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EXHIBIT
10.7
WAIVER, RELEASE AND
TERMINATION AGREEMENT
THIS WAIVER, RELEASE AND
TERMINATION AGREEMENT (this “ Termination ”) is
made as of May 16, 2008 (the “ Termination Effective
Date ”) between Progressive Concepts, Inc., a Texas
corporation (“ PCI ”) and Teletouch
Communications, Inc., (“ Teletouch ”), on the
one hand, and Fortress Credit Corp. (“ Fortress
”), a Delaware corporation, as agent (the “
Agent ”) for the Lenders, hereinafter defined, and as
a Lender, on the other hand.
RECITALS
WHEREAS, on or about
August 11, 2006, the Agent and TLL Partners entered into that
certain Loan Agreement, which was amended on or about
April 20, 2007 by that certain Amendment No. 1 to Loan
Agreement, and on or about August 10, 2007 by that certain
Amendment No. 2 to Loan Agreement, and on or about
October 11, 2007 by that certain Amendment No. 3 to Loan
Agreement, and on or about December 11, 2007 by that certain
Amendment No. 4 to Loan Agreement, and on or about
February 15, 2008 by that certain Amendment No. 5 to Loan
Agreement, and on or about March 17, 2008 by that certain
Amendment No. 6 to Loan Agreement, and on or about
April 17, 2008 by that certain Amendment No. 7 to Loan
Agreement (as so amended, the “ Loan Agreement
”);
WHEREAS, in connection with
and contemporaneously with the Loan Agreement, PCI and Teletouch,
on the one hand, and the Agent, on the other hand, entered into
that certain Transaction Party Agreement (the “ TPA
”);
WHEREAS, Teletouch and PCI
have requested that the Agent and the Lenders agree to amend the
Loan Agreement to delete all substantive reference therein to
Teletouch and PCI, and terminate the TPA, respectively, by way of
certain amendments to the Loan Agreement and the execution by the
Agent of this Termination;
WHEREAS, Teletouch and PCI
have agreed to pay, and the Agent has agreed to accept, $2,000,000
for the benefit of the Lenders, as consideration for the
Agent’s agreement to enter into the Amendment (defined below)
and this Termination;
WHEREAS, contemporaneously
herewith, the Agent and TLL Partners have entered into that certain
Amendment No. 8 to Loan Agreement (the “
Amendment ”);
WHEREAS, contemporaneously
herewith, Teletouch, PCI, Teletouch Licenses, Inc., a Delaware
corporation, have entered into a $5,000,000 Revolving Credit
Facility (the “ Thermo Line ”) with Thermo
Credit, LLC, a Colorado limited liability company, which, absent
the Amendment and this Termination, would be prohibited under the
terms of the Loan Agreement and the TPA;
WHEREAS, PCI and Teletouch
have requested that the Agent enter into this Termination to
clarify that PCI’s and Teletouch’s entry into the
Thermo Line, in accordance with the
Amendment and this Termination, shall
not give rise to a default of PCI or Teletouch under the TPA or the
Loan Agreement, and that effective on the Termination Effective
Date, the TPA shall be terminated; and
WHEREAS, the Agent has agreed
to enter into this Termination, subject to payment by PCI of
$2,000,000, and its release of the Agent and the Lenders as more
particularly set forth below;
NOW THEREFORE, in
consideration of the payment of $2,000,000 and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Definitions .
Unless otherwise defined in this Termination, the definitions,
interpretations, accounting terms and determinations, and rules for
times set forth in Article I of the Loan Agreement are incorporated
herein by reference.
2. Payment . PCI and
Teletouch shall pay $2,000,000 to the Agent for the benefit of the
Lenders.
3. Waiver . The Agent
and the Lenders hereby waive any default or breach by PCI and/or
Teletouch under the TPA or the Loan Agreement arising as a result
of PCI and Teletouch entering into the Thermo Line.
4. Termination . The
TPA is hereby unconditionally and irrevocably terminated in all
respects. The Agent and Lenders unconditionally release their
respective claims, whether through a collateral assignment, pledge,
guaranty or otherwise, against PCI and Teletouch under the Current
Loan Agreement and/or under the TPA, and grant an unconditional
release to PCI, Teletouch and PCCI of the Liens set forth in the
Released Documents. The Released Documents are hereby
unconditionally and irrevocably terminated in all respects. PCI and
Teletouch are each authorized to take such actions and effect such
filings as either may deem appropriate to record or otherwise
effect the foregoing releases.
5. Rel
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