantines, executive orders and similar restrictions.
Gulfport remains focused on protecting the health and well-being of its employees and the communities in which it operates while assuring the continuity of its business operations. The Company implemented preventative measures and developed corporate and field response plans to minimize unnecessary risk of exposure and prevent infection. Additionally, the Company has a crisis management team for health, safety and environmental matters and personnel issues, and has established a COVID-19 Response Team to address various impacts of the situation, as they have been developing. Gulfport has modified certain business practices (including remote working for its corporate employees and restricted employee business travel) to conform to government restrictions and best practices encouraged by the Centers for Disease Control and Prevention, the World Health Organization and other governmental and regulatory authorities. In May 2020, the Company began its phased transition back to the office for its corporate employees. As part of this transition, the Company put into place preventative measures to focus on social distancing and minimizing unnecessary risk of exposure. As of the date of this filing, Gulfport has transitioned the vast majority of its employees back to the corporate office; however, the Company continues to provide a balanced work schedule that allows for a significant portion of the work week to be performed remotely. The Company will continue to monitor trends and governmental guidelines and may adjust its return to office plans accordingly to ensure the health and safety of its employees. As a result of its business continuity measures, the Company has not experienced significant disruptions in executing its business operations in 2020.
On March 27, 2020, the U.S. government enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The CARES Act did not have a material impact on the Company’s consolidated financial statements. Gulfport is closely monitoring the impact of COVID-19 on all aspects of its business and the current commodity price environment and is unable to predict the impact it will have on its future financial position or operating results.
Industry Conditions, Liquidity, Management's Plans and Going Concern
Decreased demand for oil and natural gas as a result of the COVID-19 pandemic has put further downward pressure on commodity pricing. In the current depressed commodity price environment and period of economic uncertainty, the Company has taken the following operational and financial measures in 2020 to improve its balance sheet and preserve liquidity:
•Reduced 2020 capital spending by more than 50% as compared to 2019
•Focused on operational efficiencies to reduce operating costs; including significant improvements in development and completion costs per lateral foot
•Repurchased $73.3 million of unsecured notes at a discount
•Evaluated economics across our portfolio and shut-in certain non-economical production in the second quarter of 2020
•Reduced corporate general and administrative costs significantly through pay reductions, furloughs and reductions in force.
Although management’s actions listed above have helped to improve the Company's liquidity and leverage profile, continued macro headwinds including the depressed state of energy capital markets and the extraordinarily low commodity price environments present significant risks to the Company's ability to fund its operations going forward. Additionally, subsequent to September 30, 2020, on October 8, 2020, the Company's borrowing base under its revolving credit facility was reduced for the second time during 2020. The October redetermination reduced the Company's borrowing base from $700 million to $580 million, thereby significantly reducing available liquidity.
Considering the factors above, there is substantial doubt about the Company’s ability to maintain, repay, refinance or restructure its $2.1 billion of long-term debt. The Company elected not to make an interest payment of $17.4 million due October 15, 2020 on its 6.000% senior unsecured notes maturing 2024 (the “2024 Notes”). The Company elected not to make an interest payment of $10.8 million due November 2, 2020 on its 6.625% senior unsecured notes maturing 2023 (the "2023 Notes"). The elections to defer the interest payments do not constitute an “Event of Default” as defined under the indentures governing the 2024 Notes and 2023 Notes (the “Indentures”) if the interest payments are made within 30 days of the due date. If the Company does not make such interest payments within such 30-day period, there will be an event of default under the Indentures upon expiration of the grace period and there can be no assurance that it will have sufficient funds to pay such interest payments prior to such time.
Additionally, on October 15, 2020, the Company entered into the First Forbearance Agreement and Amendment to the Amended and Restated Credit Agreement (the "First Forbearance Agreement"). Pursuant to the First Forbearance Agreement, the lender parties have agreed to (i) temporarily waive any default in connection with the non-payment of interest on the 2024 Notes within 30 days of becoming due (the “Specified Default”) prior to its occurrence without any further action and (ii) forbear from exercising certain of their default-related rights and remedies against the Company and the other loan parties with respect to any default in connection with the Specified Default, in each case, until the earlier of October 29, 2020 or another event that would trigger the end of the forbearance period. On October 26, 2020, the Company entered into the Second Forbearance Agreement and Amendment to Amended and Restated Credit Agreement (the "Second Forbearance Agreement"), which extends the First Forbearance Agreement. Pursuant to the Second Forbearance Agreement, the lender parties have agreed to (i) temporarily waive any default in connection with the Specified Default prior to its occurrence without any further action, (ii) expand the definition of "Specified Default" to include the failure to make the interest payment on the 2023 Notes within 30 days of becoming due and (iii) extend the agreement to forbear from exercising certain of their default-related rights and remedies against the Company and the other loan parties with respect to any default in connection with the Specified Default, in each case, until the earlier of November 13, 2020 or another event that would trigger the end of the forbearance period.
Moreover, the Company's existing revolving credit facility matures in December 2021 and therefore will become a current liability at year end 2020 unless the Company is able to refinance the credit facility with a new credit facility or other financing. Considering the current state of the first lien market and the Company's elevated leverage profile, there is substantial risk that a refinancing will not be available to the Company on reasonable terms. A current liability under the revolving credit facility at year end 2020 may result in a qualified audit opinion which could result in a default under the terms of the current revolving credit facility.
Failure to meet the Company's obligations under its existing indebtedness or failure to comply with any of its covenants, if not waived, would result in an event of default under such indebtedness and result in the potential acceleration of outstanding indebtedness thereunder and, with respect to the revolving credit facility, the potential foreclosure on the collateral securing such debt, and could cause a cross-default under its other outstanding indebtedness. As a result of these uncertainties and other factors, management has concluded that there is substantial doubt about the Company's ability to continue as a going concern over the next twelve months from the issuance of these financial statements.
The Company has engaged financial and legal advisors to assist with the evaluation of a range of liability management alternatives. Additionally, the Company maintains an active dialogue with its senior lenders and bondholders regarding liability management alternatives to improve its balance sheet. There can be no assurances that the Company will be able to successfully complete a liability management transaction that materially improves the Company’s leverage profile or liquidity position.
The consolidated financial statements (i) have 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 the uncertainty on the recoverability or classification of recorded asset amounts or the amounts or classifications of liabilities.
Impact on Previously Reported Results
During the third quarter of 2020, the Company identified that certain transportation activities during the three and nine months ended September 30, 2019 were misclassified between "natural gas sales" and "midstream gathering and processing expenses" on its consolidated statements of operations. The Company assessed the materiality of this presentation on prior periods’ consolidated financial statements in accordance with the SEC Staff Accounting Bulletin No. 99, “Materiality”, codified in Accounting Standards Codification (“ASC”) Topic 250, “Accounting Changes and Error Corrections.” Based on this assessment, the Company concluded that the correction is not material to any previously issued financial statements. The correction had no impact on its consolidated balance sheets, consolidated statements of comprehensive income, consolidated statements of stockholders' equity or consolidated statements of cash flows. Additionally, the error had no impact on net loss or net loss per share. The Company will conform presentation of previously reported consolidated statements of operations and condensed consolidating statements of operations in future filings. The following tables present the effect of the correction on all affected line items of our previously issued consolidated financial statements of operations for the three and nine months ended September 30, 2019.
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Three months ended September 30, 2019
|
|
As Reported
|
|
Adjustments
|
|
As Revised
|
|
(In thousands)
|
Natural gas sales
|
$
|
213,227
|
|
|
$
|
56,571
|
|
|
$
|
269,798
|
|
Total Revenues
|
$
|
285,175
|
|
|
$
|
56,571
|
|
|
$
|
341,746
|
|
Midstream gathering and processing expenses
|
$
|
78,435
|
|
|
$
|
56,571
|
|
|
$
|
135,006
|
|
Total Operating Expenses(1)
|
$
|
856,130
|
|
|
$
|
56,571
|
|
|
$
|
912,701
|
|
|
|
|
|
|
|
|
Nine months ended September 30, 2019
|
|
As Reported
|
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Adjustments
|
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As Revised
|
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(In thousands)
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Natural gas sales
|
$
|
714,500
|
|
|
$
|
161,911
|
|
|
$
|
876,411
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Total Revenues
|
$
|
1,064,747
|
|
|
$
|
161,911
|
|
|
$
|
1,226,658
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|
Midstream gathering and processing expenses
|
$
|
220,732
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|
|
$
|
161,911
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|
|
$
|
382,643
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Total Operating Expenses(1)
|
$
|
1,324,235
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|
|
$
|
161,911
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|
|
$
|
1,486,146
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|
|
|
|
|
|
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(1)
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Reflects additional immaterial presentation change made in the fourth quarter of 2019.
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Recently Adopted Accounting Standards
On January 1, 2020, the Company adopted ASU No. 2016-13, Financial Instruments-Credit Losses: Measurement of Credit Losses on Financial Instruments, which replaces the incurred loss impairment methodology with a methodology that reflects expected credit losses and requires consideration of a broader range of reasonable and supportable information to inform credit loss estimates. The measurement of expected credit losses is based on relevant information about past events, including historical experience, current conditions and reasonable and supportable forecasts that affect the collectability of the reported amount. The Company adopted the new standard using the prospective transition method, and it did not have a material impact on the Company's consolidated financial statements and related disclosures.
2.PROPERTY AND EQUIPMENT
The major categories of property and equipment and related accumulated depletion, depreciation, amortization ("DD&A") and impairment as of September 30, 2020 and December 31, 2019 are as follows:
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September 30, 2020
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December 31, 2019
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(In thousands)
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Oil and natural gas properties
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$
|
10,786,305
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|
|
$
|
10,595,735
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Accumulated DD&A and impairment
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(8,735,750)
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|
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(7,191,957)
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Oil and natural gas properties, net
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2,050,555
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|
|
3,403,778
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Other depreciable property and equipment
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91,101
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|
|
91,198
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Land
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4,820
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|
|
5,521
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Accumulated DD&A
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(43,954)
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(36,703)
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Other property and equipment, net
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51,967
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|
|
60,016
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Property and equipment, net
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$
|
2,102,522
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|
|
$
|
3,463,794
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Under the full cost method of accounting, the Company is required to perform a ceiling test each quarter. The test determines a limit, or ceiling, on the book value of the Company's oil and natural gas properties. At September 30, 2020, the net book value of the Company's oil and gas properties was above the calculated ceiling primarily as a result of reduced commodity prices for the period leading up to September 30, 2020. As a result, the Company was required to record impairments of its oil and natural gas properties of $270.9 million and $1.4 billion for the three and nine months ended September 30, 2020, respectively. The Company was required to record impairments of its oil and natural gas properties of $571.4 million in each of the three and nine months ended September 30, 2019.
Based on prices for the last nine months and the short-term pricing outlook for the fourth quarter of 2020, recognition of an additional full cost impairment in the fourth quarter of 2020 is possible. The amount of any future impairments is difficult to predict as it depends on future commodity prices, production rates, proved reserves, evaluation of costs excluded from amortization, future development costs and production costs. Any future full cost impairments are not expected to have an impact to the Company's future cash flows or liquidity.
General and administrative costs capitalized to the full cost pool represent management’s estimate of costs incurred directly related to exploration and development activities such as geological and other costs associated with overseeing exploration and development activities. All general and administrative costs not directly associated with exploration and development activities are charged to expense as they are incurred. Capitalized general and administrative costs were approximately $6.2 million and $19.8 million for the three and nine months ended September 30, 2020, respectively, and $9.8 million and $26.3 million for the three and nine months ended September 30, 2019, respectively.
The following table summarizes the Company’s unevaluated properties excluded from amortization by area at September 30, 2020:
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|
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September 30, 2020
|
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(In thousands)
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Utica
|
$
|
850,643
|
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SCOOP
|
674,280
|
|
Other
|
2,018
|
|
|
$
|
1,526,941
|
|
At December 31, 2019, approximately $1.7 billion of unevaluated properties were not subject to amortization.
The Company evaluates the costs excluded from its amortization calculation at least annually. Individually insignificant unevaluated properties are grouped for evaluation and periodically transferred to evaluated properties over a timeframe consistent with their expected development schedule.
Asset Retirement Obligation
A reconciliation of the Company’s asset retirement obligation for the nine months ended September 30, 2020 and 2019 is as follows:
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|
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September 30, 2020
|
|
September 30, 2019
|
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(In thousands)
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Asset retirement obligation, beginning of period
|
$
|
60,355
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|
|
$
|
79,952
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Liabilities incurred
|
2,343
|
|
|
5,769
|
|
Liabilities settled
|
—
|
|
|
(117)
|
|
Liabilities removed due to divestitures
|
(2,033)
|
|
|
(30,035)
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Accretion expense
|
2,270
|
|
|
3,173
|
|
Revisions in estimated cash flows
|
—
|
|
|
1,077
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|
Asset retirement obligation as of end of period
|
$
|
62,935
|
|
|
$
|
59,819
|
|
|
|
|
|
|
|
|
|
3.DIVESTITURES
Sale of Water Infrastructure Assets
On January 2, 2020, the Company closed on the sale of its SCOOP water infrastructure assets to a third-party water service provider. The Company received $50.0 million in cash proceeds upon closing and has an opportunity to earn potential additional incentive payments over the next 15 years, subject to the Company's ability to meet certain thresholds which will be driven by, among other things, the Company's future development program and water production levels. The agreement contained no minimum volume commitments. The fair value of the contingent consideration as of the closing date was $23.1 million. The divested assets were included in the amortization base of the full cost pool and no gain or loss was recognized in the accompanying consolidated statements of operations as a result of the sale.
4.EQUITY INVESTMENTS
Investments accounted for by the equity method consist of the following as of September 30, 2020 and December 31, 2019:
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Carrying value
|
|
(Loss) income from equity method investments
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Approximate ownership %
|
|
September 30, 2020
|
|
December 31, 2019
|
|
Three months ended September 30,
|
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Nine months ended September 30,
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|
|
2020
|
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2019
|
|
2020
|
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2019
|
|
|
|
(In thousands)
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Investment in Grizzly Oil Sands ULC
|
24.6
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%
|
|
$
|
16,521
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|
|
$
|
21,000
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|
|
$
|
(153)
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|
|
$
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(41)
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|
|
$
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(341)
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|
|
$
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(380)
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Investment in Mammoth Energy Services, Inc.
|
21.5
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%
|
|
—
|
|
|
11,005
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|
|
—
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|
|
(43,041)
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|
|
(10,646)
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|
|
(166,096)
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Investment in Windsor Midstream LLC
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22.5
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%
|
|
39
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|
|
39
|
|
|
—
|
|
|
—
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|
|
|
|
—
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Investment in Tatex Thailand II, LLC
|
23.5
|
%
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,085
|
|
|
|
|
$
|
16,560
|
|
|
$
|
32,044
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|
|
$
|
(153)
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|
|
$
|
(43,082)
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|
|
$
|
(10,987)
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|
|
$
|
(164,391)
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|
The tables below summarize financial information for the Company’s equity investments as of September 30, 2020 and December 31, 2019.
Summarized balance sheet information:
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|
|
September 30, 2020
|
|
December 31, 2019
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(In thousands)
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Current assets
|
$
|
463,853
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|
|
$
|
421,326
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Noncurrent assets
|
$
|
1,086,150
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|
|
$
|
1,260,075
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Current liabilities
|
$
|
115,976
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|
|
$
|
132,569
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Noncurrent liabilities
|
$
|
161,183
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|
|
$
|
163,241
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|
Summarized results of operations:
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|
Three months ended September 30,
|
|
Nine months ended September 30,
|
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2020
|
|
2019
|
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2020
|
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2019
|
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(In thousands)
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Gross revenue
|
$
|
70,534
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|
|
$
|
113,417
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|
|
$
|
228,026
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|
|
$
|
557,375
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|
Net (loss) income
|
$
|
2,808
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|
|
$
|
(35,730)
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|
|
$
|
(97,145)
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|
|
$
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(15,046)
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Grizzly Oil Sands ULC
The Company, through its wholly owned subsidiary Grizzly Holdings Inc. (“Grizzly Holdings”), owns an approximate 24.6% interest in Grizzly Oil Sands ULC (“Grizzly”), a Canadian unlimited liability company. The remaining interest in Grizzly is owned by Grizzly Oil Sands Inc. As of September 30, 2020, Grizzly had approximately 830,000 acres under lease in the Athabasca, Peace River and Cold Lake oil sands regions of Alberta, Canada. The Company reviewed its investment in Grizzly for impairment at September 30, 2020 and 2019 and determined no impairment was required. The Company paid $0.4 million in cash calls during the nine months ended September 30, 2019 prior to its election to cease funding further capital calls. Grizzly’s functional currency is the Canadian dollar. The Company’s investment in Grizzly increased by $3.7 million as a result of a foreign currency translation gain and decreased by $4.1 million as a result of a foreign currency translation loss for the three and nine months ended September 30, 2020, respectively. The Company's investment in Grizzly was decreased by a $2.0 million foreign currency translation loss and increased by a $5.2 million foreign currency translation gain for the three and nine months ended September 30, 2019, respectively.
Mammoth Energy Services, Inc.
At September 30, 2020, the Company owned 9,829,548 shares, or approximately 21.5%, of the outstanding common stock of Mammoth Energy Services, Inc. ("Mammoth Energy"). The approximate fair value of the Company's investment in Mammoth Energy at September 30, 2020 was $15.7 million based on the quoted market price of Mammoth Energy's common stock.
At March 31, 2020, the Company's share of net loss of Mammoth was in excess of the carrying value of its investment. As such, the Company's investment value was reduced to zero at March 31, 2020. During the third quarter of 2020, the Company's share of net loss of Mammoth continued to be in excess of the carrying value of its investment and, therefore, the Company's investment value remained at zero at September 30, 2020.
The Company received no distributions from Mammoth Energy during the nine months ended September 30, 2020 and distributions of $2.5 million during the nine months ended September 30, 2019 as a result of $0.125 per share dividend in February 2019 and May 2019. The (loss) income from equity method investments presented in the table above reflects any intercompany profit eliminations.
Windsor Midstream LLC
At September 30, 2020, the Company held a 22.5% interest in Windsor Midstream LLC (“Midstream”), an entity controlled and managed by an unrelated third party. The Company received no distributions from Midstream during the nine months ended September 30, 2020.
Tatex Thailand II, LLC
The Company has an indirect ownership interest in Tatex Thailand II, LLC ("Tatex") and received no distributions and $2.1 million in distributions from Tatex during the nine months ended September 30, 2020 and 2019, respectively. Tatex previously held an 8.5% interest in APICO, LLC (“APICO”), an international oil and gas exploration company, before selling its interest in June 2019. APICO has a reserve base located in Southeast Asia through its ownership of concessions covering approximately 108,000 acres which includes the Phu Horm Field.
5.LONG-TERM DEBT
Long-term debt consisted of the following items as of September 30, 2020 and December 31, 2019:
|
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|
|
|
|
|
|
|
|
|
|
|
September 30, 2020
|
|
December 31, 2019
|
|
(In thousands)
|
Revolving credit agreement(1)
|
$
|
279,857
|
|
|
$
|
120,000
|
|
6.625% senior unsecured notes due 2023
|
324,583
|
|
|
329,467
|
|
6.000% senior unsecured notes due 2024
|
579,568
|
|
|
603,428
|
|
6.375% senior unsecured notes due 2025
|
507,870
|
|
|
529,525
|
|
6.375% senior unsecured notes due 2026
|
374,617
|
|
|
397,529
|
|
Net unamortized debt issuance costs(2)
|
(19,772)
|
|
|
(23,751)
|
|
Construction loan
|
21,969
|
|
|
22,453
|
|
Less: current maturities of long term debt
|
(656)
|
|
|
(631)
|
|
Debt reflected as long term
|
$
|
2,068,036
|
|
|
$
|
1,978,020
|
|
(1) The Company has entered into a senior secured revolving credit facility, as amended (the "revolving credit facility"), with The Bank of Nova Scotia, as the lead arranger and administrative agent and other lenders. The credit agreement provides for a maximum facility of $1.5 billion and matures on December 13, 2021. On May 1, 2020, the Company entered into the fifteenth amendment to the Amended and Restated Credit Agreement. As part of the amendment, the Company's borrowing base and elected commitment were reduced from $1.2 billion and $1.0 billion, respectively, to $700.0 million. Additionally, the amendment added a requirement to maintain a ratio of Net Secured Debt to EBITDAX (as defined under the revolving
credit agreement) not exceeding 2.00 to 1.00, deferred the requirement to maintain a ratio of Net Funded Debt to EBITDAX of 4.00 to 1.00 until September 30, 2021, and added a limitation on the repurchase of unsecured notes, among other amendments.
On July 27, 2020, the Company entered into the sixteenth amendment to the Amended and Restated Credit Agreement. Among other changes, the Sixteenth Amendment amends the Credit Agreement to: (i) require that, in the event of any issuances of Senior Notes, including Second Lien Notes, after the effective date, the then effective borrowing base will be reduced by a variable amount prescribed in the Credit Agreement to the extent the proceeds are not used to satisfy previously issued senior notes within 90 days of such issuance; (ii) require that each Loan Notice specify the amount of the then effective Borrowing Base and Pro Forma Borrowing Base, the Aggregate Elected Commitment Amount, and the current Total Outstandings, both with and without regard to the requested Borrowing; (iii) permit the Borrower or any Restricted Subsidiary to enter into obligations in connection with a Permitted Bond Hedge Transaction or Permitted Warrant Transaction; (iv) permit the Borrower to make any payments of Senior Notes and Subordinated Obligation prior to their scheduled maturity, in any event not to exceed $750 million or, if lesser, the net cash proceeds of any Senior Notes issued within 90 days before such payment; (v) require that the Senior Notes have a stated maturity date of no earlier than March 13, 2024, as well as not require payment of principal prior to such date, in order for the Borrower to be permitted to secure indebtedness under the Senior Notes; (vi) permit certain additional liens securing obligations in respect of the incurrence or issuance of any Permitted Refinancing Notes (as such term is defined in the Credit Agreement) not to exceed $750 million, subject to the terms of an intercreditor agreement; and (vii) amend and restate the Applicable Rate Grid.
As of September 30, 2020, $279.9 million was outstanding under the revolving credit facility and the total availability for future borrowings under this facility, after giving effect to an aggregate of $320.0 million letters of credit, was $100.1 million. The Company’s wholly owned subsidiaries have guaranteed the obligations of the Company under the revolving credit facility.
At September 30, 2020, amounts borrowed under the revolving credit facility bore interest at a weighted average rate of 2.90%. The Company was in compliance with its financial covenants under the revolving credit facility at September 30, 2020.
(2) Loan issuance costs related to the 2023 Notes, the 2024 Notes, the 6.375% Senior Notes due 2025 (the "2025 Notes") and the 6.375% Senior Notes due 2026 (the "2026 Notes") (collectively the “Notes”) have been presented as a reduction to the principal amount of the Notes. At September 30, 2020, total unamortized debt issuance costs were $2.6 million for the 2023 Notes, $5.7 million for the 2024 Notes, $8.1 million for the 2025 Notes and $3.3 million for the 2026 Notes. In addition, loan commitment fee costs for the Company's construction loan agreement were $0.1 million at September 30, 2020.
The Company capitalized approximately $0.2 million and $0.9 million in interest expense to its unevaluated oil and natural gas properties during the three and nine months ended September 30, 2020, respectively. The Company capitalized approximately $1.0 million and $2.8 million in interest expense to its unevaluated oil and natural gas properties during the three and nine months ended September 30, 2019, respectively.
Debt Repurchases
In 2019, the Company's Board of Directors authorized $200 million of cash to be used to repurchase its senior notes in the open market at discounted values to par. The Company used borrowings under its revolving credit facility to repurchase in the open market $73.3 million aggregate principal amount of its outstanding Notes for $22.8 million during the nine months ended September 30, 2020. The Company recognized a $49.6 million gain on debt extinguishment, which included retirement of unamortized issuance costs and fees associated with the repurchased debt, during the nine months ended September 30, 2020. This gain is included in gain on debt extinguishment in the accompanying consolidated statements of operations. On May 1, 2020, further repurchases under this program were limited due to the agreements entered into under the fifteenth amendment to the Amended and Restated Credit Agreement of the Company's credit facility. As such, there were no repurchases during the three months ended September 30, 2020.
Fair Value of Debt
At September 30, 2020, the carrying value of the outstanding debt represented by the Notes was approximately $1.8 billion. Based on the quoted market prices (Level 1), the fair value of the Notes was determined to be approximately $1.1 billion at September 30, 2020.
Subsequent Event
On October 8, 2020, the Company's borrowing base under its revolving credit facility was reduced for the second time during 2020. The October redetermination reduced the Company's borrowing base from $700 million to $580 million, thereby significantly reducing available liquidity.
Additionally, the Company elected not to make an interest payment of $17.4 million due October 15, 2020 on the 2024 Notes. The Company elected not to make an interest payment of $10.8 million due November 2, 2020 on the 2023 Notes. The elections to defer the interest payments do not constitute an “Event of Default” as defined under the Indentures if the interest payments are made within 30 days of the due date. If the Company does not make such interest payments within such 30-day period, there will be an event of default under the Indentures upon expiration of the grace period and there can be no assurance that it will have sufficient funds to pay such interest payments prior to such time.
Additionally, on October 15, 2020, the Company entered into the First Forbearance Agreement. Pursuant to the First Forbearance Agreement, the lender parties have agreed to (i) temporarily waive any default in connection with the non-payment of interest on the 2024 Notes within 30 days of becoming due prior to its occurrence without any further action and (ii) forbear from exercising certain of their default-related rights and remedies against the Company and the other loan parties with respect to any default in connection with the Specified Default, in each case, until the earlier of October 29, 2020 or another event that would trigger the end of the forbearance period. On October 26, 2020, the Company entered into the Second Forbearance Agreement, which extends the First Forbearance Agreement. Pursuant to the Second Forbearance Agreement, the lender parties have agreed to (i) temporarily waive any default in connection with the Specified Default prior to its occurrence without any further action, (ii) expand the definition of "Specified Default" to include the failure to make the interest payment on the 2023 Notes within 30 days of becoming due and (iii) extend the agreement to forbear from exercising certain of their default-related rights and remedies against the Company and the other loan parties with respect to any default in connection with the Specified Default, in each case, until the earlier of November 13, 2020 or another event that would trigger the end of the forbearance period.
As of November 5, 2020, $355.5 million was outstanding under the revolving credit facility, after giving effect to an aggregate of $243.7 million letters of credit outstanding, the Company had no availability under its revolver. As of November 5, 2020, the Company had $61.7 million in cash on hand to fund ongoing operations.
6.CHANGES IN CAPITALIZATION
Stock Repurchases
In January 2019, the Company's Board of Directors approved a stock repurchase program to acquire a portion of the Company's outstanding common stock within a 24-month period. The program was suspended in the fourth quarter of 2019, and the May 1, 2020 amendment to the Company's revolving credit facility prohibits further stock repurchases. As a result, the Company did not repurchase any shares under the program during 2020, and repurchased approximately 3.8 million shares for a cost of approximately $30.0 million during the nine months ended September 30, 2019.
Additionally, during the three and nine months ended September 30, 2020, the Company repurchased approximately 136,000 and 243,000 shares, respectively, for a cost of $0.1 million and $0.2 million, respectively, to satisfy tax withholding requirements incurred upon the vesting of restricted stock. During the three and nine months ended September 30, 2019, the Company repurchased approximately 36,000 and 123,000 shares, respectively, for a cost of approximately $0.1 million and $0.7 million, respectively, to satisfy tax withholding requirements incurred upon the vesting of restricted stock. All repurchased shares have been canceled and returned to the status of authorized but unissued shares.
7.STOCK-BASED COMPENSATION
The Company has granted restricted stock units to employees and directors pursuant to the 2019 Amended and Restated Incentive Stock Plan ("2019 Plan"), as discussed below. In August 2020, all of the outstanding stock-based compensation issued to executives and the Board of Directors during 2020 was canceled and replaced with cash retention incentives, as discussed below. During the three and nine months ended September 30, 2020, the Company’s stock-based compensation cost was $8.9 million and $13.2 million, respectively, of which the Company capitalized $0.3 million and $2.2 million, respectively, relating to its exploration and development efforts. During the three and nine months ended September 30, 2019, the Company’s stock-based compensation cost was $2.7 million and $8.3 million, respectively, of which the Company capitalized
$1.1 million and $3.3 million, respectively, relating to its exploration and development efforts. Stock compensation costs, net of the amounts capitalized, are included in general and administrative expenses in the accompanying consolidated statements of operations.
The following table summarizes restricted stock unit activity for the nine months ended September 30, 2020:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
Unvested
Restricted Stock Units
|
|
Weighted
Average
Grant Date
Fair Value
|
|
Number of
Unvested
Performance Vesting Restricted Stock Units
|
|
Weighted
Average
Grant Date
Fair Value
|
Unvested shares as of January 1, 2020
|
4,098,318
|
|
|
$
|
4.73
|
|
|
1,783,660
|
|
|
$
|
2.96
|
|
Granted
|
3,069,521
|
|
|
0.85
|
|
|
—
|
|
|
—
|
|
Vested
|
(1,294,285)
|
|
|
5.73
|
|
|
—
|
|
|
—
|
|
Forfeited/canceled
|
(4,166,493)
|
|
|
1.67
|
|
|
(943,065)
|
|
|
1.98
|
|
Unvested shares as of September 30, 2020
|
1,707,061
|
|
|
$
|
4.73
|
|
|
840,595
|
|
|
$
|
4.07
|
|
Restricted Stock Units
Restricted stock units awarded under the 2019 Plan generally vest over a period of one year in the case of directors and three years in the case of employees and vesting is dependent upon the recipient meeting applicable service requirements. Stock-based compensation costs are recorded ratably over the service period. The grant date fair value of restricted stock units represents the closing market price of the Company's common stock on the date of grant. Unrecognized compensation expense as of September 30, 2020 related to restricted stock units was $6.4 million. The expense is expected to be recognized over a weighted average period of 1.52 years.
Performance Vesting Restricted Stock Units
The Company has awarded performance vesting units to certain of its executive officers under the 2019 Plan. The number of shares of common stock issued pursuant to the award will be based on relative total shareholder return ("RTSR"). RTSR is an incentive measure whereby participants will earn from 0% to 200% of the target award based on the Company’s RTSR ranking compared to the RTSR of the companies in the Company’s designated peer group at the end of the performance period. Awards will be earned and vested over a performance period measured from January 1, 2019 to December 31, 2021, subject to earlier termination of the performance period in the event of a change in control. Unrecognized compensation expense as of September 30, 2020 related to performance vesting restricted shares was $1.7 million. The expense is expected to be recognized over a weighted average period of 1.51 years.
Cash Incentive Awards
On March 16, 2020, the Board of Directors of the Company approved the Company's 2020 Incentive Plan (the "2020 Incentive Plan"). The 2020 Incentive Plan provided for incentive compensation opportunities ("Incentive Awards") for select employees of the Company that were tied to the achievement of one or more performance goals relating to certain financial and operational metrics over a period of time. During March 2020, the Company awarded Incentive Awards to certain of its executive officers under the 2020 Incentive Plan. The cash amount of each award to be ultimately received was based on the attainment of certain financial, operational and total shareholder return performance targets and was subject to the recipient's continuous employment. The Incentive Awards were considered liability awards as the ultimate amount of the award was based, at least in part, on the price of the Company's shares, and as such, were remeasured to fair value at the end of each reporting period. In August 2020 all previous unpaid amounts related to the Incentive Awards issued under the 2020 Incentive Plan were canceled and replaced with cash retention incentives, as discussed below.
2020 Compensation Adjustments
On August 4, 2020, the Company's Board of Directors authorized a redesign of the incentive compensation program for the Company's workforce, including for its current named executive officers. In connection with a comprehensive review of the Company’s compensation programs and in consultation with its independent compensation consultant and legal advisors, the Board of Directors determined that significant changes were appropriate to retain and motivate the Company’s employees as a result of the ongoing uncertainty and unprecedented disruption in the oil and gas industry.
All unpaid amounts previously awarded pursuant to the 2020 Incentive Plan and all restricted stock units granted in 2020 issued to the Company's named executive officers were cancelled and replaced with cash retention incentives. These cash retention incentives are equally weighted between achievement of certain specified performance metrics and a service period. Of the cash retention incentives, 50% may be clawed back on an after-tax basis if an executive officer terminates employment for any reason other than a qualifying termination prior to the earlier of July 31, 2021, a change in control or completion of a restructuring, and the remaining 50% will be subject to repayment on an after-tax basis if established performance metrics are not met over performance periods from August 1, 2020 through July 31, 2021. In total, $13.5 million in cash retention incentives were paid to the Company's executives in August 2020.
The transactions were considered a modification to the previously issued equity- and liability-classified awards, and the previously issued equity-classified awards were reclassified as liability awards. The after-tax value of the cash incentives paid to the Company's executives of $5.2 million as of September 30, 2020 was capitalized to prepaid expenses and other current assets in the accompanying consolidated balance sheets and will be amortized over the remaining service period. The Company immediately expensed the difference between the cash and after-tax value of the prepaid cash incentives of $4.8 million, which is not subject to the clawback provisions, and recognized an additional $1.5 million in stock compensation expense to adjust for the difference in cash retention amounts paid and expense previously recognized on the modified awards at the modification date.
8.EARNINGS (LOSS) PER SHARE
Reconciliations of the components of basic and diluted net income per common share are presented in the tables below:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30,
|
|
2020
|
|
2019
|
|
Loss
|
|
Shares
|
|
Per
Share
|
|
Loss
|
|
Shares
|
|
Per
Share
|
|
(In thousands, except share data)
|
Basic:
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
$
|
(380,963)
|
|
|
160,682,629
|
|
|
$
|
(2.37)
|
|
|
$
|
(484,802)
|
|
|
159,548,477
|
|
|
$
|
(3.04)
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
Stock awards
|
—
|
|
|
—
|
|
|
|
|
—
|
|
|
—
|
|
|
|
Diluted:
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
$
|
(380,963)
|
|
|
160,682,629
|
|
|
$
|
(2.37)
|
|
|
$
|
(484,802)
|
|
|
159,548,477
|
|
|
$
|
(3.04)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine months ended September 30,
|
|
2020
|
|
2019
|
|
Loss
|
|
Shares
|
|
Per
Share
|
|
Loss
|
|
Shares
|
|
Per
Share
|
|
(In thousands, except share data)
|
Basic:
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
$
|
(1,459,569)
|
|
|
160,053,093
|
|
|
$
|
(9.12)
|
|
|
$
|
(187,604)
|
|
|
160,553,796
|
|
|
$
|
(1.17)
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
Stock options and awards
|
—
|
|
|
—
|
|
|
|
|
—
|
|
|
—
|
|
|
|
Diluted:
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
$
|
(1,459,569)
|
|
|
160,053,093
|
|
|
$
|
(9.12)
|
|
|
$
|
(187,604)
|
|
|
160,553,796
|
|
|
$
|
(1.17)
|
|
There were no potential shares of common stock that were considered anti-dilutive for the three and nine months ended September 30, 2020. There were 2,073,638 and 4,266,206 potential shares of common stock that were considered anti-dilutive for the three and nine months ended September 30, 2019, respectively.
9.COMMITMENTS AND CONTINGENCIES
Future Firm Sales Commitments
The Company has entered into various firm sales contracts to deliver and sell natural gas. The Company expects to fulfill its delivery commitments primarily with production from proved developed reserves. The Company's proved reserves have generally been sufficient to satisfy its delivery commitments during the three most recent years, and it expects such reserves will continue to be the primary means of fulfilling its future commitments. However, where the Company's proved reserves are not sufficient to satisfy its delivery commitments, it can and may use spot market purchases to satisfy the commitments.
A summary of these commitments at September 30, 2020 are set forth in the table below:
|
|
|
|
|
|
|
|
|
|
|
(MMBtu per day)
|
Remaining 2020
|
|
286,000
|
|
2021
|
|
183,000
|
|
2022
|
|
70,000
|
|
2023
|
|
17,000
|
|
|
|
|
|
|
|
Total
|
|
556,000
|
Future Firm Transportation Commitments
The Company has contractual commitments with pipeline carriers for future transportation of natural gas from the Company's production areas to downstream markets. Commitments related to future firm transportation agreements are not recorded as obligations in the accompanying consolidated balance sheets; however, the costs associated with these commitments are reflected in the Company's estimates of proved reserves and future net revenues. Effective September 14, 2020, the Company entered into an amendment to the precedent agreement dated March 15, 2017 with Midship Pipeline Company, LLC ("Midship") to decrease firm transportation commitment volumes for the remainder of 2020 and 2021, requiring a prepayment for reservation charges and other covered obligations of $32.9 million. This prepayment is included in other assets in the accompanying consolidated balance sheets.
A summary of these commitments at September 30, 2020 are set forth in the table below:
|
|
|
|
|
|
|
|
|
|
|
|
|
Total MMBtu
|
|
(In thousands)
|
Remaining 2020
|
126,960,000
|
|
|
$
|
67,458
|
|
2021
|
510,575,000
|
|
|
278,805
|
|
2022
|
535,414,000
|
|
|
288,135
|
|
2023
|
520,114,000
|
|
|
284,454
|
|
2024
|
493,841,000
|
|
|
267,077
|
|
Thereafter
|
3,791,093,000
|
|
|
2,220,685
|
|
Total
|
5,977,997,000
|
|
|
$
|
3,406,614
|
|
As of September 30, 2020, the Company had entered into firm transportation contracts to deliver approximately 1,380,000 and 1,399,000 MMBtu per day for the remainder of 2020 and 2021, respectively. Under these firm transportation contracts, the Company is obligated to deliver minimum daily volumes or pay fees for any deficiencies in deliveries. As a result of the reduced production from the Company's Utica Shale or SCOOP acreage due to decreased developmental activities, taking into consideration the current low commodity price environment, the Company expects that its future production levels will be below the commitment amounts under the existing firm transportation contracts, resulting in excess firm transportation costs, which may be significant and may have a material adverse effect on its operations.
Other Commitments
Effective October 1, 2014, the Company entered into a Sand Supply Agreement with Muskie Proppant LLC (“Muskie”), a subsidiary of Mammoth Energy and a related party. Pursuant to this agreement, as amended effective August 3, 2018, the Company agreed to purchase annual and monthly amounts of proppant sand subject to exceptions specified in the agreement at agreed pricing plus agreed costs and expenses through 2021. Failure by either Muskie or the Company to deliver or accept the minimum monthly amount results in damages calculated per ton based on the difference between the monthly obligation amount and the amount actually delivered or accepted, as applicable. The Company incurred $1.9 million and $5.6 million in non-utilization fees under this agreement during the three and nine months ended September 30, 2020, respectively. The Company incurred $0.02 million and $0.4 million in non-utilization fees under this agreement during the three and nine months ended September 30, 2019, respectively. In August 2020, Muskie filed an action against the Company alleging that it breached its obligation to purchase a certain amount of proppant sand each month or make designated shortfall payments under the Sand Supply Agreement. See “Litigation and Regulatory Proceedings” below.
Future minimum commitments under this agreement at September 30, 2020 are:
|
|
|
|
|
|
|
(In thousands)
|
Remaining 2020
|
$
|
1,875
|
|
2021
|
7,500
|
|
|
|
Total
|
$
|
9,375
|
|
Litigation and Regulatory Proceedings
The Company is involved in a number of litigation and regulatory proceedings including those described below. Many of these proceedings are in early stages, and many of them seek or may seek damages and penalties, the amount of which is indeterminate. The Company's total accrued liabilities in respect of litigation and regulatory proceedings is determined on a case-by-case basis and represents an estimate of probable losses after considering, among other factors, the progress of each case or proceeding, its experience and the experience of others in similar cases or proceedings, and the opinions and views of legal counsel. Significant judgment is required in making these estimates and their final liabilities may ultimately be materially different.
The Company, along with a number of other oil and gas companies, has been named as a defendant in two separate complaints, one filed by the State of Louisiana and the Parish of Cameron in the 38th Judicial District Court for the Parish of Cameron on February 9, 2016 and the other filed by the State of Louisiana and the District Attorney for the 15th Judicial District of the State of Louisiana in the 15th Judicial District Court for the Parish of Vermilion on July 29, 2016 (together, the "Complaints"). The Complaints allege that certain of the defendants’ operations violated the State and Local Coastal Resources Management Act of 1978, as amended, and the rules, regulations, orders and ordinances adopted thereunder (the "CZM Laws") by causing substantial damage to land and waterbodies located in the coastal zone of the relevant Parish. The plaintiffs seek damages and other appropriate relief under the CZM Laws, including the payment of costs necessary to clear, re-vegetate, detoxify and otherwise restore the affected coastal zone of the relevant Parish to its original condition, actual restoration of such coastal zone to its original condition, and the payment of reasonable attorney fees and legal expenses and interest. The United States District Court for the Western District of Louisiana issued orders remanding the cases to their respective state court, and the defendants have appealed the remand orders to the 5th Circuit Court of Appeals.
In July 2019, Pigeon Land Company, Inc., a successor in interest to certain of the Company’s legacy Louisiana properties, filed an action against the Company and many other oil and gas companies in the 16th Judicial District Court for the Parish of Iberia in Louisiana. The suit alleges negligence, strict liability and various violations of Louisiana statutes relating to property damage in connection with the historic development of the Company’s Louisiana properties and seeks unspecified damages (including punitive damages), an injunction to return the affected property to its original condition, and the payment of reasonable attorney fees and legal expenses and interest.
In September 2019, a stockholder of Mammoth Energy filed a derivative action on behalf of Mammoth Energy against members of Mammoth Energy’s board of directors, including a director designated by the Company, and its significant stockholders, including the Company, in the United States District Court for the Western District of Oklahoma. The complaint alleges, among other things, that the members of Mammoth Energy’s board of directors breached their fiduciary duties and violated the Securities Exchange Act of 1934, as amended, in connection with Mammoth Energy’s activities in Puerto Rico
following Hurricane Maria. The complaint seeks unspecified damages, the payment of reasonable attorney fees and legal expenses and interest and to force Mammoth Energy and its board of directors to make specified corporate governance reforms.
In October 2019, Kelsie Wagner, in her capacity as trustee of various trusts and on behalf of the trusts and other similarly situated royalty owners, filed an action against the Company in the District Court of Grady County, Oklahoma. The suit alleges that the Company underpaid royalty owners and seeks unspecified damages for violations of the Oklahoma Production Revenue Standards Act and fraud.
In March 2020, Robert F. Woodley, individually and on behalf of all others similarly situated, filed a federal securities class action against the Company, David M. Wood, Keri Crowell and Quentin R. Hicks in the United States District Court for the Southern District of New York. The complaint alleges that the Company made materially false and misleading statements regarding the Company’s business and operations in violation of the federal securities laws and seeks unspecified damages, the payment of reasonable attorneys’ fees, expert fees and other costs, pre-judgment and post-judgment interest, and such other and further relief that may be deemed just and proper.
In June 2020, Sam L. Carter, derivatively on behalf of the Company, filed an action against certain of our current and former executive officers and directors in the United States District Court for the District of Delaware. The complaint alleged that the defendants breached their fiduciary duties to the Company in connection with certain alleged materially false and misleading statements regarding our business and operations in violation of the federal securities laws. The complaint sought to recover unspecified damages from the defendants, the implementation of specified corporate governance reforms, reasonable attorneys’ and experts’ fees, costs and expenses, and such other relief as may be deemed just and proper. The complaint was voluntarily dismissed without prejudice by the plaintiff in October 2020.
In December 2019, the Company filed a lawsuit against Stingray Pressure Pumping LLC, a subsidiary of Mammoth Energy (“Stingray”), for breach of contract and to terminate the Master Services Agreement for pressure pumping services, effective as of October 1, 2014, as amended (the “Master Services Agreement”), between Stingray and the Company. In March 2020, Stingray filed a counterclaim against the Company in the Superior Court of the State of Delaware. The counterclaim alleges that the Company has breached the Master Services Agreement. The counterclaim seeks actual damages, which the complaint calculates to be approximately $37.0 million as of September 2020 (such amount to increase each month), the payment of reasonable attorney fees and legal expenses and pre- and post-judgment interest as allowed, and such other and further relief which it may be justly entitled.
In April 2020, Bryon Lefort, individually and on behalf of similarly situated individuals, filed an action against the Company in the United States District Court for the Southern District of Ohio Eastern Division. The complaint alleges that the Company violated the Fair Labor Standards Act (“FLSA”), the Ohio Wage Act and the Ohio Prompt Pay Act by classifying the plaintiffs as independent contractors and paying them a daily rate with no overtime compensation for hours worked in excess of 40 hours per week. The complaint seeks to recover unpaid regular and overtime wages, liquidated damages in an amount equal to six of all unpaid overtime compensation, the payment of reasonable attorney fees and legal expenses and pre-judgment and post-judgment interest, and such other damages that may be owed to the workers.
In August 2020, Muskie filed an action against the Company in the Superior Court of the State of Delaware for breach of contract. The complaint alleges that the Company breached its obligation to purchase a certain amount of proppant sand each month or make designated shortfall payments under the Sand Supply Agreement, effective October 1, 2014, as amended (the “Sand Supply Agreement”), between Muskie and the Company, and seeks payment of unpaid shortfall payments, which are estimated to be approximately $2.5 million as of September 2020, the payment of reasonable attorney’s fees and legal costs and expenses and pre- and post-judgment interest as allowed, and such other and further relief to which it may be justly entitled.
These cases are still in their early stages. As a result, the Company has not had the opportunity to evaluate the allegations made in the plaintiffs' complaints and intends to vigorously defend the suits.
SEC Investigation
The SEC has commenced an investigation with respect to certain actions by former Company management, including alleged improper personal use of Company assets, and potential violations by former management and the Company of the Sarbanes-Oxley Act of 2002 in connection with such actions. The Company has fully cooperated and intends to continue to cooperate fully with the SEC’s investigation. Although it is not possible to predict the ultimate resolution or financial liability
with respect to this matter, the Company believes that the outcome of this matter will not have a material effect on the Company’s business, financial condition or results of operations.
Business Operations
The Company is involved in various lawsuits and disputes incidental to its business operations, including commercial disputes, personal injury claims, royalty claims, property damage claims and contract actions.
Environmental Contingencies
The nature of the oil and gas business carries with it certain environmental risks for Gulfport and its subsidiaries. Gulfport and its subsidiaries have implemented various policies, programs, procedures, training and audits to reduce and mitigate environmental risks. They conduct periodic reviews, on a company-wide basis, to assess changes in their environmental risk profile. Environmental reserves are established for environmental liabilities for which economic losses are probable and reasonably estimable. The Company manages its exposure to environmental liabilities in acquisitions by using an evaluation process that seeks to identify pre-existing contamination or compliance concerns and address the potential liability. Depending on the extent of an identified environmental concern, they may, among other things, exclude a property from the transaction, require the seller to remediate the property to their satisfaction in an acquisition or agree to assume liability for the remediation of the property.
In October 2018, the company submitted a Voluntary Disclosure document to the Oklahoma Department of Environmental Quality (ODEQ) stemming from improper air permitting at several sites in Midcon between 2014 and 2017. The sites were permitted by Vitruvian prior to the Company's purchase of those assets. The sites were permitted utilizing the “permit by rule” regulation but actually required Title V air permits. The Company has agreed in a final Consent Order to obtain the proper permits and to pay the costs from not having the proper permits in place in the amount of $180,000 to the ODEQ. The Order received final approval at the ODEQ and was finalized in October 2020.
Other Matters
Based on management’s current assessment, they are of the opinion that no pending or threatened lawsuit or dispute relating to its business operations is likely to have a material adverse effect on their future consolidated financial position, results of operations or cash flows. The final resolution of such matters could exceed amounts accrued, however, and actual results could differ materially from management’s estimates.
10.DERIVATIVE INSTRUMENTS
Natural Gas, Oil and Natural Gas Liquids Derivative Instruments
The Company seeks to reduce its exposure to unfavorable changes in natural gas, oil and natural gas liquids ("NGL") prices, which are subject to significant and often volatile fluctuation, by entering into over-the-counter fixed price swaps, basis swaps, costless collars and various types of option contracts. These contracts allow the Company to predict with greater certainty the effective natural gas, oil and NGL prices to be received for hedged production and benefit operating cash flows and earnings when market prices are less than the fixed prices provided in the contracts. However, the Company will not benefit from market prices that are higher than the fixed prices in the contracts for hedged production.
Fixed price swaps are settled monthly based on differences between the fixed price specified in the contract and the referenced settlement price. When the referenced settlement price is less than the price specified in the contract, the Company receives an amount from the counterparty based on the price difference multiplied by the volume. Similarly, when the referenced settlement price exceeds the price specified in the contract, the Company pays the counterparty an amount based on the price difference multiplied by the volume. The prices contained in these fixed price swaps are based on the NYMEX Henry Hub for natural gas, the NYMEX West Texas Intermediate for oil and Mont Belvieu for propane, pentane and ethane. Below is a summary of the Company’s open fixed price swap positions as of September 30, 2020.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
Daily Volume
(MMBtu/day)
|
|
Weighted
Average Price
|
Remaining 2020
|
NYMEX Henry Hub
|
500,000
|
|
|
$
|
2.69
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
Daily Volume
(Bbls/day)
|
|
Weighted
Average Price
|
|
|
|
|
|
|
|
|
|
|
Remaining 2020
|
NYMEX WTI
|
3,000
|
|
|
$
|
35.49
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
Daily Volume
(Bbls/day)
|
|
Weighted
Average Price
|
|
|
|
|
|
Remaining 2020
|
Mont Belvieu C3
|
1,500
|
|
|
$
|
20.27
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company sold call options in exchange for a premium, and used the associated premiums to enhance the fixed price for a portion of the fixed price natural gas swaps primarily for 2020 listed above. Each call option has an established ceiling price. When the referenced settlement price is above the price ceiling established by these call options, the Company pays its counterparty an amount equal to the difference between the referenced settlement price and the price ceiling multiplied by the hedged contract volumes.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
Daily Volume
(MMBtu/day)
|
|
Weighted Average Price
|
|
|
|
|
|
2022
|
NYMEX Henry Hub
|
628,000
|
|
|
$
|
2.90
|
|
2023
|
NYMEX Henry Hub
|
628,000
|
|
|
$
|
2.90
|
|
|
|
|
|
|
The Company entered into costless collars based off the NYMEX Henry Hub natural gas index. Each two-way price collar has a set floor and ceiling price for the hedged production. If the applicable monthly price indices are outside of the ranges set by the floor and ceiling prices in the various collars, the Company will cash-settle the difference with the counterparty.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location
|
Daily Volume (MMBtu/day)
|
|
Weighted Average Floor Price
|
|
Weighted Average Ceiling Price
|
2021
|
NYMEX Henry Hub
|
250,000
|
|
|
$
|
2.46
|
|
|
$
|
2.81
|
|
In addition, the Company entered into natural gas basis swap positions. As of September 30, 2020, the Company had the following natural gas basis swap positions open:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gulfport Pays
|
Gulfport Receives
|
Daily Volume
(MMBtu/day)
|
|
Weighted Average Fixed Spread
|
Remaining 2020
|
Transco Zone 4
|
NYMEX Plus Fixed Spread
|
60,000
|
|
|
$
|
(0.05)
|
|
|
|
|
|
|
|
Remaining 2020
|
Fixed Spread
|
ONEOK Minus NYMEX
|
10,000
|
|
|
$
|
(0.54)
|
|
Subsequent Event
In October 2020, the Company early terminated natural gas basis swaps which represented approximately 40,000 MMBtu of natural gas per day for the remainder of 2020. The early termination resulted in the Company receiving a cash settlement of $0.2 million.
Additionally, in late October 2020 and early November 2020, the Company early terminated 475,000 MMBtu/day of 2022 sold calls with a strike price of $2.90. The early termination resulted in the Company incurring approximately $60.2 million of additional indebtedness on its revolving credit facility.
Contingent Consideration Arrangement
The Company sold its non-core assets located in the West Cote Blanche Bay and Hackberry fields of Louisiana in July 2019. The sale price included the potential for the Company to receive contingent payments based on commodity prices exceeding specified thresholds over the two years following the closing date. This contingent consideration arrangement was determined to be an embedded derivative. See below for threshold and potential payment amounts.
|
|
|
|
|
|
|
|
|
Period
|
Threshold(1)
|
Payment to be received(2)
|
July 2020 - June 2021
|
Greater than or equal to $60.65
|
$
|
150,000
|
|
|
Between $52.62 - $60.65
|
Calculated Value(3)
|
|
Less than or equal to $52.62
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Based on the "WTI NYMEX + Argus LLS Differential," as published by Argus Media.
|
(2)
|
Payment will be assessed monthly from July 2020 through June 2021. If threshold is met, payment shall be received within five business days after the end of each calendar month.
|
(3)
|
If average daily price, as defined in (1), is greater than $52.62 but less than $60.65, payment received will be $150,000 multiplied by a fraction, the numerator of which is the amount determined by subtracting $52.62 from such average daily price, and the denominator of which is $8.03.
|
Balance Sheet Presentation
The Company reports the fair value of derivative instruments on the consolidated balance sheets as derivative instruments under current assets, noncurrent assets, current liabilities and noncurrent liabilities on a gross basis. The Company determines the current and noncurrent classification based on the timing of expected future cash flows of individual trades. The following table presents the fair value of the Company’s derivative instruments on a gross basis at September 30, 2020 and December 31, 2019:
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2020
|
|
December 31, 2019
|
|
(In thousands)
|
Commodity Contracts:
|
|
|
|
Short-term derivative asset
|
$
|
6,245
|
|
|
$
|
125,383
|
|
Long-term derivative asset
|
1,098
|
|
|
—
|
|
Short-term derivative liability
|
(24,164)
|
|
|
(303)
|
|
Long-term derivative liability
|
(63,803)
|
|
|
(53,135)
|
|
Total commodity derivative position
|
$
|
(80,624)
|
|
|
$
|
71,945
|
|
|
|
|
|
Contingent consideration arrangement:
|
|
|
|
Short-term derivative asset
|
$
|
—
|
|
|
$
|
818
|
|
Long-term derivative asset
|
—
|
|
|
563
|
|
Total contingent consideration derivative position
|
$
|
—
|
|
|
$
|
1,381
|
|
|
|
|
|
Total net (liability) asset derivative position
|
$
|
(80,624)
|
|
|
$
|
73,326
|
|
Gains and Losses
The following table presents the gain and loss recognized in net gain on natural gas, oil and NGL derivatives in the accompanying consolidated statements of operations for the three and nine months ended September 30, 2020 and 2019.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) gain on derivative instruments
|
|
Three months ended September 30,
|
|
Nine months ended September 30,
|
|
2020
|
|
2019
|
|
2020
|
|
2019
|
|
(In thousands)
|
Natural gas derivatives
|
$
|
(52,648)
|
|
|
$
|
11,731
|
|
|
$
|
28,894
|
|
|
$
|
147,774
|
|
Oil derivatives
|
(782)
|
|
|
12,736
|
|
|
44,155
|
|
|
24,153
|
|
NGL derivatives
|
(393)
|
|
|
3,641
|
|
|
(254)
|
|
|
7,276
|
|
Contingent consideration arrangement
|
—
|
|
|
(1,034)
|
|
|
(1,381)
|
|
|
(1,034)
|
|
Total
|
$
|
(53,823)
|
|
|
$
|
27,074
|
|
|
$
|
71,414
|
|
|
$
|
178,169
|
|
Offsetting of Derivative Assets and Liabilities
As noted above, the Company records the fair value of derivative instruments on a gross basis. The following table presents the gross amounts of recognized derivative assets and liabilities in the consolidated balance sheets and the amounts that are subject to offsetting under master netting arrangements with counterparties, all at fair value.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2020
|
|
Gross Assets (Liabilities)
|
|
Gross Amounts
|
|
|
|
Presented in the
|
|
Subject to Master
|
|
Net
|
|
Consolidated Balance Sheets
|
|
Netting Agreements
|
|
Amount
|
|
(In thousands)
|
Derivative assets
|
$
|
7,343
|
|
|
$
|
(6,948)
|
|
|
$
|
395
|
|
Derivative liabilities
|
$
|
(87,967)
|
|
|
$
|
6,948
|
|
|
$
|
(81,019)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2019
|
|
Gross Assets (Liabilities)
|
|
Gross Amounts
|
|
|
|
Presented in the
|
|
Subject to Master
|
|
Net
|
|
Consolidated Balance Sheets
|
|
Netting Agreements
|
|
Amount
|
|
(In thousands)
|
Derivative assets
|
$
|
126,764
|
|
|
$
|
(53,438)
|
|
|
$
|
73,326
|
|
Derivative liabilities
|
$
|
(53,438)
|
|
|
$
|
53,438
|
|
|
$
|
—
|
|
Concentration of Credit Risk
By using derivative instruments that are not traded on an exchange, the Company is exposed to the credit risk of its counterparties. Credit risk is the risk of loss from counterparties not performing under the terms of the derivative instrument. When the fair value of a derivative instrument is positive, the counterparty is expected to owe the Company, which creates credit risk. To minimize the credit risk in derivative instruments, it is the Company’s policy to enter into derivative contracts only with counterparties that are creditworthy financial institutions deemed by management as competent and competitive market makers. The Company’s derivative contracts are with multiple counterparties to lessen its exposure to any individual counterparty. Additionally, the Company uses master netting agreements to minimize credit risk exposure. The creditworthiness of the Company’s counterparties is subject to periodic review. None of the Company’s derivative instrument contracts contain credit-risk related contingent features. Other than as provided by the Company’s revolving credit facility, the Company is not required to provide credit support or collateral to any of its counterparties under its derivative instruments, nor are the counterparties required to provide credit support to the Company.
11.RESTRUCTURING AND LIABILITY MANAGEMENT
In the third quarter of 2020, the Company announced and completed a workforce reduction representing approximately 10% of its headcount. Charges related to the reduction in workforce primarily consisted of one-time employee-related termination benefits. Additionally, the Company incurred charges related to financial and legal advisors engaged to assist with the evaluation of a range of liability management alternatives. The Company expects to continue to incur charges related to liability management through the fourth quarter of 2020 and into 2021. The following table summarizes the costs incurred related to these for the three and nine months ended September 30, 2020.
|
|
|
|
|
|
|
|
|
|
|
|
|
Three months ended September 30, 2020
|
|
Nine months ended September 30, 2020
|
|
(in thousands)
|
Reduction in workforce
|
$
|
1,460
|
|
|
$
|
1,460
|
|
Liability management
|
7,524
|
|
|
8,141
|
|
Total restructuring and liability management
|
$
|
8,984
|
|
|
$
|
9,601
|
|
12.FAIR VALUE MEASUREMENTS
The Company records certain financial and non-financial assets and liabilities on the balance sheet at fair value. Fair value is the price that would be received to sell an asset or paid to transfer a liability (exit price) in an orderly transaction between market participants at the measurement date. Market or observable inputs are the preferred sources of values, followed by assumptions based on hypothetical transactions in the absence of market inputs. Fair value measurements are classified and disclosed in one of the following categories:
Level 1 – Quoted prices in active markets for identical assets and liabilities.
Level 2 – Quoted prices in active markets for similar assets and liabilities, quoted prices for identical or similar instruments in markets that are not active and model-derived valuations whose inputs are observable or whose significant value drivers are observable.
Level 3 – Significant inputs to the valuation model are unobservable.
Valuation techniques that maximize the use of observable inputs are favored. Financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the placement of assets and liabilities within the levels of the fair value hierarchy. Reclassifications of fair value between Level 1, Level 2 and Level 3 of the fair value hierarchy, if applicable, are made at the end of each quarter.
The following tables summarize the Company’s financial and non-financial assets and liabilities by valuation level as of September 30, 2020 and December 31, 2019:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30, 2020
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
(In thousands)
|
Assets:
|
|
|
|
|
|
Derivative Instruments
|
$
|
—
|
|
|
$
|
7,343
|
|
|
$
|
—
|
|
Liabilities:
|
|
|
|
|
|
Derivative Instruments
|
$
|
—
|
|
|
$
|
87,967
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2019
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
(In thousands)
|
Assets:
|
|
|
|
|
|
Derivative Instruments
|
$
|
—
|
|
|
$
|
126,764
|
|
|
$
|
—
|
|
Liabilities:
|
|
|
|
|
|
Derivative Instruments
|
$
|
—
|
|
|
$
|
53,438
|
|
|
$
|
—
|
|
The Company estimates the fair value of all derivative instruments using industry-standard models that consider various assumptions, including current market and contractual prices for the underlying instruments, implied volatility, time value, nonperformance risk, as well as other relevant economic measures. Substantially all of these inputs are observable in the marketplace throughout the full term of the instrument and can be supported by observable data.
As discussed in Note 3, the water infrastructure sale included a contingent consideration arrangement. As of September 30, 2020, the fair value of the contingent consideration was $19.7 million, of which $1.0 million is included in prepaid expenses and other assets and $18.7 million is included in other assets in the accompanying consolidated balance sheets. The fair value of the contingent consideration arrangement is calculated using discounted cash flow techniques and is based on internal estimates of the Company's future development program and water production levels. Given the unobservable nature of the inputs, the fair value measurement of the contingent consideration arrangement is deemed to use Level 3 inputs. The Company has elected the fair value option for this contingent consideration arrangement and, therefore, records changes in fair value in earnings. The Company recognized a loss of $0.2 million and $3.1 million on changes in fair value of the contingent consideration during the three and nine months ended September 30, 2020, respectively, which is included in other expense (income) in the accompanying consolidated statements of operations. Settlements under the contingent consideration arrangement totaled $0.3 million during the nine months ended September 30, 2020.
The initial measurement of asset retirement obligations at fair value is calculated using discounted cash flow techniques and based on internal estimates of future retirement costs associated with oil and gas properties. Given the unobservable nature of the inputs, including plugging costs and reserve lives, the initial measurement of the asset retirement obligation liability is deemed to use Level 3 inputs. See Note 2 for further discussion of the Company’s asset retirement obligations. Asset retirement obligations incurred during the nine months ended September 30, 2020 were approximately $2.3 million.
Fair value of financial instruments
The carrying amounts on the accompanying consolidated balance sheet for cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities, and current debt are carried at cost, which approximates market value due to their short-term nature. Long-term debt related to the Company's construction loan is carried at cost, which approximates market value based on the borrowing rates currently available to the Company with similar terms and maturities.
13.REVENUE FROM CONTRACTS WITH CUSTOMERS
Revenue Recognition
The Company’s revenues are primarily derived from the sale of natural gas, oil and condensate and NGL. Sales of natural gas, oil and condensate and NGL are recognized in the period that the performance obligations are satisfied. The Company generally considers the delivery of each unit (MMBtu or Bbl) to be separately identifiable and represents a distinct performance obligation that is satisfied at the time control of the product is transferred to the customer. Revenue is measured based on consideration specified in the contract with the customer, and excludes any amounts collected on behalf of third parties. These contracts typically include variable consideration that is based on pricing tied to market indices and volumes delivered in the current month. As such, this market pricing may be constrained (i.e., not estimable) at the inception of the contract but will be recognized based on the applicable market pricing, which will be known upon transfer of the goods to the customer. The payment date is usually within 30 days of the end of the calendar month in which the commodity is delivered.
Gathering, processing and compression fees attributable to gas processing, as well as any transportation fees, including firm transportation fees, incurred to deliver the product to the purchaser, are presented as midstream, gathering and processing expense in the accompanying consolidated statements of operations.
Transaction Price Allocated to Remaining Performance Obligations
A significant number of the Company's product sales are short-term in nature generally through evergreen contracts with contract terms of one year or less. These contracts typically automatically renew under the same provisions. For those contracts, the Company has utilized the practical expedient allowed in the new revenue accounting standard that exempts the Company from disclosure of the transaction price allocated to remaining performance obligations if the performance obligation is part of a contract that has an original expected duration of one year or less.
For product sales that have a contract term greater than one year, the Company has utilized the practical expedient that exempts the Company from disclosure of the transaction price allocated to remaining performance obligations if the variable consideration is allocated entirely to a wholly unsatisfied performance obligation. Under these sales contracts, each unit of product generally represents a separate performance obligation; therefore, future volumes are wholly unsatisfied and disclosure of the transaction price allocated to remaining performance obligations is not required. Currently, the Company's product sales that have a contractual term greater than one year have no long-term fixed consideration.
Contract Balances
Receivables from contracts with customers are recorded when the right to consideration becomes unconditional, generally when control of the product has been transferred to the customer. Receivables from contracts with customers were $92.4 million and $121.2 million as of September 30, 2020 and December 31, 2019, respectively, and are reported in accounts receivable - oil and natural gas sales on the consolidated balance sheets. The Company currently has no assets or liabilities related to its revenue contracts, including no upfront or rights to deficiency payments.
Prior-Period Performance Obligations
The Company records revenue in the month production is delivered to the purchaser. However, settlement statements for certain sales may be received for 30 to 90 days after the date production is delivered, and as a result, the Company is required to estimate the amount of production that was delivered to the purchaser and the price that will be received for the sale of the product. The differences between the estimates and the actual amounts for product sales is recorded in the month that payment is received from the purchaser. For the nine months ended September 30, 2020, revenue recognized in the reporting period related to performance obligations satisfied in prior reporting periods was not material.
14.LEASES
Nature of Leases
The Company has operating leases associated with drilling rig commitments, field offices and other equipment with remaining lease terms with contractual durations in excess of one year. Short-term leases that have an initial term of one year or less are not capitalized.
The Company has entered into a contract for a drilling rig with a third party to ensure rig availability. The Company has concluded its drilling rig contracts are operating leases as the assets are identifiable and the evaluation that the Company has the right to control the identified assets. The Company's drilling rig commitments are typically structured with an initial term of one to two years, and typically include renewal options at the end of the initial term. Due to the nature of the Company's drilling schedules and potential volatility in commodity prices, the Company is unable to determine at commencement with reasonable certainty if the renewal options will be exercised; therefore, renewal options are not considered in the lease term for drilling contracts. The operating lease liability associated with its rig commitment is based on the minimum contractual obligation, primarily standby rate, and does not include variable amounts based on actual activity in a given period. The Company has also entered into several drilling rig commitments with an initial term less than one year. The costs for these short-term rig commitments are included in the short-term lease cost for the period as shown below. Pursuant to the full cost method of accounting, these costs are capitalized as part of oil and natural gas properties on the accompanying consolidated balance sheets. A portion of these costs are borne by other interest owners.
Effective October 1, 2014, the Company entered into an Amended and Restated Master Services Agreement for pressure pumping services with Stingray, a subsidiary of Mammoth Energy and a related party. Pursuant to this agreement, as amended effective July 1, 2018, Stingray has agreed to provide hydraulic fracturing, stimulation and related completion and rework services to the Company through 2021 and the Company has agreed to pay Stingray a monthly service fee plus the associated costs of the services provided. As discussed further in Note 9, the Company has terminated the Master Services Agreement for pressure pumping with Stingray. As a result, in the first quarter of 2020, Gulfport has removed the related right of use assets and lease liabilities associated with the terminated contract.
The Company rents office space for its field locations and certain other equipment from third parties, which expire at various dates through 2024. These agreements are typically structured with non-cancelable terms of one to five years. The Company has determined these agreements represent operating leases with a lease term that equals the primary non-cancelable contract term. The Company has included any renewal options that it has determined are reasonably certain of exercise in the determination of the lease terms.
Discount Rate
As most of the Company's leases do not provide an implicit rate, the Company uses its incremental borrowing rate based on the information available at commencement date in determining the present value of lease payments. The Company's incremental borrowing rate reflects the estimated rate of interest that it would pay to borrow on a collateralized basis over a similar term an amount equal to the lease payments in a similar economic environment.
Maturities of operating lease liabilities as of September 30, 2020 were as follows:
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(In thousands)
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Remaining 2020
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$
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1,664
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2021
|
|
142
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2022
|
|
115
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2023
|
|
90
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2024
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30
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Total lease payments
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$
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2,041
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Less: Imputed interest
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(29)
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Total
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$
|
2,012
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Lease cost for the three and nine months ended September 30, 2020 and 2019 consisted of the following:
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Three months ended September 30,
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Nine months ended September 30,
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2020
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2019
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2020
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2019
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(In thousands)
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Operating lease cost
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$
|
1,692
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|
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$
|
4,551
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|
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$
|
7,970
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|
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$
|
20,835
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Operating lease cost—related party
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—
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|
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5,610
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|
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—
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|
|
16,830
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Variable lease cost
|
245
|
|
|
105
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|
|
705
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|
|
1,065
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Variable lease cost—related party
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—
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5,357
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—
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64,968
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Short-term lease cost
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2,259
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|
|
224
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|
|
7,698
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|
|
407
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Total lease cost(1)
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$
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4,196
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$
|
15,847
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|
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$
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16,373
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$
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104,105
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(1)
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The majority of the Company's total lease cost was capitalized to the full cost pool, and the remainder was included in general and administrative expenses in the accompanying consolidated statements of operations.
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Supplemental cash flow information for the nine months ended September 30, 2020 and 2019 related to leases was as follows:
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Nine months ended September 30,
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2020
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2019
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Cash paid for amounts included in the measurement of lease liabilities
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(In thousands)
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Operating cash flows from operating leases
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$
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109
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$
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146
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Investing cash flow from operating leases
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$
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9,786
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$
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18,998
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Investing cash flow from operating leases—related party
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$
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6,800
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$
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78,518
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The weighted-average remaining lease term as of September 30, 2020 was 0.81 years. The weighted-average discount rate used to determine the operating lease liability as of September 30, 2020 was 2.65%.
15.INCOME TAXES
The Company records its quarterly tax provision based on an estimate of the annual effective tax rate expected to apply to continuing operations for the various jurisdictions in which it operates. The tax effects of certain items, such as tax rate changes, significant unusual or infrequent items, and certain changes in the assessment of the realizability of deferred taxes, are recognized as discrete items in the period in which they occur and are excluded from the estimated annual effective tax rate.
For the three and nine months ended September 30, 2020, the Company's estimated annual effective tax rate before discrete items remained near zero as a result of the valuation allowance on its deferred tax assets. During the first quarter of 2020, the Company recognized $7.3 million of income tax expense discretely in the quarter as a result of the sale of assets and a corresponding adjustment to the valuation allowance on remaining state net operating loss carryforwards.
The Company anticipates remaining in a net deferred tax asset position based on the analysis performed for three and nine months ended September 30, 2020. The Company expects a full valuation allowance against its deferred tax assets based on its conclusion, considering all available evidence (both positive and negative), that it was more likely than not that the deferred tax assets would not be realized. A valuation allowance for deferred tax assets, including net operating losses, is recognized when it is more likely than not that some or all of the benefit from the deferred tax assets will not be realized. To assess that likelihood, the Company uses estimates and judgment regarding future taxable income, and considers the tax laws in the jurisdiction where such taxable income is generated, to determine whether a valuation allowance is required. Such evidence can include current financial position, results of operations, both actual and forecasted, the reversal of deferred tax liabilities and tax planning strategies as well as the current and forecasted business economics of the oil and gas industry.
On March 27, 2020, the CARES Act was enacted in response to the COVID-19 pandemic. The Act includes several significant provisions for corporations including allowing companies to carryback certain NOLs, increasing the amount of NOLs that corporations can use to offset income, and increasing the amount of deductible interest under section 163(j). The Company does not expect to be materially impacted by the CARES Act provision and does not anticipate the CARES Act to have a material effect on its ability to realized deferred tax assets.
The Company’s ability to utilize NOL carryforwards and other tax attributes to reduce future federal taxable income is subject to potential limitations under Internal Revenue Code Section 382 (“Section 382”) and its related tax regulations. The utilization of these attributes may be limited if certain ownership changes by 5% stockholders (as defined in Treasury regulations pursuant to Section 382) and the effects of stock issuances by the Company during any three-year period result in a cumulative change of more than 50% in the beneficial ownership of Gulfport. The Company updates its Section 382 analysis to determine if an ownership change has occurred at each reporting period. If it is determined that an ownership change has occurred under these rules, the Company would generally be subject to an annual limitation on the use of pre-ownership change NOL carryforwards and certain other losses and/or credits. In addition, certain future transactions regarding the Company's equity, including the cumulative effects of small transactions as well as transactions beyond the Company’s control, could cause an ownership change and therefore a potential limitation on the annual utilization of its deferred tax assets. On April 30, 2020, the board of directors of the Company adopted a tax benefits preservation plan in order to protect against a possible limitation on the Company’s ability to use its tax net operating losses and certain other tax benefits to reduce potential future U.S. federal income tax obligations. The Tax Benefits Preservation Plan is intended to prevent against such an ownership change by deterring any person or group from acquiring beneficial ownership of 4.9% or more of the Company’s securities.