MASTER LOAN AGREEMENT
Exhibit
10.19
THIS
MASTER LOAN AGREEMENT
(the
“Agreement”) is made and entered into this 2nd
day of
November 2004 (the “Effective Date”), by and between ENER1
GROUP, INC.,
a
Florida corporation (“Ener1”) and SPLINEX
TECHNOLOGY INC.,
a
Delaware corporation, with principal place of business at 000 Xxxx Xxxxxxx
Xxxxx
Xx., Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (“Splinex”).
NOW,
THEREFORE,
in
consideration of the following premises and for other good and valuable
considerations, the parties hereby agree as follows:
1. Loan.
Ener1
agrees to make a series of loans to Splinex in accordance with the provisions
hereof which shall be evidenced by the Note in the form attached hereto as
Exhibit A
(the
“Note”). This Agreement shall operate as a master loan agreement to facilitate
the lending of additional funds, at Splinex’s request and in Ener1’s sole
discretion.
2. Funding
of Loan.
Prior
to funding any Funding Request, Splinex will deliver to Ener1 a Note in the
form
attached to this Loan Agreement in the amount of the funds to be advanced (each
such Note, a “New Note” and the amount of such New Note, the “New Note Amount”
and the aggregate outstanding after issuance of any such New Note, the “Loan
Amount”). This Agreement shall contain as Schedule I a schedule of all Notes
issued pursuant to this Agreement and shall be revised at the time of any
additional Funding Request as provided in Schedule I hereto, which shall be
signed by a duly authorized officer of each party.
3. Interest.
The Loan
Amount shall accrue interest at the rate of 5% per annum.
4. Loan
Repayment.
Splinex
shall repay the Loan Amount and any accrued interest upon demand by Ener1.
5. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
6. Loan
Security.
The
parties hereby acknowledge and agree that this Loan is an unsecured obligation
of Splinex.
7. Notices. All
notices, requests, demands, and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given upon
(a) a transmitter’s confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery of a standard overnight courier, (c) when delivered by hand,
or (d) the expiration of five business days after the date mailed by certified
or registered mail (return receipt requested), postage prepaid, to the parties
at the following addresses:
(a) If
to
Ener1, to:
Ener1
Group, Inc.
000
Xxxx
Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxxxxxxx, XX 00000
Attention:
Xxxx Xxx, President
Fax:
(000)
000-0000
or
to
such other Person or address as Ener1 shall furnish by notice to the other
parties in writing.
(b) If
to
Splinex, to:
000
X.
Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxxxx, President
Fax:
(000) 000-0000
8. Attorneys
Fees.
In the
event of a dispute between the parties, the prevailing party shall be entitle
to
all reasonable attorneys fees and costs incurred before any trial, arbitration,
or other proceeding as well as all other relief granted in any suit or other
proceeding.
9. U.S.
Dollar Denominated.
Except
where specifically provided otherwise, all transactions herein shall be in
U.S.
dollars.
10.
Entire
Understanding.
This
Agreement contains the entire understanding between the parties hereto and
supersedes any and all prior agreements, understandings, and arrangements
relating to the subject matter hereof.
11.
Counterparts.
This
Agreement may be executed in two counterparts, each of which shall be deemed
an
original and all of which together shall constitute the same
agreement.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the day and year first above
written.
|
ENER1 GROUP, INC.,
___________________________
Name: Xxxx Xxx
Title: President
|
___________________________
Name:
Xxxxxx Xxxxxxx
Title:
President
|
Exhibit
A
NOTE
| $ |
,
2005
|
FOR
VALUE RECEIVED, SPLINEX TECHNOLOGY INC.,
a
Delaware corporation, (the “Company”) promises to pay to Ener1 Group, Inc., a
Florida corporation (the “Holder”), or its successors and assigns, the principal
sum of ___________________ Dollars ($________) or such lesser amount as shall
then equal the outstanding principal amount hereof (the “Loan Amount”), together
with interest from 60 days after the date of this Note on the unpaid principal
balance at a rate equal to 5% per annum. Interest
under this Note shall be calculated on the basis of a 365-day year for the
actual number of days elapsed (i.e. 1/365’s of a full year’s interest shall
accrue for each day any principal amount of this Note is outstanding beyond
the
date hereof).
All
capitalized terms not otherwise defined herein shall have the meaning so given
in the Master Loan Agreement.
1. Term.
The
Company shall repay the Loan Amount, and any interest that has accrued, within
five business days of a demand for such payment by the Holder.
2. Events
of Default.
The
occurrence of any of the following shall constitute an “Event of Default” under
this Note:
(a) Voluntary
Bankruptcy or Insolvency Proceedings.
The
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator, or custodian of itself or of all or a substantial part
of
its property, (ii) admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit
of any of its creditors, (iv) be dissolved or liquidated in full or in
part, (v) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency, or other similar law now or hereafter in
effect or consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or other
proceeding commenced against it, or (vi) take any action for the purpose of
effecting any of the foregoing; or
(b) Involuntary
Bankruptcy or Insolvency Proceedings.
The
Company seeks the appointment of a receiver, trustee, liquidator, or custodian
of the Company or of all or a substantial part of the property thereof, or
an
involuntary case or other proceedings seeking liquidation, reorganization,
or
other relief with respect to the Company or the debts thereof under any
bankruptcy, insolvency, or other similar law or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within sixty (60) days of commencement.
3. Rights
of Holder Upon Default.
Upon
the occurrence or existence of any Event of Default and at any time thereafter
during the continuance of such Event of Default, (a) interest on the unpaid
balance of this Note shall accrue at 12% per annum until paid in full and (b)
the Holder may declare all outstanding amounts payable by the Company hereunder
to be immediately due and payable without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived. In addition
to the foregoing remedies, upon the occurrence or existence of any Event of
Default, Holder may exercise any other right, power, or remedy granted to it
or
otherwise permitted to it by law, either by suit in equity or by action at
law,
or both.
4. Prepayment.
This
Note may be prepaid in whole or in part at any time by the Company without
penalty or premium. Any such prepayment will be applied first to the payment
of
expenses due under this Note, second to interest accrued on this Note, and
third, if the amount of prepayment exceeds the amount of all such expenses
and
accrued interest, to the payment of principal of this Note.
5. Taxes.
All
payments by the Company under this Note shall be made without setoff or
counterclaim and in such amounts as may be necessary in order that all payments,
after deduction or withholding for or on account of any present or future taxes,
levies, imposts, duties, or other charges of whatsoever nature imposed by any
government or any political subdivision or taxing authority thereof
(collectively the “Taxes”), shall not be less than the amounts otherwise
specified to be paid under this Note. Notwithstanding anything to the contrary
contained in this paragraph, the Company shall not be liable for the payment
of
any tax on or measured by net income imposed on the Holder pursuant to the
income tax laws of the United States. The Company shall further pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder or from
the execution, delivery, or registration of, or otherwise with respect to this
Note or any of the other documents evidencing this loan (herein referred to
as
“Other Taxes”). The Company shall pay all Taxes and Other Taxes when due (and
indemnify the Holder against any liability therefor) and shall promptly (and
in
any event not later than 30 days thereafter) furnish to the Holder any
certificates, receipts, and other documents which may be required (in the
reasonable judgment of the Holder) to establish any tax credit to which the
Holder may be entitled. The Company shall indemnify the Holder for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes and
Other Taxes imposed by any jurisdiction on amounts payable under this paragraph)
paid by the Holder or any liability (including interest and penalties) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were
correctly or legally asserted. Without prejudice to the survival of any other
agreement of the Company hereunder, the obligations of the Company under this
paragraph shall survive the termination of this Note and the repayment of the
loan.
6. Successors
and Assigns.
This
Note shall be binding upon and benefit the successors and permitted assigns
of
the parties.
7. Waiver
and Amendment.
Any
provision of this Note may be amended, waived, or modified only upon the written
consent of both the Company and the Holder. Any amendment or waiver effected
in
accordance with this Section 7 shall be binding upon the Company and the Holder
of this Note.
8. Assignment
by the Company.
Neither
this Note nor any of the rights, interests, or obligations hereunder may be
assigned, by operation of law, or otherwise, in whole or in part, by the
Company, without the prior written consent of the Holder.
9. Notices.
Any
notice, request, or other communication required or permitted hereunder shall
be
in writing and shall be deemed to have been duly given if personally delivered
or mailed by registered or certified mail, postage prepaid, or by recognized
overnight courier or personal delivery at the respective addresses of the
parties as set forth in the records maintained by the Company. Any party hereto
may by notice so given change its address for future notice hereunder. Notice
shall conclusively be deemed to have been given when received.
10. Expenses;
Waivers.
The
Company promises to pay all reasonable costs and expenses, including, without
limitation, reasonable attorneys’ fees and costs, stamp taxes, and all other
fees and expenses incurred in connection with enforcement of this Note. The
Company hereby waives notice of default, presentment, or demand for payment,
protest, or notice of nonpayment or dishonor and all other notices or demands
relative to this instrument.
11. Governing
Law.
This
Note and all actions arising out of or in connection with this Note shall be
governed by and construed in accordance with the laws of the State of Florida,
without regard to the conflicts of law provisions of the State of Florida or
of
any other state.
12. WAIVER
OF JURY TRIAL.
THE
COMPANY HEREBY, AND THE HOLDER BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR
IN
CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS
A
MATERIAL INDUCEMENT FOR THE HOLDER MAKING THE LOAN EVIDENCED BY THIS
NOTE
IN
WITNESS WHEREOF, the Company has caused this Note to be issued as of the date
first written above.
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Splinex
Technology Inc., a Delaware corporation
By:____________________________________
Name:
Xxxxxx Xxxxxxx
Title:
President
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