LONG-TERM DEBT | 12 Months Ended |
Dec. 31, 2013 |
LONG-TERM DEBT. | ' |
LONG-TERM DEBT | ' |
NOTE 12 — LONG-TERM DEBT |
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Our long-term debt consisted of the following (in thousands): |
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| | December 31, | |
| | 2013 | | 2012 | |
Senior Secured Notes, net of discount (1) | | $ | 23,146 | | $ | 23,647 | |
Convertible Senior Notes, net of discount (2) | | 27,957 | | 25,298 | |
Subordinated notes (3) | | 47,330 | | 47,330 | |
Subtotal | | 98,433 | | 96,275 | |
Less: current portion (4) | | (10,177 | ) | (25,298 | ) |
Total long-term debt | | $ | 88,256 | | $ | 70,977 | |
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(1) The Senior Secured Notes issuance discount is amortized to the principal amount through the date of the first put right on February 21, 2015 using the effective interest rate method and rate of 19.85%. On February 6, 2014, the Company used the approximately $11.5 million of restricted cash together with approximately $1.1 million of cash on hand, to prepay a portion of its 8% Senior Secured Notes due 2017 as further described in Note 19 — Subsequent events. |
(2) The Convertible Senior Notes issuance discount is amortized to the principal amount through maturity on August 21, 2017 using the effective interest rate method and rate of 17.40%. |
(3) On February 24, 2014 the Company agreed to exchange $47.3 million of Subordinated Notes into a combination of shares of ZaZa common stock and a new series of perpetual preferred stock as described in Note 19 — Subsequent events. |
(4) We classified $10.2 million of our Senior Secured Notes as current as of December 31, 2013 and $25.3 million of our Convertible Senior Notes as current as of December 31, 2012. We are required to reduce the principal amount of our Senior Secured Notes to $15 million by February 28, 2014 pursuant to Amendment No. 5 to the Securities and Purchase Agreement, as defined below. Accordingly, we classified $10.2 million, consisting of the required pre-payment of principal of $11.8 million minus a discount of $1.6 million, as current. The Convertible Notes are convertible, at the option of the holder, into shares of the Company’s common stock. Due to certain limitations under the indenture regarding the Company’s ability to settle the conversion in shares, the debt was classified as current until May 30, 2013. As of May 30, 2013, shareholder approval of the issuance of common stock in excess of 20% of the outstanding shares allowed us to classify the Convertible Senior Notes as long-term. |
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8.00% Senior Secured Notes due 2017 and Warrants |
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On February 21, 2012, we entered into a Securities Purchase Agreement (as amended, the “SPA”) with the purchasers thereunder, including MSDC ZEC Investments, LLC and Senator Sidecar Master Fund LP (collectively, the “Purchasers”), pursuant to which we issued the Senior Secured Notes in the aggregate principal amount of $100,000,000 and warrants (the “Warrants”) to purchase 26,315,789 shares of our Common Stock. The proceeds of the sale of the Senior Secured Notes and the Warrants were used for the (i) repayment of the outstanding convertible notes of Toreador, and (ii) payment of fees and expenses incurred in connection with the Combination, with the balance to be used for general working capital purposes. |
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The Senior Secured Notes will mature on February 21, 2017. Subject to certain adjustments set forth in the SPA, interest on the Senior Secured Notes accrues at 8% per annum, payable quarterly in cash. Amendment No. 5 to the Securities Purchase Agreement (“Amendment No. 5”) stated that the interest rate would increase from 8% per annum to 10% per annum effective March 1, 2014 if the Senior Secured Notes were not prepaid to zero by February 28, 2014. The Senior Secured Notes were $15 million as of February 28, 2014 and therefore the interest rate increased to 10% per annum. |
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With respect to overdue interest payments or during periods in which an event of default under the SPA has occurred and is continuing, the annual rate of interest will increase to the greater of 3% per annum in excess of the non-default interest rate and 8% over the yield to maturity for 10-Year United States treasury securities. In addition, the annual interest rate payable on the Senior Secured Notes will increase by 0.5% per annum for certain periods if a shelf registration statement with respect to the shares of Common Stock that are issuable upon exercise of the Warrants is no longer effective or otherwise becomes unavailable to holders of the Warrants. In addition, if we authorize the issuance and sale of any equity interests in the Company, we will use our commercially reasonable efforts to offer each Purchaser an opportunity to purchase up to such Purchaser’s pro rata portion of the offered securities on the terms set forth in the SPA. |
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The Senior Secured Notes are guaranteed by all of our subsidiaries and secured by a first-priority lien on substantially all of our assets and of our domestic subsidiaries. To the extent such assets include stock of any foreign subsidiaries, only 65% of such foreign subsidiary stock is to be pledged as security for the Senior Secured Notes. The Senior Secured Notes rank senior to all of our other debt and obligations. We are permitted to have up to $50 million in additional reserves-based secured lending (including, but not limited to, pre-paid swaps); such borrowings may be secured by liens that come ahead of the liens securing the Senior Secured Notes. |
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Beginning on February 21, 2015, the Purchasers may require us to purchase all or a portion of the Senior Secured Notes at a price equal to the principal amount of the Senior Secured Notes to be purchased, plus any accrued and unpaid interest on such notes. In addition, if a fundamental change (as defined in the SPA) occurs at any time prior to maturity of the Senior Secured Notes, note holders may require us to purchase all or a portion of the Senior Secured Notes at a price equal to 101% of the principal amount of the Senior Secured Notes to be purchased, plus any accrued and unpaid interest on such notes. |
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Because the principal amount of the Senior Secured Notes is $15 million or less, we may purchase at any time or from time to time any or all of the Senior Secured Notes at 100% of the principal amount of the Senior Secured Notes to be purchased, plus accrued and unpaid interest on such notes, without a make-whole premium on the principal amount of such notes. |
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We are subject to certain affirmative and negative covenants pursuant to the Senior Secured Notes, including, without limitation, restrictions on our and our subsidiaries’ abilities to incur additional debt, pay dividends or make other distributions, redeem stock, make investments, incur liens, enter into transactions with affiliates, merge or consolidate and transfer or sell assets, in each case subject to certain baskets and carve-outs. |
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As of December 31, 2013, the Warrants represented approximately 20% of the outstanding shares of Common Stock on an as-converted and fully-diluted basis. The Warrants contain a cashless exercise provision and became exercisable at the option of the holder at any time beginning August 21, 2012. We can force exercise of the Warrants at any time beginning February 21, 2015 if the daily volume weighted average price (the “VWAP”) of Common Stock is, at the time of such conversion, greater than or equal to $10.00 per share for the prior 45 consecutive trading day period, and if for each of those 45 consecutive trading days, an average of at least 50,000 shares of Common Stock are traded per day during such period. The Warrants expire on August 21, 2020. The Warrants also prohibit the payment of cash dividends for as long as the Warrants remain outstanding. |
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The exercise price of the Warrants was initially $3.15 per share, subject to certain anti-dilution protections, including, but not limited to, stock splits and stock dividends, and issuances below the strike price or below 90% of the market price of our Common Stock. As a result of the anti-dilution adjustments in the Warrants and amendments to the SPA, as of December 31, 2013, the number of outstanding shares of our Common Stock represented by the Warrants has increased to 27,433,244 and the exercise price has been reduced to $1.98 per share. |
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Until July 22, 2020, a holder of Warrants will not be entitled to receive shares of Common Stock upon exercise of such Warrants to the extent that such receipt would result in the holder becoming a “beneficial owner” (as defined in Section 13(d) of the Exchange Act of 1934, as amended, and the rules and regulations thereunder) of a number of shares of Common Stock exceeding a maximum percentage of the total number of shares of Common Stock then outstanding, unless such limitation has been terminated with 61 days’ notice from the holder. The maximum percentage of Common Stock that a holder of a Warrant may beneficially own is initially 5% but may be increased to 10% under certain circumstances. Upon the occurrence of a fundamental change as set forth in the Warrants, we must make an offer to repurchase all Warrants at the option value of the Warrants using Black-Scholes calculation methods and making certain assumptions described in the Black-Scholes methodology as set forth in the Warrants. |
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On June 8, 2012, the ZaZa LLC Members and the ZaZa Founders entered into an Amended and Restated Subordination Agreement, specifying that payments may not be made by the Company under the Subordinated Notes described below until the paying off of the Company’s “senior debt” (as described therein), which includes the Senior Secured Notes. Also, on March 28, 2013, the Purchasers, the ZaZa LLC Members and the ZaZa Founders entered into an Amended and Restated Lock-Up Agreement with us (the “Lock-Up Agreement”), pursuant to which, the Purchasers, ZaZa LLC Members and the ZaZa Founders have agreed to limit their aggregate sales of shares of Common Stock (including hedging) until February 21, 2017 to an amount not to exceed annually a maximum percentage of the aggregate amount of Common Stock then outstanding. The maximum percentage is determined based on the VWAP of Common Stock for the 10 trading days prior to such determination as follows: 10% for a VWAP of $9.45 per share or less; 15% for a VWAP of $9.45 to $12.59 per share; and 40% for a VWAP of $12.60 per share or more. The maximum percentage is subject to adjustment for stock splits, combinations, reorganizations reclassifications and similar occurrences. |
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In the first quarter of 2013, we extinguished Senior Secured Notes in the aggregate principal amount of $33.2 million and associated discounts and debt issuance costs of $9.1 million and $1.2 million, respectively. We recognized a loss on extinguishment of debt of $15.1 million consisting of a loss from the modification of the terms of the Warrants of $10.9 million and a difference between the fair value and book value of debt of $4.2 million. We recorded the modified debt at its fair market value of $27.1 million, consisting of a principal amount of $33.2 million and discount of $6.1 million. |
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In the second and third quarters of 2013, we recognized a loss on extinguishment of debt of $1.1 million and $0.4 million, respectively, associated with penalties on the prepayments of principal on our Senior Secured Notes. At December 31, 2013, the Senior Secured Notes, which had a book value of $23.1 million, had a fair value of approximately $25.6 million. At December 31, 2013 and 2012, the unamortized issuance discount related to Senior Secured Notes was $3.7 million and $9.6 million respectively. At December 31, 2013 and 2012, the outstanding principal on the Senior Secured Notes was $26.8 million and $33.2 million respectively. |
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The Company used the approximately $11.5 million restricted cash together with approximately $1.1 million of cash on hand, to prepay a portion of its 8% Senior Secured Notes due 2017 as further described in Note 19 — Subsequent events. After giving effect to this prepayment, the Company will have Senior Secured Notes outstanding with an aggregate principal amount of $15.0 million. The prepayment included accrued interest and a prepayment premium totaling approximately $0.8 million. |
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In anticipation our independent registered public accounting firm including in their report an explanatory paragraph describing the existence of conditions that raise substantial doubt about our ability to continue as a going concern as described in Note 2 – Going concern, on March 14, 2014, the Company entered into Amendment No. 6 to the Securities Purchase Agreement, which amended the Securities Purchase Agreement to obtain relief from the “going concern” requirements for the Company’s fiscal year 2013 financial statements consistent with the relief obtained for the 2012 financial statements. |
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9.00% Convertible Senior Notes due 2017 |
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On October 22, 2012, the Company successfully completed the issuance and sale of $40,000,000 aggregate principal amount of the Convertible Notes). The Convertible Notes were sold in a private placement to investors that are qualified institutional buyers and accredited investors (as such terms are defined under the Securities Act of 1933, as amended (the “Securities Act”)), in reliance upon applicable exemptions from registration under Section 4(a)(2) of and Regulation D under the Securities Act pursuant to Note Purchase Agreements, dated October 16, 2012 (collectively, the “Note Purchase Agreements”) among the Company and the several purchasers that are signatories thereto (collectively, the “Convertible Notes Purchasers”). The Convertible Notes were issued to the Convertible Notes Purchasers pursuant to an Indenture, dated October 22, 2012 (the “Convertible Notes Indenture”), among the Company, certain subsidiary guarantors party thereto (the “Convertible Notes Guarantors”), and Wilmington Trust, National Association, as trustee thereunder. The Convertible Notes were sold to the Convertible Notes Purchasers at a price of $950 for each $1,000 original principal amount thereof, for aggregate gross proceeds of $38.0 million. The Company used the net proceeds from the offering of the Convertible Notes, after discounts and offering expenses, of approximately $35.2 million to fund drilling capital expenditures and leasehold transactions and for general corporate purposes. |
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Interest on the Convertible Notes began accruing on October 22, 2012 and the Convertible Notes mature August 1, 2017. The Convertible Notes are the senior, unsecured obligations of the Company, bear interest at a fixed rate of 9.0% per year, payable semiannually in arrears on February 1 and August 1 of each year beginning February 1, 2013, and mature on August 1, 2017 unless earlier converted, redeemed or repurchased. |
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The Convertible Notes are convertible, at the option of the holder, at any time prior to the third trading day immediately preceding the maturity date, into shares of the Company’s common stock, par value $0.01 per share (the “Conversion Shares”), and cash in lieu of fractional shares of common stock. The initial conversion rate will be 400 shares per $1,000 Convertible Note, reflecting a conversion premium of approximately 32.28% of the closing price of the Company’s common stock on the pricing date of the offering, which equates to an initial conversion price of $2.50 per share. In certain circumstances, after the occurrence of a fundamental change (as defined in the Indenture), the conversion rate shall be increased (according to the date of such fundamental change) for holders who convert their Convertible Notes on or after the effective date of such fundamental change. In addition, upon the occurrence of a fundamental change, holders may require the Company to repurchase for cash of all or a portion of such holder’s Convertible Notes at a purchase price equal to 100% of the principal amount of the Convertible Notes to be purchased, plus any accrued and unpaid interest to, but excluding, the fundamental change repurchase date. |
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If a holder converts some or all of its Convertible Notes on or after May 1, 2013 but prior to August 1, 2017, in addition to the Conversion Shares, such holder will receive a coupon make-whole payment for the Convertible Notes being converted. The coupon make-whole payment will be equal to the sum of the present values of the lesser of five semi-annual interest payments or the number of semi-annual interest payments that would have been payable on such converted Convertible Notes from the last day through which interest was paid on the Convertible Notes through July 31, 2017. The Company may elect to pay such make-whole payment in either cash or, subject to shareholder approval if required under applicable stock exchange rules, shares of common stock, and if paid in shares of common stock, then the stock will be valued at 95% of the simple average of the daily volume weighted average prices for the common stock for the 10 trading days ending on and including the trading day immediately preceding the conversion date. |
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The Company may not redeem the Convertible Notes prior to August 1, 2015. Beginning August 1, 2015, the Company may redeem for cash all or part of the Convertible Notes if the last reported sale price of its common stock equals or exceeds 150% of the applicable conversion price for at least 20 trading days during the 30 consecutive trading day period ending on the trading day immediately prior to the date on which the Company delivers the notice of the redemption. The redemption price will equal 100% of the principal amount of the Convertible Notes to be redeemed, plus any accrued and unpaid interest to, but excluding, the redemption date. |
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The Convertible Notes Indenture contains covenants that, among other things, limit the Company’s ability and the ability of certain of its subsidiaries to, with certain exceptions, incur additional indebtedness or guarantees of indebtedness, and to dispose of assets, except under certain conditions and with certain exceptions, including contributions of assets to specified joint venture transactions. In addition, the terms of the Convertible Notes Indenture require that the Company file all reports customarily filed with the SEC within the time frames required by SEC rules and provide information to permit the trading of the Convertible Notes pursuant to SEC Rule 144A, and that all current and future domestic restricted subsidiaries (as defined in the Convertible Notes Indenture) of the Company, except for immaterial subsidiaries, jointly and severally guarantee the Convertible Notes on a senior unsecured basis. The Company will be able to designate a restricted subsidiary as an unrestricted subsidiary under specified conditions. |
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The Company designated its foreign subsidiaries as unrestricted. These subsidiaries had no business operations as of December 31, 2013 and had assets consisting of $12.4 million of restricted cash and other assets and $19.0 million of intercompany receivables. These intercompany receivables will be forgiven and treated as a dividend in accordance with lender approval, during 2014, or as soon as commercially possible. |
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The Convertible Notes Indenture contains customary events of default, including failure to pay interest after a 30 day grace period, failure to pay principal when due, failure to comply with certain covenants, such as the offer to repurchase upon a fundamental change, failure to comply with other covenants after a customary grace period, cross-defaults, judgment defaults and certain bankruptcy events. If an event of default on the Convertible Notes has occurred and is continuing, the principal amount of the Convertible Notes, plus any accrued and unpaid interest, may become immediately due and payable. Upon the occurrence of certain events of default, these amounts automatically become due and payable. |
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In addition, if the Company elects, the sole remedy for an event of default relating to the Company’s failure to comply with the SEC reporting requirements under the Convertible Notes Indenture will, for the first 90 days after the occurrence of such an event of default, consist exclusively of the right to receive special interest on the Convertible Notes at a rate equal to 0.50% per annum of the principal amount of the Convertible Notes. If the Company elects, such special interest will be payable in the same manner and on the same dates as the stated interest payable on the Convertible Notes. |
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The Convertible Notes and Conversion Shares have not been registered, nor are required to be registered, under the Securities Act or applicable state securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and applicable state laws. |
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At December 31, 2013 and December 31, 2012, the unamortized issuance discount related to Convertible Notes was $12.0 million and $14.7 million, respectively. The outstanding principal on the Convertible Notes was $40.0 million at both December 31, 2013 and December 31, 2012. |
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8.00% Subordinated Notes due 2017 |
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Simultaneously with the consummation of the Combination, and pursuant to the Contribution Agreement dated August 9, 2011 among the ZaZa LLC Members and ZaZa (the “Contribution Agreement”), the ZaZa LLC Members contributed all of the direct or indirect limited liability company interests in ZaZa LLC to us in exchange for (i) a number of shares of Common Stock that, in the aggregate, represented 75% of the issued and outstanding shares of Common Stock immediately after the consummation of the Combination (but without giving effect to the shares of Common Stock issuable upon exercise of the Warrants as discussed above), and (ii) subordinated notes in an aggregate amount of $38.25 million issued to the ZaZa LLC Members as partial consideration for the Combination. In addition, as required under the terms of the Merger Agreement and the Contribution Agreement, we issued subordinated notes in an aggregate amount of $9.08 million to the ZaZa Founders that own and control the ZaZa LLC Members, in respect of certain unpaid compensation amounts owing to the ZaZa Founders by ZaZa LLC for back salary, bonuses, incentive compensation or other compensation payable to them by ZaZa LLC in connection with or in respect of periods prior to the consummation of the Combination. The subordinated notes issued to the ZaZa Founders and the ZaZa LLC Members (the “Subordinated Notes”) accrue interest at a rate of 8% per annum, are payable monthly in cash, and mature on August 17, 2017. Subject to certain conditions, including the terms of the Amended and Restated Subordination Agreement described above, we may make regularly scheduled interest payments to the ZaZa LLC Members and the ZaZa Founders on the Subordinated Notes and may prepay the Subordinated Notes at any time. We are required to repay the Subordinated Notes, pro rata, with 20% of the proceeds of any subordinated debt financing and 20% of the proceeds of any equity financing completed on or after February 21, 2015. We made regular interest payments on these notes during 2013 and continue to do so. |
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On February 24, 2014 the Company agreed to exchange $47.3 million of Subordinated Notes into a combination of shares of ZaZa common stock and a new series of perpetual preferred stock as described in Note 19 — Subsequent events |
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For the years ended December 31, 2013 and 2012, interest expense consisted of the following (in thousands): |
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| | December 31, | |
| | 2013 | | 2012 | |
Interest expense on Senior Secured Notes | | $ | 2,377 | | $ | 5,838 | |
Interest expense on Convertible Senior Notes | | 3,600 | | 690 | |
Interest expense on Subordinated Notes | | 3,786 | | 3,308 | |
Interest expense on revolving credit line | | — | | 45 | |
Interest expense on ZaZa LLC Members’ Notes | | — | | 50 | |
Amortization of issuance costs on Senior Secured Notes | | 58 | | 454 | |
Amortization original issuance discount on Senior Secured Notes | | 1,817 | | 3,986 | |
Amortization of issuance costs on Convertible Senior Notes | | 373 | | 82 | |
Amortization original issuance discount on Convertible Senior Notes | | 2,660 | | 480 | |
Other interest (income) expense | | (56 | ) | 335 | |
Capitalized interest | | (346 | ) | (563 | ) |
Total interest expense, net | | $ | 14,269 | | $ | 14,705 | |