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FILED: NEW YORK COUNTY CLERK 06/28/2024 03:53 PM INDEX NO. 655379/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/28/2024
EXHIBIT 1
FILED: NEW YORK COUNTY CLERK 06/28/2024 03:53 PM INDEX NO. 655379/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/28/2024
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AGREEMENT NO. EAM-BEYOND/0409-2022 v.FINAL
PROJECT
BEYOND GROWTH FUND
This Agreement ("Agreement"), dated July 14, 2022, is between ETHOS ASSET
MANAGEMENT INC., a corporation, incorporated under the laws of California, having its principal
place of business at 4660 La Jolla Village Drive, San Diego, California, 92122, USA, herein represented by
Mr. CARLOS MANUEL DA SILVA SANTOS (“EAM”, “Lender” or “Party A”), and Beyond Limits,
Inc, having its principal place of business at 400 N. Brand Blvd, Glendale CA 91204 represented by Frank
Sansone ("Beyond" or “Party B”), and collectively with EAM, each a “Party”).
EAM and Beyond are herein referred to individually as a “Party” and collectively as the “Parties.”
Background
This Agreement codifies the desire between the Parties to enter into this financing agreement
pursuant to which EAM shall provide financing for to Beyond to further develop the Project, as specified
herein.
EAM warrants and commits to provide Party B with the full principal amount of $225,000,000. to
be funded to Party B in the following Phases: Phase A at $10,000,000, Phase B at $25,000,000, Phase C at
$50,000,000, Phase D at $60,000,000, and Phase E at $80,000,000.
Beyond warrants and commits to put in place and activate, for each Phase, the following collaterals:
for Phase A 20% of financing corresponding to $2,000,000; for Phase B 20% of financing corresponding
to $5,000,000; for Phase C 20% of financing corresponding to $10,000,000; for Phase D 20% of financing
corresponding to $12,000,000; for Phase E 20% of financing corresponding to $16,000,000.
The principal of the financing, applicable to each Phase, shall accrue interest annually at an at an
annual fixed interest rate of 1.5%.
Accordingly, in consideration of the mutual covenants herein contained, the Parties hereto,
intending to be legally bound hereby, agree as follows:
Article 1 Definitions
Terms defined in the preamble and the recitals of this Agreement have their assigned meanings,
and the following terms have the meanings assigned to them:
1.1 “Closing” means the consummation of the transactions that this Agreement
contemplates. The consummation of said transactions (the “Closing”) shall take place as soon as
reasonably possible after all conditions precedent to the Closing set forth in Section 3.5, Section 3.6, and
Article VI have been satisfied or waived in writing by the Parties. The Closing shall take place at the offices
of ETHOS ASSET MANAGEMENT INC., at 4660 La Jolla Village Drive, San Diego, California,
92122, USA, at 10:00 a.m. local time, or at such other time, date and place as may be agreed in writing by
the Parties.
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1.2 “Closing Date” means the due date of the last installment payment described in
Exhibit D.
1.3 “Effective Date” means July 14, 2022.
1.4 “Pledge Agreement” means the pledge undertaking to be entered into by and between
the Bank and Beyond in accordance with Exhibit C.
1.5 “Project” means the BEYOND GROWTH FUND the project described in Exhibit
E.
Article 2 Project
2.1 Formation and Purpose. The Parties agree to join efforts in this venture in accordance
with the terms of this Agreement for the purpose of developing the Phase A of the Project set forth in
Exhibit G.
2.2 Engagement in other activities. Beyond shall exclusively use the Principal towards the
Project Beyond described in Exhibit E including general business or corporate activities in furtherance of
EAM such Project.
2.3 No Liability. The debts, obligations and liabilities of Beyond other than those set forth in
this Agreement (whether arising in contract, tort or otherwise) in connection with the Project, shall be
solely the debts, obligations and liabilities of Beyond and neither EAM or its members shall be obligated
in its financial capacity for any such debt, obligation or liability (other than as set forth in this Agreement)
solely by reason of being a Party of this Agreement.
2.4 Status and Expenditure Compliance. The parties agree that Beyond shall provide to
EAM quarterly updates of the status of the Project, and such supporting documents and records related
to such project, subject to any confidentiality concerns, attorney-client privilege or where Beyond
reasonably determines there may be a conflict of interest.
Article 3 Funds, Collateral and Payment
3.1 Funds. Party A warrants and commits to provide Party B with the full principal amount
of $225,000,000. The said principal amount shall be funded to Party B in the following Phases:
Phase A Project of $10,000,000;
Phase B Project of $25,000,000;
Phase C Project of $50,000,000;
Phase D Project of $60,000,000
Phase E Project of $80,000,000
The Parties acknowledge and agree that this Agreement gives specific effect to Phase A, under
which Party A warrants and commits to provide Party B with the partial principal amount of
$10,000,000 (the “Funds”).
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The Parties agree that all the terms of this Agreement including the interest rate, shall be identically
replicated for each subsequent phase. The Parties further agree that this commitment shall cease to exist
if either of the Parties defaults in terms of Article 7.
3.2 Securities Regulation Exempt. The Parties acknowledge that the transaction involved
in this Agreement shall not be interpreted as a sale of securities pursuant to the Securities Act of 1933 or
by the Security Exchange Act of 1934 of the United States of America.
3.3 Collateral.
In consideration for the funds provided by Party A, or nominee, as established in 3.1, Party
B shall shall pledge funds per each phase as below:
for Phase A 20% of financing corresponding to $2,000,000;
for Phase B 20% of financing corresponding to $5,000,000;
for Phase C 20% of financing corresponding to $10,000,000;
for Phase D 20% of financing corresponding to $12,000,000;
for Phase E 20% of financing corresponding to $16,000,000.
The Parties acknowledge and agree that this Agreement specifically establish the terms
and conditions for Phase A under which Party B warrants and commits shall pledge funds (the
“Pledged Funds”) in the Pledge Account (as hereinafter defined) in an amount of $2,000,000.
The Pledged Funds will be established under the following rules
(i) Pledged Funds shall be reduced each successive year to equal 20% of the
outstanding principal.
(ii) The funds described above shall be deposited into a pledge account with the bank
set forth on Exhibit C (“Bank”) to secure Beyond obligation to make repayment
of the Funds pursuant to the terms of this Agreement as described in Exhibit C
(“Pledge Account”).
(iii) EAM and Beyond shall enter into a Pledge/Internal Block Funds Agreement
(“Pledge Agreement”) pursuant to which EAM will have certain rights to draw
funds from the Pledge Account upon a default by Beyond under the terms of this
Agreement.
(iv) Beyond shall cause Collateral Agent to purchase the securities in the manner
stipulated in the Pledge Agreement Section 5(a) and create the agreed upon
Margin of said securities.
(v) Beyond shall pass the agreed percentage of the margin value to EAM within 3
working days of margin being established by transferring the margin value to a
Beyond operating account and then passing to EAM designated bank.
(vi) Party A shall place the margin value in an account specifically designated to hold
margins prior to or simultaneous with the first disbursement of funds in
accordance with Exhibit D. Party A shall provide weekly statements of the account
to Party B to verify the margin value is remaining in the account. At any time during
the period of which the extensions of credit are outstanding, Party B may demand
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a statement of account from Party A in which Party A has one banking day to
produce such statement. Once Party B has received the first disbursement of the
Funds from Party A, Party A’s obligation under this clause 3.3(vi) will be
terminated.
(vii) The Pledged Funds shall be maintained in the Pledge Account until the date that
all Funds are repaid pursuant to Section 3.4(i) and Exhibit D, (the “Expiration
Date”) and serve as security for the repayment of the Funds described in Section
3.4 and under the conditions described in Exhibit D.
(viii) The balance required to be maintained in the Pledge Account shall be decrease
each year of the Term, as defined herein, that the Funds remain outstanding
beginning on the fourth anniversary date of this Agreement until the date all Funds
are completely repaid to Party B and are no longer subject to any claim from Party
A, as defined below. Beginning on the fourth anniversary date of this Agreement
and continuing on each anniversary date of this Agreement thereafter, Party B shall
be entitled to withdraw a cash amount of Pledged Funds from the Pledge Account
equal to the amount of principal paid to Party A in repayment of Funds, which are
not subject to good faith claims for an alleged Event of Default by Party B as
defined in this Agreement, made by Party A against the Pledge Funds that remain
unresolved ("Pledge Fund Claims").
(ix) Both Parties shall provide written instructions as necessary to the Depositary Bank,
to release the Pledged Funds in an amount that equals the amount of Principal
repaid by Party B to Party A in the previous year and any amounts for previous
years for which Party B may have elected, for any reason, not to withdraw from
the Pledge Account, minus any Pledge Fund Claims. As soon as each Pledge Fund
Claim is resolved to the mutual satisfaction of the Parties, the Parties shall deliver
written instruction to the Depositary Bank that the amount being held in the
Pledge Account on account of a Pledge Fund Claim has been resolved by the
Parties, and directing the Depositary Bank to deliver such Pledge Funds
immediately to Party B. When the balance of Funds remaining in the Pledge
Account equals or exceeds the remaining amount of Funds to be repaid by Party
B to Party A, the Parties agree that Party B shall have the right to credit the Pledged
Funds remaining that are not subject to any Pledge Fund Claims to reduce the
amount of the Funds required to be repaid to Party A, including the full repayment
of the Funds to Party A.
(x) IN NO EVENT SHALL EITHER PARTY HAVE ANY RIGHTS TO THE
PLEDGED FUNDS, EXCEPT AS SPECIFICALLY PROVIDED IN THE
PLEDGE AGREEMENT UNDER THE TERMS OF DEFAULT
DESCRIBED IN SECTION 7.1 HEREOF.
3.4 Repayment.
(i) Beyond shall repay EAM the full amount of funds provided by EAM, paying off
the financing mentioned in this Agreement on time (as set forth in Exhibit D) and
in full, and in compliance with all the obligations accepted by Beyond, and in
accordance with the General Repayment Data set forth in Exhibit D and described
in Section 3.8.
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(ii) Cancellation Upon Repayment. With the exception of the cancellation criteria
described in Section 7, the Pledge Agreement shall be cancelled upon full
Repayment in accordance with Section 3.4(i) and 3.8.
3.5 Condition for Funds. EAM will provide funds for the Project, if Beyond issues the agreed
Pledge Agreement, and if such Pledge Agreement is signed, delivered and verified and held in accordance
with the instructions provided by the Parties and under the terms stated in Section 3.4 and Article 4.
3.6 Funds Disbursement Schedule. In accordance with the terms and provisions set forth
herein, EAM will provide funds for the Project as stated in Section 3.1 in the form of installments to
Beyond with a maturity period of 12-years, subject to the grace period set forth on Exhibit D (the
“Disbursement Schedule”). The Disbursement Schedule includes the pre-approval of the conditions for
the disbursement of funds, approved and signed by the Parties as established in Exhibit D of this
Agreement.
3.7 Repayment period. In accordance with the terms of this Agreement, Beyond shall
complete repayment of the full amount of funds plus simple interest in a period of 12-years from the
Disbursement Date. Disbursement Date means the date of the first completed disbursement of the of the
Funds or any portion of it and shall be interpreted as of the date in which Beyond receives the respective
amount in its bank account or at a designated bank.
3.8 Prepayment. Funds received and accrued interest may be prepaid under the following
conditions.
(i) No consent required for prepayment in full with a notice of prepayment 90 days
prior.
(ii) Consent for any partial prepayment provided that such prepayment shall be
accompanied by notice and such consent shall not be unreasonably withheld.
(iii) All outstanding interest is paid. Calculated from the date of the prepayment event
to the maturity date of the financing.
3.9 Indemnification by each Party. Each Party agrees to indemnify and hold harmless the
other against any losses, claims, damages or liabilities, joint or several, to which EAM may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact by such Party in relation to
this Agreement, (ii) any breach by Beyond of any of its representations, warranties or covenants contained
herein, or (iii) the omission by such Party in relation to this Agreement to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; and will reimburse such EAM for any legal or other expenses reasonably
incurred by such Party in connection with investigating or defending any such loss, claim, damage, liability
or action, whether arising out of an action between such Party and a third party provided that such loss,
claim, damage or liability is found ultimately to arise out of or be based upon any of the facts set forth in
items (i) through (iii) in this Section 3.9.
3.10 Taxes, Duties and Fees. Each Party, individually and separately, will be responsible for
any tax or fee that may arise from this Agreement in connection with the development of the Project.
(i) Origination Fee. Ethos Asset Management assesses a 3% origination fee for all
financings. This fee is deducted from each tranche of the project financing.
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(ii) Intermediary Fee. Attributed Holdings International (AHI) receives a 2% success
fee for establishing opportunities, assisting our clients during the onboarding
process, developing, submitting and managing documentation, assisting in closing
the financing, conducting follow-up and support during all phases of the operation.
This fee is based on success and is deducted from each tranche of the financing
and paid to AHI directly by Ethos.
3.11 Confidential Information. All information contained herein constitutes confidential
information between the Parties and shall be kept confidential and shall not be disclosed by the Parties
provided however that the Recipient may disclose Information (a) pursuant to a requirement of law or a
regulatory body, provided that the Recipient (i) gives the Disclosing Party written notice of such fact so
that it may obtain a protective order or other appropriate remedy concerning any such disclosure; (ii)
cooperates fully with the Disclosing Party in connection with its efforts to obtain any such order or other
remedy; and (iii) discloses, where disclosure is necessary, only the Information legally required to be
disclosed, and uses its best efforts to have confidential treatment accorded to the disclosed Information;
(b) to its issuing bank or any other financial institution; (c) in furtherance of any obligations under the
Securities Act of 1934; (c) to its representatives, affiliates and assigns, but solely for the purposes of
evaluating, entering and performing this Agreement. The Information that is disclosed pursuant to this
paragraph shall remain confidential for all other purposes
Article 4 Pledge Procedure
4.1 The process for making the pledge of Pledged Funds shall be as follows:
(i) EAM and Beyond execute this Agreement and the Pledge Agreement with EAM.
(ii) EAM and Beyond, within a reasonable time, shall open the Pledge Account at
Bank. For that purpose, EAM can be a facilitator to this process.
(iii) Within a maximum of three days following execution of the Pledge Agreement,
Party B shall deposit the Pledged Funds into the Pledge Account, and give
instructions to the Collateral Agent to buy the Securities.
(iv) Within a maximum of three days Beyond will extend the margin value to EAM by
the prescribed method in 3.3 (v)
(v) After the Party A receives the Margin Value Facility, Party A will place the margin
value in an account specifically designated to hold margin values extended from
pledged funds accounts until the first disbursement of funds occurs.
(vi) After the Margin Value Facility is received EAM will make the disbursement of
funds, in accordance with the tranche schedule detailed in Exhibit D.
4.2 Bank Coordinates. The issuance and delivery of the Financial Instrument shall be
performed under EAM instructions and under the following bank coordinates:
(i) Beyond Security Bank Information
SECURITY BANK: TBD
BANK ADDRESS: TBD
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ACCOUNT NAME: TBD
ACCOUNT NUMBER: TBD
SWIFT CODE TBD
(ii) EAM’s Beneficiary Bank Information
Bank Name: CITIBANK N.A.
Bank Address: 399 PARK AVENUE WHQ, NEW YORK, NY 10022, USA
Account Name: ETHOS ASSET MANAGEMENT INC
Account Holder Address: 4660 La Jolla Village DR, San Diego, CA 92122
Account Number: 6780641032
Routing Number: 021000089
Swift Code/BIC: CITI US 33
(iii) Beyond’s Funds Disbursement Receiving Bank Information
RECEIVER BANK: TBD
BANK ADDRESS: TBD
ACCOUNT NAME: TBD
ACCOUNT NUMBER: TBD
SWIFT CODE TBD
Article 5 Representations and Warranties
5.1 EAM represents and warrants that as of the Effective Date:
(i) EAM is a duly formed and in good standing corporation under the laws of the
California, with full power and authority to perform its obligations herein.
(ii) This Agreement has been duly authorized, executed and delivered by EAM and,
upon due authorization, execution, and delivery by Beyond, will constitute the valid
and legally binding Agreement.
(iii) Neither EAM nor any of its subsidiaries has, nor any director, officer, agent,
employee or other person acting on behalf of EAM or any subsidiary has in the
course of his actions for or on behalf of EAM, used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; violated or is in
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violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or
employee. Without limiting the generality of the foregoing, EAM and its
subsidiaries have not directly or indirectly made or agreed to make (whether or not
said payment is lawful) any payment to obtain, or with respect to, sales other than
usual and regular compensation to its or their employees and sales representatives
with respect to such sales.
(iv) EAM, within the past ten years, has not violated or is in violation of any applicable
laws relating to terrorism or money laundering, including, without limitation, the
USA Patriot Act, or has not been engaged in or engages in any transaction,
investment, undertaking or activity that conceals the identity, source or destination
of the proceeds from any category of offenses designated in any applicable law,
regulation or other binding measure implementing the 40 Recommendations and
the IX Special Recommendations published by the Organization for Economic
Cooperation and Development’s Financial Action Task Force on Money
Laundering.
(v) EAM voluntarily signed this Agreement, free from any influence, enforcement, or
misrepresentation of any kind.
(vi) EAM has and will have for the full length of the disbursement schedule set forth
on Exhibit F sufficient funds held in unrestricted cash to advance the full amount
of the Funds set forth in Section 3.1
5.2 The Beyond represents and warrants that as of the Effective Date:
(i) Beyond is a duly formed and validly existing Corporation under the laws of the
state of Delaware, with full power and authority to perform its obligations herein.
(ii) This Agreement has been duly authorized, executed and delivered by Beyond and,
upon due authorization, execution, and delivery by EAM, will constitute the valid
and legally binding Agreement.
(iii) All information contained in the documents submitted to EAM by Beyond are
true.
(iv) Neither Beyond nor any of its subsidiaries has, nor any director, officer, agent,
employee or other person acting on behalf of Beyond or any subsidiary has in the
course of his actions for or on behalf of Beyond, used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or
employee. Without limiting the generality of the foregoing, Beyond and its
subsidiaries have not directly or indirectly made or agreed to make (whether or not
said payment is lawful) any payment to obtain, or with respect to, sales other than
usual and regular compensation to its or their employees and sales representatives
with respect to such sales.
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(v) Beyond has not violated or is in violation of any applicable laws relating to
terrorism or money laundering, including, without limitation, the USA Patriot Act,
or has not been engaged in or engages in any transaction, investment, undertaking
or activity that conceals the identity, source or destination of the proceeds from
any category of offenses designated in any applicable law, regulation or other
binding measure implementing the 40 Recommendations and the IX Special
Recommendations published by the Organization for Economic Cooperation and
Development’s Financial Action Task Force on Money Laundering.
(vi) Beyond voluntarily signed this Agreement, free from any influence, enforcement,
or misrepresentation of any kind.
Article 6 Conditions
6.1 EAM is obligated to consummate the transaction contemplated by this Agreement only if
each of the following conditions has been satisfied or waived on or before the “Closing” as defined in
section 1.2 herein:
(i) Representations and Warranties. The representations and warranties of Beyond
set forth herein must be true.
(ii) Covenants. Beyond shall have performed all its obligations and agreements set
forth in Section 4.1.
6.2 Beyond is obligated to consummate the transaction contemplated by this Agreement only
if each of the following conditions has been satisfied or waived on or before the “Closing” as defined in
section 1.2 herein
(i) Representations and Warranties. The representations and warranties of EAM
set forth herein must be true.
(ii) Covenants. EAM shall have performed all its obligations and agreements set forth
in Section 4.1.
Article 7 EVENTS OF DEFAULT
7.1 Event of Default by Party B. An event of default by Beyond will occur if any of the
following occurs:
(i) Beyond fails to pay EAM any amount due pursuant to this Agreement on the due
date set forth on Exhibit F and fails to remedy such failure within 10 (ten) business
days after written demand from EAM.
(ii) Beyond breaches any obligations, conditions, representations and warranties,
stated in this Agreement or the Pledge Agreement with EAM, if such obligation,
condition, representation or warranty is capable of being remedied, and Beyond
fails to remedy it within thirty (30) business days of receipt of written demand from
EAM.
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(iii) Upon an event of default by Beyond, the unpaid tranche amount will bear simple
interest from the date of the event of default to the date of cure at a rate the
payment date at a rate equal to 2% (TWO PERCENT) per annum, for the
duration of such event of default.
(A) Following an event of default by Beyond under Section 7.1, after the notice
and opportunity to cure provided therein, EAM will be entitled to call up
to the amount of the outstanding principal balance of the Funds from the
Pledge Account pursuant to the terms of the Pledge Agreement.
(B) In the event the Pledged Funds exceed the amount required to be paid to
Party A pursuant to Section 7.1(A), the remaining Pledged Funds shall be
released to Party B immediately,
(C) Any outstanding principal owed to EAM following payment of the Pledged
Funds to Party A under Section 7.1(A), will bear simple interest in
accordance with Section 7.1(iv) and in accordance with 8.2 Termination
for Default.
7.2 Event of Default by Party A. An event of default by EAM will occur if any of the
following occurs:
(i) EAM fails to make any disbursement within 30 calendar days following the
delivery of Beyond’s Notice.
(ii) EAM fails to pay Beyond any amount due pursuant to this Agreement on the due
date and fails to remedy such failure within 10 (ten) business days after its due
date.
(iii) EAM breaches any obligations, conditions, representations, and warranties,
stated in this Agreement or any other agreement it has entered into with Beyond,
if such obligation, condition, representation or warranty is capable of being
remedied, and EAM fails to remedy it within 10 (ten) business days of receipt of
written demand from Beyond.
(iv) Upon an event of default by EAM, the unpaid portion of any amount due to
Beyond will bear simple interest from the date of the event of default to the
payment date at a rate equal to two percent (2.00%) per annum, for the duration
of such event of default.
(A) Following an event of default by EAM Beyond shall unilaterally terminate
the Pledge Agreement and receive a full refund of any remaining Pledged
Funds,
(B) Any outstanding principal owed by Beyond shall be treated in accordance
with Section 8.6 but may be prepaid in advance without the prior
approval of EAM.
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Article 8 Termination
8.1 Term. The term of this Agreement (the “Term”) and the rights and obligations set forth
herein shall commence on the Effective Date and terminate on the Closing Date, unless terminated
earlier in accordance with Sections 8.2 and 8.3.
8.2 Termination for default. This Agreement shall terminate if any of the Events of Default
mentioned in Article 7 occurs. In the case the event of default is caused by Beyond under Section 7.1
Beyond shall complete Repayment, in accordance with the provisions of Article 7, of the remaining
principal and interest owed to EAM (after any reduction from exercising the payment of Pledged Funds)
within 30 business days. In the case the event of default is caused by EAM under Section 7.2, Repayment
shall not be required as further described in Section 8.6.
8.3 Termination. If Beyond issues collateral which does not fulfil the conditions stated in
Section 3.4, EAM may terminate this Agreement at any time and without any prior written notice to
Beyond. In this case, EAM shall be entitled to a refund of the full amount of Funds transferred or
disbursed to Beyond.
8.4 Effect of Termination. Upon termination or expiration of this Agreement, each Party
shall promptly return to the other EAM relevant records and materials in its possession or control
containing or comprising the other Party’s Confidential Information and to which the Party does not
retain rights hereunder; provided, however, that each Party shall be entitled to retain copies of the other
Party’s Confidential Information to the extent necessary to comply with applicable regulatory obligations
and shall be entitled to retain one copy of the other Party’s Confidential Information for archival purposes.
8.5 Survival. In the event of the expiration or early termination of this Agreement, the
provisions of Sections 3.2, 3.9, 8.4 and 3.10 (to the extent related to an action or claim originating before
such expiration or termination), and Article 5 and Article 9 and such other provisions that by their terms
should reasonably be judged to survive expiration or termination, shall survive for the period specified
therein or, in the absence of such specification, indefinitely.
8.6 Termination for Lack of Funds. In the event EAM fails to provide any advance of the
Funds to Beyond as set forth in Section 3.1 and Exhibit D (or any other event of default under Section
7.2), totally or partially, Beyond shall unilaterally terminate this Agreement at any time and without any
prior written notice to EAM. In this case:
(i) The Funds provided to Beyond at the time of the failure will remain as indemnification for
the non-compliance of funding obligations in benefit of Beyond.
(ii) Beyond will have no further Repayment owing to EAM.
(iii) All collateral provided by Beyond and set forth in this Agreement shall be cancelled,
including the Pledge Agreement described in Sections 3.3 and 3.4.
Article 9 Miscellaneous
9.1 Amendments. The Parties may amend this Agreement only by an agreement in writing
that both Parties executed.
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/28/2024
EAM-BEYOND/0409-2022
v.Final
9.2 Force Majeure. This Agreement shall be subject to the ICC Force Majeure Clause 2003.
Neither Party hereto shall bear any responsibility for the full or partial non-fulfilment of its contractual
obligations if this non-fulfilment is due to Force Majeure circumstances, as stated by the ICC latest edition,
arisen after the signature of the present Agreement. The fulfilment term of the contractual obligations of
either Party hereto shall accordingly be postponed for the period during which such circumstances remain.
Either Party hereto shall be obliged to immediately inform the other about the beginning, probable
duration and cessation of the Force Majeure circumstances. The non-notification about the Force Majeure
circumstances shall cancel the right of either Party hereto to make reference to them under the present
Agreement.
9.3 Merger. This Agreement is the final and exclusive statement of the Parties’ agreement on
the matters contained in this letter. It supersedes all previous negotiations and agreements.
9.4 Counterparts. The Parties may execute this Agreement in one or more counterparts, each
of which is an original, and all of which constitute only one agreement between the Parties.
9.5 Assignment and Delegation. No party may assign any right or delegate any performance
under this Agreement. All assignments of rights are prohibited, whether they are voluntary or involuntary,
by merger, consolidation, dissolution, operation of law, or any other manner. A purported assignment or
purported delegation in violation of this Section 9.5 is void.
9.6 Successors and Assigns. This Agreement binds and benefits the parties and their
respective permitted successors and assigns.
9.7 Notices. The Parties shall send all notices in writing and give all consents in writing. A
notice or consent is effective when the intended recipient receives it by mail or e-mail.
If to ETHOS ASSET MANAGEMENT INC.
Mr. CARLOS MANUEL DA SILVA SANTOS
CEO
4660 La Jolla Village Drive, San Diego, California, 92122, USA
carlos@ethosasset.com
If to Beyond Limits, Inc.
Frank Sansone
CFO
400 N. Brand Blvd, Glendale CA 91204
fsansone@beyond.ai
9.8 Exhibits. Attached hereto and incorporated herein by this reference are the following
exhibits: Exhibit A, Exhibit B, Exhibit C, Exhibit D and Exhibit E.
9.9 Severability. If any provision of this Agreement is illegal or unenforceable, that provision
is severed from this Agreement and the other provisions remain in force.
9.10 [Reserved].
English Language. All documentation and information related to this Agreement shall be conducted in
English
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FILED: NEW YORK COUNTY CLERK 06/28/2024 03:53 PM INDEX NO. 655379/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/28/2024
EAM-BEYOND/0409-2022
v.Final
9.11 Dispute Resolution. In the event of any dispute arising out of