EQUITY SUPPORT AGREEMENT
Exhibit 10.25
This EQUITY SUPPORT AGREEMENT (“this Agreement”), dated as of June 9, 2008, is made by and
between THE HALLWOOD GROUP INCORPORATED, a Delaware corporation (“HGI”), and HALLWOOD ENERGY, L.P.,
a Delaware limited partnership (“HELP”).
PRELIMINARY STATEMENTS
A. HELP is an Affiliate of HGI.
B. Contemporaneously with the execution of this Agreement, HELP is entering into that certain
Acquisition and Farmout Agreement (the “Fortuna Agreement”) among HELP, Hallwood Gathering, L.P.,
Hallwood Petroleum, LLC and Hallwood SWD, LLC (collectively, “Farmor”), and FEI Shale
L.P.(“Fortuna”).
C. It is a condition precedent to the obligations of Fortuna under the Fortuna Agreement that
HGI and HELP shall have executed and delivered this Agreement.
D. Unless otherwise defined herein, all capitalized terms used herein that are defined in the
Fortuna Agreement shall have their respective meanings as therein ascribed.
In consideration of the foregoing and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. COMMITMENT AND OTHER COVENANTS.
Section 1.1 Commitment of HGI to Contribute Capital.
(a) Subject to the conditions set forth in this Section 1.1 below, HGI hereby irrevocably and
unconditionally commits to contribute, or cause one or more of its Affiliates to contribute, cash
to the equity or debt capital of HELP (the “Capital Contributions”) from the date hereof until the
expiration of the Support Period (as defined in Section 1.1(d) below) in order to (i) at all times
during the Support Period enable HELP to maintain a liquidity position and manage its payables as
would a reasonable prudent operator capitalized at a level appropriate for an independent company
engaged in the domestic exploration and production industry and (ii) prevent or cure any default
under the Credit Agreements or the Note Agreement with respect to HELP’s obligations to pay
interest when due during the Support Period, up to a maximum amount of $12,500,000 (the “Maximum
Amount”). If, during the Support Period HGI sells, assigns, leases, conveys, transfers or
otherwise disposes of (whether in one or a series of transactions) (collectively, “Dispositions”)
any material assets or property owned directly or indirectly by HGI (including any capital stock of
any subsidiary), then HGI will promptly make a Capital Contribution to HELP in an amount equal to
the Maximum Amount, less any amount of Capital Contributions previously made by HGI pursuant to
this Agreement The cash contributions (or payments made on behalf of HELP) of $3,000,000 made by
HGI on May 15, 2008 and of $2,000,000 made by HGI concurrently with the signing of this Agreement
shall be treated as Capital Contributions hereunder and shall apply toward the Maximum
Amount.
(b) HELP may, from time to time during the Support Period and upon written notice to HGI (a
“Capital Contribution Notice”), request that a Capital Contribution be made or caused to be made by
HGI, directly or indirectly. HGI will, within two (2) business days’ of receipt of any Capital
Contribution Notice, contribute to, or cause to be contributed to, the capital of HELP such amount
in cash as shall be designated by HELP in the Capital Contribution Notice.
(c) The form of any security issued by HELP or any other Person comprising Farmor in
consideration of any Capital Contribution must be substantially similar to one of the forms of
equity that HELP currently has outstanding, warrants to purchase such equity securities, debt
securities substantially similar to the existing Convertible Subordinated Notes of HELP (including
any changes necessary to reflect the actual date of issuance and amount) or other security
satisfactory to Fortuna in its sole discretion.
(d) The obligations of HGI under Section 1.1(a) will terminate upon the earlier to occur of
(i) the termination of the Fortuna Agreement or (ii) HGI having made Capital Contributions to HELP
pursuant to this Agreement in an amount equal to the Maximum Amount. The period from the date of
this Agreement until the termination of the Fortuna Agreement is referred to herein as the “Support
Period”.
Section 1.2 Restricted Payments. During the Support Period HGI may not, and will not
permit any of its subsidiaries to, directly or indirectly, (i) purchase, redeem or otherwise
acquire for value any membership interests, partnership interests, capital accounts, shares of its
capital stock or any warrants, rights or options to acquire such membership interests, partnership
interests or shares, now or hereafter outstanding from its members, partners, or stockholders
(other than, in the case of HGI’s subsidiaries, from HGI) or (ii) declare or pay any distribution,
dividend or return capital to its members, partners or stockholders (other than, in the case of
HGI’s subsidiaries, to HGI), or make any distribution of assets in cash or in kind to its members,
partners or stockholders (other than, in the case of HGI’s subsidiaries, to HGI), provided that HGI
may make any payments required by the 2005 Long Term Incentive Plan for the Brookwood Companies
Incorporated.
Section 1.3 No Set Off, Etc. Subject only to the execution, delivery and continued effect
of the Fortuna Agreement, the obligations of HGI under this Agreement shall be absolute and
unconditional under any and all circumstances, including without limitation, the existence of any
indebtedness owing by HELP to HGI or of any set-off, counterclaim, abatement, recoupment, defense
or other right or claim which HGI may have against HELP, any other Person comprising Farmor or any
other Person (including but not limited to any Lender), the dissolution, bankruptcy, insolvency or
reorganization of HELP, any other Person comprising Farmor or any other Person or the pendency
against HELP, any other Person comprising Farmor or any other Person of any case, suit or
proceeding under any bankruptcy or insolvency law or any other law providing for the relief of
debtors or any other circumstances whatsoever that might otherwise constitute an excuse for
non-performance of the obligations of HGI under this Agreement, whether similar or dissimilar to
any of the circumstances herein specified. The obligations of HGI to contribute or cause to be
contributed cash to the capital of HELP as provided in Section 1.1 will not be affected by any
default by HELP, any other Person comprising Farmor, Fortuna or any other Person in the performance
or observance of any of their
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respective agreements or covenants in the Fortuna Agreement, or any default by HELP, any guarantor
or any other Person under the Credit Agreements or the Note Agreement, and will not be subject to
any abatement, reduction, limitation, impairment, termination, set-off, defense, counterclaim or
recoupment whatsoever or any right to any thereof, and will not be released, discharged or in any
way affected by any reorganization, arrangement, compromise or plan affecting HELP, any other
Person comprising Farmor or any other Person, or by any compromise, settlement, release,
modification, amendment (whether material or otherwise), waiver, termination, unenforceability or
invalidity of any or all of the obligations, conditions, covenants or agreements of any Person in
respect of any of the Fortuna Agreement, the Credit Agreements or the Note Agreement or by the
occurrence of any default or event of default or similar condition howsoever defined under the
Fortuna Agreement, the Credit Agreements or the Note Agreement, or by the taking or omission of any
action referred to in the Fortuna Agreement, the Credit Agreements or the Note Agreement by
Fortuna, any Lender, any holder of Notes issued under the Note Agreement or any other Person,
whether or not HGI has notice or knowledge of any of the foregoing.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF HGI.
(a) Corporate Existence. HGI (i) is a corporation duly organized and validly existing
under the laws of the jurisdiction of its incorporation, (ii) has all requisite corporate power,
and has all material governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed to be conducted except where
failure to have such governmental licenses, authorizations, consents and approvals would not have a
material adverse effect on HGI’s business or operations and (iii) is qualified to do business in
all jurisdictions in which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would have a material adverse effect on HGI’s business or
operations.
(b) Corporate Action. HGI has all necessary corporate power and authority to execute,
deliver and perform its obligations under this Agreement and the execution, delivery and
performance by HGI of this Agreement have been duly authorized by all necessary corporate action on
its part. This Agreement has been duly and validly executed and delivered by HGI and constitutes
its legal, valid and binding obligation, enforceable in accordance with its terms except (i) as may
be limited by bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of
creditors’ rights in general, and (ii) as enforceability thereof may be subject to general
principles of equity regardless of whether such enforceability is considered in a proceeding at law
or in equity.
(c) Approvals. No authorizations, approvals or consents of, and no filings or
registrations with, any governmental or regulatory authority or agency are necessary for the
execution, delivery or performance by HGI of this Agreement or for the validity or enforceability
thereof, except for any filing which may be required in the future, the failure to make which shall
not render invalid this Agreement.
(d) Corporate Existence, Etc. HGI agrees that, so long as this Agreement is in effect,
HGI shall (i) preserve and maintain its corporate existence, (ii) preserve and maintain all of its
material rights, privileges and franchises, and (iii) comply with the requirements of all
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applicable laws, rules, regulations and orders of governmental or regulatory authorities if
the failure to comply with such requirements would materially and adversely affect the ability of
HGI to perform its obligations under this Agreement.
(e) No Conflict or Violation. The execution and the delivery of this Agreement by HGI
and the performance and consummation of the transactions contemplated hereby will not conflict with
or breach any material agreements to which HGI is a party or by which HGI is bound or to which any
of HGI’s assets is subject, including without limitation any bank credit agreements or other debt
instruments to which HGI is a party.
(f) Accuracy of Financial Statements and SEC Documents. All reports and registration
statements filed by HGI with the Commission under the Securities Act and the Exchange Act
(collectively the “HGI SEC Documents”) as of their respective filing dates complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as applicable, and none
of the HGI SEC Documents contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements made therein, in
light of the circumstances in which they were made, not misleading, except to the extent corrected
by a subsequently filed document with the Commission. None of the HGI SEC Documents filed under
the Securities Act contained an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading at
the time such HGI SEC Documents became effective under the Securities Act. HGI’s financial
statements, including the notes thereto, included in the HGI SEC Documents (the “HGI Financial
Statements”) comply as to form in all material respects with applicable accounting requirements and
with the published rules and regulations of the Commission with respect thereto, have been prepared
in accordance with United States generally accepted accounting principles (“GAAP”) consistently
applied (except as may be indicated in the notes thereto) and present fairly HGI’s consolidated
financial position at the dates thereof and results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal audit adjustments).
Since the date of the most recent HGI SEC Document, HGI has not effected any change in any method
of accounting or accounting practice, except for any such change required because of a concurrent
change in GAAP.
SECTION 3. MISCELLANEOUS.
Section 3.1 Binding Effect; Assignment. This Agreement will become effective when it has
been executed by HGI and HELP and thereafter will be binding upon and inure to the benefit of HGI
and HELP and their respective successors and assigns. HELP may assign a security interest in this
Agreement to Fortuna to secure Farmor’s obligations to Fortuna under the Fortuna Agreement.
Otherwise, neither party may assign any rights or delegate any duties under this Agreement without
the prior written approval of the other and Fortuna.
Section 3.2 Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This Agreement is
governed by and is to be construed in accordance with the laws of the State of Texas (excluding the
laws applicable to conflicts or choice of law). HGI and HELP irrevocably submit, for themselves
and their property in any legal action relating to this Agreement, or for recognition and
enforcement of any judgment in respect hereof or thereof, to the non-exclusive
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jurisdiction of the courts of the State of Texas. Each of HGI and HELP waives the right to trial
by jury in any action or proceeding relating to or arising out of this Agreement.
Section 3.3 Notices. All notices required or permitted to be given to or made upon any
party to this Agreement shall be made in writing and shall be Personally delivered or sent by U.S.
mail (postage prepaid), by overnight courier or by facsimile transmission with confirmation by
overnight courier, and shall be deemed to have been duly given or made when received by the
intended recipient in accordance with the provision of this Section 3.3. Unless otherwise specified
in a notice given or made in accordance with the provision of this Section 3.3, notices shall be
given to the respective parties at their respective address indicated below.
HGI:
The Hallwood Group Incorporated
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
HELP:
Hallwood Energy, L.P.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: President
with a copy to:
FEI Shale L.P.
c/o 0000, 000 — 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Senior Manager, Land
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Senior Manager, Land
Section 3.4 Headings. Headings in this Agreement are included herein for convenience of
reference only and do not constitute a part of this Agreement for any other purpose.
Section 3.5 Survival of Agreements. All covenants, agreements, representations and
warranties in this Agreement or in any certificate, instrument, document or other writing delivered
pursuant hereto will survive the execution and delivery of this Agreement, and all such covenants
and agreements will continue in full force and effect except as specified herein.
Section 3.6 Entire Agreement. This Agreement contains the full, final and exclusive
statement of the agreement between HGI and HELP relating to the transactions contemplated hereby.
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Section 3.7 Counterparts. This Agreement may be executed in any number of counterparts,
which when so executed and delivered will constitute one and the same instrument.
Section 3.8 Third Party Beneficiary. The parties have entered into this Agreement, in
part, at the special instance and request of Fortuna for the purpose of providing Fortuna
assurances that Farmor will remain financially able to meet its responsibilities under the Fortuna
Agreement. Accordingly, the parties acknowledge that Fortuna is a third-party creditor beneficiary
of this Agreement and agree that without the prior, written consent of Fortuna the parties will not
amend or terminate this Agreement. For the avoidance of doubt, as a third party creditor
beneficiary, Fortuna has the absolute right to enforce the rights granted to HELP pursuant to
Section 1.1 and Fortuna pursuant to this Section 3.8.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| THE HALLWOOD GROUP INCORPORATED |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| HALLWOOD ENERGY, L.P. By its general partner, Hallwood Energy Management, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
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