GLOBAL SECURITY AGREEMENT
THIS
GLOBAL SECURITY AGREEMENT (the
“Agreement”)
is
entered into as of June 30, 2008, by and among (i) MobilePro Corp., a Delaware
corporation (“Company”)
and
(ii) each subsidiary and affiliate of the Company listed on Schedule
1
attached
hereto (the “Subsidiaries,”
and
collectively with the Company, the “Grantors”)
in
favor of YA Global Investments, L.P. f/k/a Cornell Capital Partners, L.P. (the
“Secured
Party”).
WHEREAS,
the
Secured Party is the holder of (i) certain secured convertible debentures,
issued pursuant to that certain Securities Purchase Agreement, dated as of
June
30, 2006 and that certain Securities Purchase Agreement, dated as of August
28,
2006, (collectively, the “Original
Securities Purchase Agreement”),
(ii)
promissory notes, and (iii) other evidence of indebtedness issued by the Company
to the Secured Party or to certain other parties that subsequently assigned
their rights in such convertible debentures, promissory notes or other evidence
of indebtedness to the Secured Party, including the secured convertible
debentures and promissory notes listed on Schedule
2
attached
hereto (as may be amended, supplemented and restated from time to time, the
“Original
Debentures”);
WHEREAS,
in
connection with a certain Securities Purchase Agreement listed in Schedule
3
attached
hereto (as amended, supplemented and restated from time to time, the
“Securities
Purchase Agreement”),
the
Company has agreed, upon the terms and subject to the conditions of the
Securities Purchase Agreement, to amend and restate the Original Securities
Purchase Agreement and to amend and restate the Original Debentures and to
issue
to the Secured Party the Secured Convertible Debentures (the “Secured
Convertible Debentures”);
WHEREAS,
the
Secured Party and certain of the Grantors are parties to certain of the Prior
Debt Documents (as defined below);
WHEREAS,
each
of
the Grantors has executed and delivered (i) a Global Guaranty Agreement, dated
as of the date hereof, in favor of the Secured Party pursuant to which the
Grantors absolutely and unconditionally guarantee to the Secured Party the
payment and performance of all now existing and hereafter arising Obligations
(the “Guaranty
Agreement”),
and
(ii) an Intellectual Property Security Agreement, dated as of the date hereof
(the “IP
Security Agreement”);
WHEREAS,
certain
Grantors have executed and delivered a Global Pledge Agreement, dated as of
the
date hereof (the “Pledge
Agreement”);
and
certain Grantors with Real Estate have executed and delivered mortgages in
favor
of the Secured Party.
WHEREAS,
in
connection with the financial accommodations to the Company and certain
Subsidiaries by the Secured Party under the Secured Convertible Debentures
or
otherwise, the Subsidiaries will directly benefit from the extension of such
financial accommodations as part of the affiliated business operations of the
Company and the Subsidiaries.
1
NOW,
THEREFORE, in
consideration of the promises and the mutual covenants herein contained, and
for
other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE
1.
DEFINITIONS
AND INTERPRETATIONS
1.1 Recitals.
The
above
recitals are true and correct and are incorporated herein, in their entirety,
by
this reference.
1.2 Interpretations.
Nothing
herein expressed or implied is intended or shall be construed to confer upon
any
person other than the Secured Party any right, remedy or claim under or by
reason hereof.
1.3 Definitions.
(a) To
the
extent used in this Agreement and not defined herein, terms defined in the
UCC
shall have the meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined) ascribed to such terms in the
UCC. To the extent the definition of any category or type of Collateral is
expanded by any amendment, modification or revision to the UCC, such expanded
definition will apply automatically as of the date of such amendment,
modification or revision.
(b) As
used
in this Agreement, the following terms shall have the meanings indicated below
(such meanings to be equally applicable to both the singular and plural forms
of
such terms):
“Collateral”
has
the
meaning set forth in Section
2.1.
“Deposit
Account”
has
the
meaning set forth in Section
6.16.
“Event
of Default”
shall
mean a Grantor defaulting in any of its obligations under (i) this Agreement,
and (ii) any other Transaction Document.
“GAAP”
shall
mean generally accepted accounting principles in the United States of
America.
“Guaranty
Agreement”
has
the
meaning set forth in the recitals hereof.
2
“Intellectual
Property”
shall
mean all present and future trade secrets, know-how and other proprietary
information; trademarks, trademark applications, internet domain names, service
marks, trade dress, trade names, business names, designs, logos, slogans (and
all translations, adaptations, derivations and combinations of the foregoing)
indicia and other source and/or business identifiers, and all registrations
or
applications for registrations which have heretofore been or may hereafter
be
issued thereon throughout the world; copyrights and copyright applications;
(including copyrights for computer programs) and all tangible and intangible
property embodying the copyrights, unpatented inventions (whether or not
patentable); patents and patent applications; industrial design applications
and
registered industrial designs; license agreements related to any of the
foregoing and income therefrom; books, records, writings, computer tapes or
disks, flow diagrams, specification sheets, computer software, source codes,
object codes, executable code, data, databases and other physical
manifestations, embodiments or incorporations of any of the foregoing; all
other
intellectual property; and all common law and other rights throughout the world
in and to all of the foregoing. Schedule
4
attached
hereto sets forth all Intellectual Property of the Grantors (as
such
Schedule may be amended, modified or supplemented from time to time).
“IP
Security Agreement”
has
the
meaning set forth in the recitals hereof.
“Lien”
has
the
meaning set forth in Section
4.2.
“Material
Adverse Effect”
shall
mean any material and adverse affect as determined by the Secured Party in
its
reasonable discretion upon (a) the Grantors’ assets, business, operations,
properties or condition, financial or otherwise; (b) the Grantors’ ability to
make payment as and when due of all or any part of the Obligations; or (c)
the
Collateral.
“Obligations”
shall
mean and include any and all debts, liabilities, obligations, covenants and
duties owing by any Grantor 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 Grantors,
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 Grantors to the Secured Party to perform acts or refrain from taking any
action.
“Permitted
Indebtedness”
shall
mean: (i) indebtedness evidenced by the Secured Convertible Debentures; (ii)
indebtedness described on the Disclosure Schedules to the Securities Purchase
Agreement; (iii) indebtedness incurred solely for the purpose of financing
the
acquisition or lease of any equipment by the Grantors, including capital lease
obligations with no recourse other than to such equipment; (iv) indebtedness,
the repayment of which (A) has been subordinated to the payment of the
Obligations on terms and conditions acceptable to the Secured Party, including
with regard to interest payments and repayment of principal, (B) does not mature
or otherwise require or permit redemption or repayment prior to or on the 91st
day after the maturity date of any Secured Convertible Debenture then
outstanding; and (C) is not secured by any assets of the Grantors; (v)
indebtedness solely between a Grantor and/or one of its domestic subsidiaries,
on the one hand, and a Grantor and/or one of its domestic subsidiaries, on
the
other which indebtedness is not secured by any assets of such Grantor or any
of
its subsidiaries, provided
that
(A) in
each case a majority of the equity of any such domestic subsidiary is directly
or indirectly owned by a Grantor, such domestic subsidiary is controlled by
a
Grantor and such domestic subsidiary has executed a security agreement in the
form of this Agreement and (B) any such loan shall be evidenced by an
intercompany note that is pledged by such Grantor or its subsidiary, as
applicable, as collateral pursuant to this Agreement; (vi) reimbursement
obligations in respect of letters of credit issued for the account of a Grantor
or any of its subsidiaries for the purpose of securing performance obligations
of such Grantor or its subsidiaries incurred in the ordinary course of business
so long as the aggregate face amount of all such letters of credit does not
exceed $500,000 at any one time; and (vii) renewals, extensions and refinancing
of any indebtedness described in clause (i) or (iii) of this
subsection.
3
“Permitted
Liens”
shall
mean (1) the security interest created by this Agreement, (2) any prior security
interest granted to the Secured Party, (3) existing Liens disclosed by each
Grantor on Schedule
4.2;
(4)
inchoate Liens for taxes, assessments or governmental charges or levies not
yet
due, as to which the grace period, if any, related thereto has not yet expired,
or being contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP; (5) Liens
of
carriers, materialmen, warehousemen, mechanics and landlords and other similar
Liens which secure amounts which are not yet overdue by more than 60 days or
which are being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP; (6)
non-exclusive licenses and sublicenses, or leases or subleases granted to other
persons not materially interfering with the conduct of the business of the
Grantors; (7) Liens securing capitalized lease obligations and purchase money
indebtedness incurred solely for the purpose of financing an acquisition or
lease; (8) easements, rights-of-way, restrictions, encroachments, municipal
zoning ordinances and other similar charges or encumbrances, and minor title
deficiencies, in each case not securing debt and not materially interfering
with
the conduct of the business of the Grantors and not materially detracting from
the value of the property subject thereto; (9) Liens arising out of the
existence of judgments or awards which judgments or awards do not constitute
an
Event of Default; (10) Liens incurred in the ordinary course of business in
connection with workers compensation claims, unemployment insurance, pension
liabilities and social security benefits and Liens securing the performance
of
bids, tenders, leases and contracts in the ordinary course of business,
statutory obligations, surety bonds, performance bonds and other obligations
of
a like nature (other than appeal bonds) incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed
money); (11) Liens in favor of a banking institution arising by operation of
law
encumbering deposits (including the right of set-off) and contractual set-off
rights held by such banking institution and which are within the general
parameters customary in the banking industry and only burdening deposit accounts
or other funds maintained with a creditor depository institution; (12) usual
and
customary set-off rights in leases and other contracts; and (13) escrows in
connection with acquisitions and dispositions.
“Pledge
Agreement”
has
the
meaning set forth in the recitals hereof.
“Prior
Debt Documents”
means
the Original Debentures and the Original Securities Purchase Agreements, and
any
other existing security agreements, guaranty agreements, pledge agreements
credit agreement or other facility, mortgage, other debenture agreements or
instruments, by and among the Secured Party and any of the Grantors, under
which
there may be issued, or by which there may be secured or evidenced any
indebtedness for borrowed money or evidencing any outstanding obligation of
any
Grantor to the Secured Party, and any other existing documents executed in
connection with any of the foregoing.
4
“Real
Estate”
means
all leases and all land, together with the buildings, structures, parking areas,
and other improvements thereon, now or hereafter owned by any Grantor, including
all easements, rights-of-way, and similar rights relating thereto and all
leases, tenancies, and occupancies thereof. Schedule
5
attached
hereto sets forth all Real Estate of the Grantors (as
such
Schedule may be amended, modified or supplemented from time to
time).
“Transaction
Documents”
shall
mean (i) this Agreement, (ii) the Secured Convertible Debentures, (iii) the
Securities Purchase Agreement, (iv), the Guaranty Agreement, (v) the Pledge
Agreement, (vi) the IP Security Agreement, (vi) the Prior Debt Documents, (vii)
any other mortgages, pledges, or other collateral documents and any UCC-1
Financing Statement required by the Secured Party, and (viii) any amendment,
amendment and restatement, modification or supplement to any of the
foregoing.
“UCC”
or
“Uniform
Commercial Code”
means
the
Uniform Commercial Code as in effect from time to time in the State of New
Jersey; provided,
however,
that if
a term is defined in Article 9 of the Uniform Commercial Code differently than
in another Article thereof, the term shall have the meaning set forth in Article
9 of the UCC; provided further
that, if
by reason of mandatory provisions of law, perfection, or the effect of
perfection or non-perfection, of a security interest in any Collateral or the
availability of any remedy hereunder is governed by the Uniform Commercial
Code
as in effect in a jurisdiction other than New Jersey, “Uniform Commercial Code”
means the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection or availability of such remedy, as the case may
be.
ARTICLE
2.
SECURITY
INTEREST
2.1 Grant
of Security Interest.
(a) As
security for the payment or performance in full of the Obligations, each Grantor
hereby pledges to the Secured Party, its successors and assigns, and hereby
grants to the Secured Party, its successors and assigns, a security interest
in
and to all assets and personal property of each Grantor, wherever located and
whether now or hereinafter existing and whether now owned or hereafter acquired,
of every kind and description, tangible or intangible, including without
limitation, all Real Estate, Goods, Inventory, Equipment, Fixtures, Instruments,
Documents, Accounts, Contracts and Contract Rights, Chattel Paper, Deposit
Accounts, Money, Letters of Credit and Letter-of-Credit Rights, Commercial
Tort
Claims, Securities and all other Investment Property, General Intangibles,
Farm
Products, all books and records and information relating to any of the
foregoing, all supporting obligations, and any and all Proceeds and products
of
any and all of the foregoing, and as more particularly described on Exhibit
A
attached
hereto (collectively, the Collateral);
and
5
(b) Simultaneously
with the execution and delivery of this Agreement, each Grantor shall make,
execute, acknowledge, file, record and deliver to the Secured Party such
documents, instruments, and agreements, including, without limitation, financing
statements, mortgages, certificates, affidavits and forms as may, in the Secured
Party’s reasonable judgment, be necessary to effectuate, complete or perfect, or
to continue and preserve, the security interest of the Secured Party in the
Collateral.
2.2 No
Assumption of Liability.
The
security interest in the Collateral is granted as security only and shall not
subject the Secured Party to, or in any way alter or modify any obligation
or
liability of, any Grantor with respect to or arising out of the
Collateral.
ARTICLE
3.
ATTORNEY-IN-FACT;
PERFORMANCE
3.1 Secured
Party Appointed Attorney-In-Fact.
Each
Grantor hereby appoints the Secured Party as its attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of each Grantor
or otherwise, from time to time in the Secured Party’s discretion to take any
action and to execute any instrument which the Secured Party may reasonably
deem
necessary to accomplish the purposes of this Agreement or for the purpose of
perfecting, confirming, continuing , enforcing or protecting the security
interest in the Collateral, including, without limitation, to (a) file one
or
more financing statements, continuing statements, filings with the United States
Patent and Trademark Office or United States Copyright Office (or any successor
office) or other documents; (b) receive and collect all instruments made payable
to a Grantor representing any payments in respect of the Collateral or any
part
thereof and to give full discharge for the same; and (c) demand, collect,
receipt for, settle, compromise, adjust, xxx for, foreclose, or realize on
the
Collateral as and when the Secured Party may determine. To facilitate
collection, the Secured Party may notify account debtors and obligors on any
Collateral to make payments directly to the Secured Party. The foregoing power
of attorney is a power coupled with an interest and shall be irrevocable until
all Obligations are paid and performed in full. The Grantors agree that the
powers conferred on the Secured Party hereunder are solely to protect the
Secured Party’s interests in the Collateral and shall not impose any duty upon
the Secured Party to exercise any such powers.
3.2 Secured
Party May Perform.
If
a
Grantor fails to perform any agreement contained herein, the Secured Party,
at
its option, may itself perform, or cause performance of, such agreement, and
the
expenses of the Secured Party incurred in connection therewith shall be included
in the Obligations secured hereby and payable by the Grantors under Section
8.4.
6
ARTICLE
4.
REPRESENTATIONS
AND WARRANTIES
4.1 Authorization:
Enforceability.
Each
of
the parties hereto represents and warrants that it has taken all action
necessary to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby; and upon execution and delivery,
this
Agreement shall constitute a valid and binding obligation of the respective
party, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors’ rights or by the principles governing the
availability of equitable remedies.
4.2 Ownership
of Collateral; Priority of Security Interest.
Each
Grantor represents and warrants that it is the legal and beneficial owner of
the
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance (each, a “Lien”)
except
for the Permitted Liens. Except for the Permitted Liens, (i) the security
interest granted to the Secured Party hereunder shall be a first priority
security interest subject to no other Liens, and (ii) no financing statement
covering any of the Collateral or any proceeds thereof is on file in any public
office.
4.3 Location
of Collateral.
The
Collateral is or will be kept at the address(es) of each Grantor set forth
on
Schedule
4.3
attached
hereto. Unless otherwise provided herein, the Grantors will not remove any
Collateral from such locations without the prior written consent of the Secured
Party.
4.4 Location,
State of Incorporation and Name of Grantors.
Each
Grantor’s principal place of business; state of incorporation, organization or
formation, organizational identification, and exact legal name is set forth
on
Schedule
4.4
attached
hereto.
4.5 Solvency.
Each
of
the Grantors is able to pay its debts as they mature, has capital sufficient
to
carry on its business, and the fair present saleable value of its assets,
calculated on a going concern basis, is in excess of the amount of its
liabilities.
ARTICLE
5.
DEFAULT;
REMEDIES; SUBSTITUTE COLLATERAL
5.1 Method
of Realizing Upon the Collateral: Other Remedies.
If
any
Event of Default shall have occurred and be continuing:
7
(a) The
Secured Party may exercise in respect of the Collateral, in addition to any
other rights and remedies provided for herein or otherwise available to it,
all
of the rights and remedies of a secured party upon default under the UCC
(whether or not the UCC applies to the affected Collateral), and also may (i)
take absolute control of the Collateral, including, without limitation, transfer
into the Secured Party’s name or into the name of its nominee or nominees (to
the extent the Secured Party has not theretofore done so) and thereafter
receive, for the benefit of the Secured Party, all payments made thereon, give
all consents, waivers and ratifications in respect thereof and otherwise act
with respect thereto as though it were the outright owner thereof, (ii) require
each Grantor to assemble all or part of the Collateral as directed by the
Secured Party and make it available to the Secured Party at a place or places
to
be designated by the Secured Party that is reasonably convenient to both
parties, and the Secured Party may enter into and occupy any premises owned
or
leased by a Grantor where the Collateral or any part thereof is located or
assembled for a reasonable period in order to effectuate the Secured Party’s
rights and remedies hereunder or under law, without obligation to such Grantor
in respect of such occupation, and (iii) without notice except as specified
below and without any obligation to prepare or process the Collateral for sale,
(A) sell the Collateral or any part thereof in one or more parcels at public
or
private sale, at any of the Secured Party’s offices or elsewhere, for cash, on
credit or for future delivery, and at such price or prices and upon such other
terms as the Secured Party may deem commercially reasonable and/or (B) lease,
license or dispose of the Collateral or any part thereof upon such terms as
the
Secured Party may deem commercially reasonable. Each Grantor agrees that, to
the
extent notice of sale or any other disposition of the Collateral shall be
required by law, at least ten (10) days’ notice to such Grantor of the time and
place of any public sale or the time after which any private sale or other
disposition of the Collateral is to be made shall constitute reasonable
notification. The Secured Party shall not be obligated to make any sale or
other
disposition of any Collateral regardless of notice of sale having been given.
The Secured Party may adjourn any public or private sale from time to time
by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Each
Grantor hereby waives any claims against the Secured Party arising by reason
of
the fact that the price at which the Collateral may have been sold at a private
sale was less than the price which might have been obtained at a public sale
or
was less than the aggregate amount of the Obligations, even if the Secured
Party
accepts the first offer received and does not offer such Collateral to more
than
one offeree, and waives all rights that such Grantor may have to require that
all or any part of such Collateral be marshaled upon any sale (public or
private) thereof. Each Grantor hereby acknowledges that (i) any such sale of
the
Collateral by the Secured Party may be made without warranty, (ii) the Secured
Party may specifically disclaim any warranties of title, possession, quiet
enjoyment or the like, and (iii) such actions set forth in clauses (i) and
(ii)
above shall not adversely affect the commercial reasonableness of any such
sale
of Collateral.
(b) Any
cash
held by the Secured Party as Collateral and all cash proceeds received by the
Secured Party in respect of any sale of or collection from, or other realization
upon, all or any part of the Collateral shall be applied (after payment of
any
amounts payable to the Secured Party pursuant to Section
8.4
hereof)
by the Secured Party against, all or any part of the Obligations in such order
as the Secured Party shall elect, consistent with the provisions of the
Securities Purchase Agreement. Any surplus of such cash or cash proceeds held
by
the Secured Party and remaining after the indefeasible payment in full in cash
of all of the Obligations shall be paid over to whomsoever shall be lawfully
entitled to receive the same or as a court of competent jurisdiction shall
direct.
8
(c) In
the
event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Secured Party is legally entitled,
the Grantors shall be liable for the deficiency, together with interest thereon
at the rate specified in the Secured Convertible Debentures for interest on
overdue principal thereof or such other rate as shall be fixed by applicable
law, together with the costs of collection and the reasonable fees, costs,
expenses and other client charges of any attorneys employed by the Secured
Party
to collect such deficiency.
(d) Each
Grantor hereby acknowledges that if the Secured Party complies with any
applicable state or federal law requirements in connection with a disposition
of
the Collateral, such compliance will not adversely affect the commercial
reasonableness of any sale or other disposition of the Collateral.
(e) The
Secured Party shall not be required to marshal any present or future collateral
security (including, but not limited to, this Agreement and the Collateral)
for,
or other assurances of payment of, the Obligations or any of them or to resort
to such collateral security or other assurances of payment in any particular
order, and all of the Secured Party’s rights hereunder and in respect of such
collateral security and other assurances of payment shall be cumulative and
in
addition to all other rights, however existing or arising. To the extent
permitted by applicable law, each Grantor hereby agrees that it will not invoke
any law relating to the marshaling of collateral which might cause delay in
or
impede the enforcement of the Secured Party’s rights under this Agreement or
under any other instrument creating or evidencing any of the Obligations or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and, to the
extent permitted by applicable law, each Grantor hereby irrevocably waives
the
benefits of all such laws.
5.2 Section
5.2 Duties
Regarding Collateral.
The
Secured Party shall have no duty as to the collection or protection of the
Collateral or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody and reasonable care of any of the
Collateral actually in the Secured Party’s possession.
ARTICLE
6.
AFFIRMATIVE
COVENANTS
So
long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing:
6.1 Existence,
Properties, Etc.
Each
Grantor shall do, or cause to be done, all things, or proceed with due diligence
with any actions or courses of action, that may be reasonably necessary (i)
to
maintain such Grantor’s due organization, valid existence and good standing
under the laws of its state of incorporation, and (ii) to preserve and keep
in
full force and effect all qualifications, licenses and registrations in those
jurisdictions in which the failure to do so could have a Material Adverse
Effect; and (b) a Grantor shall not do, or cause to be done, any act impairing
the Grantor’s corporate power or authority (i) to carry on such Grantor’s
business as now conducted, and (ii) to execute or deliver this Agreement or
any
other agreement or document delivered in connection herewith, including, without
limitation, each of the other Transaction Documents, as applicable, to which
it
is or will be a party, or perform any of its obligations hereunder or
thereunder.
9
6.2 Financial
Statements and Reports.
Each
Grantor shall furnish to the Secured Party within a reasonable time such
financial data as the Secured Party may reasonably request.
6.3 Accounts
and Reports.
Each
Grantor shall maintain a standard system of accounting in accordance with GAAP
and provide, at its sole expense, to the Secured Party the
following:
(a) as
soon
as available, a copy of any notice or other communication alleging any
nonpayment or other material breach or default, or any foreclosure or other
action respecting any material portion of its assets and properties, received
respecting any of the indebtedness of such Grantor in excess of $250,000 (other
than the Obligations), or any demand or other request for payment under any
guaranty, assumption, purchase agreement or similar agreement or arrangement
respecting the indebtedness or obligations of others in excess of $250,000;
and
(b) within
fifteen (15) days
after the making of each submission or filing, a copy of any report, financial
statement, notice or other document, whether periodic or otherwise, submitted
to
the shareholders of the Grantors, or submitted to or filed by the Grantors
with
any governmental authority involving or affecting (i) the Grantors that could
reasonably be expected to have a Material Adverse Effect; (ii) the Obligations;
(iii) any part of the Collateral; or (iv) any of the transactions contemplated
in this Agreement or any other Transaction Document.
6.4 Maintenance
of Books and Records: Inspection.
Each
Grantor shall maintain its books, accounts and records in accordance with GAAP,
and permit the Secured Party, its officers and employees and any professionals
designated by the Secured Party in writing, at any time during normal business
hours and upon reasonable notice to visit and inspect any of its properties
(including but not limited to the collateral security described in any of the
Transaction Documents), corporate books and financial records, and to discuss
its accounts, affairs and finances with any employee, officer or director
thereof (it being agreed that, unless an Event of Default shall have occurred
and be continuing, there shall be no more than two (2) such visits and
inspections in any fiscal year).
6.5 Maintenance
and Insurance.
(a) Each
Grantor shall maintain or cause to be maintained, at its own expense, all of
its
material assets and properties in good working order and condition, ordinary
wear and tear excepted, making all necessary repairs thereto and renewals and
replacements thereof.
(b) The
Grantors shall maintain or cause to be maintained, at their own expense,
insurance in form, substance and amounts (including deductibles), which the
Grantors deem reasonably necessary to the Grantors’ business, (i) adequate to
insure all assets and properties of the Grantors of a character usually insured
by persons engaged in the same or similar business against loss or damage
resulting from fire or other risks included in an extended coverage policy;
(ii)
against public liability and other tort claims that may be incurred by the
Grantors; (iii) as may be required by the Transaction Documents and/or
applicable law and (iv) as may be reasonably requested by Secured Party, all
with financially sound and reputable insurers.
10
6.6 Contracts
and Other Collateral.
Each
Grantor shall perform all of its obligations under or with respect to each
instrument, receivable, contract and other intangible included in the Collateral
to which such Grantor is now or hereafter will be party on a timely basis and
in
the manner therein required, including, without limitation, this Agreement,
except to the extent the failure to so perform such obligations would not
reasonably be expected to have a Material Adverse Effect.
6.7 Defense
of Collateral, Etc.
Each
Grantor shall defend and enforce (a) its right, title and interest in and to
any
part of the Collateral; and (b) if not included within the Collateral, those
assets and properties whose loss would reasonably be expected to have a Material
Adverse Effect, each against all manner of claims and demands on a timely basis
to the full extent permitted by applicable law (other than any such claims
and
demands by holders of Permitted Liens).
6.8 Taxes
and Assessments.
Each
Grantor shall (a) file all material tax returns and appropriate schedules
thereto that are required to be filed under applicable law, prior to the date
of
delinquency (taking into account any extensions of the original due date),
(b)
pay and discharge all material taxes, assessments and governmental charges
or
levies imposed upon a Grantor, upon its income and profits or upon any
properties belonging to it, prior to the date on which penalties attach thereto,
and (c) pay all material taxes, assessments and governmental charges or levies
that, if unpaid, might become a lien or charge upon any of its properties;
provided,
however,
that
the
Grantors in good faith may contest any such tax, assessment, governmental charge
or levy described in the foregoing clauses (b) and (c) so long as appropriate
reserves are maintained with respect thereto if and to the extent required
by
GAAP.
6.9 Compliance
with Law and Other Agreements.
Each
Grantor shall maintain its business operations and property owned or used in
connection therewith in compliance with (a) all applicable federal, state and
local laws, regulations and ordinances governing such business operations and
the use and ownership of such property, and (b) all agreements, licenses,
franchises, indentures and mortgages to which a Grantor is a party or by which
such Grantor or any of its properties is bound, except where the failure to
so
comply would not reasonably be expected to have a Material Adverse
Effect.
11
6.10 Notice
of Default.
The
Grantors will immediately notify the Secured Party of any event causing a
substantial loss or diminution in the value of all or any material part of
the
Collateral and the amount or an estimate of the amount of such loss or
diminution. The Grantors shall promptly notify the Secured Party of any
condition or event which constitutes, or would constitute with the passage
of
time or giving of notice or both, an Event of Default, and promptly inform
the
Secured Party of any events or changes in the financial condition of any Grantor
occurring since the date of the last financial statement of such Grantor
delivered to the Secured Party, which individually or cumulatively when viewed
in light of prior financial statements, which might reasonably be expected
to
have a Material Adverse Effect on the business operations or financial condition
of the Grantors.
6.11 Notice
of Litigation.
Each
Grantor shall give notice, in writing, to the Secured Party of (a) any actions,
suits or proceedings wherein the amount at issue is in excess of $250,000,
instituted by any persons against a Grantor, or affecting any of the assets
of
such Grantor, and (b) any dispute, not resolved within fifteen (15) days
of
the commencement thereof, between a Grantor on the one hand and any governmental
or regulatory body on the other hand, which might reasonably be expected to
have
a Material Adverse Effect on the business operations or financial condition
of
such Grantor.
6.12 Future
Subsidiaries.
Schedule
6.12
attached
hereto has all the subsidiaries of the Grantors. If any Grantor shall hereafter
create or acquire any subsidiary, simultaneously with the creation or
acquisition of such subsidiary, such Grantor shall cause such subsidiary to
become a party to this Agreement as an additional “Grantor” hereunder, and to
duly execute and deliver a guaranty of the Obligations in favor of the Secured
Party in form and substance reasonably acceptable to the Secured Party, and
to
duly execute and/or deliver such other documents, in form and substance
reasonably acceptable to the Secured Party, as the Secured Party shall
reasonably request with respect thereto, including, without limitation, a
mortgage to the extent such subsidiary owns any Real Estate.
6.13 Changes
to Identity.
Each
Grantor will (a) give the Secured Party at least thirty (30) days’ prior written
notice of any change in such Grantor’s name, identity or organizational
structure, (b) maintain its jurisdiction of incorporation, organization or
formation as set forth on Schedule
4.4
attached
hereto, (c) immediately notify the Secured Party upon obtaining an
organizational identification number, if on the date hereof such Grantor did
not
have such identification number.
6.14 Perfection
of Security Interests.
(a) Financing
Statements.
The
Grantors hereby irrevocably authorize the Secured Party, at the sole cost and
expense of the Grantors, at any time and from time to time to file in any filing
office in any jurisdiction any initial financing statements and amendments
thereto that (a) indicate the Collateral (i) as “all assets of the debtor,
whether now owned or hereafter acquired” or words of similar effect, regardless
of whether any particular asset comprised in the Collateral falls within the
scope of Article 9 of the UCC of such jurisdiction, or (ii) as being of an
equal
or lesser scope or with greater detail, and (b) contain any other information
required by Part 5 of Article 9 of the UCC for the sufficiency or filing office
acceptance of any financing statement or amendment, including (i) whether such
Grantor is an organization, the type of organization and any organization
identification number issued to such Grantor, and (ii) in the case of a
financing statement filed as a fixture filing, a sufficient description of
real
property to which the Collateral relates. The Grantors agree to furnish any
such
information to the Secured Party promptly upon request. The Grantors also ratify
their authorization for the Secured Party to have filed in any jurisdiction
any
initial financing statements or amendments thereto if filed prior to the date
hereof. The Grantors acknowledge that they are not authorized to file any
financing statement or amendment or termination statement with respect to any
financing statement without the prior written consent of the Secured Party
and
agree that they will not do so without the prior written consent of the Secured
Party. The Grantors acknowledge and agree that this Agreement constitutes an
authenticated record.
12
(b) Possession.
The
Grantors (i) shall have possession of the Collateral, except where expressly
otherwise provided in this Agreement or where the Secured Party chooses to
perfect its security interest by possession in addition to the filing of a
financing statement; and (ii) will, where the Collateral is in the possession
of
a third party, join with the Secured Party in notifying the third party of
the
Secured Party’s security interest and obtaining an acknowledgment from the third
party that it is holding the Collateral for the benefit of the Secured
Party.
(c) Control.
In
addition to the provisions set forth in Section
6.16,
the
Grantors will cooperate with the Secured Party in obtaining control with respect
to the Collateral consisting of (i) Investment Property, (ii) Letters-of-Credit
and Letter-of-Credit Rights and (iii) electronic Chattel Paper.
(d) Marking
of Chattel Paper.
The
Grantors will not create any Chattel Paper without placing a legend on the
Chattel Paper acceptable to the Secured Party indicating that the Secured Party
has a security interest in the Chattel Paper.
6.15 Notice
of Commercial Tort Claims.
Attached as Schedule
6.15
is a
list of all Commercial Tort Claims of the Grantors (as
such
Schedule may be amended, modified or supplemented from time to time).
If any
Grantor shall at any time acquire a Commercial Tort Claim, such Grantor shall
immediately notify the Secured Party in a writing signed by such Grantor which
shall (a) provide brief details of said claim and (b) grant to the Secured
Party
a security interest in said claim and in the proceeds thereof, all upon the
terms of this Agreement, in such form and substance satisfactory to the Secured
Party.
6.16 Establishment
of Deposit Account, Account
Control Agreements.
(a) Except
as
otherwise provided in this Section 6.16, in connection with the execution of
this Agreement, except as set forth on Schedule
6.16(a)
attached
hereto, each Grantor, the Secured Party, and each applicable bank or other
depository institution shall enter into an account control agreement (the
“Account
Control Agreement”)
in the
form of Exhibit
B
attached
hereto, or such other form reasonably acceptable to Secured Party, with respect
to each of the Grantor’s deposit accounts, including, without limitation, all
savings, passbook, money market or other depository accounts, and all
certificates of deposit, maintained by each Grantor with any bank, savings
and
loan association, credit union or other depository institution maintained or
used by each Grantor (the “Deposit
Accounts”)
providing dominion and control over such accounts to the Secured Party such
that
upon notice by the Secured Party to such bank or other depository institution
of
the occurrence of an Event of Default all actions under such account shall
be
taken solely at the Secured Party’s direction. Each Grantor’s current Deposit
Accounts are set forth on Schedule
6.16 (b)
attached
hereto.
13
(b) Each
Grantor shall cause all cash, all collections and proceeds from accounts
receivable, all receipts from credit card payments, and all proceeds from the
sale of any Collateral to be deposited only into its Deposit Accounts in the
ordinary course of business and consistent with past practices.
(c) With
respect to each Deposit Account, from an after the occurrence of an Event of
Default, the Secured Party shall have the right, at any time and from time
to
time, to exercise its rights under such Account Control Agreement, including,
for the avoidance of any doubt, the exclusive right to give instructions to
the
financial institution at which such Deposit Account is maintained as to the
disposition of funds or other property on deposit therein or credited thereto.
The Secured Party hereby covenants and agrees that it will not send any such
notice to a financial institution at which any such Deposit Account is
maintained directing the disposition of funds or other property therein unless
and until the occurrence of an Event of Default.
(d) In
connection with the foregoing, each Grantor hereby authorizes and directs each
bank or other depository institution which maintains any Deposit Account to
pay
or deliver to the Secured Party upon the Secured Party’s written demand thereof
made at any time after the occurrence of an Event of Default has occurred all
balances in each Deposit Account with such depository for application to the
Obligations then outstanding.
(e) Notwithstanding
the foregoing, Grantors are authorized to maintain the following Deposit
Accounts which shall not be subject to an Account Control Agreement in favor
of
the Secured Party, subject to the following conditions:
(i) the
existing Centerville Bank account numbers 00-000000-00 and 00-000000-00;
provided that
(A) such
accounts shall consists solely of certificates of deposit pledged to secure
existing letters-of-credit of the Grantors; (B) upon the earlier to occur of
(x)
the occurrence and continuance of an Event of Default or (y) termination of
the
existing letters-of-credit, such certificates of deposit or any proceeds
therefrom shall be transferred to a Deposit Account maintained at a bank or
other depository institution that is subject to an Account Control Agreement
in
favor of Secured Party; and (C) such accounts shall maintain a balance of not
more than One Hundred Thirty Five Thousand Dollars ($135,000) at any time
outstanding;
(ii) the
existing Bank of America, N.A. account number CD-4255; provided that
(A) such
account shall consists solely of certificates of deposit pledged to secure
existing letters-of-credit of the Grantors; (B) upon the earlier to occur of
(x)
the occurrence and continuance of an Event of Default or (y) termination of
the
existing letters-of-credit, such certificates of deposit or any proceeds
therefrom shall be transferred to a Deposit Account maintained at a bank or
other depository institution that is subject to an Account Control Agreement
in
favor of Secured Party; and (C) such account shall maintain a balance of not
more than Fifty Thousand Dollars ($50,000) at any time outstanding;
and
14
(iii) the
existing First Georgetown Securities brokerage account number 0RH-224626 in
an
aggregate principal amount not to exceed One Thousand Five Hundred Dollars
($1,500); provided that (A) as of the date hereof, no additional deposits shall
be permitted in such account; and (B) any proceeds, distributions or other
withdrawals from such account not immediately paid to a third-party creditor
in
the ordinary course of business shall be transferred to a Deposit Account
maintained at a bank or other depository institution that is subject to an
Account Control Agreement in favor of Secured Party.
ARTICLE
7.
NEGATIVE
COVENANTS
So
long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing, each Grantor covenants and agrees that
it
shall not:
7.1 Transfers;
Liens and Encumbrances.
(a) Sell,
assign (by operation of law or otherwise), lease, license, exchange or otherwise
transfer or dispose of any of the Collateral, except the Grantors may (i) sell
or dispose of Inventory in the ordinary course of business, and (ii) sell or
dispose of up to $ 250,000
in any fiscal year assets the Grantors have determined, in good faith, not
to be
useful in the conduct of its business, and (iii) sell or dispose of accounts
in
the course of collection in the ordinary course of business consistent with
past
practice; or
(b) Directly
or indirectly make, create, incur, assume or permit to exist any Lien in, to
or
against any part of the Collateral other than Permitted Liens.
7.2 Restriction
on Redemption and Cash Dividends
Directly
or indirectly, redeem, repurchase or declare or pay any cash dividend or
distribution on its capital stock without the prior express written consent
of
the Secured Party.
7.3 Incurrence
of Indebtedness.
Directly
or indirectly, incur or guarantee, assume or suffer to exist any indebtedness,
other than the indebtedness evidenced by the Secured Convertible Debentures
and
other Permitted Indebtedness.
7.4 Places
of Business.
Change
its state of organization or its principal place of business without the written
consent of the Secured Party.
15
ARTICLE
8.
MISCELLANEOUS
8.1 Notices.
All
notices or other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be considered as duly given on:
(a)
the date of delivery, if delivered in person or by nationally recognized
overnight delivery service or (b) five (5) days
after mailing if mailed from within the continental United States by certified
mail, return receipt requested to the party entitled to receive the
same:
|
If
to the Secured Party:
|
YA
Global Investments, L.P.
000
Xxxxxx Xxxxxx-Xxxxx 0000
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Xxxx Xxxxxx
Portfolio
Manager
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
Xxxx
Xxxxx, Esq.
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx
Xxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
And
if to any Grantor:
|
c/o
MobilePro Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxx Xxxxxx, Chairman
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
Seyfarth
Xxxx LLP
000
Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx
000
Xxxxxxxxxx,
X.X. 00000-0000
Attn:
Xxxxxx X. Xxxxx, Esq.
Telephone:
000-000-0000
Facsimile:
(000) 000-0000
|
Any
party
may change its address by giving notice to the other party stating its new
address. Commencing on the tenth (10th) day
after
the giving of such notice, such newly designated address shall be such party’s
address for the purpose of all notices or other communications required or
permitted to be given pursuant to this Agreement.
16
8.2 Security
Interest Absolute.
All
rights of the Secured Party hereunder, the security interest in the Collateral
and all obligations of the Grantors hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of
the
Secured Convertible Debentures, the Transaction Documents, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Secured
Convertible Debentures, the Transaction Documents or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, (d) the
existence of any claim, set-off or other right which any Grantor may have at
any
time against any other Grantor or the Secured Party, whether in connection
herewith or any unrelated transaction.
8.3 Severability.
If
any
provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall
not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if
any
such invalid or unenforceable provision were not contained herein.
8.4 Expenses.
In
the
event of an Event of Default, the Grantors will pay to the Secured Party the
amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel, which the Secured Party may incur
in connection with: (i) the custody or preservation of, or the sale, collection
from, or other realization upon, any of the Collateral; (ii) the exercise or
enforcement of any of the rights of the Secured Party hereunder or (iii) the
failure by a Grantor to perform or observe any of the provisions hereof.
8.5 Waivers,
Amendments, Etc.
The
Secured Party’s delay or failure at any time or times hereafter to require
strict performance by a Grantor of any undertakings, agreements or covenants
shall not waive, affect, or diminish any right of the Secured Party under this
Agreement to demand strict compliance and performance herewith. Any waiver
by
the Secured Party of any Event of Default shall not waive or affect any other
Event of Default, whether such Event of Default is prior or subsequent thereto
and whether of the same or a different type. None of the undertakings,
agreements and covenants of a Grantor contained in this Agreement, and no Event
of Default, shall be deemed to have been waived by the Secured Party, nor may
this Agreement be amended, changed or modified, unless such waiver, amendment,
change or modification is evidenced by an instrument in writing specifying
such
waiver, amendment, change or modification and signed by the Secured Party in
the
case of any such waiver, and signed by the Secured Party and the Grantors in
the
case of any such amendment, change or modification.
17
8.6 Continuing
Security Interest.
This
Agreement shall create a continuing security interest in the Collateral and
shall: (i) remain in full force and effect so long as any of the Obligations
shall remain outstanding; (ii) be binding upon each Grantor and its successors
and assigns; and (iii) inure to the benefit of the Secured Party and its
successors and assigns. Upon the payment or satisfaction in full of the
Obligations, this Agreement and the security interest created hereby shall
terminate, and, in connection therewith, each Grantor shall be entitled to
the
return, at its expense, of such of the Collateral as shall not have been sold
in
accordance with this Agreement or otherwise applied pursuant to the terms hereof
and the Secured Party shall deliver to the Grantors such documents as the
Grantors shall reasonably request to evidence such termination.
8.7 Independent
Representation.
Each
party hereto acknowledges and agrees that it has received or has had the
opportunity to receive independent legal counsel of its own choice and that
it
has been sufficiently apprised of its rights and responsibilities with regard
to
the substance of this Agreement.
8.8 Indemnification. The
Grantors 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 Grantor; 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
Grantors, 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).
8.9 Applicable
Law: Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New Jersey without regard to the principles of conflict of laws.
The parties further agree that any action between them shall be heard in Xxxxxx
County, New Jersey, and expressly consent to the jurisdiction and venue of
the
Superior Court of New Jersey, sitting in Xxxxxx County and the United States
District Court for the District of New Jersey sitting in Newark, New Jersey
for
the adjudication of any civil action asserted pursuant to this Paragraph,
provided,
however,
that
nothing herein shall prevent the Secured Party from enforcing its rights and
remedies (including, without limitation, by filing a civil action) with respect
to the Collateral and/or the Grantors in any other jurisdiction in which the
Collateral and/or the Grantors may be located.
8.10 Waiver
of Jury Trial.
AS
A
FURTHER INDUCEMENT FOR THE SECURED PARTY TO MAKE FINANCIAL ACCOMMODATIONS TO
THE
COMPANY OR ANY GRANTOR, EACH GRANTOR HEREBY WAIVES, TO THE FULLEST PERMITTED
BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED
TO THIS TRANSACTION.
18
8.11 Right
of Set Off.
The
Grantors hereby grant to the Secured Party, a lien, security interest and right
of setoff as security for all liabilities and obligations to the Secured Party,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Secured Party or any of its affiliates, or any
entity under the control of the Secured Party, or in transit to any of them.
At
any time, without demand or notice, the Secured Party may set off the same
or
any part thereof and apply the same to any liability or obligation of the
Grantors even though unmatured and regardless of the adequacy of any other
collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE THE SECURED
PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE GRANTORS, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
8.12 Liability
of Grantors.
Notwithstanding any provision herein or in any other Transaction Document,
the
Grantors, and each of them, are and shall be jointly and severally liable for
any and all Obligations (whether any such Obligation is specified as an
obligation of the Grantors or of any of them).
8.13 Waiver
of Claims.
The
Grantors acknowledge and agree that they have no offsets, defenses, claims,
or
counterclaims against the Secured Party or its officers, directors, employees,
attorneys, representatives, parents, affiliates, predecessors, successors,
or
assigns with respect to the Obligations, the Prior Debt Documents or otherwise,
and that if the Grantors now has, or ever did have, any offsets, defenses,
claims, or counterclaims against the Secured Party or its officers, directors,
employees, attorneys, representatives, affiliates, predecessors, successors,
or
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 hereby RELEASE
the
Secured Party and its officers, directors, employees, attorneys,
representatives, affiliates, predecessors, successors, and assigns from any
liability therefor.
8.14 Counterparts;
Facsimile Signatures.
This
Agreement may be executed and delivered by exchange of facsimile signatures
of
the Secured Party and the Grantors, and those signatures need not be affixed
to
the same copy. This Agreement may be executed in any number of
counterparts.
8.15 Entire
Agreement.
This
Agreement and the other documents or agreements delivered in connection herewith
contain the entire understanding among the parties and supersede any prior
agreement or understanding among them with respect to the subject matter
hereof.
19
8.16 Existing
Security Interests.
The
security interests granted herein are intended to be supplemental to, and not
in
limitation of, any existing security interests granted to the Secured Party
to
secure the Obligations, whether under the Prior Debt Documents or otherwise.
All
such existing security interests, and any rights of the Secured Party in
connection therewith, shall remain in full force and effect in accordance with
their respective terms, provided,
however,
that in
the event of a conflict between the terms of this Agreement and of any such
prior security interests, or the documents evidencing the same, the terms of
this Agreement shall control.
8.17 Ratification
of Prior Debt Documents.
To the
extent not amended, amended and restated or otherwise modified by the
Transaction Documents (other than the Prior Debt Documents), each Grantor hereby
ratifies, confirms and reaffirms all and singular the terms and conditions
of
the Prior Debt Documents, and any other or related documents or agreements,
as
the same may be amended and in effect as of the date hereof. The Grantors
further acknowledge and agree that except as the Prior Debt Documents may be
specifically be affected by this Agreement and/or any of the other documents
executed in connection herewith, all terms and conditions of the Prior Debt
Documents, as the same may be amended and in effect as of the date hereof,
shall
remain in full force and effect.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
20
IN
WITNESS WHEREOF,
the
parties hereto have executed this Global Security Agreement as of the date
first
above written.
|
Grantors:
|
|
|||
|
MOBILEPRO
CORP., a Delaware corporation
|
PROGAMES
NETWORK, INC., a Delaware
corporation
|
|||
|
By:
|
/s/ Xxx Xxxxxx |
By:
|
/s/ Xxx Xxxxxx | |
|
Name:
Xxx
Xxxxxx
|
Name:
Xxx
Xxxxxx
|
|||
|
Title:
Chairman
and CEO
|
Title:
Chairman
|
|||
|
DAVEL
FINANCING COMPANY, L.L.C., a Delaware limited liability
company
|
DAVEL
COMMUNICATIONS GROUP, INC., an Illinois corporation
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx
Xxxxxx
|
Name:
Xxxxx
Xxxxxx
|
|||
|
Title:
Secretary
|
Title:
Secretary
|
|||
|
TELALEASING
ENTERPRISES, INC., an Illinois corporation
|
PEOPLES
TELEPHONE COMPANY, INC., a New York corporation
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx
Xxxxxx
|
Name:
Xxxxx
Xxxxxx
|
|||
|
Title:
Secretary
|
Title:
Secretary
|
|||
|
PHONETEL
TECHNOLOGIES, INC., an Ohio corporation
|
DAVEL
ACQUISITION CORP., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx
Xxxxxx
|
Name:
Xxxxx
Xxxxxx
|
|||
|
Title:
Secretary
|
Title:
Secretary
|
|||
|
DAVEL
COMMUNICATIONS, INC., a Delaware corporation
|
CLOSECALLAMERICA,
INC., a Delaware corporation
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxx Xxxxxxx | |
|
Name:
Xxxxx
Xxxxxx
|
Name:
Xxxx
Xxxxxxx
|
|||
|
Title:
Secretary
|
Title:
President
|
|||
[Signature
Page to Global Security Agreement]
|
AMERICAN
FIBER NETWORK, INC., a
Delaware
corporation
|
||||
|
By:
|
/s/ Xxxx Xxxxxxx | |||
|
Name:
Xxxx
Xxxxxxx
|
||||
|
Title:
President
|
||||
|
SECURED
PARTY:
|
||||
|
YA
GLOBAL INVESTMENTS, L.P.
|
||||
|
By:
|
Yorkville
Advisors, LLC,
|
|||
| its Investment Manager | ||||
|
By:
|
/s/ Xxxxx Xxxxx | |||
|
Name:
Xxxxx
Xxxxx
|
||||
|
Title:
Managing
Member
|
||||
[Signature
Page to Global Security Agreement]
EXHIBIT
A
DEFINITION
OF COLLATERAL
For
the
purpose of securing prompt and complete payment and performance by the Grantors
of all of the Obligations, each Grantor unconditionally and irrevocably hereby
grants to the Secured Party a continuing security interest in and to, and lien
upon, the following “Collateral”
of
the
Grantors (all capitalized terms used herein and not defined in the Agreement
shall have the respective meanings ascribed thereto in the UCC):
A. All
Real
Estate owned by the Grantors, wherever located and whether now or hereinafter
existing and whether now owned or hereafter acquired.
B. All
personal property of each Grantor, wherever located and whether now or
hereinafter existing and whether now owned or hereafter acquired, of every
kind
and description, tangible or intangible, including without limitation,
all:
1. Goods;
2.
Inventory,
including, without limitation, all goods, merchandise and other personal
property which are held for sale or lease, or are furnished or to be furnished
under any contract of service or are raw materials, work-in-process, supplies
or
materials used or consumed in the Grantors’ business, and all products thereof,
and all substitutions, replacements, additions or accessions therefor and
thereto; and any cash or non-cash Proceeds of all of the foregoing;
3.
Equipment,
including, without limitation, all machinery, equipment, furniture, parts,
tools
and dies, of every kind and description, of the Grantors (including automotive
equipment and motor vehicles), now owned or hereafter acquired by the Grantor,
and used or acquired for use in the business of the Grantor, together with
all
accessions thereto and all substitutions and replacements thereof and parts
therefor and all cash or non-cash Proceeds of the foregoing;
4. Fixtures,
including, without limitation, all goods which are so related to particular
real
estate that an interest in them arises under real estate law and all accessions
thereto, replacements thereof and substitutions therefor, including, but not
limited to, plumbing, heating and lighting apparatus, mantels, floor coverings,
furniture, furnishings, draperies, screens, storm windows and doors, awnings,
shrubbery, plants, boilers, tanks, machinery, stoves, gas and electric ranges,
wall cabinets, appliances, furnaces, dynamos, motors, elevators and elevator
machinery, radiators, blinds and all laundry, refrigerating, gas, electric,
ventilating, air-refrigerating, air-conditioning, incinerating and sprinkling
and other fire prevention or extinguishing equipment of whatsoever kind and
nature and any replacements, accessions and additions thereto, Proceeds thereof
and substitutions therefor;
5. Instruments
(including promissory notes);
6. Documents;
7. Accounts,
including, without limitation, all Contract Rights and accounts receivable,
health-care-insurance receivables, and license fees; any other obligations
or
indebtedness owed to the Grantor from whatever source arising; all rights of
Grantor to receive any payments in money or kind; all guarantees of Accounts
and
security therefor; all cash or non-cash Proceeds of all of the foregoing; all
of
the right, title and interest of Grantors in and with respect to the goods,
services or other property which gave rise to or which secure any of the
accounts and insurance policies and proceeds relating thereto, and all of the
rights of the Grantors as an unpaid seller of goods or services, including,
without limitation the rights of stoppage in transit, replevin, reclamation
and
resale and all of the foregoing, whether now existing or hereafter created
or
acquired;
8.
Contracts
and Contract Rights, including, to the extent not included in the definition
of
Accounts, all rights to payment or performance under a contract not yet earned
by performance and not evidenced by an Instrument or Chattel Paper;
9.
Chattel
Paper (whether tangible or electronic);
10. Deposit
Accounts (and in and to any deposits or other sums at any time credited to
each
such Deposit Account);
11. Money,
cash and cash equivalents;
12. Letters-of-Credit
and Letter-of-Credit Rights (whether or not such Letter-of- Credit is evidenced
by a writing);
13. Commercial
Tort Claims;
14. Securities
Accounts, Security Entitlements, Securities, Financial Assets and all other
Investment Property, including, without limitation, all ownership or membership
interests in any subsidiaries or affiliates (whether or not controlled by the
Grantors);
15. General
Intangibles, including, without limitation, all Payment Intangibles and
Intellectual Property, tax refunds and other claims of the Grantors against
any
governmental authority, and all choses in action, insurance proceeds, goodwill
customer lists, formulae, permits, research and literary rights, and
franchises.
16. Farm
Products;
17. All
books
and records and information (including all ledger sheets, files, computer
programs, tapes and related data processing software) evidencing an interest
in
or relating to any of the foregoing and/or to the operation of the Grantors’
business, and all rights of access to such books and records, and information,
and all property in which such books and records, and information are stored,
recorded and maintained.
18. To
the
extent not already included above, all Supporting Obligations, and any and
all
cash and non-cash Proceeds, products, accessions, and/or replacements of any
of
the foregoing, including proceeds of insurance covering any or all of the
foregoing.
EXHIBIT
B
(Account
Control Agreements)
[forms
to
be attached]
SCHEDULE
1
(Subsidiaries
and Affiliates)
MobilePro
Corp., a Delaware corporation
ProGames
Network, Inc., a Delaware corporation
Davel
Financing Company, L.L.C., a Delaware limited liability company
Davel
Communications Group, Inc., an Illinois corporation
Telaleasing
Enterprises, Inc., an Illinois corporation
Peoples
Telephone Company, Inc., a New York corporation
PhoneTel
Technologies, Inc., an Ohio corporation
Davel
Acquisition Corp., a Delaware corporation
Davel
Communications, Inc., a Delaware corporation
CloseCall
America, Inc., a Delaware corporation
American
Fiber Network, Inc., a Delaware corporation
SCHEDULE
2
(Secured
Convertible Debentures)
[to
be
attached]
SCHEDULE
3
(Securities
Purchase Agreement)
[to
be
attached]
SCHEDULE
4
(Intellectual
Property)
[to
be
attached]
SCHEDULE
4.2
(Permitted
Liens)
[to
be
attached]
SCHEDULE
4.3
(Addresses)
[to
be
attached]
SCHEDULE
4.4
(Location,
State of Incorporation, Name)
[to
be
attached]
SCHEDULE
5
(Real
Estate)
[to
be
attached]
SCHEDULE
6.12
(Current
Subsidiaries)
ProGames
Network, Inc., a Delaware corporation
Davel
Financing Company, L.L.C., a Delaware limited liability company
Davel
Communications Group, Inc., an Illinois corporation
Telaleasing
Enterprises, Inc., an Illinois corporation
Peoples
Telephone Company, Inc., a New York corporation
PhoneTel
Technologies, Inc., an Ohio corporation
Telefonos
Publico, a company organized under the laws of Mexico
Davel
Acquisition Corp., a Delaware corporation
Davel
Communications, Inc., a Delaware corporation
CloseCall
America, Inc., a Delaware corporation
American
Fiber Network, Inc., a Delaware corporation
SCHEDULE
6.15
(Commercial
Tort Claims)
[to
be
attached]
SCHEDULE
6.16 (a)
(Deposit
Accounts with Prior Account Control Agreements)
None
SCHEDULE
6.16 (b)
(Deposit
Accounts)
[to
be
attached]
