REVOLVING LINE OF CREDIT AGREEMENT
Exhibit
10.1
Execution
version 11/18/10
This Revolving Line of Credit Agreement
(this “Agreement”),
dated as of November 18, 2010, is made by and between ENER1, INC., a Florida
corporation (the “Lender”),
and THINK HOLDINGS AS, a Norwegian limited
liability company (the “Borrower”).
In consideration of the agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. LINE OF
CREDIT. The Lender hereby agrees to establish a line of credit
(the “Credit
Line”) for the Borrower in the aggregate principal amount of Five Million
U.S. Dollars (US$5,000,000) (the “Credit
Limit”), subject to adjustment as set forth in Section
5(ii).
2. CREDIT LINE DOCUMENTATION.
All sums advanced pursuant to the Credit Line (each, an “Advance”)
shall be documented by the Lender in Schedule I to this Agreement, and the
Lender shall forward a copy of Schedule 1 to the Borrower each time the Lender
makes amendments to Schedule 1.
3. ADVANCES. The Borrower may
request an Advance at any time during the Draw Period (defined below) in minimum
increments of US$100,000 (or the remaining balance of the Credit Line, if less);
provided, however, in no event shall
the Borrower be entitled to receive Advances that, in the aggregate, when added
to the amount of all previous Advances then outstanding, exceed the Credit
Limit. The Borrower shall make requests for Advances by delivering to
the Lender a written notice specifying the amount of the requested Advance (a
“Draw
Notice”). On or before the fifth Business Day following the
receipt by the Lender of a Draw Notice, the Lender shall issue instructions for
the delivery, by wire transfer to an account specified by the Borrower in such
Draw Notice, of the amount of the Advance set forth in such
notice. The Lender may refuse to make a requested Advance if (a) such
Advance would exceed the Credit Limit as described above, or (b) an Event of
Default has occurred and is continuing. The Borrower may not submit a
Draw Notice to the Lender more than once during any period of 14 consecutive
calendar days.
4. INTEREST. All funds advanced
pursuant to this Agreement shall bear simple interest from the date on which
each Advance is made until it is paid in full at a rate of 12% per year, such
year to consist, for the purpose of calculating such interest, of 360
days. Upon an Event of Default (defined below) hereunder, the rate of
interest shall be increased to the lesser of 18% per annum or the highest rate
permitted by applicable law.
5. REPAYMENT.
(i) General. Subject
to the prepayment requirements under Section
5(ii), the Borrower shall repay to the Lender the entire outstanding
principal of and all unpaid interest accrued on the Credit Line on or before
February 28, 2011 (the “Repayment
Date”) or, if any such date is not a Business Day, on the next succeeding
Business Day. All payments received hereunder shall be applied first to any
costs or expenses incurred by the Lender in collecting such payment or to any
other unpaid charges or expenses due hereunder; second, to accrued interest; and
third, to principal. The Borrower may prepay its indebtedness
hereunder at any time without penalty, in which case the Lender shall record the
amount of each such prepayment by appropriately annotating Schedule I to this
Agreement. The Lender shall forward a
copy of Schedule 1 to the Borrower after each such
annotation.
(ii) Mandatory Repayment;
Credit Limit Adjustment. Pursuant to the Security Agreement (as
defined below), among the assets collateralizing this Credit Line are 210 Think
City A-306 electric vehicles (excluding batteries), described further in the
Security Agreement, and having a value of US$23,500 per unit (each vehicle, a
“Unit”). Within five
Business Days of the sale of tranches of twenty-five (25) Units, the Borrower
shall prepay its indebtedness hereunder in an amount equal to the lesser of (x)
the product of the number of Units so sold and US$23,500 and (y) the total
amount of indebtedness hereunder outstanding at such time. The Credit
Limit shall also be reduced by an amount equal to the product of the number of
Units so sold and US$23,500, and such reduction shall go into effect
automatically and immediately upon such sale.
6. USE OF FUNDS. The Borrower
will use the funds it receives pursuant to each Advance exclusively to fund
expenses (including capital expenditures) incurred in connection with its
operations.
7. OTHER OBLIGATIONS OF THE BORROWER.
The Borrower shall be obligated to the Lender as follows until the
Borrower has performed all of its obligations to the Lender under this
Agreement:
(i) To
provide the Lender with a written notification of any Event of Default
immediately upon learning of it;
(ii) To
not incur any bank or similar debt financing without the Lender’s prior
consent;
(iii) To
not create, incur, assume or suffer to exist any lien on any of its assets,
whether now owned or hereafter acquired, except a security interest in favor of
the Lender and except purchase money liens and liens granted to equipment
lessors and lenders in connection with equipment leases and financing;
and
(iv) To
timely inform the Lender of any circumstances that may cause any substantial
increase in the obligations of the Borrower.
8. SECURITY
AGREEMENT. The Borrower’s obligations under this Agreement,
including, without limitation, its obligation to make payments of principal
thereof and interest thereon, will be secured by all of the assets and
properties of the Think North America, Inc. a Delaware corporation and an
indirect subsidiary in the Borrower group of companies (the “Subsidiary”),
and their direct and indirect subsidiaries, pursuant to the terms of a security
agreement of even date herewith (the “Security
Agreement”).
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9. REPRESENTATIONS AND
WARRANTIES. In order to induce the Lender to enter into this Agreement
and to make Advances on the terms specified herein, the Borrower represents and
warrants to the Lender as follows:
(i) The
Borrower is duly organized, validly existing, and in good standing under the
laws of Norway, and has all requisite power and authority to carry on its
business as now or proposed to be conducted.
(ii) The
Borrower has the authority and power to execute and deliver this Agreement and
to perform any condition or obligation imposed under the terms hereof or
thereof. All necessary company action on the part of the Borrower to
authorize the execution, delivery and performance of this Agreement has been
taken and received. No consent of any third party is required to the
execution, delivery and performance by the Borrower of its obligations under
this Agreement.
(iii) The
execution, delivery and performance of this Agreement by the Borrower will not
violate any provision of any applicable law, regulation, order, judgment,
decree, charter document, indenture, contract, agreement, or other undertaking
to which the Borrower is a party, or which is binding on the Borrower or its
assets, and will not result in the creation or imposition of a lien on any of
its assets.
10. EVENTS OF
DEFAULT. The occurrence of any of the following shall
constitute an “Event of
Default” under this Agreement:
(i) Voluntary Bankruptcy or
Insolvency Proceedings. The Borrower shall (a) 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, (b) admit in writing its
inability to pay its debts generally as they mature, (c) make a general
assignment for the benefit of any of its creditors, (d) be dissolved or
liquidated in full or in part, (e) 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 (f) take any action for the purpose of
effecting any of the foregoing.
(ii) Involuntary Bankruptcy or
Insolvency Proceedings. The Borrower seeks the appointment of a receiver,
trustee, liquidator or custodian of the Borrower or of all or a substantial part
of its property, or an involuntary case or other proceedings seeking
liquidation, reorganization, or other relief with respect to the Borrower or the
debts thereof under any bankruptcy, insolvency, or other similar law or
hereafter in effect shall be commenced.
(iii) Failure to Pay Loan Amount
when Due. The Borrower fails to pay the entire principal
amount of and accrued interest on the Credit Line on the Repayment
Date.
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(iv) Breach of Representations
and Warranties. Any representation, warranty or statement made
or deemed to be made by the Borrower in this Agreement or in any notice or other
document, certificate or statement delivered by it pursuant to or in connection
herewith proves to have been incorrect or misleading in any material respect
when made or deemed made and such defect may be, in the reasonable opinion of
the Lender, prejudicial to the interests of the Lender.
(v) Cross
Defaults. The Borrower or any of its subsidiaries or
affiliates fails to pay when due any bank indebtedness exceeding
US$10,000.
(vi) Breach of
Agreement. The Borrower fails to perform or breaches any other
provision of this Agreement, and such failure to perform or other breach remains
uncured ten days after the Lender sends notice to the Borrower.
If an Event of Default occurs, the
Lender may demand immediate repayment of all amounts due under this Agreement,
in addition to any other remedies at law or equity.
11. [COMMITMENT FEE / ADVANCE
FEE]. To be
Discussed.
12. CERTAIN DEFINITIONS. For
purposes of this Agreement, “Business
Day” means any day other than a Saturday, Sunday or other day on which
the New York Stock Exchange or commercial banks in the city of New York or Oslo
are permitted or required by law to close; and “Draw
Period” means the period beginning on the date of this Agreement and
ending at 5:00 p.m., Eastern Time, on January 31, 2011.
13. SEVERABILITY. In
the event that any provision of this Agreement becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision; provided that in such case
the parties shall negotiate in good faith to replace such provision with a new
provision which is not illegal, unenforceable or void, as long as such new
provision does not materially change the economic benefits of this Agreement to
the parties.
14. INJUNCTIVE
RELIEF. The Borrower acknowledges and agrees that a breach by
it of its obligations hereunder will cause irreparable harm to the Lender and
that the remedy or remedies at law for any such breach will be inadequate and
agrees, in the event of any such breach, in addition to all other available
remedies, the Lender shall be entitled to an injunction restraining any breach
and requiring immediate and specific performance of such obligations without the
necessity of showing economic loss or the posting of any bond.
15. GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by and construed under the laws of the State of
New York applicable to contracts made and to be performed entirely within the
State of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City and County of
New York for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
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16. NOTICES. Any
notice, demand or request required or permitted hereunder shall be in writing
and shall be deemed delivered (i) when delivered personally or by verifiable
facsimile transmission, unless such delivery is made on a day that is not a
Business Day, in which case such delivery will be deemed to be made on the next
succeeding Business Day, (ii) on the next Business Day after timely delivery to
an overnight courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed as follows:
(a) If
to the Borrower:
Think
Holdings AS
Xxxxxxxxxxxxxx
0X, XX-0000 Xxxxxxx, Xxxxxx
Attn: The
Chief Executive Officer
Tel: + 00
000 00 000
Fax: + 00
00 00 00 00
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(b)
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If
to the Lender:
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Ener1,
Inc.
0000
Xxxxxxxx, Xxxxx 00X
Xxx Xxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxxxxxx
Tel:
000-000-0000
Fax:
000-000-0000
or as
shall be designated by such party in writing to the other parties hereto in
accordance with this Section
16.
17. ATTORNEYS’
FEES. In the event of a dispute between the parties, the
prevailing party shall be entitled to all reasonable attorneys’ fees and costs
incurred in connection with any trial, arbitration, or other proceeding as well
as all other relief granted in any suit or other proceeding.
18. ENTIRE AGREEMENT. This
Agreement constitutes the entire agreement between the parties with regard to
the subject matter hereof, superseding all prior agreements or understandings,
whether written or oral, between the parties. No amendment, modification or
other change to this Agreement or waiver of any agreement or other obligation of
the parties under this Agreement may be made or given unless such amendment,
modification or waiver is set forth in writing and is signed by each of the
parties hereto.
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19. REMEDIES AND
WAIVERS. No failure by the Lender to exercise, and no delay in
exercising, any right or remedy under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise of any right or remedy preclude
any other or further exercise thereof or the exercise of any other right or
remedy. The rights, powers, remedies and privileges provided in this
Agreement are cumulative and not exclusive of any rights, powers, remedies and
privileges provided by law.
20. U.S. DOLLAR DENOMINATED.
Except where specifically provided otherwise, all transactions herein shall be
in U.S. Dollars.
21. COUNTERPARTS. This Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same agreement.
This Agreement may be executed and delivered by e-mail or facsimile
transmission.
22. SUCCESSORS AND
ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. The Lender may transfer all or part of its rights and
obligations hereunder without any prior notice to the Borrower. Upon such
transfer, the rights and obligations of the Lender hereunder so transferred
shall be assigned automatically to the transferee thereof, such transferee shall
thereupon be deemed to be a party to this Agreement as though an original
signatory hereto, and the Lender (as transferor) shall be released of all
liability or obligation in connection with this Agreement arising after such
assignment. The Lender shall provide the Borrower with written notice
of any such transfer and the name and address of such transferee promptly upon
such assignment.
23. USURY. This
Credit Line is subject to the express condition that at no time shall the
Borrower be obligated or required to pay interest hereunder at a rate which
could subject the Lender to either civil or criminal liability as a result of
being in excess of the maximum interest rate which the Borrower is permitted by
applicable law to contract or agree to pay. If by the terms of this
Credit Line, the Borrower is at any time required or obligated to pay interest
hereunder at a rate in excess of such maximum rate, the rate of interest under
this Credit Line shall be deemed to be immediately reduced to such maximum rate
and the interest payable shall be computed at such maximum rate and all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance of this
Credit Line.
24. HEADINGS. The
headings used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
[Signature
Pages to Follow]
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IN WITNESS WHEREOF, the
parties hereto have executed this Line of Credit Agreement as of the day and
year first above written.
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ENER1,
INC.
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THINK
HOLDINGS AS
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By:
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/s/ Xxxxxxx Xxxxxx
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By:
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/s/ Xxxxx X. Xxxxx
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Xxxxxxx
Xxxxxx
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Name:
Xxxxx X. Xxxxx
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Chief
Financial Officer
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Title: CEO
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