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EXHIBIT 10.31
RESTATED CONTINUING GUARANTY
(▇▇▇▇▇)
To: BANK OF AMERICA N.A. and other
subsidiaries or affiliates of BankAmerica Corporation
(1) For valuable consideration, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Guarantor")
unconditionally guarantees and promises to pay to BANK OF AMERICA N.A. and any
other subsidiary or affiliate of BankAmerica Corporation (each, a "Bank") which
has extended or may hereafter extend credit to Borrower (as hereinafter
defined), or order, on demand, in lawful money of the United States, One Million
Eight Hundred Thousand Dollars ($1,800,000) of indebtedness of MOBILITY
ELECTRONICS, INC., f/k/a Electronics Accessory Specialists International, Inc. a
Delaware corporation ("Borrower") to Bank. The word "indebtedness" is used
herein in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrower or any one or more of them, heretofore,
now, or hereafter made, incurred or created, whether voluntary or involuntary
and however arising, whether direct or acquired by Bank by assignment or
succession, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Borrower may be liable
individually or jointly with others, or whether recovery upon such indebtedness
may be or hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable. This Restated
Continuing Guaranty restates, and replaces in its entirety, that certain
Commercial Guaranty dated April 6, 1999 executed by Guarantor in favor of Bank.
(2) The liability of Guarantor under this Guaranty (exclusive of
liability under any other guaranties executed by Guarantor) shall be limited to:
One Million Eight Hundred Thousand Dollars ($1,800,000) of: (a) the principal
amount of the indebtedness; and (b) accrued but unpaid interest. In addition to
the obligations set forth in the immediately preceding sentence, Guarantor shall
be liable for all fees, and other costs and expenses relating to or arising out
of the enforcement of any rights or remedies of Bank under this Guaranty. Bank
may permit the indebtedness of Borrower to exceed Guarantor's liability, and may
apply any amounts received from any source, other than from Guarantor, to the
unguaranteed portion of Borrower's indebtedness. This is a Continuing Guaranty
relating to any indebtedness, including that arising under successive
transactions which shall either continue the indebtedness or from time to time
renew it after it has been satisfied. Any payment by Guarantor shall not reduce
their maximum obligation hereunder, unless written notice to that effect be
actually received by Bank at or prior to the time of such payment.
(3) The obligations hereunder are joint and several, and independent of
the obligations of Borrower, and a separate action or actions may be brought and
prosecuted against Guarantor whether action is brought against Borrower or
whether Borrower be joined in any such action or actions and regardless of
whether a trustee's sale is held under any deed of trust securing the
indebtedness or regardless of whether a judicial foreclosure sale is held if any
deed of trust securing the indebtedness is judicially foreclosed as a mortgage.
Guarantor waives the benefit of any statute of limitations affecting his
liability hereunder.
(4) Guarantor authorizes Bank, without notice or demand and without
affecting their liability hereunder, from time to time, either before or after
revocation hereof, to (a) renew, compromise, extend, accelerate or otherwise
change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof, including increase or decrease of the rate of
interest thereon; (b) receive and hold security for the payment of this Guaranty
or the indebtedness guaranteed, and exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any such security; (c) apply such
security and direct the order or manner of sale thereof as Bank in its
discretion may determine, except to the extent specifically prohibited by law;
and (d) release or substitute any one or more of the endorsers or guarantors.
(5) Guarantor waives any right to require Bank to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower; or (c)
pursue any other remedy in Bank's power whatsoever. Guarantor waives any defense
arising by reason of any disability or other defense of Borrower, or the
cessation from any cause whatsoever of the liability of Borrower, or any claim
that Guarantor's obligations exceed or are more burdensome than those of
Borrower. Guarantor waives any right of subrogation,
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reimbursement, indemnification, and contribution (contractual, statutory or
otherwise), including without limitation, any claim or right of subrogation
under the Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute,
arising from the existence or performance of this Guaranty and Guarantor waives
any right to enforce any remedy which Bank now has or may hereafter have against
Borrower, and waive any benefit of, and any right to participate in, any
security now or hereafter held by Bank. Upon payment of the indebtedness in full
to the Bank and upon payment by Guarantor to Bank pursuant to this Guaranty,
Guarantor shall have full rights of subrogation against Borrower. Bank may
foreclose, either by judicial foreclosure or by exercise of power of sale, any
deed of trust securing the indebtedness, and, even though the foreclosure may
destroy or diminish Guarantor's rights against Borrower, Guarantor shall be
liable to Bank for any part of the indebtedness remaining unpaid after the
foreclosure. Guarantor waives any benefit of any statutory provision limiting
the right of Bank to recover a deficiency judgment, or to otherwise proceed,
against any person or entity obligated for payment of the indebtedness, after
any judicial foreclosure sale or trustee's sale of any collateral securing the
indebtedness including, without limitation, the benefits, if any, of Arizona
Revised Statutes Sections 12-1566, 12-1641 et seq., 33-814, 44-142 and Rule
17(f) of the Arizona Rules of Civil Procedure, except to the extent otherwise
required by law. Guarantor waives any homestead or exemption rights. Guarantor
waives all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of acceptance of
this Guaranty and of the existence, creation, or incurring of new or additional
indebtedness.
(6) Guarantor acknowledges and agrees that he shall have the sole
responsibility for obtaining from Borrower such information concerning
Borrower's financial conditions or business operations as Guarantor may require,
and that Bank has no duty at any time to disclose to Guarantor any information
relating to the business operations or financial conditions of Borrower.
(7) In addition to Bank's rights of setoff, to secure all of
Guarantor's obligations hereunder, Guarantor assigns and grants to Bank a
security interest in all moneys, securities and other property of Guarantor now
or hereafter in the possession of Bank, and all deposit accounts of Guarantor
maintained with Bank, and all proceeds thereof. Upon default or breach of any of
Guarantor's obligations to Bank, Bank may apply any deposit account to reduce
the indebtedness, and may foreclose any collateral as provided in the Uniform
Commercial Code and in any security agreements between Bank and Guarantor.
(8) Any obligations of Borrower to Guarantor, now or hereafter
existing, including but not limited to any obligations to Guarantor as subrogees
of Bank or resulting from Guarantor's performance under this Guaranty, are
hereby subordinated to the indebtedness. Such obligations of Borrower to
Guarantor if Bank so requests shall be enforced and performance received by
Guarantor as trustees for Bank and the proceeds thereof shall be paid over to
Bank on account of the indebtedness of Borrower to Bank, but without reducing or
affecting in any manner the liability of Guarantor under the provisions of this
Guaranty.
(9) This Guaranty may be revoked at any time by Guarantor in respect to
future transactions, unless there is a continuing consideration as to such
transactions which Guarantor does not renounce. Such revocation shall be
effective upon actual receipt by Bank at the address shown below of written
notice of revocation. Revocation shall not affect any of Guarantor's obligations
or Bank's rights with respect to transactions which precede Bank's receipt of
such notice, regardless of whether or not the indebtedness related to such
transactions, before or after revocation, has been renewed, compromised,
extended, accelerated, or otherwise changed as to any of its terms, including
time for payment or increase or decrease of the rate of interest thereon, and
regardless of any other act or omission of Bank authorized hereunder. Revocation
by any one or more of Guarantor shall not affect any obligations of any
nonrevoking Guarantor. If this Guaranty is revoked, returned, or canceled, and
subsequently any payment or transfer of any interest in property by Borrower to
Bank is rescinded or must be returned by Bank to Borrower, this Guaranty shall
be reinstated with respect to any such payment or transfer, regardless of any
such prior revocation, return, or cancellation.
(10) Where any one or more of Borrower are corporations or partnerships
it is not necessary for Bank to inquire into the powers of Borrower or of the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
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(11) Bank may, without notice to Guarantor and without affecting
Guarantor's obligations hereunder, assign the indebtedness and this Guaranty, in
whole or in part. Guarantor agrees that Bank may disclose to any prospective
purchaser and any purchaser of all or part of the indebtedness any and all
information in Bank's possession concerning Guarantor, this Guaranty and any
security for this Guaranty.
(12) Guarantor agrees to pay all attorneys' fees, the allocated costs
of Bank's in-house counsel, and all other costs and expenses which may be
incurred by Bank in the enforcement of this Guaranty, including without
limitation all costs and necessary disbursements in any legal action or
arbitration proceeding.
(14) This Guaranty shall be governed by and construed according to the
laws of the State of Arizona, to the jurisdiction of which the parties hereto
submit; provided, however, this Guaranty shall be governed by New Mexico law to
the extent of application of marital interests and rights to bind property of a
Guarantor and/or his spouse.
(15) (a) Any controversy or claim between or among the parties,
including but not limited to those arising out of or relating to this Guaranty
or any agreements or instruments relating hereto or delivered in connection
herewith and any claim based on or arising from an alleged tort, shall at the
request of any party be determined by arbitration. The arbitration shall be
conducted in accordance with the United States Arbitration Act (Title 9, U.S.
Code), notwithstanding any choice of law provision in this Guaranty, and under
the Commercial Rules of the American Arbitration Association ("AAA"). The
arbitrator(s) shall give effect to statutes of limitation in determining any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
(b) No provision of this paragraph shall limit the right of
any party to this Guaranty to exercise self-help remedies such as setoff, to
foreclose against or sell any real or personal property collateral or security,
or to obtain provisional or ancillary remedies from a court of competent
jurisdiction before, after, or during the pendency of any arbitration or other
proceeding. The exercise of a remedy does not waive the right of either party to
resort to arbitration. At Bank's option, foreclosure under a deed of trust or
mortgage may be accomplished either by exercise of power of sale under the deed
of trust or mortgage or by judicial foreclosure.
Executed this 2nd day of November, 1999.
"Guarantor"
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Address for notices to Bank:
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ATTN:
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