exv10w3



 





Exhibit 10.3



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS
OR THE COMPANY SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.




MISSION TECHNOLOGY GROUP, INC.

SECURED INVENTORY PROMISSORY NOTE




 




			
	$1,430,000.00
	 	Issuance Date: April 16, 2007






     FOR VALUE RECEIVED, the undersigned, Mission Technology Group, Inc., a California corporation
(the “Company”), hereby promises to pay to the order of Mobility California, Inc., a
Delaware corporation or any future permitted holder of this promissory note (the “Payee”),
at the principal office of the Payee set forth herein, or at such other place as the Payee may
designate in writing to the Company, the principal sum of One Million Four Hundred and Thirty
Thousand Dollars ($1,430,000.00), and such other amount as may be outstanding hereunder, together
with all accrued but unpaid interest, in United States dollars, as provided in this Secured
Inventory Promissory Note (the “Note”).



     1. Principal and Interest Payments.



          (a) Reference is hereby made to that certain Asset Purchase Agreement, dated as of February
21, 2007, by and between the Company and Payee (the “Purchase Agreement”). Terms used
herein but not otherwise defined shall have the meanings ascribed thereto in the Purchase
Agreement. The principal reflects the agreed upon fair market value of the Closing Inventory (the
“FMV”). Within ten (10) days following the end of each calendar month, the Company shall
make a principal payment under this Note to Payee equal to the FMV of any Closing Inventory sold,
assigned, transferred or otherwise disposed of by the Company (each a “Transfer”) during
such calendar month; provided, however, that the unpaid principal balance of this Note as of
November 1, 2008 (the (“Final Maturity Date”) shall be due and payable on the Final Maturity Date.
Each payment shall be accompanied by a written statement identifying the items of Closing Inventory
Transferred by the Company during such calendar month.



          (b) Interest on the outstanding principal balance of this Note shall accrue at a rate of six
percent (6.00%) per annum, subject to increase as provided below. Interest on the outstanding
principal balance of the Note shall be computed on the basis of the actual number of days elapsed
and a year of three hundred and sixty (360) days. Accrued but unpaid interest on this Note shall
be due and payable at the same time that the principal amount of this Note is due and payable as
provided in subsection (a) above. Furthermore, upon the occurrence of an Event of Default (as
defined below), then to the extent permitted by law, the Company will pay interest



 









 






to the Payee, payable on demand, on the outstanding principal balance of the Note from the
date of the Event of Default until payment in full at the rate of twelve percent (12%) per annum.



     2. Security Interests. The payment of the principal of, and interest on, this Note,
as well as other amounts that may become due and payable under this Note, is secured by: (i) a
security interest in certain assets of the Company as provided in that certain Security Agreement,
of even date herewith, by and between the Company and Payee (the “Security Agreement”); and
(ii) a security interest in certain securities of Payee as provided in that certain Pledge
Agreement, of even date herewith, by and between Randy Jones, the controlling shareholder of the
Company, and Payee (the “Pledge Agreement”).



     3. Non-Business Days. Whenever any payment to be made shall be due on a Saturday,
Sunday or a public holiday under the laws of the State of Arizona and/or California, such payment
may be due on the next succeeding business day and such next succeeding day shall be included in
the calculation of the amount of accrued interest payable on such date.



     4. Events of Default. The occurrence of any of the following events shall be an
“Event of Default” under this Note:



          (a) the Company shall fail to make the payment of any amount of any principal outstanding for
a period of three (3) business days after the date such payment shall become due and payable
hereunder; or



          (b) the Company shall fail to make any payment of interest for a period of three (3) business
days after the date such interest shall become due and payable hereunder; or



          (c) the Company breaches any representation, warranty, covenant, agreement or certification
made by the Company herein, in that certain Secured Promissory Note, of even date herewith, in the
original principal amount of $2,500,000, an with the Company as “maker” and Payee as “payee” (the
“1st Note”), in the Security Agreement or in the Pledge Agreement; or



          (d) the holder of any indebtedness of the Company or any of its subsidiaries shall accelerate
any payment of any amount or amounts of principal or interest on any indebtedness (the
“Indebtedness”) (other than the indebtedness hereunder) prior to its stated maturity or
payment date, whether such Indebtedness now exists or shall hereinafter be created, and such
accelerated payment entitles the holder thereof to immediate payment of such Indebtedness which is
due and owing and such indebtedness has not been discharged in full or such acceleration has not
been stayed, rescinded or annulled within ten (10) business days of such acceleration; or



          (e) a judgment or order for the payment of money shall be rendered against the Company or any
of its subsidiaries in excess of $100,000 in the aggregate (net of any applicable insurance
coverage) for all such judgments or orders against all such persons (treating any deductibles, self
insurance or retention as not so covered) that shall not be discharged, and all such judgments and
orders remain outstanding, and there shall be any period of sixty (60) consecutive days following
entry of the judgment or order in excess of $100,000 or the judgment or order which causes the
aggregate amount described above to exceed $100,000 during which a



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stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or



          (f) the Company shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property or assets, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code or under the comparable laws of any
jurisdiction (foreign or domestic), (iv) file a petition seeking to take advantage of any
bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement
of creditors’ rights generally, (v) acquiesce in writing to any petition filed against it in an
involuntary case under the Bankruptcy Code or under the comparable laws of any jurisdiction
(foreign or domestic), or (vi) take any action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing; or



          (g) a proceeding or case shall be commenced in respect of the Company or any of its
subsidiaries without its application or consent, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like of it or of all or any substantial part of its assets or (iii) similar relief in respect
of it under any law providing for the relief of debtors, and such proceeding or case described in
clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of
thirty (30) consecutive days or any order for relief shall be entered in an involuntary case under
the Bankruptcy Code or under the comparable laws of any jurisdiction (foreign or domestic) against
the Company or any of its subsidiaries or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of
its subsidiaries and shall continue undismissed, or unstayed and in effect for a period of thirty
(30) consecutive days.



     5. Remedies Upon An Event of Default. If an Event of Default shall have occurred and
shall be continuing, the Payee may at any time at its option, (a) declare the entire unpaid
principal balance of this Note, together with all interest accrued hereon, due and payable, and
thereupon, the same shall be accelerated and so due and payable; provided, however,
that upon the occurrence of an Event of Default described in (i) Sections 4(f) and (g), without
presentment, demand, protest, or notice, all of which are hereby expressly unconditionally and
irrevocably waived by the Company, the outstanding principal balance and accrued interest hereunder
shall be automatically due and payable, and (ii) Sections 4(a) through (e), the Payee may exercise
or otherwise enforce any one or more of the Payee’s rights, powers, privileges, remedies and
interests under this Note, the 1st note, the Security Agreement, the Pledge Agreement or
applicable law. No course of delay on the part of the Payee shall operate as a waiver thereof or
otherwise prejudice the right of the Payee. No remedy conferred hereby shall be exclusive of any
other remedy referred to herein or now or hereafter available at law, in equity, by statute or
otherwise.



     6. Replacement. Upon receipt of a duly executed, notarized written statement from the
Payee with respect to the loss, theft or destruction of this Note (or any replacement hereof), and
without requiring an indemnity bond or other security, or, in the case of a mutilation of this



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Note, upon surrender and cancellation of such Note, the Company shall issue a new Note, of
like tenor and amount, in lieu of such lost, stolen, destroyed or mutilated Note.



     7. Parties in Interest, Transferability. This Note shall be binding upon the Company
and its successors and assigns and the terms hereof shall inure to the benefit of the Payee and its
successors and permitted assigns. This Note may be transferred or sold, subject to the provisions
of Section 15 below, or pledged, hypothecated or otherwise granted as security by the Payee.



     8. Amendments. This Note may not be modified or amended in any manner except in
writing executed by the Company and the Payee.



     9. Notices. Any notice, demand, request, waiver or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a) upon hand delivery
by telecopy or facsimile at the address or number designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The Company agrees to give written notice to
the Payee at least twenty (20) days prior to the date on which dissolution, liquidation or
winding-up will take place and in no event shall such notice be provided to the Payee prior to such
information being made known to the public.



	 	 	 
	     Address of Payee:

	 	Mobility California, Inc.
	 

	 	17800 N. Perimeter Drive, Suite 200
	 

	 	Scottsdale, Arizona 85255
	 

	 	Attention: Chief Executive Officer
	 

	 	Fax No.: (480) 477-3639
	 
	 	 
	     Address of the Company:

	 	Mission Technology Group, Inc.
	 

	 	9918 Via Pasar
	 

	 	San Diego, CA 92126
	 

	 	Attention: Randy Jones
	 

	 	Fax No.: (858) 530-2733






     10. Governing Law. This Note shall be governed by and construed in accordance with the
internal laws of the State of Arizona, without giving effect to the choice of law provisions. This
Note shall not be interpreted or construed with any presumption against the party causing this Note
to be drafted.



     11. Headings. Article and section headings in this Note are included herein for
purposes of convenience of reference only and shall not constitute a part of this Note for any
other purpose.



     12. Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief.
The remedies provided in this Note shall be cumulative and in addition to all other remedies



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available under this Note, the Security Agreement, at law or in equity (including, without
limitation, a decree of specific performance and/or other injunctive relief), no remedy contained
herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and
nothing herein shall limit a Payee’s right to pursue actual damages for any failure by the Company
to comply with the terms of this Note. Amounts set forth or provided for herein with respect to
payments and the like (and the computation thereof) shall be the amounts to be received by the
Payee and shall not, except as expressly provided herein, be subject to any other obligation of the
Company (or the performance thereof). The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable and material harm to the Payee and that the remedy at
law for any such breach may be inadequate. Therefore the Company agrees that, in the event of any
such breach or threatened breach, the Payee shall be entitled, in addition to all other available
rights and remedies, at law or in equity, to seek and obtain such equitable relief, including but
not limited to an injunction restraining any such breach or threatened breach, without the
necessity of showing economic loss and without any bond or other security being required.



     13. Failure or Indulgence Not Waiver. No failure or delay on the part of the Payee in
the exercise of any power, right or privilege hereunder (including without limitation to perfect
any security interest granted to Payee by this Note) shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.



     14. Enforcement Expenses. The Company agrees to pay all costs and expenses of
enforcement of this Note, including, without limitation, reasonable attorneys’ fees and expenses.



     15. Binding Effect. The obligations of the Company and the Payee set forth herein
shall be binding upon the successors and assigns of each such party, whether or not such successors
or assigns are permitted by the terms hereof. The Payee may assign any or all if its rights,
titles and interests in, to or under this Note to any person or entity upon written notice to the
Company.



     16. Severability. The provisions of this Note are severable, and if any provision
shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall not in any manner affect such provision in any other
jurisdiction or any other provision of this Note in any jurisdiction.



     17. Consent to Jurisdiction. Each of the Company and the Payee hereby irrevocably
submits to the jurisdiction of the United States District Court sitting in Phoenix, Arizona and the
courts of the State of Arizona located in Maricopa County for the purposes of any suit, action or
proceeding arising out of or relating to this Note. Each of the Company and the Payee hereby
waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
Each of the Company and the Payee consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address set forth in Section 9 above and
agrees that such service shall constitute good and sufficient service of process and notice
thereof.



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Nothing in this Section 17 shall affect or limit any right to serve process in any other
manner permitted by law.




     18. Company Waivers. Except as otherwise specifically provided herein, the Company
and all others that may become liable for all or any part of the obligations evidenced by this
Note, hereby waive presentment, demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance and enforcement of this Note, and
do hereby consent to any number of renewals of extensions of the time or payment hereof and agree
that any such renewals or extensions may be made without notice to any such persons and without
affecting their liability herein and do further consent to the release of any person liable hereon,
all without affecting the liability of the other persons, firms or Company liable for the payment
of this Note, AND DO HEREBY WAIVE TRIAL BY JURY.



     (a) No delay or omission on the part of the Payee in exercising its rights under this Note, or
course of conduct relating hereto, shall operate as a waiver of such rights or any other right of
the Payee, nor shall any waiver by the Payee of any such right or rights on any one occasion be
deemed a waiver of the same right or rights on any future occasion.



     (b) THE COMPANY ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL
TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND
HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE PAYEE OR ITS SUCCESSORS OR ASSIGNS MAY
DESIRE TO USE.



     19. Usury Savings Clause. Any provision in this Note or in any other document
executed in connection herewith, or in any other agreement or commitment, whether written or oral,
express or implied, to the contrary notwithstanding, Payee shall not in any event be entitled to
receive or collect, nor shall or may amounts received hereunder be credited, so that Payee shall be
paid, as interest, a sum greater than the maximum rate of interest permitted by applicable law. If
any construction of this Note, or any and all other papers, agreements or commitments, indicates a
different right given to Payee to ask for, demand or receive any larger sum as interest, such is a
mistake in calculation or wording, which this clause shall override and control; it being the
intention of the parties that this Note and all other instruments relating to this Note shall in
all things comply with applicable law, and proper adjustment shall automatically be made
accordingly. In the event Payee ever receives, collects or applies as interest, any sum in excess
of the maximum rate of interest permitted by applicable law, such excess amount shall be applied to
the reduction of the unpaid principal balance of this Note in the inverse order of maturity, and if
this Note is paid in full, any remaining excess shall be paid to Maker. In determining whether or
not the interest paid or payable, under any specific contingency, exceeds the maximum rate of
interest permitted by applicable law, Maker and Payee shall, the maximum extent permitted under
applicable law (i) characterize any nonprincipal payment as an expense, fee or premium rather than
as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) “spread” the
total amount of interest throughout the entire term of this Note so that the interest rate is
uniform throughout the entire term hereof.



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     IN WITNESS WHEREOF, the Company has executed and delivered this Note as of the date first
written above.



	 	 	 	 	 
	 	MISSION TECHNOLOGY GROUP, INC.

 	 
	 	By:  	/s/ Randy Jones
 	 
	 	 	Randy Jones, President 	 
	 	 	 	 
	 




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