Exhibit I Mutual Release — Robert McMurrey and RRGC/Stratford [See Attached] Exhibit I
EXECUTION VERSION
This Mutual Release (this “Agreement”), dated August 18, 2011 (the “Effective
Date”), is by and among Retail & Restaurant Growth Capital, L.P. (“RRGC”) and Stratford
Capital Partners, L.P. (“Stratford”), on the one hand, and Xxxxxx X. XxXxxxxx
(“XxXxxxxx”), on the other hand. This Agreement is given and executed pursuant to the
Heads of Terms dated August 11, 2011, and pursuant to the mutual promises and undertakings set
forth therein.
Section 1. Release by RRGC and Stratford. RRGC and Stratford, on behalf of themselves and on
behalf of their past, present, or future partners, agents, representatives, officers, directors,
employees, principals, stockholders, owners, investors, managers, members, successors, assigns,
attorneys, and all other persons or entities claiming by or through RRGC and Stratford
(collectively, the “RRGC/Stratford Releasing Parties,” including without limitation, RRGC
and Stratford), hereby release, acquit, hold harmless and forever discharge XxXxxxxx and his
assigns, attorneys, heirs and beneficiaries (collectively, the “XxXxxxxx Released Parties,”
including without limitation, XxXxxxxx), from any and all past, present, or future claims and
causes of action, whether at law or in equity, demands, rights, liabilities, or damages, whether
now known or unknown, suspected or unsuspected, from the beginning of time until the date hereof,
(a) arising out of or relating in any way to RRGC’s or Stratford’s ownership interest in TLLP or
Teletouch, (b) arising out of or relating to any of the XxXxxxxx Released Parties’ actions and
omissions in connection with that certain Loan Agreement dated as of August 11, 2006 (as amended,
supplemented or otherwise modified through the date hereof, the “Loan Agreement”), by and
among TLLP, Drawbridge Special Opportunities LP and Drawbridge Special Opportunities Ltd., as
lenders (each a “Lender” and together, the “Lenders”) and Fortress Credit Corp., a
Delaware corporation, as agent for the Lenders under the Loan Agreement (in such capacity, the
“Agent”), the Lenders or the Agent, (c) XxXxxxxx’x actions and omissions as the manager,
officer or other representative of TLLP, or as the officer, director or other representative of
Teletouch, (d) XxXxxxxx’x actions and omissions as manager of TLLP, (e) XxXxxxxx’x liability and
obligation under the Put Options Agreement dated August 11, 2006, and (f) arising out of or
relating to any actions or omissions of any of the XxXxxxxx Released Parties in connection with
TLLP or Teletouch, or (g) arising or in any way relating to any past actions or omissions of
XxXxxxxx, but excluding, in the case of each of the preceding clauses (a), (b), (c), (d), (e), (f)
and (g), and subject to the Contingent Release (as defined below), all Excluded Claims (as defined
below) (collectively, and excluding, subject to the Contingent Release, the Excluded Claims, the
“Released Claims Against XxXxxxxx Parties”). Notwithstanding the foregoing, nothing herein
shall be construed to mean or have the effect of releasing, resolving, or settling (I) any rights
or obligations arising under the Heads of Terms or the other transaction documents entered into in
connection with or as a result of the Heads of Terms; or (II) to claims that arise from actions or
omissions occurring after the date of this Agreement. “Excluded Claims” as used herein
means, any and all past, present or future claims and causes of action, whether at law or in
equity, demands, rights, liabilities or damages, whether now known or unknown, suspected or
unsuspected, from the beginning of time until the date hereof, solely to the extent arising out of
or relating to TLLP’s interests in GPSi, LLC or TLLP’s failure to own interests in GPSi, LLC. Upon
the delivery to Stratford and RRGC of executed documents from GPSi, LLC and/or TLLP that
unequivocally establish that (x) TLLP is the registered owner of the equity interests in GPSi, LLC,
(y) valid approval by the governing body of GPSi, LLC consenting to the ownership of such equity
interests in GPSi, LLC and stating that
such ownership and any transfer thereof is in compliance
with the organizational and governing documents of GPSi, LLC, and (z) all actions needed to perfect
the security interest of RRGC and Stratford to be created pursuant to the pledge of the equity
interests in GPSi, LLC to RRGC and Stratford pursuant to the Pledge and Security Agreement of even
date herewith shall have been taken, then effective upon delivery of such documents the Excluded
Claims shall be treated as being within the definition above of “Released Claims Against XxXxxxxx
Parties” and shall be treated fully as “Released Claims Against XxXxxxxx Parties” within the
meaning of this release as if such claims had not previously been defined as “Excluded Claims” as
set forth above (such release, the “Contingent Release”).
Section 2. Release by XxXxxxxx. XxXxxxxx, on behalf of himself and on behalf of his assigns,
attorneys, heirs, and beneficiaries, and all other persons or entities claiming by or through
XxXxxxxx (collectively, the “XxXxxxxx Releasing Parties,” including without
limitation,XxXxxxxx), hereby release, acquit, hold harmless and forever discharge each of RRGC and
Stratford, as well as each of RRGC’s and Stratford’s present and former partners, agents,
representatives, officers, directors, employees, principals, stockholders, owners, investors,
managers, members, subsidiaries, successors, assigns, attorneys, and beneficiaries (collectively,
the “RRGC/Stratford Released Parties,” including without limitation, RRGC and Stratford),
from any and all past, present, or future claims and causes of action, whether at law or in equity,
demands, rights, liabilities, or damages, whether now known or unknown, suspected or unsuspected,
from the beginning of time until the date hereof, arising out of or relating in any way to RRGC’s
or Stratford’s ownership interest in TLLP or Teletouch including, but not limited to, any of RRGC’s
or Stratford’s actions and omissions as members of TLLP or stockholders of Teletouch, and any
RRGC/Stratford Released Parties’ actions and omissions in connection with the Loan Agreement, the
Lenders, or the Agent, or in any way relating to any past actions or omissions of the
RRGC/Stratford Released Parties (collectively, the “Released Claims Against RRGC/Stratford
Parties”). Notwithstanding the foregoing, nothing herein shall be construed to mean or have
the effect of releasing, resolving, or settling (a) any rights or obligations arising under the
Heads of Terms or the other transaction documents entered into in connection with or as a result of
the Heads of Terms; or (b) claims that arise from actions or omissions occurring after the date of
this Agreement.
Section 3. No Admission of Liability. Each of the parties hereby acknowledges that each
understands and agrees that the execution of this Agreement does not constitute in any manner
whatsoever an admission of liability on the part of any parties hereto for any matters covered by
this Agreement, and such liability is specifically denied.
Section 4. Covenant Not to Xxx. Each of RRGC and Stratford, on behalf of themselves and the
other RRGC/Stratford Releasing Parties, hereby covenant not to xxx, file or initiate, any civil
action, whether in court or in an arbitration proceeding, against XxXxxxxx and the other XxXxxxxx
Released Parties relating to any Released Claims Against XxXxxxxx Parties, except for the Filed
Lawsuit with respect to the existing filings and which will be dismissed pursuant to Section
5. XxXxxxxx, on behalf of himself and the other XxXxxxxx Releasing Parties, hereby covenant
not to xxx, file or initiate any civil action, whether in court or in an arbitration proceeding,
against RRGC, Stratford, or the other RRGC/Stratford Released Parties relating to any Released
Claims Against RRGC/Stratford Parties. The covenants
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contained in this Section 4 shall
survive this Agreement indefinitely regardless of any statute of limitations.
Section 5. Dismissal of Lawsuit. Upon the Release Date, RRGC and Stratford shall take all
actions to release, non-suit and dismiss with prejudice, the following lawsuit and all related
matters, Cause No. 067 25453911, Stratford Capital Partners, LP and Retail and Restaurant Growth
Capital, L.P., Plaintiffs, vs. TLL Partners, L.L.C. and Xxxxxx X. XxXxxxxx, Defendants (the
“Filed Lawsuit”) in the 67th Judicial District, Tarrant County, Texas. Neither RRGC nor
Stratford will oppose TLLP from filing a Motion to Seal Court Records under Rule 76a of the Texas
Rules of Civil Procedure by which the parties will ask the Court to seal all pleadings in the Filed
Lawsuit.
Section 6. Rightful Owner of Claims. RRGC and Stratford represent and warrant that each is
the rightful owner of the claims, rights, and/or interests which are the subject matter of the
Released Claims Against XxXxxxxx Parties, and that they have not assigned any such claims, in whole
or in part, that each has asserted or may have asserted against the XxXxxxxx Released Parties.
XxXxxxxx represents and warrants that he is the rightful owner of the claims, rights, and/or
interests which are the subject matter of the Released Claims Against RRGC/Stratford Parties, and
that he has not assigned any such claims, in whole or in part, that he has asserted or may have
asserted against the RRGC/Stratford Released Parties.
Section 7. Waiver. Any term of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or more instances, shall
be deemed to be a waiver of any other term or condition nor construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by any laws or otherwise afforded, will be cumulative and not alternative.
Section 8. Amendment. This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
Section 9. No Assignment; Binding Effect. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto without the prior written consent of the
other parties hereto and any attempt to do so will be void, except for assignments and transfers by
operation of any laws. Subject to the preceding sentence, this Agreement is binding upon, inures
to the benefit of and is enforceable by the parties and their respective successors and assigns.
Section 10. Several Liability. The releases, covenants, undertakings and obligations made
herein by the parties hereto are several and not joint.
Section 11. Communications. All notices or other communications hereunder shall be in writing
and shall be given by personal delivery, by courier or other delivery service (which obtains a
receipt evidencing delivery) or by registered or certified mail (postage prepaid and return receipt
requested) addressed as set forth below:
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If to XxXxxxxx:
Xxxxxx XxXxxxxx
c/o TLL Partners, L.L.C.
0000 Xxxxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
Attn: Xxxxxx XxXxxxxx, Sole Manager
Fax: 000-000-0000
Email:xxxxxxxxx@xxxxxxxxx.xxx
c/o TLL Partners, L.L.C.
0000 Xxxxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
Attn: Xxxxxx XxXxxxxx, Sole Manager
Fax: 000-000-0000
Email:xxxxxxxxx@xxxxxxxxx.xxx
If to RRGC and Stratford:
Stratford Capital Partners, L.P.
c/o HM Capital Partners LLC
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx
c/o HM Capital Partners LLC
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx
Retail & Restaurant Growth Capital, L.P.
0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: 000.000.0000
Email: xxxxxxx@xxxxxxxx.xxx
0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: 000.000.0000
Email: xxxxxxx@xxxxxxxx.xxx
or such other address as any party may designate to the other parties hereto in accordance with the
aforesaid procedure. All notices and other communications shall be deemed to have been given as of
the date of deposit in the United States mail or upon receipt by the party, if personally
delivered.
Section 12. Headings. All article and section headings herein are inserted for convenience
only and shall not modify or affect the construction or interpretation of any provisions of this
Agreement.
Section 13. Specific Performance. The parties hereto agree that the remedy at law for any
breach of this Agreement will be inadequate and that any party by whom this Agreement is
enforceable shall be entitled to specific performance in addition to any other appropriate relief
or remedy. Such party may, in its sole discretion, apply to any court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may deem just and proper
in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such relief.
Section 14. Entire Agreement. This Agreement constitutes the entire understanding and
agreement between the parties with respect to the subject matter hereof, and supersedes all prior
and contemporaneous written and oral negotiations, discussions, agreements and
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understandings with
respect to such subject matter. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action, suit or other proceeding
involving this Agreement.
Section 15. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.
Section 16. Costs of Enforcement. If any action or proceeding is instituted by either RRGC or
Stratford, on the one hand, and XxXxxxxx, on the other hand, to enforce or construe any provision
of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover
from the other party all of its costs and expenses incurred by such prevailing party, including
without limitation, reasonable attorneys’ fees and disbursements.
Section 17. Applicable Law, Jurisdiction, Venue. The validity, legality, enforceability and
interpretation of this Agreement shall be governed by the laws of the State of Texas, without
giving effect to principles of conflict of laws. Venue with respect to any matter related hereto
shall be held in the courts in Dallas County, Texas and the Northern District of Texas.
Section 18. Interpretation. All of the parties to this Agreement have participated in the
negotiation and drafting of this Agreement. Accordingly, the parties waive any statutory provision,
judicial precedent or other rule of law to the effect that contractual ambiguities are to be
construed against the party who shall have drafted this Agreement.
Section 19. Third Party Beneficiaries. The parties agree and acknowledge that the XxXxxxxx
Released Parties set forth in Section 1 are third party beneficiaries under this Agreement
and shall have the ability to enforce their rights under the terms of this Agreement against the
RRGC/Stratford Releasing Parties, and that the RRGC/Stratford Released Parties set forth in
Section 2 of this Agreement are third party beneficiaries under this Agreement and shall
have the ability to enforce their rights under the terms of this Agreement against the XxXxxxxx
Releasing Parties.
[SIGNATURE PAGE FOLLOWS]
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Executed by the parties hereto to be effective and binding as of the date first set forth
above.
| RETAIL & RESTAURANT GROWTH CAPITAL, L.P. |
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| By: | Retail & Restaurant Growth Partners, its general partner |
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| By: | Retail & Restaurant Growth Management, Inc., its general partner |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | President | |||
| STRATFORD CAPITAL PARTNERS, L.P. |
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| By: | Stratford Capital GP Associates L.P., its general partner |
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| By: | Stratford Capital Corporation, its general partner |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxx X. XxXxxxxx | |||
| Xxxxxx X. XxXxxxxx, in his individual capacity | ||||
[Signature Page to Mutual Release]
