Exhibit 10.7
This Agreement is made,
effective as of May 17, 2002, among
the following parties: FIRST
COMMUNITY FINANCIAL CORPORATION, an
Arizona corporation ("FCFC");
TELETOUCH COMMUNICATIONS, INC.
("Borrower"); ING PRIME RATE TRUST
(formerly known as Pilgrim America
Prime Rate Trust) ("ING").
RECITALS:
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A. Borrower is currently obligated to ING under that certain Loan
Modification Agreement, Second Amended and Restated Credit Agreement and Amended
and Restated Promissory Note in the principal amount of $2,750,000, each dated
May 17, 2002, (the "ING Loan");
B. Borrower desires to obtain from FCFC a revolving Line of Credit in the
amount of $2,000,000 and a term loan in the amount of $250,000 (collectively,
the "FCFC Loans") to be secured by a security interest in certain personal
property hereafter described and referred to as the "FCFC Collateral";
C. FCFC is willing to make the FCFC Loans to Borrower, provided that,
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among other conditions, FCFC is granted security interests in the FCFC
Collateral that are prior in right and superior to all security interests now
existing and/or hereafter arising in favor of ING, in the same property of the
Borrower; and
D. To induce FCFC to grant to Borrower the FCFC Loans, ING is willing to
subordinate its security interests in and rights with respect to the FCFC
Collateral, upon the terms and conditions hereinafter set forth.
AGREEMENT:
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NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the execution hereof, the parties hereto do hereby
agree as follows:
1. Definitions. Any and all terms used in this Agreement shall be
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construed and defined in accordance with the meaning and definitions set forth
in this Agreement or, to the extent not inconsistent herewith, as such terms are
defined in then current version of the Code (hereafter defined) adopted by the
State of Arizona, and as amended from time to time; provided, however, with
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respect to any term used herein that is defined in Article 9 of the Code as in
force (i) in the jurisdiction in which a financing statement is signed by
Borrower in connection with the FCFC Loans, at the time that it is signed, or
(ii) at any relevant time in the jurisdiction in which a financing statement
signed by Borrower in connection with the FCFC Loans is filed, or (iii) at any
relevant time in the jurisdiction in which the terms of FCFC's Loan Documents
(hereafter defined) are enforced, the meaning to be ascribed thereto with
respect to any particular item of property shall be that under the more
encompassing of the three definitions:
(a) "Borrower's Books" means and includes all of Borrower's books and
records including, but not limited to, all customer lists and lists of account
debtors, all ledgers, records reflecting, summarizing or evidencing Borrower's
assets, accounts, business operations or financial condition, all computer
programs, computer discs, computer printouts and other computer prepared
information and its related computer equipment, of any kind.
(b) "Code" means the Uniform Commercial Code prepared under the joint
sponsorship of the American Law Institute and the National Conference of
Commissioners on Uniform State Laws, as amended from time to time.
(c) "FCFC Collateral" means and includes all of the following properties,
assets and rights of the Borrower and whatever is encompassed by the Code's
definition of the following terms, wherever located, whether now owned or
existing, or hereafter acquired or arising, and all proceeds, products,
replacements, substitutes, accessions, additions and improvements to any
thereof:
All personal property of every kind and nature including,
without limitation, all furniture, equipment, raw materials,
inventory, other goods, accounts, contract rights, rights to
the payment of money, insurance refund claims and all other
insurance claims and proceeds, chattel paper (including
security agreements and leases), electronic chattel paper,
documents, records, instruments, securities and other
investment property, deposit accounts, rights to proceeds of
letters of credit, letter-of-credit rights, supporting
obligations of every nature, and general intangibles
including, without limitation, all tax refund claims, license
fees, patents, patent applications, trademarks, trademark
applications, trade names, copyrights, copyright applications,
rights to xxx and recover for past infringement of patents,
trademarks and copyrights, computer programs, computer
software, engineering drawings, service marks, customer lists,
goodwill, and all licenses, permits, agreements of any kind or
nature pursuant to which (i) Borrower operates or has
authority to operate, (excluding however all licenses issued
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by the Federal Communications Commission, and books and
records which pertain exclusively to such licenses), (ii)
Borrower possesses, uses or has authority to possess or use
property (whether tangible or intangible) of others, or (iii)
others possess, use, or have authority to possess or use
Borrower's property (whether tangible or intangible), and all
recorded data of any kind or nature, regardless of the medium
of recording, including, without limitation, all software,
writings, plans, specifications and schematics, and Borrower's
Books;
excluding, however, all corporate stock of Teletouch Licenses, Inc., and all
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books and records which pertain exclusively to such stock, books and records
which pertain exclusively to any licenses issued by the Federal Communications
Commission that are now or hereafter held by Teletouch Licenses, Inc., books and
records (including without limitation blue prints, surveys, and drawings), of
and/or concerning any real property of Borrower, including real property in
Tyler, Xxxxx County, Texas, and that certain Amended and Restated Operating
Agreement between Borrower and Teletouch Licenses, Inc.
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(d) "FCFC's Loan Documents" means all agreements, documents and instruments
which have been or may hereafter be executed by Borrower and others in
connection with the FCFC Loans, including all modifications, extensions and
revisions thereof.
(e) "FCFC Loans" means all indebtedness, obligations and liability of
Borrower and each Person who hereafter becomes Borrower, that is now or
hereafter owing to FCFC, regardless whether such indebtedness, obligation or
liability is now existing or hereafter arising, whether it is voluntary or
involuntary, whether due or not, secured or unsecured, absolute or contingent,
liquidated or unliquidated, and whether it is for principal, interest, fees,
expenses or otherwise, and regardless whether the Person who is or hereafter
becomes Borrower may be liable individually or jointly with others, or whether
recovery upon any such obligations may be or hereafter become barred or
otherwise unenforceable. The term, "FCFC Loans," also includes: (a) all amounts
which arise after the filing of a petition by or against Borrower under Title 11
of the United States Code (the "Bankruptcy Code"), even if the obligations do
not accrue because of the automatic stay under Bankruptcy Code ss. 362 or
otherwise, and all amounts which would become due but for the operation of the
automatic stay under ss. 362(a) of the Bankruptcy Code, and the operation of
xx.xx. 502(b) and 506(b) of the Bankruptcy Code; (b) indebtedness arising under
modifications, renewals, replacements and extensions of the FCFC Loans, and
successive transactions which renew, continue, refinance or refund the FCFC
Loans; and (c) all covenants and duties of Borrower to FCFC of every kind,
nature and description, (whether arising out of FCFC's Loan Documents, this
Agreement or any other agreement, instrument, document, record or contract now
existing or hereafter made by Borrower in favor of FCFC, and whether created by
oral agreement or operation of law, and whether or not for the payment of
money), including without limitation any debt, liability or obligation owing by
Borrower to others which FCFC may have acquired by assignment or otherwise.
(f) "ING Collateral" means the all corporate stock of Teletouch Licenses,
Inc., and all books and records which pertain exclusively to such stock, books
and records which pertain exclusively to any licenses issued by the Federal
Communications Commission that are now or hereafter held by Teletouch Licenses,
Inc., books and records (including without limitation blue prints, surveys, and
drawings), of and/or concerning any real property of Borrower, including real
property in Tyler, Xxxxx County, Texas, and that certain Amended and Restated
Operating Agreement between Borrower and Teletouch Licenses, Inc. and all books
and records which pertain exclusively to such Amended and Restated Operating
Agreement, in which ING has a security interest, and any other property of
Borrower in which ING has or acquires a security interest.
(g) "ING's Loan Documents" means all agreements, documents and instruments
which have been or may hereafter be executed by Borrower and others in
connection with the ING Loan, including all modifications, extensions and
revisions thereof.
(h) "Person" means an individual, partnership, corporation, including a
"business trust", limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
2. Priority of Security Interests. Subject to the terms and conditions of
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this Agreement, all existent and hereafter existing security interests of FCFC
in the FCFC Collateral
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are hereby made prior and superior to every security interest in the FCFC
Collateral of ING and ING's security interest in the FCFC Collateral is hereby
subordinated and made junior and inferior to the security interest of FCFC in
the FCFC Collateral. Subject to the terms and conditions of this Agreement, all
existent and hereafter existing security interests of ING in the ING Collateral
are hereby made prior and superior to every security interest in the ING
Collateral of FCFC and FCFC's security interest in the ING Collateral is hereby
subordinated and made junior and inferior to the security interest of ING in the
ING Collateral. In furtherance of the foregoing, each party to this Agreement
shall execute and deliver any instrument or document reasonably requested and
prepared from time to time by another party to confirm the foregoing
subordination.
3. Forbearance by ING. Until all FCFC Loans has been fully paid and
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satisfied, and the FCFC Loans have been terminated:
(a) ING shall not take any action, without the prior written consent of
FCFC, to enforce any of their respective security interests and rights in any of
the FCFC Collateral, including but not limited to notifying account debtors of
the existence of ING's security interest, or attempting to collect or realize
upon any of the FCFC Collateral, or foreclosing any security interest in any of
the FCFC Collateral; and
(b) in the event that ING obtains possession of any proceeds of the FCFC
Collateral, said proceeds shall be held in trust by ING as the property of FCFC,
and ING shall promptly deliver the same to FCFC in precisely the form received.
Notwithstanding the foregoing, nothing herein contained shall be construed to
inhibit or limit in any way ING's rights with respect to the enforcement of its
security interest in ING's Collateral.
4. Forbearance by FCFC. Until all of the ING Loan has been fully paid and
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satisfied, and the loans pertaining thereto have been terminated:
(a) FCFC shall not take any action, without the prior written consent of
ING, to enforce any of its security interests and rights in any of the ING
Collateral, including attempting to collect or realize upon any of the ING
Collateral, or foreclosing any security interest in any of the ING Collateral;
and
(b) in the event that FCFC obtains possession of any proceeds of the ING
Collateral, said proceeds shall be held in trust by FCFC as the property of ING,
and FCFC shall promptly deliver the same to ING in precisely the form received.
Notwithstanding the foregoing, nothing herein contained shall be construed to
inhibit or limit in any way FCFC's rights with respect to the enforcement of its
security interest in the FCFC Collateral.
5. Enforcement of FCFC's Security Interest. FCFC may at any time exercise
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all rights and remedies with respect to the FCFC Collateral as are granted to it
by law and/or FCFC's Loan Documents, without the consent of or prior notice to
ING. FCFC shall account to ING for any surplus received from a liquidation or
disposition of the FCFC Collateral in excess of the FCFC Loans. In liquidating
or disposing of the FCFC Collateral, or any of it, FCFC needs
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only to use its reasonable best judgment with respect thereto and shall not be
liable to ING for any act or omission with respect to the liquidation of the
FCFC Collateral, or the fact that the proceeds realized from a liquidation of
the FCFC Collateral could, under any circumstances, have been greater.
6. Enforcement of ING's Security Interest. ING may at any time exercise
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all rights and remedies with respect to the ING Collateral as are granted to it
by law/or ING's Loan Documents, without the consent of or notice of or to FCFC.
ING shall account to FCFC for any surplus received from a liquidation or
disposition of the ING Collateral in excess of the ING Loan. In liquidating or
disposing of the ING Collateral, or any of it, ING needs only use its reasonable
best judgment with respect thereto and shall not be liable to FCFC for any act
or omission with respect to the liquidation of the ING Collateral, or the fact
that the proceeds realized from a liquidation of the ING Collateral could, under
any circumstances, have been greater.
7. Continuing Agreement and Waiver. This Agreement shall continue until
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all FCFC Loans and the ING Loan shall have been fully paid and satisfied and the
FCFC Loans and the ING Loans have been terminated. Neither FCFC's or ING's
rights and priority of interest granted under this Agreement shall be effected
or impaired, regardless of any lack of notice to or consent of ING (all of which
is hereby waived) by:
(a) any act or failure to act on the part of Borrower under the terms of
the FCFC Loan Documents, the ING Loan Documents and/or this Agreement; or
(b) any extension or indulgence in respect of any payment or prepayment of
any FCFC Loans or ING Loan or any part thereof, or in respect of any other
amount payable to FCFC or ING; or
(c) any amendment, modification, or waiver of, or addition or supplement
to, or deletion from, or compromise, release, consent or other action in respect
of, any of the terms of the FCFC's Loan Documents, the ING Loan Documents or any
agreement which may be made relating to any of the FCFC Loans or ING Loan; or
(d) any increase from time to time of the maximum principal amount of the
FCFC Loans or the ING Loan, provided the aggregate principal amount of either
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the FCFC Loans or the ING Loan does not exceed $3,500,000; or
(e) any extension of credit from time to time to Borrower regardless of
Borrower's present or future financial condition; or
(f) any failure to furnish any information concerning Borrower's financial
condition; or
(g) any exercise or non-exercise of any right, power, privilege or remedy
under or in respect of any FCFC Loans , the ING Loan, or the subordination
provisions of this Agreement, or any waiver of any such right, power, privilege
or remedy, or of any default in respect of the FCFC Loans , the ING Loan, or the
subordination provisions of this Agreement, or any receipt by FCFC or ING, of
any security, or any failure by FCFC or ING to perfect a security interest in,
or any release by FCFC or ING of, any security or guaranty for the payment of
the FCFC Loans, the ING Loan, or
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(h) any merger or consolidation of Borrower into or with any other Person,
or any sale, lease or transfer of any or all of the assets of the Borrower to
any other Person; or
(i) absence of any notice to, or knowledge by, FCFC or ING of the
existence or occurrence of any of the matters or events set forth in the
foregoing subdivisions (a) through (h).
(j) The obligations of FCFC and ING under this Agreement shall continue to
be effective, or be reinstated, as the case may be, if at any time any payment
in respect of any FCFC Loans or ING Loan is rescinded or must otherwise be
restored or returned by FCFC or ING upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payment had not been made.
8. Benefit of Agreement. This Agreement shall be binding upon and inure
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to the benefit of all parties hereto and their respective successors and
assigns.
9. Governing Law and Forum Selection. This Agreement shall be governed,
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construed and enforced in accordance with the laws of the State of Arizona
(without regard to principles of conflict of laws), and in the event of any
dispute arising out of this Agreement, the parties agree that the only proper
forums for the resolution of any such dispute shall be state or federal courts
within the State of Arizona.
10. Attorneys' Fees and Costs: If any proceeding is brought for the
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enforcement, interpretation, modification, termination or breach of this
Agreement, the prevailing party shall be entitled to recover from the
non-prevailing party or parties reasonable attorneys' fees and costs incurred in
addition to any other costs or relief to which it may be entitled.
11. Amendments. This Agreement may be amended or modified only by a
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writing executed by all parties hereto.
12. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original and it shall not be necessary in making proof
of this Agreement to produce or account for more than one such counterpart.
Facsimile transmission to a party of a signed copy of this Agreement shall
constitute and be deemed delivery of the signature copy of this Agreement to the
recipient.
13. Headings. Section headings in this Agreement are for convenience and
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reference only and shall not govern the interpretation of any of the provisions
of this Agreement.
14. Waiver of Jury Trial. All parties hereby knowingly, voluntarily, and
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intentionally, waives any rights they may have to require a trial by jury in any
court action involving any of the parties and pertaining to their obligations
hereunder or the FCFC Collateral, and agree that any such action or proceeding
shall be tried before a court and not before a jury.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
FIRST COMMUNITY FINANCIAL CORPORATION
By___________________________________________
Its__________________________________________
TELETOUCH COMMUNICATIONS, INC.
By___________________________________________
Its__________________________________________
ING PRIME RATE TRUST
(formerly known as Pilgrim America Prime
Rate Trust)
By: ING INVESTMENTS, LLC
Its__________________________________________
By___________________________________________
Its__________________________________________
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GUARANTORS
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The undersigned, a Guarantor of the ING Loan, hereby consents to the
execution, delivery and performance of this Agreement for all purposes.
TELETOUCH LICENSES, INC.
By_____________________________
Its____________________________
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