FORBEARANCE
AGREEMENT
FORBEARANCE AGREEMENT, dated of as May 5, 2009, by and among (i)
MobilePro Corp. a Delaware corporation (the “ Company
”), (ii) each subsidiary and affiliate of the Company listed
on Schedule 1 attached hereto (the “
Subsidiaries ,” and collectively with the Company, the
“ Grantors ”) and YA Global Investments, L.P.
f/k/a Cornell Capital Partners, LP (“ YA Global
”). All capitalized terms used herein shall have
the respective meanings assigned thereto in the Transaction
Documents (as defined below) unless otherwise defined
herein.
W I T N E S S E T
H:
WHEREAS, reference is made to those certain financing
arrangements and other documents, instruments and agreements set
forth on Schedule A attached hereto and referred to herein
as the “ Transaction Documents
” pursuant to which, YA Global is the holder of
the following secured convertible debenture (the “
Debenture ”) issued by the Company:
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Principal Outstanding
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Accrued and Unpaid
Interest
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Secured
Convertible Debenture (MOBL5-1) issued by the Company to YA Global
on June 30, 2008 in the original principal amount of
$13,391,174.54
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$13,029,125
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$130,551.79
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The amounts
referenced in this chart above are as of the close of business on
April 30, 2009 and do not include any additional costs, charges,
expenses, or liquidated damages.
WHEREAS, the Maturity Date of the Debenture is May 1,
2009.
WHEREAS, the Company has requested that YA Global forbear
from enforcing its rights and remedies against the Obligations (as
defined below) under the Transaction Documents as a result of the
Maturity of the Debenture for a period of 30 days from the Maturity
Date in order to allow the Company an opportunity to repay or
propose a plan to restructure the Debenture and YA Global has
agreed to so forbear, but only upon the terms and conditions
expressly set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and the
respective agreements, warranties and covenants contained herein,
the parties hereto agree, covenant and warrant as
follows:
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ACKNOWLEDGMENTS OF INDEBTEDNESS
. The Grantors each hereby
acknowledge and agree that, in accordance with the terms and
conditions of the Transaction Documents, they are jointly and
severally liable to YA Global under the Debenture and Transaction
Documents for the amounts set forth in the first Whereas clause
above, for all interest accruing on the principal balance of the
Debenture from and after April 30, 2009, and for all fees,
redemption premiums, liquidated damages, costs, expenses, and costs
of collection (including attorneys’ fees and expenses)
heretofore or hereafter accrued or incurred by the YA Global in
connection with the Transaction Documents (collectively, the
“ Obligations ”).
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WAIVER OF CLAIM . The Grantors hereby acknowledge and
agree that they have no offsets, defenses, claims, or counterclaims
against YA Global or YA Global’s officers, directors,
employees, attorneys, representatives, predecessors, successors,
and assigns with respect to the Obligations, the Transaction
Documents, or otherwise, and that if any Grantor now has, or ever
did have, any offsets, defenses, claims, or counterclaims against
YA Global or YA Global’s officers, directors, employees,
attorneys, representatives, predecessors, successors, and assigns,
whether known or unknown, at law or in equity, from the beginning
of the world through this date and through the time of execution of
this Agreement, all of them are hereby expressly WAIVED, and the
Grantors each hereby RELEASE YA Global and YA Global’s
officers, directors, employees, managers, partners, attorneys,
representatives, predecessors, successors, and assigns from any
liability therefore.
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RATIFICATION
OF TRANSACTION DOCUMENTS; CONFIRMATION OF COLLATERAL;
CROSS-COLLATERALIZATION; FURTHER ASSURANCES . The Grantors jointly and
severally:
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Hereby ratify,
confirm, and reaffirm all and singular the terms and conditions of
the Transaction Documents to which each is a party. The
Grantors further acknowledge and agree that except as specifically
modified in this Agreement, all terms and conditions of those
documents, instruments, and agreements shall remain in full force
and effect.
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Agree that (i)
the obligations secured by the Transaction Documents include,
without limitation, the Obligations, and any future modifications,
amendments, substitutions or renewals thereof, and (ii) all
collateral, whether now existing or hereafter acquired, granted to
YA Global pursuant to the Transaction Documents, this Agreement, or
otherwise shall secure all of the Obligations until full and final
payment of the Obligations.
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Shall, from and
after the execution of this Agreement, execute and deliver to YA
Global whatever additional documents, instruments, and agreements
that YA Global may require in order to correct any document
deficiencies, or to vest or perfect the Transaction Documents and
the collateral granted therein more securely in YA Global and/or to
otherwise give effect to the terms and conditions of this
Agreement, and hereby authorize YA Global to file any financing
statements (including financing statements with a generic
description of the collateral such as “all assets”),
and take any other normal and customary steps, YA Global deems
necessary to perfect or evidence its security interests and liens
in any such collateral. In connection with the forgoing,
within five business days of the date hereof, the Grantors shall
take all steps necessary to (i) cause MWS Newco, Inc., a Delaware
corporation (“ MWS ”) to join in the Transaction
Document including without limitation, becoming a party to the
Global Security Agreement, Global Pledge Agreement, and Global
Guaranty, (ii) provide a perfection certificate from MWS indicating
the type of, and location of, all the assets of MWS, and (iii)
enter into Account Control Agreements, Collateral Access
Agreements, and such other documents or agreements required to
perfect YA Global’s security interest in the collateral of
MWS.
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Hereto
acknowledge, confirm and agree that: (a) each of the
Transaction Documents to which it is a party has been duly executed
and delivered to YA Global by such Grantor, and each is in full
force and effect as of the date hereof, (b) the agreements and
obligations of the Grantors contained in such documents and in this
Agreement constitute the legal, valid and binding obligations of
the Grantors, enforceable against each in accordance with their
respective terms, and the Grantors have no valid defenses to the
enforcement of such obligations, and (c) YA Global is and
shall be entitled to the rights, remedies and benefits provided for
in the Transaction Documents and applicable law, without setoff,
defense or counterclaim of any kind, nature or descriptions
whatsoever.
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FORBEARANCE
OF EXERCISING RIGHTS AND REMEDIES.
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Acknowledgement of Maturity
. The Company hereby
acknowledges and agrees that the M
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