ex10-1.htm


    Exhibit
10.1

    
      
      

       

      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:

       

      
        
          
            
              
                	
                        Debenture
      Description

                      	
                        Principal
      Outstanding

                      	
                        Accrued
      and Unpaid Interest

                      
	
                        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

                      	
                        $13,029,125

                      	
                        $130,551.79

                      


              

            

          

        

      

       

      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:

       

      
        	
                 
      

              	
                1.

              	
                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”).

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                 
      

              	
                2.

              	
                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.

              


      

       

      
        	
                 
      

              	
                3.

              	
                RATIFICATION OF
      TRANSACTION DOCUMENTS; CONFIRMATION OF COLLATERAL;
      CROSS-COLLATERALIZATION; FURTHER ASSURANCES.  The
      Grantors jointly and severally:

              


      

       

      
        	
                 
      

              	
                a.

              	
                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.

              


      

       

      
        	
                 
      

              	
                b.

              	
                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.

              


      

       

      
        	
                 
      

              	
                c.

              	
                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.

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      
        	
                 
      

              	
                d.

              	
                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.

              


      

       

      
        	
                 
      

              	
                4.

              	
                FORBEARANCE OF
      EXERCISING RIGHTS AND
REMEDIES.

              


      

       

      
        	
                 
      

              	
                a.

              	
                Acknowledgement of
      Maturity.  The Company hereby acknowledges and agrees
      that the Maturity Date of the Debenture is May 1, 2009, that as of the
      date hereof it has not, and on the Maturity Date it will not be able to,
      repay the Obligation, and such event will entitle YA Global to exercise
      its rights and remedies under the Transaction Documents, applicable law or
      otherwise.  The Grantors jointly and severally represent and
      warrant that as of the date hereof, except for the event described in the
      preceding sentence, no Event of Default under the Transaction Documents
      exist.  YA Global has not waived, presently does not intend to
      waive and may never waive any events of default and nothing contained
      herein or the transactions contemplated hereby shall be deemed to
      constitute any such waiver.  The Grantors hereby acknowledge and
      agree that upon the Maturity Date the Obligations will be immediately due
      and payable under the terms of the Transaction Documents, but for the
      agreement to forbear as set forth
herein.

              


      

       

      
        	
                 
      

              	
                b.

              	
                Forbearance.

              


      

       

      
        	
                 
      

              	
                i.

              	
                In
      reliance upon the representations, warranties and covenants of the
      Grantors contained in this Agreement, and subject to the terms and
      conditions of this Agreement and any documents or instruments executed in
      connection herewith, YA Global agrees to forbear from exercising its
      rights and remedies under the Transaction Documents or applicable law,
      subject to the conditions, amendments and modifications contained herein
      until June 1, 2009 (the “Forbearance
      Period”) so long as the following conditions are met: (i) the
      Company strictly complies with the terms of this Agreement, and (ii) there
      is no occurrence or existence of any Event of Default except for the
      non-payment of Obligations as of the Maturity
  Date.

              


      

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      
        	
                 
      

              	
                ii.

              	
                Upon
      the termination or expiration of the Forbearance Period, the agreement of
      YA Global to forbear shall automatically and without further action
      terminate and be of no force and effect, it being expressly agreed that
      the effect of such termination will be to permit YA Global to exercise
      such rights and remedies immediately, including, but not limited to, the
      acceleration of all of the Obligations without any further notice, passage
      of time or forbearance of any kind.  This Agreement shall be
      deemed to satisfy any and all requirements by YA Global to provide notice
      to the Grantors before exercising any such
  rights.

              


      

       

      
        	
                 
      

              	
                c.

              	
                No Other Waivers;
      Reservation of Rights.

              


      

       

      
        	
                 
      

              	
                i.

              	
                YA
      Global has not waived, is not by this Agreement waiving, and has no
      intentions of waiving, any Events of Default which may be continuing on
      the date hereof or any Events of Default which may occur after the date
      hereof, and YA Global has not agreed to forbear with respect to any of its
      rights or remedies concerning any Events of Default, which may have
      occurred or are continuing as of the date hereof or which may occur after
      the date hereof.

              


      

       

      
        	
                 
      

              	
                ii.

              	
                Subject
      to Section 4(b) above (solely with respect to the Maturity Date), YA
      Global reserves the right, in its discretion, to exercise any or all of
      its rights and remedies under the Transaction Documents as a result of any
      Events of Default which may be continuing on the date hereof or any Events
      of Default which may occur after the date hereof, and YA Global has not
      waived any of such rights or remedies, and nothing in this Agreement, and
      no delay on its part in exercising any such rights or remedies, should be
      construed as a waiver of any such rights or
  remedies.

              


      

       

      
        	
                 
      

              	
                d.

              	
                Interest.  During
      the Forbearance Period interest shall continue to accrue on the
      outstanding principal balance of the Obligations at the normal rate set
      forth in the Debenture.  The Company shall pay to YA Global all
      accrued and unpaid interest under the Debenture as of the close of
      business on April 30, 2009 of 130,551.79 by paying $65,275 by May 11,
      2009, and the balance of $65,276.79 by May 25,
  2009.

              


      

       

      
        	
                 
      

              	
                e.

              	
                Costs. The
      Grantors shall jointly and severally reimburse YA Global on demand for any
      and all unreimbursed costs, expenses, and costs of collection (including
      attorneys’ fees and expenses) heretofore or hereafter incurred by YA
      Global in connection with the protection, preservation, and enforcement by
      YA Global of its rights and remedies under the Transaction Documents
      and/or this Agreement, including, without limitation, the negotiation and
      preparation of this Agreement.

              


      

       

      
        	
                 
      

              	
                5.

              	
                DUE
      DILIGENCE.  The Grantors have represented to YA Global
      that they intend to consider certain transactions involving certain assets
      pledged to YA Global or may otherwise require the consent of YA Global in
      order to assist in the satisfaction of the Obligation or in connection
      with a plan to restructure the repayment of the Obligations. In connection
      therewith:

              


      

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      
        	
                 
      

              	
                a.

              	
                The
      Grantors will provide YA Global with information regarding any potential
      transactions proposed by the Grantors in its efforts to satisfy the
      Obligations.

              


      

       

      
        	
                 
      

              	
                b.

              	
                The
      Grantors shall retain a consultant, to the sole satisfaction of YA Global,
      to conduct due diligence and an investigation into the business and
      prospects of any of the Grantors.  The Grantors shall pay all
      expenses and fees of such consultant in an amount not to exceed
      $15,000.

              


      

       

      
        	
                 
      

              	
                c.

              	
                The
      Grantors agree that in all events, and regardless of whether any
      transaction is consummated, all Obligations shall be paid in full in good
      and collected funds by federal funds wire transfer on or before the
      termination or expiration of the Forbearance Period, unless otherwise
      indicated in writing by YA Global.

              


      

       

      
        	
                 
      

              	
                d.

              	
                The
      Grantors acknowledge and agree that nothing contained in this Section is
      intended to be, nor shall be construed as, an agreement by YA Global to
      extend the Forbearance Period, consent by YA Global to any particular
      transaction, or an agreement to release any security interest of assets
      held by YA Global except for payment in full of all the
      Obligations.

              


      

       

      
        	
                 
      

              	
                6.

              	
                WAIVERS AND OTHER
      AGREEMENTS.

              


      

       

      
        	
                 
      

              	
                a.

              	
                Non-Interference. 
      From and after the termination of the Forbearance Period, the Grantors
      jointly and severally agree not to interfere with the exercise by YA
      Global of any of its rights and remedies.  The Grantors further
      jointly and severally agree that it shall not seek to restrain or
      otherwise hinder, delay, or impair YA Global’s efforts to realize upon any
      collateral granted to YA Global, or otherwise to enforce its rights and
      remedies pursuant to the Transaction Documents.  The provisions of
      this Paragraph shall be specifically enforceable by YA
    Global.

              


      

       

      
        	
                 
      

              	
                b.

              	
                Mutual Waiver of Jury
      Trial.  BECAUSE DISPUTES ARISING IN CONNECTION WITH
      COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
      BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE
      AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
      DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE
      LAWS.  THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
      BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
      WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
      BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT OR
      OTHERWISE BETWEEN THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED OR
      INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
      THIS AGREEMENT OR ANY OF THE OTHER FACTORING DOCUMENTS OR THE TRANSACTIONS
      RELATED THERETO

              


      

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      
        	
                 
      

              	
                c.

              	
                Cross
      Default.  The Grantors hereby acknowledges and agrees that any
      default or Event of Default under this Agreement or under any Transaction
      Document shall constitute a default or an Event of Default under each
      other Transaction Document.

              


      

       

      
        	
                 
      

              	
                7.

              	
                REPRESENTATIONS AND
      WARRANTIES.  Each Grantor hereby represents and warrants
      to YA Global as follows:

              


      

       

      
        	
                 
      

              	
                a.

              	
                Attached
      hereto as Schedule 7.a.
      is a true, correct, and complete organizational chart displaying exact
      legal name, principal place of business, jurisdiction of incorporation,
      organization, or formation, and organizational identification number of
      the Company and each direct and indirect subsidiary of the Company and for
      each Grantor.

              


      

       

      
        	
                 
      

              	
                b.

              	
                Each
      Grantor’s current Deposit Accounts are set forth on Schedule 7.b.
      attached hereto and constitute all such Deposit Accounts of the Grantors.
      Each Deposit Account listed on the schedule to the Global Security
      Agreement and not listed on Schedule 7.b. has been closed and at the time
      of such closure, all proceeds remaining in such Deposit Accounts were
      disposed of in accordance with the Global Security
    Agreement.

              


      

       

      
        	
                 
      

              	
                c.

              	
                Attached
      hereto as Schedule 7.c.
      is a true, correct, and complete list of all United States Patents, Patent
      Licenses, United States Copyright registrations, and Copyright Licenses to
      which each Grantor is a party.

              


      

       

      
        	
                 
      

              	
                8.

              	
                GOVERNING
      LAW.  This Agreement shall be interpreted according to
      the laws of the State of New Jersey and shall inure to the benefit of and
      be binding upon the parties hereto and their respective successors and
      assigns.  Any notices, demands, consents, other writings or
      communications permitted or required by this Agreement shall be given in
      the manner and to the address as set forth in the Transaction
      Documents.

              


      

       

      


       

      [SIGNATURE
PAGE IMMEDIATELY TO FOLLOW]

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      IN WITNESS WHEREOF, this
Agreement is executed and delivered as of the day and year first above
written.

       

      Grantors:

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	
                                              MOBILEPRO
      CORP., a Delaware corporation

                                               

                                              By: /s/ Jay
      Wright

                                              Name:
      Jay Wright

                                              Title:  Chairman
      and CEO

                                            	 	
                                              PROGAMES
      NETWORK, INC., a Delaware corporation

                                               

                                              By:  /s/ Jay
      Wright

                                              Name:
      Jay Wright

                                              Title:   Chairman

                                            
	 	 	 
	
                                              DAVEL
      FINANCING COMPANY, L.L.C., a Delaware limited liability
      company

                                               

                                              By: /s/
      Tammy Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            	 	
                                              DAVEL
      COMMUNICATIONS GROUP, INC., an Illinois corporation

                                               

                                              By:
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            
	 	 	 
	
                                              TELALEASING
      ENTERPRISES, INC., an Illinois corporation

                                               

                                              By:
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            	 	
                                              PEOPLES
      TELEPHONE COMPANY, INC., a New York corporation

                                               

                                              By:
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            
	 	 	 
	
                                              PHONETEL
      TECHNOLOGIES, INC., an Ohio corporation

                                               

                                              By:
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            	 	
                                              DAVEL
      ACQUISITION CORP., a Delaware corporation

                                               

                                              By:
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            
	 	 	 
	
                                              DAVEL
      COMMUNICATIONS, INC., a Delaware corporation

                                               

                                              By: 
      /s/ Tammy
      Martin

                                              Name:
      Tammy Martin

                                              Title:   Secretary

                                            	 	
                                              CLOSECALLAMERICA,
      INC., a Delaware corporation

                                               

                                              By:
      /s/ Doug
      Bethell

                                              Name:
      Doug Bethell

                                              Title:   President

                                            


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

      


      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

      
        
          
            
              
                
                  	
                          MWS
      Newco, Inc., a Delaware corporation

                           

                          By:  /s/ Tammy
      Martin

                          Name:  Tammy
      Martin

                          Title:  Secretary

                        	 	
                          AMERICAN
      FIBER NETWORK, INC., a Delaware corporation

                           

                          By:
      /s/ Doug
      Bethell

                          Name:
      Doug Bethell

                          Title:   President

                        


                

              

            

             

             

             

            	 
      	
                    YA
      GLOBAL INVESTMENTS, L.P.

                     

                    By:
      Yorkville Advisors, LLC,

                    its
      Investment Manager

                     

                    By:
      /s/ Troy
      Rillo

                    Name:
      Troy Rillo

                    Title:   Senior
      Managing Director

                  


          

        

      

       

    

     

     

     

    8