CONSENT AND WAIVER AGREEMENT
EXHIBIT
10.1
This
Consent and Waiver Agreement (the “Agreement”)
is
made and entered into as of March 30, 2007 by and among Cornell Capital
Partners, LP, with its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxx
0000, Xxxxxx Xxxx, XX 00000 (“Cornell Capital”) on the one hand, and Mobilepro
Corp. and its wholly-owned subsidiary, NeoReach, Inc. on the other hand,
with
their principal place of business at 0000 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx,
XX 00000 (collectively, the “Company”).
RECITALS
WHEREAS,
the
Company issued, and Cornell Capital purchased, a series of 7.75% Secured
Convertible Debentures with a total principal amount of $22,500,000 (the
“Convertible Debentures”);
WHEREAS,
pursuant to the applicable sections of the Convertible Debentures, the Company
cannot enter into any security instrument granting a security interest in
any of
its assets without the prior consent of Cornell Capital;
WHEREAS,
Cornell
Capital required as a condition of entering into the Convertible Debentures
that
it be secured by the Amended and Restated Security Agreement dated May 13,
2005
(the “Security Agreement”);
WHEREAS,
pursuant to the terms of the Security Agreement, Cornell Capital received
a
first lien on existing and to be acquired assets of the Company, including
“equipment” as that term is defined in the UCC;
WHEREAS,
under
the
terms of the Security Agreement it is an event of default for the Company
to
sell or assign any collateral covered by the Security Agreement, including
equipment;
WHEREAS,
the
Company desires to enter into a sale and lease-back of certain wireless network
equipment (160 Strix model 2420 access point radios with antennas with a
total
cost of $418,880) used to provide wireless broadband service to certain
municipalities (the “Sale/Leaseback Transaction”) pursuant to a Master Lease
Agreement 2249 dated June 28, 2006 between the Company and JTA Leasing Co.,
LLC
(the “Master Lease”);
WHEREAS,
pursuant to the terms of the Master Lease the Company must keep the equipment
subject to the Master Lease free and clear of all superior liens and
encumbrances;
WHEREAS,
the
Company requires the consent of Cornell Capital to the Sale/Leaseback
Transaction and a waiver of its rights under the Convertible Debentures and
Security Agreement;
NOW
THEREFORE,
in
consideration of the above recitals and the mutual covenants made herein,
the
parties agree as follows:
1. Consent
and Waiver
Cornell
Capital hereby consents to the Company entering into the Sale/Leaseback
Transaction and waives any and all of its rights under the Convertible
Debentures and Security Agreement to the extent that any of the terms of
such
agreements would cause the Company to be in default of those agreements by
execution of the Sale/Leaseback Transaction. The Company warrants and represents
that all assets included in the Sale/Leaseback Transaction and subject to
this
Agreement are installed and deployed in Tempe, Arizona. In consideration
for the
forgoing consent, the Company hereby agrees to increase its weekly scheduled
payment obligations to Cornell Capital for eight (8) consecutive weeks from
$250,000 per week to $300,000 per week commencing with the payment notice
to be
dated April 5, 2007 for the pricing period beginning on April 9, 2007 and
ending
April 13, 2007.
2. Miscellaneous
2.1 Successors
and Assigns
Except
as otherwise provided herein, this Agreement and the rights and obligations
of
the parties hereunder shall inure to the benefit of, and be binding upon,
the
parties’ respective successors, assigns, and legal representatives.
2.2 Amendments
and Waivers
Any term
of this Agreement may be amended or waived only with the written consent
of the
parties hereto.
2.3 Notices
Any
notice required or permitted by this Agreement shall be in writing and shall
be
deemed sufficient on the date of delivery, when delivered personally or by
overnight courier or sent by fax, or forty-eight (48) hours after being
deposited in the mail, as certified or registered mail, with postage prepaid,
and addressed to the party to be notified at each party’s address as set forth
above or as subsequently modified by written notice.
2.4 Severability
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (a) such provision shall be excluded
from
this Agreement, (b) the balance of the Agreement shall be interpreted as
if such
provision were so excluded, and (c) the balance of the Agreement shall be
enforceable in accordance with its terms.
2.5 Governing
Law
This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed, and interpreted
in accordance with the laws of the State of New Jersey, without giving effect
to
principles of conflicts of law.
2.6 Recitals
The
recitals are included as terms of this Agreement and are incorporated
herein.
2.7 Counterparts
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one and the
same
instrument.
2.8 Titles
and Subtitles
The
titles and subtitles used in this Agreement are used for convenience only
and
are not to be considered in construing or interpreting this
Agreement.
The
parties have executed this Consent and Waiver Agreement as of the date first
written above.
MOBILEPRO CORP. | ||
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By: | /s/ Xxx X. Xxxxxx | |
Name: Xxx X. Xxxxxx |
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Title: CEO |
NEOREACH, INC. | ||
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By: | /s/ Xxx X. Xxxxxx | |
Name: Xxx X. Xxxxxx |
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Title: CEO |
CORNELL CAPITAL PARTNERS, LP | ||
By:
Yorkville Advisors, LLC
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Its:
General Partner
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By: | /s/ Xxxx Xxxxxx | |
Name: Xxxx Xxxxxx |
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Title: Portfolio Manager |