GLOBAL
GUARANTY AGREEMENT
This
GLOBAL GUARANTY AGREEMENT dated
as of June 30, 2008 (the “
Guaranty ”),
is given by (i) MobilePro Corp., a Delaware corporation (the
“
Company ”);
and (ii) each subsidiary and affiliate of the Company listed
on
Schedule 1 attached
hereto (the “
Subsidiaries ,”
and collectively with the Company, the “
Guarantors ”)
in favor of YA Global Investments, L.P. (f/k/a Cornell Capital
Partners, L.P.) (the “
Secured Party ”).
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Security
Agreement (as defined below).
WHEREAS :
A.
The
Secured Party is the holder of certain Secured Convertible
Debentures (the “
Original Debentures ”)
issued by the Company to the Secured Party.
B.
In
connection with a certain Amended and Restated Securities
Purchase Agreement, the Company has agreed, upon the terms and
subject to the conditions of the Amended and Restated
Securities Purchase Agreement, to issue to the Secured Party
the Amended and Restated Secured Convertible Debentures (the
“
Secured Convertible Debentures ”)
(in replacement of the Original Debentures).
C.
The
Secured Party and certain of the Guarantors are parties to
Prior Debt Documents.
D.
Each
of the Guarantors has executed and delivered (i) a Global
Security Agreement, dated as of the date hereof (as may be
amended and supplemented from time to time, the “
Security Agreement ”),
pursuant to which the Guarantors pledge and grant to the Secured
Party a security interest in and to all of such Guarantors’
assets and personal property; the Secured Party; and (ii) an
Intellectual Property Security Agreement, dated as of the date
hereof (as may be amended and supplemented from time to time, the
“
IP Agreement ”);
F.
Certain
Guarantors, including the Company, have entered into a Global
Pledge Agreement, dated as of the date hereof (as may be
amended and supplemented from time to time, the “
Pledge Agreement ”).
G.
The
Secured Party has extended financial accommodations to the
Guarantors, pursuant to the Secured Convertible Debentures or
otherwise, and each of the Guarantors will directly benefit
from the extension of such financial accommodation as part of
the affiliated business operations of the Guarantors; each
Guarantor acknowledges that without this Guaranty, the Secured
Party would not be willing to enter into the transaction
documents related to such financial
accommodations.
NOW, THEREFORE ,
in consideration of the premises and the mutual covenants set forth
herein, and for other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, each Guarantor
hereby agrees as follows:
SECTION 1
Guaranty .
1.1
Guaranty .
(a)
Each
Guarantor, as direct obligor and not merely as surety, hereby
unconditionally, absolutely, and irrevocably guarantees to the
Secured Party the full payment and prompt performance of all
of the Obligations. Without limiting the foregoing, the
Guarantors hereby agree that upon any Event of Default, the
Guarantors shall immediately pay or perform any Obligations
without notice, demand or formality of any kind.
(b)
The
term “
Obligations ”
shall mean and include any and all debts, liabilities, obligations,
covenants and duties owing by any Guarantor to the Secured Party,
now existing or hereafter arising of every nature, type, and
description, whether liquidated, unliquidated, primary, secondary,
secured, unsecured, direct, indirect, absolute, or contingent, and
whether or not evidenced by a note, guaranty or other instrument,
and any amendments, extensions, renewals or increases thereof,
including, without limitation, all those under (i) the Transaction
Documents; (ii) any agreement or document related to the
Transaction Documents; or (iii) any other or related documents, and
including any interest accruing thereon after insolvency,
reorganization or like proceeding relating to the Guarantors,
whether or not a claim for post-petition interest is allowed in
such proceeding, and all costs and expenses of the Secured Party
incurred in the enforcement, collection or otherwise in connection
with any of the foregoing, including, but not limited to,
reasonable attorneys’ fees and expenses and all obligations
of the Guarantors to the Secured Party to perform acts or refrain
from taking any action.
1.2
Continuing Guaranty .
(a)
The
Obligations under this Guaranty are continuing, absolute,
unconditional and irrevocable irrespective of the validity,
regularity, enforceability or value of any of the Obligations
and notwithstanding any claim, defense or right of set-off
which the Guarantors may have against the Secured Party,
including any such claim, defense or right based on any
present or future applicable law and irrespective of any other
circumstances which might otherwise constitute a legal or
equitable release, defense or discharge of a surety or a
guarantor. Without limiting the generality of the foregoing,
the Obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by:
(i)
any
rescission, waiver, amendment or modification of any terms or
provisions of the Obligations or the documents evidencing the
same.
(ii)
any
fraudulent, illegal, or improper act by any Guarantor or any
failure, omission or delay on the part of any Guarantor to
conform or comply with any term of the Obligations or of this
Guaranty;
(iii)
any
failure of the Secured Party to assert a claim or demand or to
enforce or exercise any right or remedy against any Guarantor
or any other guarantor for any reason;
(iv)
any
release or discharge by operation of law or otherwise of any
Guarantor from any Obligation or the documents evidencing the
same;
(v)
any
change in the existence, structure or ownership of any
Guarantor or the legal incapacity of any
Guarantor;
(vi)
any
insolvency, bankruptcy, reorganization, arrangement,
readjustment, composition, liquidation or other similar
proceeding affecting any Guarantor or its/his assets or any
resulting disallowance, release or discharge of all or any
portion of the Obligations;
(vii)
the
failure by any Guarantor or any other person to sign this
Guaranty; and
(viii)
any
other occurrence, circumstance, happening or event, whether
similar or dissimilar to the foregoing and whether foreseen or
unforeseen, which otherwise might constitute a legal or
equitable defense or discharge of the liabilities of a
guarantor or surety or which otherwise might limit recourse
against any Guarantor.
(b)
This
Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time payment or performance of the
Obligations, or any part thereof, to the Secured Party is
rescinded or must otherwise be returned by the Secured Party
upon the insolvency, bankruptcy or reorganization of the
Guarantors, all as though such payment to the Secured Party
has not been made.
1.3
Guaranty of Payment and Not of Collection; Subordination
.
(a)
The
liability of each Guarantor shall be continuing, direct and
immediate and not conditional or contingent upon either the
pursuit of any remedies against the Company, a Guarantor or
any other person or foreclosure of any security interests or
liens available to the Secured Party, its successors,
endorsees or assigns. The Secured Party may accept any
payment(s), plan for adjustment of debts, plan of
reorganization or liquidation, or plan of composition or
extension proposed by, or on behalf of, the Company or any
other Guarantor without in any way affecting or discharging
the liability of any Guarantor. If the Obligations are
partially paid, each Guarantor shall remain liable for any
balance of such Obligations. Without limiting any other
provision of, impairing or affecting this Guaranty, the
Secured Party may, at any time and from time to time, take or
refrain from taking, all or any actions whatsoever, including
the following actions: (a) retain or obtain a Lien in any
property to secure any of the Obligations; (b) amend, extend,
renew, adjust, waive or release any Obligations or the terms
thereof, (c) release or fail to perfect its interest in all or
any property securing any of the Obligations or permit any
substitution or exchange for any such property.
(b)
With
respect to any sum paid or payable by a Guarantor hereunder or
in connection herewith or otherwise, all rights of such
Guarantor against any other Guarantor arising as a result
thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior
indefeasible payment or performance in full of all the
Obligations. In addition, any indebtedness of any Guarantor
now or hereafter held by any Guarantor is hereby subordinated
in right of payment to the prior payment or performance in
full of the Obligations and no Guarantor shall demand, sue
for, or otherwise attempt to collect any such indebtedness, or
prove any claim in competition with the Secured Party in
respect of any payment hereunder in bankruptcy or insolvency
proceedings of any nature. If any amount shall erroneously be
paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or
(ii) any such indebtedness of any Guarantor as borrower of a
Guarantor, such amount shall be held in trust for the benefit
of the Secured Party and shall forthwith be paid to the
Secured Party to be credited against the payment of the
Obligations.
1.4
Discharge .
Each Guarantor covenants and agrees that this Guaranty will not be
discharged, except by complete performance of the
Obligations.
1.5
Interest .
Guarantors
will pay on demand interest on all amounts due to the Secured Party
under this Guaranty, or arising under any documents, instruments,
or agreements relating to any collateral securing this Guaranty,
from the time the Secured Party first demands payment of this
Guaranty at a rate equal to the highest rate applicable to any of
the Obligations after the earlier of (i) demand, or (ii) maturity,
or (iii) the occurrence of any event of default under any
instrument, document or agreement evidencing the Obligations (but
in no event higher than the highest rate of interest which under
the circumstances may be charged under applicable law).
1.6
Costs and Expenses .
Without limiting any obligation of any Guarantor hereunder, each
Guarantor agrees, jointly and severally, to pay all reasonable fees
and costs (including, without limitation, reasonable
attorneys’ fees and expenses, whether or not involving
litigation and/or appellate or bankruptcy proceedings) incurred by
Secured Party in (i) collecting or securing or attempting to
collect or secure this Guaranty or each Secured Convertible
Debenture; (ii) defending or prosecuting any actions or proceedings
arising out of or relating to the Secured Party’s
transactions with the Guarantors.
1.7
Indemnification .
For
said good and valuable consideration, the Guarantors also shall
indemnify, defend, and hold the Secured Party, or any agent,
employee, officer, attorney, or representative of the Secured
Party, harmless of and from any claim brought or threatened against
the Secured Party or any such person so indemnified by: any
Guarantor; any other obligor or endorser of the Obligations; or any
other person (as well as from attorneys’ fees and expenses in
connection therewith) on account of the Secured Party’s
relationship with the Guarantors; or any other obligor or endorser
of the Obligations (each of which may be defended, compromised,
settled, or pursued by the Secured Party with counsel of the
Secured Party’s selection, but at the expense of the
undersigned).
SECTION 2
Additional Guarantors.
Pursuant
to Section 6.12 of the Security Agreement, each subsidiary of
the Guarantors that is formed or acquired after the execution
of this Guaranty is required to execute the Guaranty. Such
subsidiary shall become a Guarantor hereunder with the same
force and effect as if originally named as a Guarantor herein.
The execution and delivery of any instrument adding an
additional Guarantor as a party to this Guaranty shall not
require the consent of any other Guarantor hereunder. The
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