Exhibit 10.5
INTER COMPANY LINE OF CREDIT AGREEMENT
THIS INTER COMPANY LINE OF CREDIT AGREEMENT dated November 1, 2002,
("Effective Date") between ENER1, INC., (the "Lender"), and ENER1 TECHNOLOGIES,
INC., (the "Borrower").
ARTICLE I
THE LOANS
SECTION 1.1. The Loans.
(a) Subject to the terms and conditions set forth below, and until
further notice from the Lender to the Borrower, the Lender hereby makes
available to the Borrower a line of credit for loans in an aggregate amount of
up to $300,000 for twelve (12) months from the Effective Date ("Initial Term").
In the event Borrower is unable to reach a positive cash flow within the Initial
Term, nor receive third party financing during the Initial Term, Borrower may
borrow up to an additional $200,000 during the twelve (12) month period after
the Initial Term ("Second Term Loan"). The Initial Term Loan and Second Term
Loan are collectively referred to as the "Loans".
(b) The Borrower may borrow the Loans in one or more drawings
("Drawings"). Each Drawing shall be in an amount not less than $100.00. The
Borrower shall request each Drawing by notice to the Lender at least three
business days prior to the Drawing. If the Lender shall elect to make the
requested Loan, it shall do so on the date requested (which must be a Business
Day Day) by crediting the amount of the Loan to the Borrower's current bank
account. Each notice of Drawing given by the Borrower to the Lender shall be in
the form attached as Exhibit A and shall constitute a confirmation by the
Borrower that on the date of the Drawing its representations and warranties set
forth in Article III below remain true and correct. Notice of Drawing from the
Borrower, once received by the Lender, shall be irrevocable.
(c) Each Loan shall bear interest from the date of its Drawing until
paid in full, at an interest rate per annum equal to six percent. From and after
the occurrence of an Event of Acceleration described in Section 4.01 below, the
Loans (and any past-due amounts of principal, interest or other monies
hereunder) shall bear interest at a rate (the "Default Rate") equal to 1.5% over
the rate otherwise applicable hereunder until such Event of Acceleration shall
be cured.
ARTICLE II
TERMS OF PAYMENT
SECTION 2.1. Prepayments.
Borrower may prepay the Loans without penalty.
SECTION 2.2. Payments and Computations.
(a) The Borrower shall repay the Loans in equal monthly installments
over a five (5) year period commencing on the termination of the Initial Term.
(b) Principal, interest and other amounts payable by the Borrower
hereunder shall be paid in lawful money of the United States (in freely
transferable Dollars) to the Lender at its executive offices.
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(c) Interest hereunder shall be payable on the basis of a year of 360
days and the actual number of days elapsed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. To induce the Lender to
make the Loans, the Borrower represents and warrants that: (a) the Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida; (b) the Borrower has taken all corporate and legal
action necessary to authorize the execution, delivery and performance of this
Agreement; (c) this Agreement constitutes a legal, valid and binding obligation
of the Borrower enforceable in accordance with its terms in the State of
Florida; and (d) the execution and delivery of this Agreement and the Borrower's
performance of its obligations under this Agreement will not violate any
provisions of the Borrower's Articles of Incorporation or By-laws, or any law or
regulation or agreement of any nature binding upon it or its property.
ARTICLE IV
EVENTS OF ACCELERATION
SECTION 4.1. Events of Acceleration. The following shall constitute
Events of Acceleration hereunder: (a) the Borrower shall fail to pay when due
any principal of or interest on the Loans or any other amount payable hereunder,
and in the case of any amount other than principal or interest, such amount
shall remain unpaid for a period of at least 30 days after the date when due;
(b) the Borrower shall be in default in the due performance or observance of any
other term contained herein for a period of 30 days after the Lender shall have
given the Borrower written or telex notice of such default; (c) the Borrower
shall become insolvent or unable to pay its debts as they mature, or shall
consent to the appointment of a trustee, intervener or receiver for it or for
all or a substantial part of its property, or any such trustee, intervener or
receiver shall be appointed, or bankruptcy, dissolution, reorganization,
intervention, arrangement or liquidation proceedings (or similar proceedings
analogous in purpose or effect) shall be instituted by the Borrower or any such
proceedings instituted against the Borrower shall not have been discharged or
stayed within a period of 60 days from when instituted; (d) any representation,
warranty or statement, made or delivered to the Lender by or on behalf of the
Borrower in connection herewith shall prove to be untrue or misleading in any
material respect; (e) the Borrower or its share holders shall take any steps for
the Borrower's liquidation or winding-up; (f) it shall become unlawful for the
Borrower or the Lender to perform any of its respective obligations hereunder;
(g) the Borrower shall cease to carry on business, or shall, without the
Lender's prior written consent, cause or permit any sale, transfer, lien, lease
or encumbrance, other than at arm's length and for new and fair consideration,
of a significant portion of the Borrower's assets; or (h) any party giving any
collateral or security for the Borrower's obligations hereunder shall default
under the terms of any agreement concerning such security or collateral.
SECTION 4.2. If any of the foregoing Events of Acceleration shall occur
and be continuing, then the Lender, in its sole discretion, from time to time
may: (a) by telex or written notice to the Borrower declare all or any portion
of the Loans, accrued interest thereon and all other amounts due hereunder to be
immediately due and payable, whereupon the same shall become immediately due and
payable without any other demand, presentment, notice or protest whatsoever, all
of which the Borrower hereby irrevocably waives; and/or (b) without prior notice
to the Borrower exercise any other right hereunder or available to the Lender at
law or in equity.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Amendments. Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower herefrom, shall
be effective unless the same shall be in writing and signed by the Lender and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 5.2. Costs and Expenses. The Borrower shall pay all costs and
expenses in connection with the preparation, execution, delivery, amendment and
enforcement of this Agreement, including the reasonable fees and out-of-pocket
expenses of counsel for the Lender with respect thereto.
SECTION 5.3. Jurisdiction. The Borrower hereby irrevocably consents and
agrees that any action or proceeding arising out of this Agreement may be
brought against the Borrower in any federal or state court sitting in Broward
County, Florida, and waives any objection which it may now or hereafter have to
the laying of venue by any such court in any such action or proceeding. The
Borrower also agrees that service of process in any such action or proceeding
shall be properly served upon it if delivered personally or sent by registered
airmail to the Borrower's address then registered on the Lender's books. Nothing
herein shall affect the Lender's right to serve process in any other manner
permitted by law or to bring actions or proceedings in any other competent
jurisdiction.
SECTION 5.4. Notices. Any notices which may be given to either party
hereunder shall be in writing and, if addressed to the Lender, sent to the
offices of the Lender located at 0000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx
00000, or to such other address as the Lender may hereafter notify the Borrower
in writing, and if addressed to the Borrower, sent to the address of the
Borrower from time to time on the Lender's books. Any such notice, if delivered
personally, by telex or telegram, shall be effective on the date when given, and
if sent by mail, shall be effective five Business Days after posting.
SECTION 5.5. Survival of Indemnities. The indemnities of the Borrower
to the Lender under this Agreement shall survive repayment of the Loans.
SECTION 5.6. Binding Effect: Governing Law. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Lender and their
respective successors and assigns. Neither party may assign all or any part of,
or any interest in, the rights hereunder and in the Loans, without the written
consent of the other party. This Agreement shall be governed by, and the rights
and obligations of the parties construed in accordance with, the laws of the
State of Florida.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Agreement to be executed and delivered in Broward County, Florida, by their
respective officers thereunto duly authorized, as of the date first above
written.
ENER1, INC.
By:/s/Xxxxx X. Light
Name:Xxxxx X. Light
Title:Chief Executive Officer
ENER1 TECHNOLOGIES, INC.
By:/s/R Xxxxxxx Xxxxxx
Name: R Xxxxxxx Xxxxxx
Title: Chief Financial Officer
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EXHIBIT A
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Gentlemen:
Please credit to our current account with you $__________ on
__________________, 200_.
Sincerely,
By:_____________________________
Name:
Title:
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