TERM CREDIT AGREEMENT
THIS TERM CREDIT AGREEMENT (this "Agreement") is made and entered into
as of December 24, 2004, by and among IDI GLOBAL, INC., a Nevada corporation
("Borrower"), HONG KONG LEAGUE CENTRAL CREDIT UNION, a corporation organized
under the laws of Hong Kong, in its capacity as a lender hereunder (the
"Lender"), and SBI ADVISORS, LLC, a California limited liability company, in its
capacity as agent for Lender ("Agent"), with reference to the following:
WITNESSETH:
WHEREAS, Lender desires to make a Term Loan to Borrower, and Borrower
desires to borrow from Lender the amount of such Term Loan, subject to and in
accordance with the terms and conditions set forth herein, and in the Note; and
WHEREAS, Lender desires to appoint Agent, and Agent desires to accept
such appointment, to act as agent for and on behalf of Lender, with respect to
the Term Loan, for the purposes described herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the delivery,
receipt, and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, twenty percent (20%) or more of the capital stock
or other Equity Interests having ordinary voting power in the election of
directors, managers or other Persons having the ability to manage the affairs of
that Person, (b) each Person that controls, is controlled by or is under common
control with that Person, (c) each of that Person's officers, directors,
members, managers, joint venturers (in the case of a contractual joint venture)
and partners in any partnership and (d) in the case of Borrower, the immediate
family members, spouses and lineal descendants of individuals who are otherwise
Affiliates of Borrower. For purposes of this definition, "control" of a Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of its management or policies, whether through the ownership of
voting securities, by contract or otherwise.
"Agent's Parties" has the meaning set forth in Section 9(d).
"Approved Financing" means a one-time debt financing transaction of
Borrower (a) in an amount not to exceed $400,000, (b) at an interest rate equal
to eight percent (8%) per annum, (c) containing the right of the lender
thereunder to convert the debt represented thereby into capital stock of
Borrower at a conversion rate of no less than $0.70 per share, (d) on
substantially the terms set out in the convertible note attached as Exhibit 10.3
to the Borrower's Form 10KSB
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for the year ended December 31, 2003, and otherwise containing such other terms
and conditions as are approved in writing by Agent, its sole discretion.
"Approved Transaction" means the transaction referred to and
consummated in accordance with the terms described on Schedule I hereto.
"Borrower Financial Statements" has the meaning set forth in Section
3(g).
"Borrower SEC Documents" has the meaning set forth in Section 3(g).
"Brightline" has the meaning set forth in Section 4(b).
"Business Day" means a day (a) other than Saturday or Sunday, and (b)
on which commercial banks are open for business in New York, New York, and Los
Angeles, California.
"Closing Date" means the date each of the conditions precedent set
forth in Section 5 hereof is fully satisfied.
"Equity Interests" means, with respect to any Person, all of the shares
of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of determination.
"Event of Default" has the meaning set forth in Section 7.
"Exchange Act" has the meaning set forth in Section 3(e).
"Interest Rate" has the meaning set forth in Section 2(c).
"Lien" means any mortgage, deed of trust, pledge, security interest,
assignment, deposit arrangement, charge or encumbrance, lien (statutory or
other) including any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing.
"Maturity Date" has the meaning set forth in Section 2(b).
"Note" has the meaning set forth in Section 2(d).
"Person" means an individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or any other
juridical entity.
"Permitted Lien" means those Liens disclosed on Schedule II attached
hereto.
"Restricted Payment" means (a) the declaration or payment of any
dividend or the incurrence of any liability to make any other payment or
distribution of cash or other property or
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assets in respect of a Person's Equity Interests, (b) any payment on account of
the purchase, redemption, defeasance, sinking fund or other retirement of a
Person's Equity Interests or any other payment or distribution made in respect
thereof, either directly or indirectly, (c) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire Equity Interests of such Person now
or hereafter outstanding, (d) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase or sale
of, any such Person's Equity Interests or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission; (e) any payment, loan, contribution, or other transfer of
funds or other property to any stockholder of such Person who is the beneficial
owner of more than 5% of the capital stock of such Person other than payment of
compensation in the ordinary course of business to stockholders who are
employees of such Person; and (f) any payment of management fees (or other fees
of a similar nature) by such Person to any stockholder of such Person or their
Affiliates.
"SEC" has the meaning set forth in Section 3(g).
"Securities Purchase Agreement" has the meaning set forth in Section
4(b).
"Term Loan" has the meaning set forth in Section 2(a).
2. Amount and Terms of the Term Loan.
(a) Term Loan Advance. Subject to the terms and conditions of
this Agreement, the Lender hereby agrees to make a loan to Borrower (the "Term
Loan") on the Closing Date in the aggregate amount of One Million Seven Hundred
Fifty Thousand Dollars (US$1,750,000), which amount may be repaid at any time
prior to the Maturity Date without premium or penalty, but may not be reborrowed
once repaid.
(b) Term. All unpaid principal and accrued but unpaid interest
of the Term Loan shall, subject to subsection (c) below, be payable in full on
(i) May 24, 2005 or (ii) November 23, 2005 if Borrower elects to extend the term
of repayment of the Term Loan as provided in the following sentence (as
applicable, the "Maturity Date"). Borrower may at its option elect to extend the
Maturity Date from May 24, 2005 to November 23, 2005 if prior to May 24, 2005
Borrower (A) gives Lender written notice that Borrower will extend the term of
repayment of the Term Loan to November 23, 2005; (B) Borrower pays Lender an
extension fee in the amount of five percent (5%) of the then outstanding
principal balance of the Term Loan; and (c) an Event of Default has not occurred
and is continuing under any provision or covenant of this Agreement and there is
no event or circumstance which, with the lapse of time or giving of notice or
both of the foregoing, would constitute an Event of Default.
(c) Interest Rate and Interest Payments. Borrower shall pay
interest on the unpaid principal amount of the Term Loan from the Closing Date
until the Maturity Date, at a rate equal to two percent (2%) per month (the
"Interest Rate"). Subject to Section 2(e) and 2(g) below, interest on the
outstanding principal amount of the Term Loan shall be due and payable to Agent,
for the ratable benefit of Lender on the last Business Day of each calendar
month,
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commencing on the first of such dates following the Closing Date until the
Maturity Date, at which time all accrued but unpaid interest shall be due and
payable.
(d) Promissory Note. The Term Loan shall be evidenced by a
promissory note (the "Note") in the form of Exhibit "A-1" attached hereto, duly
executed and delivered to Agent by Borrower.
(e) Interest on Event of Default. Upon the occurrence and
during the continuance of an Event of Default, Borrower agrees to pay interest
on the entire unpaid principal amount of the Term Loan, as well as on any
interest or other amount past due, from the date of such Event of Default until
the date the same is cured in full, payable on demand, at a rate per month equal
at all times to two and one-half percent (2.5%).
(f) Manner of Payment. All payments of principal or interest
hereunder or under the Note shall be delivered to Agent, for the ratable benefit
of Lender, in immediately available funds on the date due at such place as Agent
may from time to time designate.
(g) Limitation on Interest Rate. In no contingency or event
whatsoever shall the aggregate of all amounts deemed interest hereunder and
charged or collected by Agent or Lender or any holder of a Note exceed the
highest rate permissible under any law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that Agent or any Lender has charged or received interest
hereunder and under the Note, in excess of the highest applicable rate, the rate
in effect hereunder and under the Note, shall automatically be reduced to the
maximum rate permitted by applicable law, and Agent and Lender shall apply all
interest paid in excess of the maximum lawful rate first to amounts owed
pursuant to Section 9(d) and thereafter to the principal balance of the amounts
outstanding hereunder and under the Note. It is the intent of the parties hereto
that Borrower not pay or contract to pay, and that Agent and Lender not receive
or contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by Borrower to Agent and Lender
under applicable law.
3. Representations and Warranties. In order to induce Agent and Lender
to enter into this Agreement and to make the Term Loan contemplated hereunder,
Borrower hereby represents and warrants to Agent and Lender that, except as
described or referred to in the Company's filings with the United States
Securities and Exchange Commission (the "SEC") prior to the date hereof, as
follows:
(a) Legal Status. Borrower is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Nevada.
Borrower is qualified or licensed to do business, and is in good standing as a
foreign corporation in all jurisdictions in which such qualification or
licensing is required or in which the failure to so qualify or to be so licensed
could have a material adverse effect on Borrower.
(b) Authorization and Validity. This Agreement and the Note
have been duly authorized, and upon their execution and delivery in accordance
with the provisions hereof and thereof will constitute legal, valid and binding
agreements and obligations of Borrower, enforceable in accordance with their
respective terms.
(c) No Conflict. The execution, delivery, and performance by
Borrower of this Agreement and the Note do not and will not conflict with the
terms of the Certificate of
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Incorporation or bylaws of Borrower, violate any provision of any judgment,
decree or order of any court or governmental authority by which Borrower is
bound, or any provision of any law or regulation applicable to Borrower, or
result in a breach of or constitute a default under any contract, obligation,
indenture, or other instrument to which Borrower is a party or by which Borrower
may be bound.
(d) No Consents. The execution, delivery, and performance by
Borrower of this Agreement and the Note do not and will not require any
authorization, approval, or other action by, or notice to or filing with, any
governmental authority, regulatory body, or any other person or entity.
(e) Use of Proceeds. No proceeds of the Term Loan will be used
to acquire any equity security of a class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(f) Margin Stock. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of the Term Loan will be used to purchase or
carry any margin stock or extend credit to others for the purpose of purchasing
or carrying any margin stock, or be used for any purpose which violates or is
inconsistent with the provisions of Regulation X of said Board of Governors.
(g) SEC Documents; Financial Statements. Borrower has
furnished or otherwise made available to Agent a true and complete copy of each
statement, report, registration statement, definitive proxy statement, and other
filing filed with the United States Securities and Exchange Commission (the
"SEC") by Borrower since December 31, 2002 (collectively, the "Borrower SEC
Documents"). All documents required to be filed as exhibits to the Borrower SEC
Documents (other than earnings press releases) have been so filed, and all
material contracts so filed as exhibits are in full force and effect except
those that have expired in accordance with their terms, and neither Borrower nor
any of its subsidiaries is in default thereunder. As of their respective filing
dates, the Borrower SEC Documents complied in all material respects with the
requirements of the Exchange Act, and the Securities Act of 1933, as amended,
and none of the Borrower SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
in which they were made, not misleading, except to the extent corrected by a
subsequently filed Borrower SEC Document prior to the date hereof. The financial
statements of Borrower, including the notes thereto, included in the Borrower
SEC Documents (the "Borrower Financial Statements"), complied as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto as of their respective
dates, and have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent throughout the periods indicated and
consistent with each other (except as may be indicated in the notes thereto or,
in the case of unaudited statements included in Quarterly Reports on Form 10-Q,
as permitted by Form 10-Q of the SEC). The Borrower Financial Statements fairly
present the consolidated financial condition and operating results of Borrower
and its subsidiaries at the dates and during the periods indicated therein
(subject, in the case of unaudited statements, to normal, recurring year-end
adjustments) in conformity with accounting
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principles generally accepted in the United States. There has been no material
change in Borrower's accounting policies except as described in the notes to the
Borrower Financial Statements. Since December 31, 2003, no event has occurred
that would have required the filing of any report that otherwise would have been
included among the Borrower SEC Documents and for which an appropriate report
was not filed.
4. Covenants. Borrower hereby covenants that until all amounts
outstanding hereunder and under the Note have been indefeasibly paid in full, it
shall:
(a) Punctual Payments. Punctually pay the interest and
principal with respect to the Term Loan as provided herein and in the Note.
(b) Existence. Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its existence and comply with
the provisions of all documents pursuant to which it is organized and/or which
govern its continued existence; maintain all licenses, permits, governmental
approvals, rights, privileges, and franchises necessary for the conduct of its
business; and, other than through the performance of (i) agreements entered into
in connection with that certain Securities Purchase Agreement (the "Securities
Purchase Agreement"), dated as of December 24, 2004 by and between Borrower and
SBI Brightline X, LLC, a Delaware limited liability company ("Brightline"), an
Approved Financing and the Approved Transaction and (ii) any agreements entered
into prior to the date of this Agreement that are described in or attached as an
exhibit to the Borrower SEC Documents conduct its business in an orderly and
regular manner and in accordance with all laws, rules, regulations, and orders
of any governmental authority having jurisdiction over it or its business.
(c) Books and Records. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Agent or any Lender, at any reasonable time, to
inspect, audit and examine such books and records, to make copies of the same,
and to inspect its assets and properties, subject to execution of a reasonable
confidentiality agreement; provided, however, that any such inspection, audit or
examination shall be conducted in a reasonable manner intended to minimize the
impact thereof on the operations of Borrower and in no event shall Borrower be
required to disclose any of its or any third parties' source code or other trade
secrets.
(d) No Liens. Not create or permit to exist any Lien on or
with respect to any property whatsoever of Borrower except for Permitted Liens.
(e) Fundamental Changes. Not (i) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), (ii) merge with or
consolidate into any Person, (iii) purchase or otherwise acquire all or
substantially all of any business, division or product line of any Person or all
or substantially all of the assets, equity interests, obligations or other
securities of any Person other than the Approved Transaction, or (iv) sell,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets.
(f) Transactions with Related Parties. Other than through the
performance of (i) agreements entered into in connection with the Securities
Purchase Agreement, an Approved Financing and the Approved Transaction and (ii)
any agreements entered into prior to the date of this Agreement that are
described in or attached as an exhibit to the Borrower SEC Documents,
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not enter into any transaction, including the purchase, sale or exchange of
property or the rendering of any services, with any Affiliate, or enter into,
assume or suffer to exist any employment or consulting contract with any
Affiliate, except a transaction or contract which is in the ordinary course of
Borrower's business and which is upon fair and reasonable terms not less
favorable to Borrower than it would obtain in a comparable arm's length
transaction with a Person not a Affiliate.
(g) Restricted Payments. Other than through the performance of
(i) agreements entered into in connection with the Securities Purchase
Agreement, an Approved Transaction and the Approved Financing, and (ii)
agreements entered into prior to the date of this Agreement that are described
in or attached as an exhibit to the Borrower SEC Documents, not declare, make,
pay or set aside any funds for the payment of any Restricted Payment.
(h) Preservation of Assets. Maintain, preserve and protect all
of its properties, assets, equipment and facilities in good order and working
repair and condition (taking into account ordinary wear and tear) and from time
to time make, or cause to be made, all needful and proper repairs, renewals and
replacements thereof all as in the judgment of Borrower may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent Borrower from discontinuing the operation and maintenance
of any of its properties if such discontinuance is, in the reasonable judgment
of the Borrower, desirable in the conduct of its business and is not
disadvantageous in any material respect to Lender.
(i) Shareholder Information. Send to Agent copies of any
notices or other information made available or given to the stockholders of
Borrower generally, contemporaneously with the making available or giving
thereof to the stockholders
(j) Press Releases. Include Agent on its list for press
releases and shall provide Agent with all press releases in the same manner and
at the same time as others on such distribution list.
(k) Reporting Status. File all reports required to be filed
with the SEC pursuant to the Exchange Act, and not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would otherwise permit such termination.
5. Closing Deliveries. At closing Agent shall have received each of the
following, each in form and substance satisfactory to Agent:
(a) This Agreement, duly executed by all of the parties
hereto;
(b) The Note, duly executed by Borrower;
(c) A Warrant in favor of Agent to purchase 525,000 shares of
the Common Stock of Borrower in the form attached hereto as Exhibit B;
(d) A Registration Rights Agreement in favor of Agent in the
form attached hereto as Exhibit C duly executed by Borrower;
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(e) The Board of Directors of Borrower shall have adopted
resolutions authorizing the execution, delivery and performance of this
Agreement and every other agreement, note or instrument signed or to be signed
in connection therewith: and
(f) Such additional supporting documents as Agent or its
counsel, or any Lender or its counsel, may reasonably request.
6. Survival of Representations and Warranties. Borrower covenants,
warrants and represents to Agent and Lender that all representations and
warranties of Borrower contained in this Agreement or the Note shall be true at
the time of Borrower's execution of this Agreement and the Note, shall survive
the execution, delivery and acceptance thereof by Agent and the parties thereto
and the closing of the transactions described therein or related thereto.
7. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" and shall, at the option of Lender (except for
subparagraph (e) in which case all amounts shall be automatically accelerated),
require immediate payment in full of all sums then remaining unpaid hereunder
and under the Note:
(a) Failure to Pay the Note. The failure of Borrower to pay
any principal, interest or other amount due under the Note when due and payable.
(b) Breach of Covenant, Representation or Warranty. The
failure of Borrower to perform or observe any covenant, condition or agreement
contained in this Agreement (other than the payment obligations, the breach of
which shall be governed by subsection (a) above) where such failure is not cured
within five (5) Business Days, or any representation or warranty made by it
under this Agreement shall prove to have been false or misleading in any
material respect when made.
(c) Cross-Default. The Securities Purchase Agreement shall
have been terminated by Brightline pursuant to Section 5.01(a) thereof.
(d) Liens. Borrower creates, incurs, assumes or suffers to
exist any Lien upon or with respect to any of its properties or assets whether
now owned or hereafter acquired, including, without limitation, any
governmental, tax, or judgment Lien, other than Permitted Liens, and fails to
have the same removed or released within two (2) Business Days after the
creation thereof.
(e) Insolvency. Borrower shall become insolvent; admit in
writing its inability to pay its debts as they mature; make an assignment for
the benefit of creditors; or if bankruptcy proceedings or other proceedings for
relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by or against it and, if instituted against it, the same is not
dismissed within sixty (60) days of the filing thereof.
(f) Dissolution. Any order, judgment, or decree shall be
entered against Borrower decreeing its involuntary dissolution or split up and
such order shall remain undischarged and unstayed for a period in excess of
sixty (60) days; or Borrower shall otherwise dissolve or cease to exist.
(g) Certain Judgments and Orders. A levy or writ of attachment
or garnishment or other like judicial process is filed or issued against or upon
Borrower, or a final
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judgment or order for the payment of money in excess of $100,000 which is not
fully covered by insurance is rendered against Borrower and remains unpaid,
unbonded, unvacated or unstayed for a period of 30 days after the entry thereof.
8. Remedies. If an Event of Default shall occur, (a) all amounts
outstanding hereunder and under the Note, notwithstanding any term of this
Agreement or the Note to the contrary, shall at Lender's option by notice to
Borrower become immediately due and payable, without presentment, demand,
protest or notice of dishonor, all of which are hereby expressly waived by
Borrower, and (b) Lender shall have all rights, powers and remedies available
hereunder, or accorded by law. All rights, powers and remedies of Lender in
connection with this Agreement and the Note may be exercised at any time by
Agent, are cumulative and not exclusive, and shall be in addition to any other
rights, powers or remedies provided by law or equity.
9. Agent.
(a) Appointment and Authorization. Lender, for itself and its
successors and assigns, hereby irrevocably appoints Agent as its agent (and
Agent hereby accepts such appointment) to take such actions on its behalf and to
exercise such powers under this Agreement or the Note as are herein or therein
delegated to Agent or are, in the judgment of Agent, reasonably incidental to
the rights and powers so delegated. Agent shall not by reason of this Agreement
have any fiduciary relationship to any Lender, but shall act solely as an agent
for Lender; nor shall Agent have any agency or fiduciary relationship to
Borrower. The provisions of this Section 9 are solely for the benefit of Agent
and Lender, and Borrower shall have no right as a third party beneficiary
hereof.
(b) Approval of Lender. In performing its functions under this
Agreement, except as otherwise expressly provided herein, Agent shall have the
authority (but not the obligation), on behalf of Lender, to make any decision,
to take any action or refrain from taking any action and to give any consent or
waiver that it may deem advisable; provided, however, that the written approval
of Lender shall be required for any amendment, modification, termination or
waiver of any provision of this Agreement or the Note, or any action or
assertion of rights (or any rescission of any such action or assertion of
rights) against Borrower upon the occurrence of an Event of Default.
(c) No Implied Duties; Agent's Exercise of Discretion. The
only duties and obligations of Agent under this Agreement or the Note are those
that are expressly set forth herein or therein. Agent shall be entitled to use
its discretion in exercising or refraining from exercising any rights which may
be so vested in it, or in taking or refraining from taking any action which it
may be so empowered to take, unless the matter is one as to which Agent may not
act or refrain from acting without the prior written approval of Lender pursuant
to Section 9(b) above. Notwithstanding the foregoing, Agent shall not be
required to act or not act in accordance with Lender' instructions if to do so
would result, in the reasonable judgment of Agent, in a substantial risk of
liability to Agent or would be contrary to this Agreement or the Note or
applicable law.
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(d) Indemnification. Lender shall indemnify, defend and hold
harmless Agent and its shareholders, directors, officers, employees, agents,
attorneys and Affiliates and their respective successors and assigns (the
"Agent's Parties") pro rata according to their respective pro rata interests in
the Term Loan, from and against any and all liabilities, obligations, demands,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
(including, without limitation, attorneys' fees and expenses and court costs,
whether or not suit is filed) or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against Agent's Parties in any
way relating to or arising out of this Agreement, the Note or any action taken
or omitted to be taken by Agent's Parties in connection with this Agreement or
the Note, except that no Lender shall be liable to Agent's Parties for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses or disbursements resulting from the
gross negligence or willful misconduct of any of Agent's Parties. Further,
Lender, severally, shall reimburse Agent upon demand for that Lender's ratable
share of any costs or expenses incurred by Agent in connection with the
amendment, waiver, refinancing, restructuring (including a restructuring
incident to a bankruptcy reorganization) or enforcement of this Agreement or the
Note.
10. Miscellaneous.
(a) Approved Financing. Lender and Agent agree that Borrower
may complete one Approved Financing at any time when amounts are outstanding
hereunder or under the Note, but only so long as Borrower makes no payment under
such debt other than interest and takes no action to satisfy such debt prior to
the full and complete repayment and satisfaction by Borrower of all amounts
outstanding hereunder or under the Note.
(b) Failure or Indulgence Not Waiver. No failure or delay on
the part of Agent, Lender, or any holder of a Note in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof or of any other right, power or privilege.
(c) Modification. No modification, amendment or waiver of any
provision of this Agreement or the Note, nor the consent to any departure by
Borrower therefrom, shall in any event be effective unless the same shall have
been approved by Agent and Lender and shall be in writing signed by Agent and
Lender and, with respect to any amendment, Borrower. Such waiver or consent
shall then be effective only in the specific instance and for the purpose for
which given. No notice to or demand on Borrower in any case shall entitle
Borrower to any other or further notice or demand in the same, similar or other
circumstances.
(d) Notices. Except as otherwise expressly provided herein,
any notice herein required or permitted to be given shall be in writing and
shall be deemed effective when personally delivered, mailed, telecopied (with a
confirming copy sent by mail) or delivered by telex to the appropriate party at
the address set forth below (or at such other address as may be designated by
either party in a written notice sent in accordance with this Section):
If to Borrower: IDI Global, Inc.
000 Xxxx 000 Xxxxx,
Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
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with a copy to: Xxxxxxx Xxxxx & Xxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx III
If to Hong Hong Kong League Central Credit Union
Kong League Party Xxxx 0-0, X/X, Xxx Xxx Xxxxx
Xxxxxxx Credit Xxxx Xxxx Estate, Kowloon, Hong Kong
Union: Facsimile: x000-0000-0000
with a copy to: SBI Advisors, LLC
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
If to Agent: SBI Advisors, LLC
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Durham Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(e) Severability. In case any provision in this Agreement or
the Note shall be invalid, illegal or unenforceable, such provision shall be
severable from the remainder of such contract and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(f) Applicable Law; Venue. This Agreement, the Note and the
rights and obligations of the parties thereto shall be governed by the laws of
the State of Utah, exclusive of its conflicts of laws and choice of laws rules
that would or may cause the application of the laws of any jurisdiction other
than the State of Utah. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the city of Los Angeles,
California, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the transaction documents),
and hereby irrevocably waives, and agrees not to assert in any suit,
11
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
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 via registered or certified mail or overnight delivery
(with evidence of delivery) 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.
(g) Assignability. Borrower shall not assign its rights or
obligations hereunder, or under the Note to any other Person without the prior
written consent of Agent and Lender, and any attempted assignment in violation
hereof shall be null and void ab initio. Agent and Lender shall have the right
to assign their rights and obligations hereunder and no consent or approval from
Borrower is required in connection with any such assignment.
(h) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(i) Section Headings. The various headings used in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretations of this Agreement or any provision hereof.
(j) Attorneys' Fees. In the event any party institutes any
action or proceeding to enforce the terms and conditions of this Agreement or
the Note, the prevailing party shall be entitled to reasonable attorneys' fees
and costs.
(k) WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON
THIS AGREEMENT, THE NOTE, OR THE SUBJECT MATTER HEREOF AND THEREOF OR ANY
DOCUMENT RELATING HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING OR WHETHER IN CONTRACT, TORT OR OTHERWISE.
(l) Integration. This Agreement, the Note and the Exhibits
hereto reflect the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, whether before or after the date hereof.
(m) Expenses. Borrower will pay, and save the Lender, Agent
and Brightline (as defined below), and their respective Affiliates, harmless
from and against any and all liability for the payment of (i) all costs and
other expenses incurred from time to time by Borrower in connection with
Borrower's performance of and compliance with all agreements and conditions
contained in this Agreement or in the Stock Purchase Agreement, on its part to
be performed or complied with (including the reasonable costs and expenses of
counsel incurred in connection with the review and preparation of this Agreement
and the Stock Purchase Agreement), (ii) the actual, out-of-pocket costs and
expenses incurred by the Lenders and Agent (and their respective Affiliates) in
connection with the transactions contemplated hereby and incurred by Brightline
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(and its Affiliates) in connection with the transactions contemplated by the
Stock Purchase Agreement, and (iii) the reasonable costs and expenses incurred
by the Lenders, Agent and Brightline (and their respective Affiliates) in
connection with any amendment or waiver of, or enforcement of (provided that in
connection with any enforcement action, such Purchaser is the prevailing party)
this Agreement or the Stock Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto do execute this Agreement as of
the date first above written.
"BORROWER"
IDI GLOBAL, INC., a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxx
----
Name: Xxxxx X. Xxxxxxxx
Title: President
"AGENT"
SBI ADVISORS, LLC, solely in its capacity as
Agent hereunder
By: /s/ Xxxxxx Xxxxxxxx
----
Name: Xxxxxx Xxxxxxx
Title:
"LENDER"
HONG KONG LEAGUE CENTRAL CREDIT
UNION
By: /s/ Xxxxxx Xxxxxxxx
----
Name: Xxxxxx Xxxxxxxx
Title: Advisor
EXHIBITS
Exhibit "A" - Term Note (Hong Kong League)
Exhibit "B" - Warrant
Exhibit "C" - Registration Rights Agreement