Exhibit 10.6
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., a Delaware corporation
("Borrower"); TLL Partners, L.L.C., a
Delaware limited liability company ("TLL
Partners").
RECITALS:
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A. Borrower is obligated to TLL Partners under a Subordinated Promissory
Note dated May 17, 2002 in the principal amount of $2,200,000 (the "TLL Note");
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 $250,000.00 (collectively,
the "FCFC Loans") to be secured by a security interest in certain personal
property of the Borrower 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 TLL Partners; and
D. To induce FCFC to grant to Borrower the FCFC Loans, TLL Partners 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 by the Federal Communications
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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
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Tyler, Xxxxx County, Texas, and that certain Amended and Restated Operating
Agreement between Borrower and Teletouch Licenses, Inc.
(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 Debt" 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 Debt," 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 (S) 362 or
otherwise, and all amounts which would become due but for the operation of the
automatic stay under (S) 362(a) of the Bankruptcy Code, and the operation of
(S)(S) 502(b) and 506(b) of the Bankruptcy Code; (b) indebtedness arising under
modifications, renewals, replacements and extensions of the FCFC Debt, and
successive transactions which renew, continue, refinance or refund the FCFC
Debt; 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) "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.
(g) "TLL Partners' Collateral" means any property of Borrower in which
TLL Partners has or acquires a security interest.
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 are hereby made prior and superior to every security
interest in the FCFC Collateral of TLL Partners and TLL Partners'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. 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.
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3. Forbearance by TLL Partners. Until all FCFC Debt has been fully paid
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and satisfied, and the FCFC Loans have been terminated:
(a) TLL Partners 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 TLL Partners'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 TLL Partners obtains possession of any proceeds
of the FCFC Collateral, said proceeds shall be held in trust by TLL Partners as
the property of FCFC , and TLL Partners 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 TLL Partners's rights with respect to the
enforcement of its security interest in TLL Partners's FCFC Collateral, except
that TLL Partners shall give FCFC prior written notice of such action.
4. 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
TLL Partners. FCFC shall account to TLL Partners for any surplus received from a
liquidation or disposition of the FCFC Collateral in excess of the FCFC Debt. In
liquidating or disposing of the FCFC Collateral, or any of it, FCFC needs only
to use its reasonable best judgment with respect thereto and shall not be liable
to TLL Partners 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.
5. Continuing Agreement and Waiver. This Agreement shall continue until
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all FCFC Debt shall has been fully paid and satisfied and the FCFC Loans have
been terminated. FCFC `s rights and priority of interest granted under this
Agreement shall not be effected or impaired, regardless of any lack of notice to
or consent of TLL Partners (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 and/or this Agreement; or
(b) any extension or indulgence in respect of any payment or prepayment
of any FCFC Debt to FCFC , or any part thereof, or in respect of any other
amount payable to FCFC ; 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 or any agreement
which may be made relating to any of the FCFC Debt; or
(d) any increase from time to time of the maximum principal amount of
the FCFC Loans; or
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(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 to TLL Partners any information in FCFC `s
possession concerning Borrower's financial condition; or
(g) any exercise or non-exercise by FCFC of any right, power, privilege
or remedy under or in respect of any FCFC Debt 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 Debt or the subordination provisions of
this Agreement, or any receipt by FCFC of any security, or any failure by FCFC
to perfect a security interest in, or any release by FCFC of, any security or
guaranty for the payment of the FCFC Debt; or
(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 of the existence or
occurrence of any of the matters or events set forth in the foregoing
subdivisions (a) through (h).
The obligations of Creditor 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 Debt is rescinded or must otherwise be restored or returned by Lender
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.
6. Benefit of Agreement. This Agreement shall be binding upon and inure to
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the benefit of all parties hereto and their respective successors and assigns.
7. 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.
8. 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.
9. Amendments. This Agreement may be amended or modified only by a writing
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executed by all parties hereto.
10. 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.
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11. 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.
12. 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.
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 _______________________________________
TLL PARTNERS, L.L.C.
By ________________________________________
Its _______________________________________
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