SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of March 31, 1999 (this "Security
Agreement"), is between AQUIS COMMUNICATIONS GROUP, INC., a Delaware corporation
("Debtor"), and FINOVA CAPITAL CORPORATION, a Delaware corporation ("Secured
Party"), in its individual capacity and as Agent for all Lenders (as defined
below).
Preliminary Statement:
A. Aquis Communications, Inc., a Delaware corporation ("Borrower"), Agent
and Lenders have entered into a Loan Agreement dated December 31, 1998 (the
"Original Loan Agreement"), as amended by a First Amendment to Loan Instruments
of even date herewith (the "First Amendment") among Borrower, Agent and Lenders
(the Original Loan Agreement, as amended by the First Amendment and as the same
may be further amended, supplemented, modified or restated from time to time,
hereinafter is referred to as the "Loan Agreement") pursuant and subject to the
terms and conditions of which Lenders have agreed to make loans and other
financial accommodations to Borrower.
B. Debtor is the owner of all of the issued and outstanding capital stock
of Borrower. Accordingly, Debtor has a direct financial interest in inducing
Lenders to enter into the Loan Agreement.
C. One of the conditions precedent to the consent of Lenders to the Paging
Partners Merger and the obligation of Lenders to disburse the Merger Portion is
the execution and delivery by Debtor of this Security Agreement.
NOW, THEREFORE, in order to induce Lenders to enter into the Loan
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All terms used herein which are defined in the Arizona
Uniform Commercial Code (the "Code") shall have the same meaning herein as in
the Code unless the context in which such terms are used herein indicates
otherwise. All capitalized terms used but not elsewhere defined in this Security
Agreement shall have the respective meanings ascribed to such terms in the Loan
Agreement.
2. Security Interests. In order to secure the performance and payment of
Guarantor's Obligations, Debtor hereby grants to Secured Party, for the benefit
of Lenders, a security interest in all Property of Debtor, whether now owned or
hereafter acquired, and all additions and accessions thereto, including, without
limitation, the Property described below:
2.1 Goods, Machinery, Equipment and Inventory. All of Debtor's
goods, machinery, equipment and inventory, wherever located, and all
additions and accessions thereto or replacements thereof, including, but
not limited to, all machinery, inventory and
equipment of any and every kind and description comprising, belonging to
or used in connection with the operation of the Paging Business of Debtor
(collectively, the "Tangible Collateral");
2.2 Accounts, General Intangibles. All of Debtor's accounts,
contract rights, chattel paper, instruments, investment property, deposit
accounts, documents and general intangibles (excluding any general
intangibles other than for the payment of money which, by their terms,
prohibit assignment or the grant of a security interest, unless any
required consent to such assignment or grant of security interest is
obtained), and all additions and accessions thereto and replacements
thereof, including, but not limited to, all licenses, franchises, permits
and authorizations heretofore or hereafter granted or issued to Debtor
under federal, state or local laws (excluding, however, any licenses,
franchises, permits and authorizations issued by the FCC, any other
Governmental Body or any other Person to the extent, and only to the
extent, it is unlawful to grant a security interest in such licenses,
franchises, permits and authorizations, but including, without limitation,
the right to receive all proceeds derived or arising from or in connection
with the sale or assignment of such licenses, franchises, permits and
authorizations) which permit or pertain to the operation of the Paging
Business of Debtor, and all of Debtor's Operating Agreements, income tax
refunds, copyrights, patents, trademarks, trade names, trade styles,
goodwill, going concern value, franchise, supply and distributorship
agreements, non-competition agreements and employment contracts
(collectively, the "Intangible Collateral").
2.3 Proceeds. All proceeds (including proceeds of insurance, eminent
domain and other governmental taking and tort claims) and products of the
Property described in Sections 2.1 and 2.2 above; and
2.4 Books and Records. All of the books and records pertaining to
the Property described in Sections 2.1, 2.2 and 2.3 above.
All of the Property described above hereinafter is referred to collectively as
the "Collateral." The security interest of Secured Party in the Collateral shall
be superior and prior to all other Liens except Permitted Prior Liens.
3. Representations and Warranties. Debtor hereby represents and warrants
to Secured Party and Lenders as follows:
3.1 Ownership of Collateral. It is the owner of all of the
Collateral in which a security interest is granted hereunder, except the
portion thereof consisting of after-acquired Property, and Debtor will be
the owner of such after-acquired Property, free from any Lien except for
Permitted Liens.
3.2 Places of Business. There is listed on Exhibit A hereto the
location of the chief executive office of Debtor, all of the other places
of business of Debtor and all locations
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where the Tangible Collateral and the books and records of Debtor are
kept. Debtor shall not change the location of (i) Debtor's (A) chief
executive office or (B) books and records or (ii) any Tangible Collateral,
in each case without first giving Secured Party notice of such change not
later than 10 Business Days after such change and having taken any and all
action reasonably requested by Secured Party to maintain and preserve the
Lien in favor of Secured Party hereby granted free and clear of any Lien
whatsoever except for Permitted Liens.
3.3 Trade or Assumed Names. All trade or assumed names under which
Debtor has done business are listed in Exhibit B.
3.4 Financing Statements. Except for the financing statements of
Secured Party and the financing statements pertaining to the Permitted
Senior Indebtedness, if any, the Motorola Indebtedness, if any, and the
▇▇▇▇ Atlantic Seller Indebtedness, no financing statement covering any
Collateral or any portion or proceeds thereof is on file in any public
office.
3.5 Intangible Collateral. The Intangible Collateral in which a
security interest is granted by Debtor hereunder represents bona fide and
existing indebtedness, obligations, liabilities, rights and privileges
owed or belonging to Debtor to which, to the best of Debtor's knowledge,
there is no valid defense, set-off or counterclaim against Debtor and in
connection with which there is no default with respect to any material
payment or material performance on the part of Debtor, or, to the best of
Debtor's knowledge, any other party.
3.6 Tangible Collateral-Personal Property. All Tangible Collateral
at all times shall be considered personal property.
4. Affirmative Covenants. Until all of Guarantor's Obligations are paid
and performed in full, Debtor agrees that it will:
4.1 Taxes. Pay promptly when due all taxes, levies, assessments and
governmental charges upon and relating to any of the Property, income or
receipts of Debtor or otherwise for which Debtor is or may be liable,
except to the extent that the failure to pay any of such taxes, levies,
assessments or charges is permitted by the Loan Agreement.
4.2 Insurance. At its sole expense, keep the Collateral insured
against loss or damage by insurance policies which shall be in such form,
with such companies and in such amounts as may be reasonably satisfactory
to Secured Party and otherwise comply with the provisions of Section 6.6
of the Loan Agreement.
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4.3 Tangible Collateral.
4.3.1 Good Repair. Keep the Tangible Collateral in good
working order and repair and make all necessary replacements thereof
and renewals thereto so that the value and operating efficiency
thereof at all times shall be maintained and preserved.
4.3.2 Insurance Requirements. Maintain the Tangible Collateral
at all times in accordance with the requirements of all insurance
carriers which provide insurance with respect to such Tangible
Collateral so that such insurance shall remain in full force and
effect.
4.3.3 Certificates of Title. Upon the request of Secured Party
(i) promptly deliver to Secured Party all certificates of title
pertaining to the Tangible Collateral and (ii) take all actions
reasonably requested by Secured Party to cause the Lien granted to
Secured Party hereunder to be noted on such certificates of title.
4.3.4 Use of Collateral. Use the Tangible Collateral in
material compliance with all statutes, regulations, ordinances,
requirements and regulations and all judgments, orders, injunctions
and decrees applicable thereto, and all other federal, state and
local laws, the failure to comply with which could have a Material
Adverse Effect.
4.4 Intangible Collateral.
4.4.1 Payments. Make all payments and perform all acts
reasonably necessary to maintain and preserve the Intangible
Collateral, including, without limitation, filing of documents,
renewals or other information with any Governmental Body or any
other Person.
4.4.2 Delivery of Instruments. Upon the request of Secured
Party, promptly deliver to Secured Party the executed originals of
all instruments which constitute part of the Intangible Collateral,
together with such endorsements, assignments and other agreements as
Secured Party may reasonably request in order to perfect the
Security Interests.
4.4.3 Accurate Records. At all times keep accurate and
complete records of payment and performance by Debtor and other
Persons of their respective obligations with respect to the
Intangible Collateral and permit Secured Party or any of its agents
to call at Debtor's place of business without hindrance or delay to
inspect, audit, check or make extracts from the books, records,
correspondence or other data relating to the Intangible Collateral.
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4.4.4 Verification of Indebtedness. After any during the
continuance of an Event of Default, permit Secured Party itself, at
any time, in the name of Secured Party or Debtor, to verify directly
with the obligors the indebtedness due Debtor on any account or
other item of Intangible Collateral.
4.4.5 Defaults, Other Claims. Immediately inform Secured Party
of any material default in payment or performance by Debtor or any
other Person of any obligation with respect to the Intangible
Collateral or of material claims made by others in regard to the
Intangible Collateral.
4.5 Collection of Proceeds. Collect the proceeds of indebtedness
owing to Debtor by any Person under any instrument or by any account
debtor with respect to any account, contract right, chattel paper or
general intangible.
4.6 Financing Statements, Further Assurances. Execute and deliver to
Secured Party such financing statements, continuation statements,
termination statements, amendments to any of the foregoing and other
documents, in form satisfactory to Secured Party, as Secured Party from
time to time may reasonably require to perfect and continue in effect the
Security Interests, to carry out the purposes of this Security Agreement
and to protect Secured Party's rights hereunder. Debtor, upon demand,
shall pay the cost of filing all such financing statements, continuation
statements, termination statements, amendments to any of the foregoing and
other documents.
5. Negative Covenants. Until all of Guarantor's Obligations are paid and
performed in full, Debtor agrees that it will not:
5.1 Sales and Transfer of Collateral. Sell, lease, assign or
otherwise dispose of any of the Collateral, except as may be permitted by
and in accordance with the applicable provisions the Loan Agreement.
5.2 Installation of Tangible Collateral. Permit any of the Tangible
Collateral to be installed, affixed or attached to the real estate of
Debtor or any other Person so as to become a part thereof or become in any
sense a fixture not otherwise pledged to Secured Party.
5.3 Valuation of Licenses. Assert or allege that the value of the
Licenses of Debtor is not included in determining the value of the
Collateral in any insolvency, bankruptcy, receivership, custodianship,
liquidation, reorganization, assignment for the benefit of creditors or
other similar proceeding.
6. Protection of Collateral. In the event of any failure of Debtor to (i)
maintain in force and pay for any insurance or bond which Debtor is required to
provide pursuant to this Security Agreement or the other Loan Instruments, (ii)
keep the Tangible Collateral in good repair and
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operating condition, general wear and tear excepted, (iii) keep the Collateral
free from all Liens except for Permitted Liens, (iv) pay when due all taxes,
levies and assessments on or in respect of the Collateral, except as permitted
pursuant to the terms of Section 4.1 above or otherwise permitted pursuant to
the Loan Agreement, (v) make all payments and perform all acts on the part of
Debtor to be paid or performed with respect to any of the Collateral, including,
without limitation, all expenses of protecting, storing, warehousing, insuring,
handling and maintaining the Collateral or (vi) keep fully and perform promptly
any other of the obligations of Debtor under this Security Agreement or the
other Loan Instruments, Secured Party, at its option, may (but shall not be
required to) procure and pay for such insurance, place such Collateral in good
repair and operating condition, pay or contest or settle such Liens or taxes or
any judgments based thereon or otherwise make good any other aforesaid failure
of Debtor. Debtor shall reimburse Secured Party immediately upon demand for all
sums paid or advanced on behalf of Debtor for any such purpose, together with
all costs, expenses and attorneys' fees paid or incurred by Secured Party in
connection therewith and interest at the Default Rate on all sums so paid or
advanced from the date of such payment or advancement until repaid to Secured
Party. All such sums paid or advanced by Secured Party, with interest thereon,
immediately upon payment or advancement thereof, shall be deemed to be part of
Guarantor's Obligations secured hereby.
7. Event of Default. Debtor shall be in default under this Security
Agreement upon the occurrence of an Event of Default under the Loan Agreement.
8. Remedies Upon Default. Upon the occurrence and during the continuance
of an Event of Default:
8.1 Rights of Secured Party. Secured Party shall have all of the
rights and remedies of a secured party under the Code and all other rights
and remedies accorded to Secured Party at equity or law, including,
without limitation, the right to apply for and have a receiver appointed
by a court of competent jurisdiction to manage, protect and preserve the
Collateral, to continue operating the Paging Business of Debtor and to
collect all revenues and profits thereof. Any notice of sale or other
disposition of Collateral given not less than ten (10) Business Days prior
to such proposed action shall constitute reasonable and fair notice of
such action. Secured Party may postpone or adjourn any such sale from time
to time by announcement at the time and place of sale stated in the notice
of sale or by announcement of any adjourned sale, without being required
to give a further notice of sale. Any such sale may be for cash or, upon
such credit or installment terms as Secured Party shall determine. Debtor
shall be credited with the net proceeds of such sale only when such
proceeds actually are received by Secured Party in Good Funds. Despite the
consummation of any such sale, Debtor shall remain liable for any
deficiency on Guarantor's Obligations which remains outstanding following
any such sale. All net proceeds received pursuant to a sale shall be
applied in the manner set forth in Section 8.4 of the Loan Agreement.
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8.2 Assembly of Collateral. Upon the request of Secured Party,
Debtor shall assemble and make the Collateral available to Secured Party
at a place designated by Secured Party.
8.3 Proceeds. Debtor shall hold all proceeds of the Collateral
collected by any Debtor in trust for Secured Party, and promptly upon
receipt thereof, turn over such proceeds to Secured Party in the exact
form in which they were received.
8.4 Other Rights. Secured Party, at its election, and without notice
to Debtor, may:
8.4.1 Terminate Right of Collection. Terminate the rights of
Debtor to collect the proceeds described in Section 8.3.
8.4.2 Notification. Notify the obligors under any instruments
and the account debtors of any account, contract right, chattel
paper or general intangible to make all payments directly to Secured
Party.
8.4.3 Collection of Payments. Demand, ▇▇▇ for, collect or
receive, in the name of Debtor or Secured Party, any money or
Property payable or receivable on any item of Collateral.
8.4.4 Settlement. Settle, release, compromise, adjust, ▇▇▇
upon or otherwise enforce any item of Collateral as Secured Party
may determine.
8.4.5 Mail of Debtor; Endorsement of Checks. For the purpose
of enforcing Secured Party's rights under this Security Agreement,
receive and open mail addressed to Debtor, and endorse notes,
checks, drafts, money orders, documents of title or other forms of
payment on behalf and in the name of Debtor.
8.5 Applications to Governmental Bodies. Debtor shall take any
action that Secured Party may request in order to enable Secured Party to
obtain and enjoy the full rights and benefits granted to Secured Party
hereunder, including, without limitation, all rights necessary or
desirable to obtain, use, sell, assign or otherwise transfer control of
the Licenses of Debtor. Without limiting the generality of the foregoing,
upon the occurrence of any Event of Default, at the request of Secured
Party and at Debtor's sole cost and expense, Debtor shall (i) assist
Secured Party in obtaining any required FCC approval for any action or
transaction contemplated hereby, including preparing, signing and filing
with the FCC and/or any other Governmental Body the assignor's or
transferor's portion of any application or applications for consent to the
assignment of or transfer of control over any license necessary or
appropriate under the Communications Act or the rules and regulations of
any Governmental Body for approval of any sale, assignment or transfer to
Secured Party or any other Person of any or all Collateral (including
without limitation any Licenses of Debtor),
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and (ii) execute all applications and other documents and take all other
actions requested by Secured Party to enable Secured Party, its designee,
any receiver, trustee or similar official or any purchaser of all or any
part of the Collateral to obtain from the FCC or any other Governmental
Body or Person any required authority necessary to operate the Paging
Business of Debtor.
All monies received by Secured Party pursuant to this Section 8 shall be applied
by Secured Party in accordance with the applicable provisions of Section 8.4 of
the Loan Agreement.
9. Power of Attorney. To effectuate the rights and remedies of Secured
Party under this Security Agreement, Debtor hereby irrevocably appoints Secured
Party as its attorney-in-fact, in the name of Debtor or in the name of Secured
Party, to:
9.1 Execution of Financing Statements. Execute and file from time to
time financing statements, continuation statements, termination statements
and amendments thereto, covering the Collateral, in form satisfactory to
Secured Party.
9.2 Execution of Other Documents. Take all action and execute all
documents referred to in Section 8.4 and 8.5 above.
The power of attorney granted pursuant to this Section 9 is coupled with an
interest and shall be irrevocable until all of Guarantor's Obligations have been
paid and performed in full.
10. Certain Agreements of Debtor.
10.1 Waiver of Notice. Debtor hereby waives notice of the acceptance
of this Security Agreement and, except as otherwise specifically provided
in Section 8.1 above or in the Loan Agreement, all other notices, demands
or protests to which Debtor otherwise might be entitled by law (and which
lawfully may be waived) with respect to this Security Agreement,
Guarantor's Obligations and the Collateral.
10.2 Rights of Secured Party. Debtor agrees that Secured Party (i)
shall have no duty as to the collection or protection of the Collateral or
any income thereon, (ii) may exercise the rights and remedies of Secured
Party with respect to the Collateral without resort or regard to other
security or sources for payment and (iii) shall not be deemed to have
waived any of the rights or remedies granted to Secured Party hereunder
unless such waiver shall be in writing and shall be signed by Secured
Party. Debtor and Secured Party acknowledge their intent that, upon the
occurrence of an Event of Default, Secured Party shall receive, to the
fullest extent permitted by law and governmental policy (including,
without limitation, the rules, regulations and policies of the FCC), all
rights necessary or desirable to obtain, use or sell the Collateral, and
to exercise all remedies available to Secured Party under the Loan
Instruments, the Code or other applicable law. Debtor and Secured Party
further acknowledge and agree that, in the event of changes in law or
governmental policy occurring subsequent to the date hereof that affect in
any manner Secured Party's rights of access to, or use or sale of, the
Collateral, or the procedures necessary to enable
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Secured Party to obtain such rights of access, use or sale, Secured Party
and Debtor shall amend the Loan Instruments, in such manner as Secured
Party shall request, in order to provide Secured Party such rights to the
greatest extent possible consistent with then applicable law and
governmental policy.
10.3 No Delay, Single or Partial Exercise Permitted. No delay or
omission on the part of Secured Party in exercising any rights or remedies
contained herein shall operate as a waiver of such right or remedy or of
any other right or remedy, and no single or partial exercise of any right
or remedy shall preclude any other or further exercise thereof, or the
exercise of any other right or remedy. A waiver of any right or remedy on
any one occasion shall not be construed as a bar or waiver of any right or
remedy on future occasions, and no delay, omission, waiver or single or
partial exercise of any right or remedy shall be deemed to establish a
custom or course of dealing or performance between the parties hereto.
11. Rights Cumulative. All rights and remedies of Secured Party pursuant
to this Security Agreement, the Loan Agreement or otherwise, shall be cumulative
and non-exclusive, and may be exercised singularly or concurrently.
12. Severability. In the event that any provision of this Security
Agreement is deemed to be invalid by reason of the operation of any law,
including, but not limited to, any of the rules, regulations and policies of the
FCC, or by reason of the interpretation placed thereon by any court or the FCC
or any other Governmental Body, as applicable, the validity, legality and
enforceability of the remaining terms and provisions of this Security Agreement
shall not in any way be affected or impaired thereby, all of which shall remain
in full force and effect, and the affected term or provision shall be modified
to the minimum extent permitted by law so as to achieve most fully the intention
of this Security Agreement.
13. Notices. All notices and communications under this Security Agreement
shall be in writing and delivered in the manner set forth in Section 12.1 of the
Loan Agreement.
14. Successors and Assigns. This Security Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of Secured Party and Debtor.
15. Captions. The headings in this Security Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
16. Counterparts. This Security Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall be one and the same instrument.
17. Survival of Security Agreement; Release. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of the Loan Agreement and shall continue in full force and effect until
this Agreement is released. This Agreement shall be released, Debtor's
obligations hereunder shall be deemed to have been satisfied
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and performed in full, and the Liens granted hereunder shall be released,
promptly after delivery by Debtor to Agent of evidence reasonably satisfactory
to Agent that (i) all right, title and interest of Debtor under the Leases and
agreements described on Exhibit C hereto (except to the extent Debtor is no
longer a party to such lease or agreement as a result of its being canceled or
terminated, or the premises subject thereto being surrendered as permitted under
the Loan Instruments and except for those leases and agreements which are not
necessary to the operations of the Paging Business) have been validly assigned
to and assumed by Borrower, (ii) Borrower has obtained all consents of all
Persons whose consent is required, as reasonably determined by Agent, in
connection with such assignments and assumptions and (iii) the consent by the
FCC to the transactions effected by the Paging Partners Merger (other than pro
forma assignments or transfers incidental to the Paging Partners Merger) has
become final and is no longer subject to administrative or judicial
reconsideration, review or appeal. In connection with such release, the Secured
Party shall execute UCC-3 termination statements and such other documents as are
necessary to release the Secured Party's interests, at Debtor's expense.
18. Governing Law. This Security Agreement shall be construed in
accordance with and governed by the laws and decisions of the State of Arizona.
For purposes of this Section 18, this Security Agreement shall be deemed to be
performed and made in the State of Arizona.
19. Jurisdiction and Venue. Debtor hereby agrees that all actions or
proceedings initiated by Debtor and arising directly or indirectly out of this
Security Agreement shall be litigated in the Superior Court of Arizona, Maricopa
County Division, or the United States District Court for the District of
Arizona, or, if Secured Party initiates such action, in addition to the
foregoing courts, any court in which Secured Party shall initiate or to which
Secured Party shall remove such action, to the extent such court has
jurisdiction. Debtor hereby expressly submits and consents in advance to such
jurisdiction in any action or proceeding commenced in or removed by Secured
Party to any of such courts, and hereby agrees that personal service of the
summons and complaint, or other process or papers issued therein, may be made by
registered or certified mail addressed to Debtor at the address to which notices
are to be sent pursuant to Section 13. Debtor waives any claim that Maricopa
County, Arizona or the District of Arizona is an inconvenient forum or an
improper forum based on lack of venue. To the extent provided by law, should
Debtor, after being so served, fail to appear or answer to any summons,
complaint, process or papers so served within the number of days prescribed by
law after the mailing thereof, Debtor shall be deemed in default and an order
and/or judgment may be entered by the court against Debtor as demanded or prayed
for in such summons, complaint, process or papers. The exclusive choice of forum
set forth in this Section 19 shall not be deemed to preclude the enforcement by
Secured Party of any judgment obtained in any other forum or the taking by
Secured Party of any action to enforce the same in any other appropriate
jurisdiction and Debtor hereby waives any right to collaterally attack any such
judgment or action.
20. Waiver of Right to Jury Trial. Secured Party and Debtor acknowledge
and agree that any controversy which may arise under this Security Agreement
would be based upon difficult and complex issues and therefore, Secured Party
and Debtor agree that any
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lawsuit arising out of any such controversy will be tried in a court of
competent jurisdiction by a judge sitting without a jury.
21. Time of the Essence. Time for the performance of Debtor's obligations
under this Security Agreement is of the essence.
22. Secured Party's Right to Specific Performance. Debtor acknowledges
that FCC authorization is integral to Secured Party's realization of the value
of all of the Collateral, that Debtor's Licenses are unique assets, that there
is no adequate remedy at law for failure by Debtor to comply with the provisions
of Section 8.5 and that such failure would not be adequately compensable in
monetary damages; therefore, Debtor agrees that, in addition to all other
remedies available at law or in equity, Secured Party shall be entitled to
obtain decree(s) of specific performance entitling it to temporary restraining
order(s), preliminary injunction(s), or permanent injunction(s) to enforce
specifically and require specific performance of the provisions of Section 8.5.
Debtor agrees that notice shall be adequate for the entry of a decree of
specific performance with respect to any such matter (i) in the case of a
temporary restraining order, upon twenty-four (24) hours' prior notice of the
hearing thereof and (ii) in the case of any other proceeding, upon three (3)
days' prior notice of the hearing thereof, and hereby waives all requirements
and demands that the Secured Party give any greater notice of such hearings or
post a bond or other surety arrangement in connection with the issuance of such
decree.
23. FCC Approval. Notwithstanding anything to the contrary contained in
this Security Agreement or any other Loan Instrument, no party hereto shall take
any action, including, but not limited to, the operation of Debtor's Paging
Business, that would constitute or result in the transfer or assignment of any
License issued to or held by Debtor, or a transfer of control over any such
License, whether de jure or de facto, if such assignment or transfer would
require under then existing law the prior approval of and/or any notice to the
FCC, without such party first having notified the FCC of any such assignment or
transfer and, if required under then existing law, obtaining the approval of the
FCC therefor, notifying the FCC of the consummation thereof and complying with
all other applicable provisions of the Communications Act. The parties hereto
intend that the powers of Secured Party hereunder, in all relevant aspects,
shall be governed by the Communications Act and all other applicable statutory
requirements and rules and regulations, including, without limitation, those of
the FCC.
[remainder of page left intentionally blank]
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IN WITNESS WHEREOF, this Security Agreement has been executed and
delivered by the parties hereto by a duly authorized officer of each such party
on the date first set forth above.
AQUIS COMMUNICATIONS, INC., a
Delaware corporation
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
FINOVA CAPITAL CORPORATION, a Delaware
corporation, as Agent
By:
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
IN WITNESS WHEREOF, this Security Agreement has been executed and
delivered by the parties hereto by a duly authorized officer of each such party
on the date first set forth above.
AQUIS COMMUNICATIONS, INC., a
Delaware corporation
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
FINOVA CAPITAL CORPORATION, a Delaware
corporation, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
EXHIBIT A
to Security Agreement
=============================================================
Location Exp. Date Purpose Other
-------- --------- ------- -----
-------------------------------------------------------------
Freehold, NJ Aug 1999 Main Office renewal
option
exists
-------------------------------------------------------------
Woburn, NJ Dec. 2000 Point of renewal
presence option
exists
-------------------------------------------------------------
Blue ▇▇▇▇, PA Feb. 2000 Point of renewal
presence option
exists
-------------------------------------------------------------
West Orange, NJ Nov. 2002 Point of renewal
presence option
exists
-------------------------------------------------------------
Outer space Dec. 2005 Satellite
=============================================================
EXHIBIT B
List of Trade Names
(to be provided by Debtor)
None.