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EXHIBIT 10.59
GUARANTY
This Guaranty (this "Guaranty")is executed as of March 2, 2001, by
Xxxxxxx X. Xxxxx ("Guarantor"), in favor of, Mobility Electronics, Inc., a
Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Company has issued to La Xxx Enterprises, L.L.C., an
Arizona limited liability company and an affiliate of Guarantor ("Affiliate"),
68,966 shares (the "Shares") of the common stock, par value $0.01 per share, of
the Company, the payment for which Shares was substantially made by the delivery
to the Company by Affiliate of that certain promissory note, of even date
herewith, executed by Affiliate and payable to the order of the Company in the
principal amount of $199,311 (the "Note"); and
WHEREAS, the sale of the Shares was to be made to Guarantor (and
similar sales are being made to other executive officers of the Company), but at
Guarantor's request was instead made to Affiliate; and
WHEREAS, as a condition to accepting the Note as payment for the
Shares, the Company has required that Guarantor execute and deliver to the
Company this Guaranty;
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged and confessed, Guarantor hereby covenants and agrees as follows:
1. Guarantor hereby absolutely and unconditionally guarantees (a) the
prompt, complete and full payment when due, and no matter how such shall become
due, of (i) the entire outstanding principal balance of the Note and any and all
interest accrued thereon, and (ii) any and all costs, expenses and other amounts
owed to the Company by Affiliate with respect to the Note, and (b) that
Affiliate will properly and timely perform any and all obligations contained in
any documents evidencing, securing, renewing, extending or pertaining to the
Note. All guaranteed obligations described in this Section 1 are herein
collectively referred to as "Guaranteed Indebtedness."
2. If Guarantor is or becomes liable for any indebtedness owing by
Affiliate to the Company by endorsement or otherwise than under this Guaranty,
such liability shall not be in any manner impaired or affected hereby, and the
rights of the Company hereunder shall be cumulative of any and all other rights
that the Company may ever have against Guarantor. The exercise by the Company of
any right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any other
right or remedy. Without in any way diminishing the generality of the foregoing
portion of this Section 2, it is specifically understood and agreed that this
Guaranty is given by Guarantor as an additional guaranty to any and all other
guaranties heretofore or hereafter executed and delivered to the Company by any
guarantor in favor of the Company relating to indebtedness of Affiliate to the
Company, and nothing herein shall ever be deemed to replace or be in lieu of any
other of such previous or subsequent guaranties.
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3. In the event of default by Affiliate in payment of the Guaranteed
Indebtedness, or any part thereof, when such indebtedness becomes due, either by
its terms or as the result of the exercise of any power to accelerate, Guarantor
shall, on demand and without: (i) further notice of dishonor; any notice having
been given to Guarantor previous to such demand of the acceptance by the Company
of this Guaranty; and (iii) any notice having been given to Guarantor previous
to such demand of the creating or incurring of such indebtedness, pay the amount
due thereon to the Company, at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx
00000, or such other address as the Company shall advise Guarantor in writing,
and it shall not be necessary for the Company, in order to enforce such payment
by Guarantor, first, to institute suit or exhaust its remedies against Affiliate
or others liable on such indebtedness, to have Affiliate joined with Guarantor
in any suit brought under this Guaranty or to enforce its rights against any
security which shall ever have been given to secure such indebtedness; provided,
however, that in the event the Company elects to enforce and/or exercise any
remedies it may possess with respect to any security for the Guaranteed
Indebtedness prior to demanding payment from Guarantor, Guarantor shall
nevertheless be obligated hereunder for any and all sums still owing the Company
on the Guaranteed Indebtedness and not repaid or recovered incident to the
exercise of such remedies.
4. Notice to Guarantor of the acceptance of this Guaranty and of the
making, renewing or assignment of the Guaranteed Indebtedness and each item
thereof, are hereby expressly waived by Guarantor.
5. Each payment on the Guaranteed Indebtedness shall be deemed to have
been made by Affiliate unless express written notice is given to the Company at
the time of such payment that such payment is made by Guarantor as specified in
such notice.
6. If all or any part of the Guaranteed Indebtedness at any time be
secured, Guarantor agrees that the Company may at any time and from time to
time, at its discretion and with or without valuable consideration, allow
substitution or withdrawal of collateral or other security and release
collateral or other security or compromise or settle any amount due or owing
under the Note or amend or modify in whole or in part the Note or any documents
executed in connection with same without impairing or diminishing the
obligations of Guarantor hereunder. Guarantor further agrees that if Affiliate
executes in favor of the Company any collateral agreement, mortgage or other
security instrument, the exercise by the Company of any right or remedy thereby
conferred on the Company shall be wholly discretionary with the Company, and
that the exercise or failure to exercise any such right or remedy shall in no
way impair or diminish the obligation of Guarantor hereunder. Guarantor further
agrees that the Company shall not be liable for its failure to use diligence in
the collection of the Guaranteed Indebtedness or in preserving the liability of
any person liable for the Guaranteed Indebtedness, and Guarantor hereby waives
presentment for payment, notice of nonpayment, protest and notice thereof
(including, notice of acceleration), and diligence in bringing suits against any
person liable on the Guaranteed Indebtedness, or any part thereof.
7. Guarantor agrees that the Company, in its discretion, may (i) bring
suit against all guarantors of the Guaranteed Indebtedness jointly and severally
or against any one or more of them, (ii) compound or settle with any one or more
of such guarantors for such consideration as the Company may deem proper, and
(iii) release one or more of such guarantors from liability hereunder, and that
no such action shall impair the rights of the Company to collect the
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Guaranteed Indebtedness (or the unpaid balance thereof) from other such
guarantors of the Guaranteed Indebtedness, or any of them, not so sued, settled
with or released.
8. In the event of the death of Guarantor, the obligation of the estate
of Guarantor shall continue in full force and effect as to (i) the Guaranteed
Indebtedness, as it exists at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Affiliate
after the date of death of Guarantor pursuant to an obligation of the Company
under a commitment made to Affiliate prior to the date of such death, subject
only to the limitation, if any be herein specified, on the amount of the
Guaranteed Indebtedness.
9. This Guaranty is for the benefit of the Company, its successors and
assigns, and in the event of an assignment by the Company (or its successors or
assigns) of the Guaranteed Indebtedness, or any part thereof, the rights and
benefits hereunder, to the extent applicable to the indebtedness so assigned,
may be transferred with such indebtedness. Subject to Section 8 above, this
Guaranty is binding, not only on Guarantor, but on the heirs, executors,
administrators, personal representatives, successors and assigns of Guarantor.
10. No modification, consent, amendment or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by the Company, and
then shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on Guarantor in any case shall, of itself,
entitle Guarantor to any other or further notice or demand in similar other
circumstances. No delay or omission by the Company in exercising any power or
right hereunder shall impair any such right or power or be construed as a waiver
thereof or any acquiescence therein, nor shall any single or partial exercise of
any such power preclude other or further exercise thereof, or the exercise of
any other right or power hereunder. All rights and remedies of the Company
hereunder are cumulative of each other and of every other right or remedy which
the Company may otherwise have at law or in equity or under any other contract
or document, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies.
11. No provision herein or in the Note or in any promissory note,
instrument or other loan document executed by Affiliate or Guarantor evidencing
the Guaranteed Indebtedness shall require the payment or permit the collection
of interest in excess of the maximum permitted by law. If any excess of interest
in such respect is provided for herein or in any such promissory note,
instrument, or any other loan document, the provisions of this paragraph shall
govern, and neither Affiliate nor Guarantor shall be obligated to pay the amount
of such interest to the extent that it is in excess of the amount permitted by
law. The intention of the parties being to conform strictly to any applicable
federal or state usury laws now in force, all promissory notes, instruments and
other loan documents executed by Affiliate or Guarantor evidencing the
Guaranteed Indebtedness shall be held subject to reduction to the amount allowed
under said usury laws as now or hereafter construed by the courts having
jurisdiction.
12. If Guarantor should breach or fail to perform any provision of this
Guaranty, Guarantor agrees to pay the Company all costs and expenses (including
court costs and reasonable attorneys fees) incurred by the Company in the
enforcement hereof.
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13. The liability of Guarantor under this Guaranty shall in no manner
be impaired, affected or released by the insolvency, bankruptcy, making of an
assignment for the benefit of creditors, arrangement, compensation, composition
or readjustment of Affiliate, or any proceedings affecting the status, existence
of assets of Affiliate or other similar proceedings instituted by or against
Affiliate and affecting the assets of Affiliate.
14. Guarantor understands and agrees that any amounts of Guarantor on
account with the Company may be offset to satisfy the obligations of Guarantor
hereunder.
15. Guarantor hereby subordinates and makes inferior any and all
indebtedness now or at any time hereafter owed by Affiliate to Guarantor to the
indebtedness evidenced by the Note and agrees after the occurrence of a default
under the Guaranteed Indebtedness, or any event which with notice, lapse of
time, or both, would constitute a default under the Guaranteed Indebtedness, not
to permit Affiliate to repay, or to accept payment from Affiliate of, such
indebtedness or any part thereof without the prior written consent of the
Company.
16. Guarantor hereby waives any and all rights of subrogation to which
Guarantor may otherwise be entitled against Affiliate and Guarantor until such
time as the Note is paid in full.
17. THIS GUARANTY IS BEING EXECUTED AND DELIVERED, AND IS INTENDED TO
BE PERFORMED, IN THE STATE OF DELAWARE, AND THE SUBSTANTIVE LAWS OF SUCH STATE
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS
GUARANTY, UNLESS THE LAWS OF ANOTHER STATE REQUIRE THE APPLICATION OF THE LAWS
OF SUCH STATE.
18. If any term or provision of this Guaranty shall be determined to be
illegal or unenforceable, all other terms and provisions hereof shall
nevertheless remain effective and shall be enforced to the fullest extent
permitted by applicable law.
EXECUTED as of the date first above written.
GUARANTOR:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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