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EXHIBIT 10.43
LOAN MODIFICATION AND EXTENSION AGREEMENT
EFFECTIVE DATE: March 13, 2000
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PARTIES: BANK OF AMERICA N.A. (hereinafter referred to
------- as the "Bank"); and
Mobility Electronics, Inc. a Delaware corporation
(hereinafter referred to as "Borrower").
RECITALS:
A. Borrower executed (1) a Promissory Note dated January 13, 1998, in the
original principal amount of $3,167,000 in favor of Bank, which note was
subsequently replaced by that certain Promissory Note dated July 21, 1998 in the
amount of $4,500,000 which note was subsequently modified by that certain Change
In Terms Agreement dated July 21, 1999 in the amount of $4,500,000 ("Original
Facility I Note"); and (2) a Promissory Note dated May 6, 1998, in the original
principal amount of $1,500,000 ("Exim Bank Loan") in favor of Bank (the "Exim
Bank Note"). The Exim Bank Note is subject to the Export-Import Bank of the
United States Working Capital Guarantee Program (the "Exim Bank Guaranty").
Borrower also executed a Loan Agreement dated January 13, 1998, from Borrower to
Bank, and that certain Amended and Restated Business Loan Agreement (Receivables
and Inventory) dated November 2, 1999, by and between Bank and Borrower
(collectively the "Loan Agreement").
B. At the request of Borrower, Bank issued, on behalf of Borrower, a $150,000
Letter of Credit (the "$150,000 LC") and a $75,000 Letter of Credit (the
"$75,000 LC"). The $150,000 LC and the $75,000 LC are hereinafter collectively
referred to as the "LC's."
C. Pursuant to the terms of the Loan Agreement (as modified), (1) the
outstanding principal balance of Facility I Note was reduced to $2,852,054
("Facility I") and the Original Facility I Note was replaced by a Promissory
Note in the face amount of $3,000,000 (the "Facility I Note"); (2) a new
$1,500,000 term facility was created ("Facility II") and evidenced by a
Promissory Note in the principal amount of $1,500,000 (the "Facility II Note");
(3) two (2) separate term facilities in the amounts of $150,000 ("Facility III")
and $75,000 ("Facility IV") respectively was created and is evidenced by a
Promissory Note in the face amount of $150,000 (the "Facility III Note") and a
Promissory Note in the face amount of $75,000 (the "Facility IV Note")
(collectively the "Loans").
D. Borrower also executed an Arizona Uniform Commercial Code Financing Statement
on Form UCC-1 dated May 6, 1998, filed in the office of the Secretary of State
of the State of Arizona on July 16, 1998, as Filing No. 01024866 and
subsequently amended on September 15, 1998. Borrower also executed an Arizona
Uniform Commercial Code Financing Statement on Form UCC-1 dated January 14,
1997, filed in the office of the Secretary of State of the State of Arizona on
January 14, 1997, as Filing No. 951753 and subsequently amended on November 9,
1998. Borrower also executed a New Mexico Uniform Commercial Code Financing
Statement on Form UCC-1 dated December 16, 1996, filed in the office of the
Secretary of State of the
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State of New Mexico on January 13, 1997, as Filing No. 970113056 and
subsequently amended on November 6, 1998.
E. Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxx Xxxxxx and Xxxxxx Xxxxxx (collectively,
the "Guarantors") executed those certain Continuing Guaranties dated April 6,
1999, in favor of Bank (collectively, the "Guaranties").
F. All of the documents, certificates or agreements executed in connection with
the respective Loans evidenced by the Original Facility I Note, Facility II
Note, Facility III Note, Facility IV Note, the Exim Bank Note and the LC's,
including, without limitation, those listed above , those listed on Exhibit A
attached hereto and those which evidence, guaranty, secure or modify such loans,
as any or all of them may have been amended or modified to date, shall
hereinafter be collectively referred to as the "Existing Loan Documents". This
Loan Modification and Extension Agreement (the "Agreement"), all other documents
executed in connection with this Agreement, and the Existing Loan Documents, as
modified hereby, are herein collectively referred to as the "Loan Documents".
G. The Facility I Note and the Facility II Note are each scheduled to mature on
March 31, 2000.
H. On August 7, 1999, Borrower and Bank executed that certain Export-Import Bank
of the United States Working Capital Guaranty Program Borrower Agreement and
other documents (the "Exim Bank Documents") pursuant to which Export-Import Bank
issued a ninety percent (90%) guaranty pursuant to the terms thereof (the "Exim
Bank Guaranty").
I. As of February 1, 2000, Borrower was indebted to Bank under the Existing Loan
Documents in the aggregate principal amount of: $3,210,191.94, plus accrued
interest of $33,345.74 (the "Present Debt").
J. Borrower has requested that Bank modify Facility I and Facility II as set
forth below. Bank, although under no obligation to do so, is willing to so
modify the Loans, subject to the terms and conditions set forth below.
K. Guarantors believe that the modifications would be in the best interest of
Guarantors and Guarantors are willing to consent and agree to reaffirm and
continue the Guaranties with respect to the Loan and the Existing Loan
Documents, as the Loan and the Existing Loan Documents are hereby amended and
restated.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENTS:
1. Reaffirmation/No Impairment. Borrower reaffirms all of its
obligations under the Loan Documents and the Loans. Except as specifically
hereby amended, the Loan Documents shall each remain in full force and effect.
Borrower's payment and performance obligations pursuant to the Loan Documents,
including all extensions, amendments, renewals or
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replacements thereof, shall continue to be secured by the security interests and
liens arising under the Loan Documents.
2. Modifications. The Existing Loan Documents are hereby modified
and amended as described below. In the event of a conflict between terms of the
Existing Loan Documents and the terms of this Agreement, this Agreement shall
control:
2.1 Expiration Date. The expiration (i.e., maturity) dates of
Facility I and Facility II are hereby extended to March 31, 2001. All sums owing
under Facility I and Facility II shall be due and payable no later than this
extended expiration date.
2.2 The date "March 31, 2000" set forth in Section 2.1.1 of
the Loan Agreement is hereby deleted and the date "March 31, 2001" is hereby
inserted in its place.
2.3 The date "March 31, 2000" set forth in Section 2.2.1 of
the Loan Agreement is hereby deleted and the date "March 31, 2001" is hereby
inserted in its place.
2.4 Section 1.2 of the Loan Agreement is hereby amended by
adding the Tech DATA Group to the "Debtor" column at the end of such Section
with a "Concentration Limit" of 15%.
2.5 Section 2.2.3(a) of the Loan Agreement is hereby deleted
in its entirety, and in its stead, the following is hereby added: "Borrower will
pay accrued interest on March 1, 2000 (in arrears)" and then on the same date of
each month thereafter until payment in full of any principal outstanding under
Facility II. Borrower will repay in full all principal and any accrued and
unpaid interest or any other charges outstanding under Facility II no later than
the Facility II Expiration Date; provided that all principal and any accrued and
unpaid interest under Facility II shall be fully due and payable immediately
upon Borrower's receipt of not less than Seven Million Five Hundred Thousand
Dollars ($7,500,000) (in the aggregate) from one or more public or private
equity offerings and/or capital contributions from existing or future
shareholders in Borrower.
2.6 Section 5.4 of the Loan Agreement is hereby deleted.
2.7 Section 8.3 of the Loan Agreement is hereby deleted in its
entirety, and in its stead, the following is hereby added:
Current Ratio. To maintain on a consolidated basis a ratio of
current assets to current liabilities (the "Current Ration") of at least:
(a) 1.00:1 at 12/31/99 and 3/31/00; and
(b) 1.25:1 at 6/30/00 and thereafter.
The Current Ratio will be tested on a monthly basis.
2.8 Section 8.4 of the Loan Agreement is hereby deleted in its
entirety, and in its stead, the following is hereby added:
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Tangible Net Worth. To maintain on a consolidated basis Tangible Net
Worth equal to at least the amounts indicated on each date specified below:
Date Amount
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12/31/99 $ 500,000
03/31/00 $2,000,000
06/30/00 $2,000,000
09/30/00 $2,500,000
12/31/00 $3,000,000*
*and on the last day of each calendar month thereafter.
Tangible Net Worth will be tested monthly.
"Tangible Net Worth" means the gross book value of Borrower's assets (excluding
goodwill, patents, trademarks, trade names, organization expense, treasury
stock, unamortized debt discount and expense, deferred research and development
costs, deferred marketing expenses, and other like intangibles and monies due
from affiliates, officers, directors or shareholders of Borrower) less total
liabilities, including but not limited to accrued and deferred income taxes, and
any reserves against assets, but excluding debt subordinated to the Borrower's
obligations to the Bank in a manner acceptable to the Bank using the Bank's
standard form. Tangible Net Worth will be tested on a monthly basis.
2.9 Section 8.7 of the Loan Agreement is hereby amended by
deleting the number $900,000 and inserting the number $2,000,000 in its place.
2.10 A new Section 8.4.1 is hereby inserted in the Loan
Agreement as follows:
Total Liabilities to Tangible Net Worth. To maintain on a consolidated
basis Total Liabilities to Tangible Net Worth not to exceed the ratios indicated
on each date specified below:
Date Ratio
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12/31/99 2.75:1
03/31/00 2.50:1
06/30/00 2.25:1
09/30/00 2.25:1
12/31/00* 2.00:1
*and on the last day of each calendar month thereafter.
Total Liabilities to Tangible Net Worth ratio shall be tested monthly.
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"Total Liabilities" means the sum of current liabilities plus long-term
liabilities excluding debt subordinated to the Borrower's obligations to the
Bank in a manner acceptable to the Bank, using the Bank's standard form.
2.11 Restated Notes. Concurrently with the execution of this Agreement,
Borrower shall execute and deliver to Bank a Restated Promissory Note (Facility
I) in the form attached hereto as Exhibit B and a Restated Promissory Note
(Facility II) in the form attached hereto as Exhibit C (the "Restated Notes").
The Restated Notes amend and restate the Facility I Note and the Facility II
Note. To the extent of any inconsistencies between the provisions of the
Restated Notes and this Agreement or any other Loan Documents, the provisions of
the Restated Notes shall control.
2.12 Corporate Certificate. Concurrently with the execution of this
Agreement, Borrower shall execute and deliver to Bank a Corporate Resolution
authorizing Borrower to enter into this Agreement, in a form acceptable to Bank
in Bank's sole discretion (the "Certificate").
3. Conditions Precedent. Before this Agreement becomes effective and any
party becomes obligated under it, all of the following conditions shall have
been satisfied at Borrower's sole cost and expense in a manner acceptable to
Bank in the exercise of Bank's sole judgment and discretion:
3.1 Receipt of Documents. Bank shall have received fully executed, and
where appropriate, acknowledged originals of the following:
(a) this Agreement;
(b) the Restated Notes;
(c) the Certificate;
(d) Borrower's counsel opinion letter (in a form acceptable to
the Bank);
(e) any other documents Bank may reasonably require or request
in accordance with this Agreement or the other Loan Documents, all in
such form as Bank may require in the exercise of Bank's sole judgment
and discretion.
3.2 Extension Fee. Bank shall have received a fully earned and
non-refundable extension fee in the amount of Twenty Two Thousand Five Hundred
Dollars ($22,500).
3.3 Reimbursement of Bank's Costs and Expenses. Bank shall have
received reimbursement, in immediately available funds, of all costs and
expenses incurred by Bank in connection with this Agreement, including charges
for recording, filing, and legal fees, costs and expenses of Bank's counsel.
Such costs and expenses may include the allocated costs for services for Bank's
in-house staffs, such as legal.
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4. Representations, Warranties and Acknowledgments. Borrower represents,
warrants and acknowledges to Bank as follows:
4.1 Recitals. The recitals set forth above are true, complete, accurate
and correct, and such recitals are incorporated herein by this reference.
4.2 No Default. No Event of Default has occurred and is continuing, and
no event has occurred and is continuing which, with notice or the passage of
time or both, would be an Event of Default.
4.3 Loan Documents. All representations and warranties made and given
by Borrower in the Loan Documents are true, complete, accurate and correct, as
if given as of the date of this agreement.
4.4 Property. Borrower lawfully possesses and holds a 100% ownership
interest in all of the Collateral granted by Borrower for the Loan, free and
clear of any defects, reservations of title or conditional sales contracts, and
also free and clear of any security interest or liens other than those in favor
of Bank.
4.5 Enforceable Loan Documents. The Loan Documents, including this
Agreement, to which Borrower is a party are legal, valid and binding agreements
of Borrower, enforceable in accordance with their respective terms, and any
instrument or agreement required hereunder or thereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable.
4.6 Financial Information. All financial and other information that has
been or will be supplied to Bank is: (a) sufficiently complete to give Bank
accurate knowledge of Borrower's financial condition; (b) in form and content
required by Bank and in accordance with Generally Accepted Accounting Practices
("GAAP"); and (c) in compliance with all applicable government regulations. No
material adverse change has occurred in the business assets, or financial
condition of Borrower since Borrower last supplied financial statements or
information to Bank.
4.7 No Claims or Defenses. The Present Debt is due and payable to Bank,
and Borrower has no claims, offsets, counterclaims or defenses with respect to:
(a) the payment of the Present Debt; (b) the payment of any other sums due under
the Loan Documents; (c) the performance of Borrower's obligations under the Loan
Documents; or (d) any liability under any of the Loan Documents.
4.8 No Breach by Bank. Bank (including all of its predecessors) has not
breached any duty to Borrower in connection with the Loan, and Bank (including
all of its predecessors) has fully performed all obligations it may have had or
now has to Borrower.
4.9 Interest and Other Charges. All interest or other fees or charges
which have been imposed, accrued or collected by Bank (including all of its
predecessors) under the Loan Documents or in connection with the Loan through
the date of this Agreement, and the method of computing the same, were and are
proper and agreed to by Borrower and were properly computed and collected.
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4.10 Claims, Disputes, Impairments. Borrower has no pending litigation,
tax claims, proceedings or disputes that may adversely affect Borrower's
financial condition or impair Borrower's ability to perform under the Loan
Documents.
4.11 Borrowing Entity. Borrower is a corporation, which is duly
organized, validly existing and in good standing under the laws of the State of
Delaware. There have been no changes in the organization, composition,
ownership, structure or formation of documents of Borrower since the inception
of the Loans. In each state in which Borrower does business, it is properly
licensed and in good standing. This Agreement, and any instrument of agreement
required hereunder are within Borrower's powers, have been duly authorized, and
do not conflict with any of Borrower's organizational papers.
5. No Waiver. Except as specifically provided herein, by entering into
this Agreement, Bank does not waive any previous or existing default or any
default hereafter occurring, or become obligated to waive any condition or
obligation in any agreement between or among any of the parties hereto.
6. No Future Obligations. Bank has no obligation to make any additional
loan or extension of credit to or for the benefit of Borrower, and Bank has no
obligation to further extend the maturity date of any credit extended to
Borrower.
7. No Third Party Beneficiaries. This agreement is not intended for,
and shall not be construed to be for, the benefit of any person not a signatory
thereto.
8. Release of Bank. In consideration of the agreements and of Bank set
forth in this Agreement, Borrower, and all of their respective heirs, personal
representatives, predecessors, successors and assigns (individually and
collectively, the "Releasors"), hereby fully release, remise, and forever
discharge Bank, the parent of Bank and all other affiliates and predecessors of
Bank, and all past and present officers, directors, agents, employees, servants,
partners, shareholders, attorneys and managers of Bank, the parent of Bank, and
all other affiliates, and predecessors of Bank and all of their respective
heirs, personal representatives, predecessors, successors and assigns, for,
from, and against any and all claims, liens, demands, causes of action,
controversies, offsets, obligations, losses, damages and liabilities of every
kind and character whatsoever, including, without limitation, any action,
omission, misrepresentation or other basis of liability founded either in tort
or contract and the duties arising thereunder, that the Releasors, or any one of
more of them, has had in the past, or now has, whether known or unknown, whether
asserted or unasserted, by reason of any matter, cause or thing set forth in,
relating to or arising out of, or in any way connected with or resulting from,
the Loan or the Loan Documents.
9. Incorporation. This agreement shall form a part of each of the Loan
Documents, and all references to one of the Loan documents shall mean that
document as hereby modified. This Agreement shall not prejudice any rights or
remedies of Bank under the Loan Documents.
10. Purpose and Effect of Bank's Approval. Bank's approval of any
matter in connection with the Loan shall be for the sole purpose of protecting
Bank's security and rights.
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No such approval shall result in a waiver of any default of Borrower or
Guarantor. In no event shall Bank's approval be a representation of any kind
with regard to the matter being approved.
11. Integration. The Loan Documents, including this Agreement,
constitute the entire agreement and final expression between the parties with
respect to the terms and conditions set forth in the Loan Documents, including
this Agreement. No supplement, modification or amendment of this Agreement or
the other Loan Documents shall be effective unless in writing and signed by Bank
and Borrower.
12. Counterparts/Construction/Time of Essence. This Agreement may be
executed in any number of counterparts, each of which, when so executed, shall
be deemed an original, but all of which shall constitute one and the same
agreement. Section headings and paragraph titles used in this Agreement are for
reference only and shall not affect or limit the interpretation of meaning of
any provisions of this Agreement. As used in this Agreement, the work
"include(s)" means "include(s), without limitation", and the word "including"
means "including, but not limited to". Time is of the essence of this Agreement
and the other Loan Documents.
13. Governing Law/Rights in Event of Litigation/Invalidity. This
Agreement shall be governed by and construed according to the laws of the State
of Arizona. Borrower hereby submits to jurisdiction and venue in Maricopa
County, Arizona, and agrees that any and all litigation or arbitration
proceeding shall be maintained in Maricopa County, Arizona. In the event of
judicial proceedings, Borrower agrees that all issues in such judicial
proceeding litigation (including defenses, cross-claims and counter-claims)
shall be resolved by a judge and not a jury and, therefore, Borrower waives its
rights to a jury trial which it otherwise would have had. If any court of
competent jurisdiction determines any provision of this Agreement or any
provision in any of the other Loan Documents to be invalid, illegal or
unenforceable, that portion shall be deemed severed from the rest, which shall
remain in full force and effect.
14. Attorneys' Fees. In any lawsuit or arbitration proceeding between
Bank and Borrower, which relates to, arises out of, or involves in any way this
Agreement or any of the other Loan Documents, the prevailing party shall be
entitled to recover all of its attorneys' fees (including any allocated fees of
in-house counsel) and costs (including but not limited to "taxable costs" as
defined by statute)associated with such suit or arbitration.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; provided, however, Borrower may not
transfer its rights under the Loan Documents without the prior written consent
of Bank. Bank may transfer its rights under the Loan Documents to any successor
in interest.
16. No Waiver/Cumulative Remedies/Survival. No failure to exercise or
no delay in exercising any right, power or remedy hereunder or under any of the
Loan Documents shall impair any right, power or remedy that Bank may have, nor
shall such delay be construed to be a waiver of any of such rights, powers or
remedies. Bank shall not be deemed to have waived any right, power or remedy
except in writing signed by an authorized officer of Bank expressly stating that
it is a waiver of same right, power or remedy. The rights, powers and remedies
of Bank under the Loan Documents are cumulative and not exclusive of any rights,
powers or
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remedies that Bank would otherwise have, and may be pursued at any time and from
time to time and in such order as Bank shall determine in its sole discretion.
The representations, warranties, acknowledgments and agreements set forth herein
shall survive the date of this Agreement.
17. Mutual Agreement. The parties hereto agree that the terms and provisions of
this Agreement embody their mutual intent and that such terms and provisions are
not to be construed more liberally in favor, nor more strictly against, any
party. This Agreement shall not be construed as if it had been prepared by one
of the parties, but rather as if it had been prepared by all of the parties.
18. Rights in the Event of Bankruptcy. If there shall be filed by or against
Borrower a petition (whether voluntary or involuntary) under any chapter of the
United States Bankruptcy Code (the "Code") on or after the date of this
Agreement, it is the intention of Borrower and Bank that the terms and
conditions of this Agreement with respect to Borrower shall be incorporated into
a plan of reorganization under Section 1129 of Code (a "Plan"). Borrower agrees
that under any potential Plan which may be filed in the future (i) this
Agreement shall represent a necessary element of such Plan, (ii) Borrower will
not seek to alter or amend any of terms and conditions of this Agreement, (iii)
such terms and conditions are necessary for Bank's adequate protection, and (iv)
such terms and conditions will remain binding upon Borrower in any such Plan. If
Borrower fails to obtain confirmation of a plan of reorganization incorporating
the terms of this Agreement within one hundred twenty (120) days after a
petition is filed, Bank is entitled to the automatic and absolute lifting of any
automatic stay as to the enforcement of any of the Loan Documents against the
collateral, including specifically, but not limited to, the stay imposed by
Section 362 of the Code. Borrower hereby consents to the immediate lifting of
any such automatic stay, and will not contest any motion by Bank to lift such
stay. Borrower acknowledges that Bank's interest in the collateral can be
adequately protected only if a plan of reorganization incorporating the terms of
this Agreement is confirmed within one hundred twenty (120) days after the
petition is filed. Bank reserves its right to seek all remedies available to
credits under the Code, including, but not limited to, the right to move for
relief from the automatic stay at any time.
19. Reference and Arbitration.
19.1 Mandatory Arbitration. Unless expressly prohibited by law, any
controversy or claim between or among the parties, including those arising out
of or relating to this Agreement or the Loan Documents 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 Agreement, and under the Commercial Rules of the 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.
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19.2 Provisional Remedies, Self-Help and Foreclosure. No provision of
this Section [21] shall limit the right of any party to this Agreement to
exercise self-help remedies such as setoff, foreclosure against or sale of any
real or personal property or collateral or security, or obtaining 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 or
reference. 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
by judicial foreclosure of the deed of trust or mortgage.
Arbitration.
20. Cross Default. Any default under this Agreement or an Event of Default under
any of the Loan Documents shall be an Event of Default under each and every of
the other Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates set forth below to be effective as of the day and year set
forth above.
"BANK"
BANK OF AMERICA N.A.
Executed: March 16, 2000 By: /s/ XXXX X. XXXXXXX
-----------------------------
Name: Xxxx X. Xxxxxxx
----------------------------
Title: Vice President
"BORROWER"
MOBILITY ELECTRONICS, a Delaware
corporation
Executed: March 13, 2000 By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: Vice President
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REVIEWED, ACKNOWLEDGED AND APPROVED:
/s/ XXXXXXX XXXXX
March 13, 2000 ------------------------------------
Xxxxxxx Xxxxx, Guarantor
/s/ XXXXXXX XXXX
March 13, 2000 ------------------------------------
Xxxxxxx Xxxx, Guarantor
/s/ XXXXXXX XXXXXX
March 13, 2000 ------------------------------------
Xxxxxxx Xxxxxx, Guarantor
/s/ XXXXXX XXXXXX
March 13, 2000 ------------------------------------
Xxxxxx Xxxxxx, Guarantor
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