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Impact of Litigation on Liquidity
9 Months Ended
Sep. 30, 2012
Impact of Litigation on Liquidity [Abstract]  
Impact of Litigation on Liquidity

Note 15—Impact of Litigation on Liquidity

The Company and its subsidiaries are and have been involved in a number of litigation matters, as described in Note 13, and have spent significant amounts in professional fees in connection with the defense of its pending and resolved legal matters. As previously described, on April 24, 2012, the United States District Court in the Adversary Proceeding issued a Judgment awarding damages against the Company totaling approximately $18,700,000 plus prejudgment and postjudgment interest and court costs and plaintiff’s attorneys’ fees as may be requested and awarded pursuant to a subsequent motion.

 

The Company satisfied the Judgment, including prejudgment and postjudgment interest, in two payments; $3,774,000 on May 4, 2012 and $17,947,000 on May 9, 2012. At September 30, 2012, the litigation reserve for the Hallwood Energy Matters is $2,079,000. The parties settled the amount of court costs for approximately $101,000, which was paid in August 2012. While the Company will be required to pay some additional amount of money to the plaintiffs as compensation for their attorney fees related to the breach of contract claim they prosecuted against the Company, the amounts and timing of that payment are currently unresolved and will be determined by the court. The plaintiffs have alleged that they are entitled to approximately $4,000,000 for attorney fees while the Company contends that they should only recover a small fraction of that amount. In addition, the Company is in the process of appealing to the Fifth Circuit Court of Appeals the portions of the Judgment awarding a combined $17,947,000 on the plaintiffs’ tort claims. On September 13, 2012, the Company filed its appellate brief in the Fifth Circuit. On November 15, 2012, FEI, the only appellee, will file its response, and the Company will then file a reply brief, completing the briefing process. It is difficult to determine or even approximate when the Fifth Circuit will rule on the Company’s appeal, but it will likely be several months, if not longer.

In May 2012, in addition to its then current available cash, to obtain additional funds to satisfy the Judgment, the Company received an $8,000,000 dividend from Brookwood and the $10,000,000 HFL Loan. The outstanding balance on the HFL Loan was $9,000,000 at September 30, 2012 after a principal repayment of $1,000,000 in May 2012. The HFL Loan is secured by a pledge of all of the stock of Brookwood, pursuant to the terms of the Intercreditor Agreement, and by the Company’s interest in the anticipated refunds of federal income taxes, which are in excess of $5,000,000, that the Company expects to receive in 2012 and 2013.

As discussed in Note 6, in August 2012, Brookwood’s New Revolving Credit Facility was amended to, among other things, clarify the provisions to which cash dividends or advances to the Company may be made provided no event of default has occurred or would result from any such payment. Brookwood may pay to the Company (a) periodic payments for tax sharing obligations, (b) discretionary dividends in an aggregate amount not to exceed 50% of Borrowers’ net income for the fiscal year with respect to which such dividends are made, and (c) other dividends or distributions in an aggregate amount not to exceed $15,000,000 (of which, as of November 13, 2012, $8,000,000 was previously disbursed in May 2012). Any such payments or advances would also be contingent upon the approval of Brookwood’s board of directors and Brookwood’s ability to meet the requirements of the Delaware corporate laws for the payment of dividends and compliance with other applicable laws and requirements.

The aforementioned circumstances raise substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements have been prepared assuming the Company will continue as a going concern and do not include any adjustments that might result should the Company be unable to continue as a going concern.