EXHIBIT 10.13
BRIDGE LOAN AGREEMENT
THIS BRIDGE 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ("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 bridge loan in the amount of
$100,000 the "Bridge Loan Amount," 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").
2. FUNDING OF BRIDGE LOAN. No later than five business days
after the execution of this Agreement, Ener1 shall effect wire transfers of
immediately available funds of the Bridge Loan Amount. The date upon which
Splinex's bank has confirmed receipt of such funds in Splinex's account shall
be the "Funding Date."
3. INTEREST. The Bridge Loan Amount shall accrue interest at the
rate of 5% per annum.
4. BRIDGE LOAN REPAYMENT. Splinex has a Revolving Debt Funding
Commitment Agreement with Bzinfin S.A., pursuant to which it may borrow
$2,500,000 (the "Bzinfin Funding") that will be effective upon the occurrence
of certain events, including without limitation the closing of a merger between
Splinex and Ener1 Acquisition, Inc. Splinex shall repay the Bridge Loan Amount,
and any interest that has accrued, from the proceeds of the Bzinfin Funding or
any other private investment in Splinex within the earlier of: (i) February 21,
2005 or (ii) five business days of receiving the aggregate of $1,250,000 from
the Bzinfin Funding, any other such private investment, or revenues.
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 Bridge 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
1
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:
2
(a) If to Ener1, to:
Ener1 Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇, President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other Person or address as Ener1 shall furnish by notice to the
other parties in writing.
(b) If to Splinex, to:
Splinex Technology Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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., SPLINEX TECHNOLOGY INC.
/s/ ▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: President and CEO
3
NOTE
$100,000.00 NOVEMBER 2, 2004
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 One Hundred
Thousand Dollars ($100,000) or such lesser amount as shall then equal the
outstanding principal amount hereof (the "Bridge Loan Amount"), together with
interest 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 Bridge Loan Agreement.
1. TERM. The Company shall repay the Bridge Loan Amount, and any
interest that has accrued, from the proceeds drawn pursuant to that certain
Revolving Debt Funding Commitment Agreement between the Company and Bzinfin,
S.A. or any other private investment in Splinex within the earlier of: (i)
February 21, 2005 or (ii) five business days of receiving the aggregate of
$1,250,000 from the Bzinfin Funding, any other such private investment, or
revenue.
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.
1
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.
2
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 Bridge Note to be
issued as of the date first written above.
Splinex Technology Inc., a Delaware corporation
By:
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and CEO
3
