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EXHIBIT 10.44
Loan No.:_______________________________________________________
AMENDED AND RESTATED PROMISSORY NOTE
(FACILITY I)
$3,000,000 March 13, 2000
Phoenix, Arizona
Interest Rate: Prime Rate plus 250
Basis Points (see Section 3 below).
Maturity Date: March 31, 2001 (see Section 6 below).
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1. FOR VALUE RECEIVED, MOBILITY ELECTRONICS, INC., f/k/a Electronics
Accessory Specialists International, Inc. a Delaware corporation ("Borrower"),
promise(s) to pay to the order of BANK OF AMERICA N.A. successor by merger to
NationsBank, N.A., (the "Bank"), at Bank's Home Office in Phoenix, Arizona, or
at such other place as Bank may from time to time designate, the principal sum
of Three Million Dollars ($3,000,000), plus interest thereon from the date of
the respective advances until paid. This Amended and Restated Promissory Note
(this "Note") amends and restates that certain Restated Promissory Note in the
principal amount of $3,000,000 dated November 2, 1999 in favor of Bank and
evidences a loan (the "Loan") from Bank to Borrower pursuant to that certain
Loan Agreement dated January 13, 1998, as amended pursuant to that certain
Amended and Restated Business Loan Agreement (the "Modification Agreement")
dated November 2, 1999 as amended by that certain Loan Modification and
Extension Agreement dated of even date herewith (collectively, the "Loan
Agreement").
2. This Note is secured by a Security Agreement dated of even date
herewith, a Pledge of Certificate of Deposit ($150,000) dated of even date
herewith, a Pledge of Certificate of Deposit ($75,000) dated of even date
herewith, and a Patent Collateral Assignment and Security Agreement dated of
even date herewith, (collectively, the "Security Documents"), covering certain
property as therein described (the "Property"). It may also be secured by other
collateral. This Note and the Security Documents are among several Loan
Documents, as defined and designated in the Loan Agreement, between Bank and
Borrower and several guarantors. Some or all of the Loan Documents, including
the Extension Agreement, contain provisions for the acceleration of the maturity
of this Note.
3. The principal sum outstanding from time to time under this Note
shall bear interest at the Prime Rate plus two hundred fifty (250) basis points
per year, as the same may change from time to time (the "Prime-based Rate"). As
used herein, the "Prime Rate" means the per annum rate of interest publicly
announced from time to time by Bank at San Francisco, California, as its Prime
Rate. The Prime Rate is set by Bank based on various factors, including its
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans. Bank may price loans to its
customers at, above, or below the Prime Rate. Any change in the Prime Rate shall
take effect at the opening of business on the day specified in the public
announcement of a change in the Prime Rate.
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4. Accrued interest shall be payable on the first day of each month in
arrears, commencing on April 1, 2000 until all obligations are paid in full.
Interest shall be calculated on the basis of a 360-day year on actual days
elapsed, which results in more interest than if a 365-day year were used.
5. For purposes of this Note, "interest" shall include any and all
interest payable as provided in this Note, together with any and all sums (the
"Additional Interest") payable by Borrower under any existing or future
agreement between Bank and Borrower. Borrower shall pay any and all Additional
Interest at the times and in the amounts specified in such agreements.
6. All principal and all accrued and unpaid interest and all other
amounts payable hereunder shall be due and payable no later than March 31, 2001.
7. Borrower may prepay some or all of the principal under this Note,
without penalty or premium. All prepayments shall be applied first on late
charges and costs, if any, and then on interest then due and the remainder on
the principal balance.
8. If Borrower fails to make any payment of principal or interest when
it is due and payable or upon the occurrence of any Event of Default as defined
hereunder, ▇▇▇▇▇▇▇▇ agrees to pay interest on the outstanding principal and
accrued and unpaid interest at an annual rate (the "Default Rate") of five
hundred (500) basis points in excess of the Prime-based Rate, from the date the
payment becomes due until Borrower pays in full all such amounts due under this
Note.
9. From and after maturity of this Note, whether by acceleration or
otherwise, all sums then due and payable under this Note, including all
principal and all accrued and unpaid interest, shall bear interest until paid in
full at the Default Rate.
10. If an "Event of Default", (as defined in the Loan Agreement)
occurs, any obligation of the holder to make advances under this Note shall
terminate, and at the holder's option, exercisable in its sole discretion, all
sums of principal and interest under this Note shall become immediately due and
payable without notice of default, presentment or demand for payment, protest or
notice of nonpayment or dishonor, or other notices or demands of any kind or
character.
11. It shall also be an "Event of Default" under this Note if ▇▇▇▇▇▇▇▇
becomes the subject of any bankruptcy or other voluntary or involuntary
proceeding, in or out of court, for the adjustment of debtor-creditor
relationships ("Insolvency Proceeding"). If that happens all sums of principal
and interest under this Note shall automatically become immediately due and
payable without notice of default, presentment or demand for payment, protest or
notice of nonpayment or dishonor, or other notices or demands of any kind or
character.
12. All amounts payable under this Note are payable in lawful money of
the United States during normal business hours on a Banking Day, as defined
below. Checks constitute payment only when collected.
13. If any lawsuit or arbitration is commenced which arises out of or
relates to this Note, the Loan Documents or the Loan, the prevailing party shall
be entitled to recover from each other party such sums as the court (but not the
jury) or arbitrator may adjudge to be reasonable attorneys' fees in the action
or arbitration, in addition to costs and expenses otherwise allowed by law. In
all other situations, including any matter arising out of or relating to any
Insolvency Proceeding, ▇▇▇▇▇▇▇▇ agrees to pay all of Bank's costs and expenses,
including attorneys' fees,
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which may be incurred in enforcing or protecting Bank's rights or interests.
From the time(s) incurred until paid in full to Bank, all such sums shall bear
interest at the Default Rate.
14. Whenever Borrower is obligated to pay or reimburse Bank for any
attorneys' fees, those fees shall include the allocated costs for services of
in-house counsel.
15. This Note is governed by the laws of the State of Arizona, without
regard to the choice of law rules of that State.
16. ▇▇▇▇▇▇▇▇ agrees that the holder of this Note may accept additional
or substitute security for this Note, or release any security or any party
liable for this Note, or extend or renew this Note, all without notice to
Borrower and without affecting the liability of Borrower.
17. If Bank delays in exercising or fails to exercise any of its rights
under this Note, that delay or failure shall not constitute a waiver of any of
Bank's rights, or of any breach, default or failure of condition of or under
this Note. No waiver by Bank of any of its rights, or of any such breach,
default or failure of condition shall be effective, unless the waiver is
expressly stated in a writing signed by Bank. All of Bank's remedies in
connection with this Note, or any of the other Loan Documents or under
applicable law shall be cumulative, and Bank's exercise of any one or more of
those remedies shall not constitute an election of remedies.
18. This Note inures to and binds the heirs, personal representatives,
successors and assigns of Borrower and Bank; provided, however, that Borrower
may not assign this Note or any Loan funds, or assign or delegate any of its
rights or obligations without the prior written consent of Bank in each
instance. Bank in its sole discretion may transfer this Note, and may sell or
assign participations or other interests in all or part of the Loan, on the
terms and subject to the conditions of the Loan Documents, all without notice to
or the consent of Borrower. Also without notice to or the consent of Borrower,
Bank may disclose to any actual or prospective purchaser of any securities
issued or to be issued by Bank, and to any actual or prospective purchaser or
assignee of any participation or other interest in this Note, the Loan or any
other loans made by Bank to Borrower (whether evidenced by this Note or
otherwise), any financial or other information, data or material in Bank's
possession relating to Borrower, the Loan or the Property, including any
improvements on it. If Bank so requests, Borrower shall sign and deliver a new
note to be issued in exchange for this Note.
19. As used in this Note, the terms "Bank", "holder" and "holder of
this Note" are interchangeable. As used in this Note, the word "include(s)"
means "include(s), without limitation", and the word "including" means
"including, but not limited to." The term "Banking Day" is defined to mean a day
other than a Saturday or Sunday, on which Bank is open for business in Phoenix,
Arizona.
20. If more than one person or entity are signing this Note as
Borrower, their obligations under this Note shall be joint and several.
21. Each periodic payment shall be credited first on late charges and
costs of collection, if any, and then on interest then due and the remainder on
principal, and interest shall thereupon cease upon the principal so credited.
22. Time is of the essence of each and every obligation set forth
herein, including without limitation, payment.
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23. The makers, endorsers, and guarantors of this Note jointly and
severally waive diligence, demand, presentment for payment, protest, notice of
non-payment and of protest, notice of default, notice of acceleration and all
other notices or demands of any kind. They jointly and severally consent,
without notice to them and without release of their liability to extensions and
accommodations given by the holder of this Note, the release notifications and
exchanges of any security, and to release, in whole or in part, of any other
maker, endorser or guarantor, and they each agree to make payment without the
prior consent by the holder to any security or against any other maker, endorser
or guarantor.
24. This Note modifies, restates and replaces that certain Promissory
Note dated January 13, 1998 in the original principal amount of Four Million
Five Hundred Thousand Dollars ($4,500,000), by Borrower in favor of Bank.
25. ▇▇▇▇▇▇▇▇ has caused this Note to be executed by its officers, who
were duly authorized and directed to do so by a resolution of its Board of
Directors which was duly passed and adopted by the requisite number of members
of the Board at a meeting which was duly called, noticed, and held or by a duly
adopted Action by the Unanimous Written Consent of the Board of Directors.
Borrower: Mailing Address:
Mobility Electronics, Inc., f/k/a Electronics ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Accessory Specialists International, Inc., a Scottsdale, AZ 85260
Delaware corporation ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: CFO
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STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 15 day of
March, 2000 by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. The CFO of Mobility Electronics, Inc., a(n)
__________________, on behalf of the corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
My commission expires: ------------------------
Notary Public
May 11, 2003
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