exv10w28



 







EXHIBIT 10.28




MODIFICATION AGREEMENT




	 	 	 	 	 	 	 
	DATE:	 	 	 	February 26, 2007
	 
	 	 	 	 	 	 
	PARTIES:

	 	Borrower
	 	 	 	MOBILITY ELECTRONICS, INC., a Delaware
 corporation
	 
	 	 	 	 	 	 
	 

	 	Lender:
	 	 	 	JPMORGAN CHASE BANK, N.A.,






RECITALS




     A. The Lender has extended to Borrower credit facilities (“Loan”) in the maximum aggregate
principal amount of $10,000,000.00 pursuant to the Credit Agreement dated July 27, 2006 (“Credit
Agreement”) between the Borrower and the Lender, and evidenced by the Note dated July 27, 2006
(“Note”). The aggregate unpaid principal of the Loan as of the date hereof is $0. All undefined
capitalized terms used herein shall have the meaning given them in the Credit Agreement.



     B. The Loan is secured by the Security Documents.



     C. Continuing Guarantees of even date with the Note guaranteeing repayment of the Loan
(together, the “Guarantee Agreements”) were executed and delivered for the benefit of the Lender by
iGo Direct Corporation, a Delaware corporation, Mobility California, Inc., a Delaware corporation,
Mobility Idaho, Inc., a Delaware corporation, and Mobility Texas, Inc., a Texas corporation
(collectively, the “Guarantors”).



     D. Borrower has requested that the Lender modify the Credit Documents as provided herein. The
Lender is willing to so modify the Credit Documents, subject to the terms and conditions herein.



AGREEMENT




     For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender agree as follows:




			
	SECTION 1.	 	ACCURACY OF RECITALS.





     Borrower acknowledges the accuracy of the Recitals.




			
	SECTION 2.	 	MODIFICATION OF CREDIT DOCUMENTS.






     2.1 That Pledge and Security Agreement dated as of July 27, 2006 (the “Security
Agreement”) between Borrower and Lender is hereby amended as follows:



 









 






     (a) The following definitions in Section 2.1 of the Security Agreement are hereby
amended to read as follows:




     “Collateral” means, other than the Assets set forth on Exhibit “C” attached hereto, all
Accounts, Chattel Paper, Documents, Equipment, Farm Products, Fixtures, General Intangibles
excluding Assigned Patents (as herein defined), Instruments, Inventory, Investment Property,
Pledged Deposits, and Other Collateral, wherever located, in which the Debtor now has or
hereafter acquires any right or interest, and the proceeds (including Stock Rights),
insurance proceeds and products thereof, together with all books and records, customer
lists, credit files, computer files, programs, printouts and other computer materials and
records related thereto.




     “General Intangibles” shall have the meaning set forth in Article 9 of the Arizona UCC,
excluding the Assigned Patents.




     “Other Collateral” means any property of the Debtor, other than real estate and the
Assigned Patents, not included within the defined terms Accounts, Chattel Paper, Documents,
Equipment, Farm Products, Fixtures, General Intangibles, Instruments, Inventory, Investment
Property, and Pledged Deposits, including, without limitation, all cash on hand,
letter-of-credit rights, letters of credit, Stock Rights and Deposit Accounts or other
deposits (general or special, time or demand, provisional or final) with any bank or other
financial institution, it being intended that the Collateral include all property of the
Debtor other than real estate and the Assigned Patents.




     (b) Section 2.1 of the Security Agreement is hereby amended by the addition of the
following definition:




     “Assigned Patents” means those patents listed on Exhibit “B” attached hereto.




			
	SECTION 3.	 	RATIFICATION OF CREDIT DOCUMENTS AND COLLATERAL.





     The Credit Documents are ratified and affirmed by Borrower and shall remain in full force and
effect as modified herein. Any property or rights to or interests in property granted as security
in the Credit Documents shall remain as security for the Loan and the obligations of Borrower in
the Credit Documents.




			
	SECTION 4.	 	BORROWER REPRESENTATIONS AND WARRANTIES.





     Borrower represents and warrants to the Lender:




     4.1 No default or event of default under any of the Credit Documents as
modified herein, nor any event, that, with the giving of notice or the passage of
time or both, would be a default or an event of default under the Credit Documents
as modified herein has occurred and is continuing.



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     4.2 There has been no material adverse change in the financial condition of
Borrower or any other person whose financial statement has been delivered to the
Lender in connection with the Loan from the most recent financial statement received
by the Lender.




     4.3 Each and all representations and warranties of Borrower in the Credit
Documents are accurate on the date hereof.




     4.4 Borrower has no claims, counterclaims, defenses, or set-offs with respect
to the Loan or the Credit Documents as modified herein.




     4.5 The Credit Documents as modified herein are the legal, valid, and binding
obligation of Borrower, enforceable against Borrower in accordance with their terms,
subject to or limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium, or other similar laws relating to or affecting the rights of creditors
generally.




     4.6 Borrower is validly existing under the laws of the State of its formation
or organization and has the requisite power and authority to execute and deliver
this Agreement and to perform the Credit Documents as modified herein. The
execution and delivery of this Agreement and the performance of the Credit Documents
as modified herein have been duly authorized by all requisite action by or on behalf
of Borrower. This Agreement has been duly executed and delivered on behalf of
Borrower.




			
	SECTION 5.	 	BORROWER COVENANTS.





     Borrower covenants with the Lender:




     5.1 Borrower shall execute, deliver, and provide to the Lender such additional
agreements, documents, and instruments as reasonably required by the Lender to
effectuate the intent of this Agreement.




     5.2 Borrower fully, finally, and absolutely and forever releases and discharges
the Lender and its present and former directors, shareholders, officers, employees,
agents, representatives, successors and assigns, and their separate and respective
heirs, personal representatives, successors and assigns, from any and all actions,
causes of action, claims, debts, damages, demands, liabilities, obligations, and
suits, of whatever kind or nature, in law or equity of Borrower, whether now known
or unknown to Borrower, and whether contingent or matured, (i) in respect of the
Loan, the Credit Documents, or the actions or omissions of the Lender in respect of
the Loan or the Credit Documents and (ii) arising from events occurring prior to the
date of this Agreement.



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	SECTION 6.	 	CONDITIONS PRECEDENT.





     The agreements of the Lender and the modifications contained herein shall not be binding upon
the Lender until the Lender has received, at Borrower’s expense, all of the following, all of which
shall be in form and content satisfactory to the Lender and shall be subject to approval by the
Lender:




     6.1 An original of this Agreement fully executed by the Borrower and the
Guarantors;




     6.2 Such other documents as the Lender may reasonably request;




     6.3 Such resolutions or authorizations and such other documents as the Lender
may require relating to the existence and good standing of the Borrower, and the
authority of any person executing this Agreement or other documents on behalf of the
Borrower; and




     6.4 Payment of all the internal and external costs and expenses incurred by the
Lender in connection with this Agreement (including, without limitation, inside and
outside attorneys, appraisal, appraisal review, processing, title, filing, and
recording costs, expenses, and fees).




			
	SECTION 7.	 	INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER.





     The Credit Documents as modified herein contain the complete understanding and agreement of
Borrower and the Lender in respect of the Loan and supersede all prior representations, warranties,
agreements, arrangements, understandings, and negotiations. No provision of the Credit Documents
as modified herein may be changed, discharged, supplemented, terminated, or waived except in a
writing signed by the parties thereto.




			
	SECTION 8.	 	BINDING EFFECT.





     The Credit Documents as modified herein shall be binding upon and shall inure to the benefit
of Borrower and the Lender and their successors and assigns and the executors, legal
administrators, personal representatives, heirs, devisees, and beneficiaries of Borrower, provided,
however, Borrower may not assign any of its right or delegate any of its obligation under the
Credit Documents and any purported assignment or delegation shall be void.




			
	SECTION 9.	 	CHOICE OF LAW.





     This Agreement shall be governed by and construed in accordance with the laws of the State of
Arizona, without giving effect to conflicts of law principles



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	SECTION 10.	 	COUNTERPART EXECUTION.





     This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document. Signature pages may
be detached from the counterparts and attached to a single copy of this Agreement to physically
form one document.



     DATED as of the date first above stated.



	 	 	 	 
	 	MOBILITY ELECTRONICS, INC., a Delaware
 corporation

 	 
	 	By:  	/s/ Joan W. Brubacher
 	 
	 	Name:  	Joan W. Brubacher 	 
	 	Title:  	EVP & CFO 	 
	 



	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Robert L. Cummings
 	 
	 	Name:  	Robert L. Cummings 	 
	 	Title:  	Senior Vice President 	 



LENDER





 









 





CONSENT AND AGREEMENT OF GUARANTORS




     With respect to the Modification Agreement, dated February 26, 2007 (“Agreement”), between
MOBILITY ELECTRONICS, INC., a Delaware corporation, (“Borrower”), and JPMORGAN CHASE BANK, N.A., a
national banking association (“Lender”), the undersigned (individually and, if more than one,
collectively “Guarantor”) agrees for the benefit of Lender as follows:



     1. Guarantor acknowledges (i) receiving a copy of and reading the Agreement, (ii) the accuracy
of the Recitals in the Agreement, and (iii) the effectiveness of (A) the Guarantee Agreements as
modified herein, and (B) any other agreements, documents, or instruments securing or otherwise
relating to such guarantees, as modified herein. The Guarantee Agreements and such other
agreements, documents, and instruments, as modified herein, are referred to individually and
collectively as the “Guarantor Documents.”



     2. Guarantor consents to the modification of the Credit Documents and all other matters in the
Agreement.



     3. Guarantor fully, finally, and forever releases and discharges Lender and its successors,
assigns, directors, officers, employees, agents, and representatives from any and all actions,
causes of action, claims, debts, demands, liabilities, obligations, and suits of whatever kind or
nature, in law or equity, that Guarantor has or in the future may have, whether known or unknown,
(i) in respect of the Loan, the Credit Documents, the Guarantor Documents, or the actions or
omissions of the Lender in respect of the Loan, the Credit Documents, or the Guarantor Documents
and (ii) arising from events occurring prior to the date hereof.



     4. Guarantor agrees that all references, if any, to the Note, the Credit Agreement, the
Security Documents, and the Credit Documents in the Guarantor Documents shall be deemed to refer to
such agreements, documents, and instruments as modified by the Agreement.



     5. Guarantor reaffirms the Guarantor Documents and agrees that the Guarantor Documents
continue in full force and effect and remain unchanged, except as specifically modified by this
Consent and Agreement of Guarantors. Any property or rights to or interests in property granted as
security in the Guarantor Documents shall remain as security for the Guarantee Agreements and the
obligations of Guarantor in such guarantees.



     6. Guarantor agrees that the Credit Documents, as modified by the Agreement, and the Guarantor
Documents, as modified by this Consent and Agreement of Guarantors, are the legal, valid, and
binding obligations of Borrower and the undersigned, respectively, enforceable in accordance with
their terms against Borrower and the undersigned, respectively.



     7. Guarantor agrees that Guarantor has no claims, counterclaims, defenses, or offsets with
respect to the enforcement against Guarantor of the Guarantor Documents.



 









 





     8. Guarantor represents and warrants that there has been no material adverse change in the
financial condition of any Guarantor from the most recent financial statement received by the
Lender.



     9. Guarantor agrees that this Consent and Agreement of Guarantors may be executed in one or
more counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same document. Signature and acknowledgement pages may be detached from the
counterparts and attached to a single copy of this Consent and Agreement of Guarantors to
physically form one document.



     DATED as of the date of the Agreement.



	 	 	 	 
	 	IGO DIRECT CORPORATION, a Delaware 
corporation

 	 
	 	By:  	/s/ Joan W. Brubacher
 	 
	 	Name:  	Joan W. Brubacher 	 
	 	Title:  	VP & CFO 	 
	 



	 	 	 	 
	 	MOBILITY CALIFORNIA, INC., a Delaware
 corporation

 	 
	 	By:  	/s/ Joan W. Brubacher
 	 
	 	Name:  	Joan W. Brubacher 	 
	 	Title:  	VP & CFO 	 
	 



	 	 	 	 
	 	MOBILITY IDAHO, INC., a Delaware corporation

 	 
	 	By:  	/s/ Joan W. Brubacher
 	 
	 	Name:  	Joan W. Brubacher 	 
	 	Title:  	VP & CFO 	 
	 



	 	 	 	 
	 	MOBILITY TEXAS, INC., a Texas corporation

 	 
	 	By:  	/s/ Joan W. Brubacher
 	 
	 	Name:  	Joan W. Brubacher 	 
	 	Title:  	VP & CFO 	 
	 



GUARANTORS





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EXHIBIT “B”




ASSIGNED PATENTS




	 	 	 	 	 	 	 
	Patent or	 	 	 	 	 	 
	Application No.	 	Country	 	Filing Date	 	Title of Patent and First Named Inventor
	5,838,539

	 	US
	 	11/8/95
	 	Docking Module for Portable Computer
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Jeffrey Doss
	 
	5,781,747

	 	US
	 	11/14/95
	 	Method and Apparatus for Extending the
Signal Path of a Peripheral Component
Interconnect Bus to a Remote Location
(MAGMA)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Paul Smith
	 
	5,696,667

	 	US
	 	4/15/96
	 	Backplane for high Speed Data
processing System
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	AU9724588

	 	AU
	 	04/11/1997
	 	Backplane for high Speed Data
processing System
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	5,941,965

	 	US
	 	7/12/96
	 	Universal Docking Station
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	John A. Moroz
	 
	6,205,201

	 	US
	 	6/16/97
	 	Telephone Line Testing Device
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Paul R. Prince
	 
	5,930,119

	 	US
	 	2/26/98
	 	Backplane Having Reduced LC Product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	IL138053

	 	IL
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	KR2000709524

	 	KR
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	JP2000534033

	 	JP
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	6,093,039

	 	US
	 	8/6/98
	 	Docking Device for a Portable Computer
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Charles Lord
	 
	6,256,691

	 	US
	 	1/11/00
	 	Universal Docking Station (Moroz #2)
	 
	Pending Applications
	 	 	 	 	 	 
	 
	09/706,147

	 	US
	 	11/2/00
	 	Telephone Handset Switching Method and
Apparatus
	 
	11/472,025

	 	US
	 	6/22/06
	 	High Speed PCIe Connector Having

Differential Pair Pin Assignments
	 
	PCT/US97/06113

	 	WO
	 	04/11/1997
	 	Backplane for high speed data
processing system
	 
	 

	 	 	 	 	 	Andrew R. Berding






 









 






	 	 	 	 	 	 	 
	Patent or	 	 	 	 	 	 
	Application No.	 	Country	 	Filing Date	 	Title of Patent and First Named Inventor
	 
	EP97920374

	 	EP
	 	04/11/1997
	 	Backplane for high Speed Data
processing System
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	60/017,725

	 	US
	 	05/16/1996
	 	Universal docking station
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	John A. Moroz
	 
	09/217,110

	 	US
	 	12/21/1998
	 	Universal docking station
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	John A. Moroz
	 
	09/877,562

	 	US
	 	06/08/2001
	 	Universal docking station
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	John A. Moroz
	 
	09/060,548

	 	US
	 	04/15/1998
	 	Telephone line testing device and
equipment protector
	 
	PCT/US98/12451

	 	WO
	 	06/15/1998
	 	Telephone line testing device and
equipment protector
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Richard Paul Prince
	 
	PCT/US99/03953

	 	WO
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	CA2322151

	 	CA
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	AU19990033097

	 	AU
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding
	 
	EP19990936158

	 	EP
	 	02/24/1999
	 	Backplane having reduced LC product
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Andrew R. Berding







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EXHIBIT “C”




ASSETS




ALL ASSETS OF BORROWER’S HANDHELD CRADLE BUSINESS AS ATTACHED
 HERETO AS SCHEDULE 1.




ALL ASSETS OF BORROWER’S EXPANSION AND DOCKING BUSINESS AS
 ATTACHED HERETO AS SCHEDULE 2.





 









 








SCHEDULE 1




HANDHELD CRADLE ASSETS




 









 





SCHEDULE 2




EXPANSION AND DOCKING ASSETS