ASSIGNMENT OF DEBT AGREEMENT
Exhibit 10.8
THIS ASSIGNMENT OF DEBT AGREEMENT, dated effective the 31st day of December 31, 2012,
AMONG:
SUNVESTA, INC., of Xxxxxxxxxx 00, Xxxxxxxxxx, Xxxxxxxxxxx CH-8942
(the "PARENT") and parent company of Subsidiary
AND:
SUNVESTA HOLDING AG., of Xxxxxxxxxx 00, Xxxxxxxxxx, Xxxxxxxxxxx CH-8942
(the "SUBSIDIARY") and subsidiary company of Parent
AND:
AIRES INTERNATIONAL INVESTMENTS, INC., of Quatisky Building, 3rd Floor, Post
Office Box 905, Road Town, Tortola, British Virgin Islands.
(the "CREDITOR")
WHEREAS:
A. Subsidiary is indebted to the Creditor in the amount of Swiss Francs Ten Million and Forty Four Six
Thousand Three Hundred and Seventy (CHF 10’044’370), exchanged with an exchange rate of
1.0642 equal to Ten Million Six Hundred and Ninety Thousand and Forty Nine ($10,690,049)
dollars in U.S. funds as of December 31, 2012 (the "Debt") pursuant to the terms of a Loan
Agreement dated July 27, 2011, as amended, between the Subsidiary and the Creditor.
B. Parent wishes to assume, and the Subsidiary and Creditor wish to grant, assign, transfer and set over
unto Parent the entire right, title, obligation and interest in and to the Debt upon the terms and
conditions contained in this Assignment of Debt Agreement.
C. Parent and Subsidiary wish to treat Parent’s assumption of the Debt as an investment in a subsidiary
company, in the form of a deemed cash contribution into capital surplus, provided to Subsidiary by
Parent, in an amount equal to the Debt and not as an intercompany obligation.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual promises, covenants, conditions, representations and warranties hereinafter contained and the
sum of Ten ($10.00) Dollars now paid by the Subsidiary to the Parent and for other good and valuable
consideration, the receipt of which are acknowledged, and subject to the terms and conditions
hereinafter set out, the parties agree as follows:
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSIDIARY
1.1 Subsidiary represents, warrants and covenants to Parent that:
(a) the above premises are true and complete, and that the Creditor has been given notice of and agreed
to this assignment of the Debt by the Subsidiary to Parent;
(b) the full amount of the Debt is owed by the Subsidiary to the Creditor; and
(c) Subsidiary has a the right, full power and absolute authority to assign its right, title obligation and
interest in and to the Debt, pursuant to the Agreement dated December 31, 2012 between Subsidiary,
Creditor and Parent, in the manner set out in Article 2 hereof according to the true intent and meaning of
this Debt Assignment Agreement.
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Exhibit 10.8
1.2 The representations, warranties and covenants contained in Section 1.1 are provided for the
exclusive benefit of Parent and a breach of any one or more thereof may be waived by Parent in whole or
in part at any time without prejudice to its rights in respect to any other breach of the same or
any other representation or warranty or covenant. Any representations, warranties and covenants
contained in Article 1 will survive the signing of this Debt Assignment Agreement.
2. ASSIGNMENT OF THE DEBT AND RESTRUCTURING OF TERMS
2.1 Subsidiary grants, assigns, transfers and sets over unto Parent his entire right, title, obligation and
interest in and to the Debt, including, without limitation, all rights, benefits and advantages of the
Subsidiary to be derived therefrom and all burdens, obligations and liabilities to be derived thereunder,
in consideration of the premises and the consideration set out in Section 2.3.
2.2 The Creditor, Subsidiary and Parent agree to restructure the terms of the Debt by causing Parent to
execute a Promissory Note to reflect the Debt, in consideration of the premises and the consideration set
out in Section 2.3.
2.3 In consideration of the assignment of the Debt and the restructuring of the repayment terms pursuant
to the Promissory Note, Parent will sign and deliver the Promissory Note as evidence of the restructured
terms of the Debt. (Attached hereto as Exhibit A)
3. CONSENT AND WARRANTY OF CREDITOR
3.1 The Creditor agrees and consents to the assignment of Subsidiary’s interests in the Debt to Parent
pursuant to the terms and conditions of this Debt Assignment Agreement.
3.2 The Creditor represents, warrants and covenants to Parent that (a) the full amount of the Debt,
includes principal and accrued interest as of December 31, 2012, evidenced by the Promissory Note of
even date, (b) the Debt has not been prepaid in full or in part, and (c) the Debt assigned to Parent is the
sole responsibility of Parent with no right of recourse against Subsidiary.
4. PARENT’S ASSUMPTION OF DEBT AND CAPITAL CONTRIBUTION TO SUBSIDIARY
4.1 Parent agrees and consents to assume Subsidiary’s interests in the Debt pursuant to the terms and
conditions of this Debt Assignment Agreement and Promissory Note.
4.2. Parent agrees to waive any debt obligation incumbent on Subsidiary as the result of its assumption
of the Debt owed to Creditor and does hereby characterize the effect of the transaction as a deemed cash
contribution into capital surplus of the subsidiary company.
5. COUNTERPART
5.1 This Debt Assignment Agreement may be signed in one or more counterparts, each of which when
so signed will be deemed an original, and such counterparts together will constitute one in the same
instrument.
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Exhibit 10.8
IN WITNESS WHEREOF this agreement was signed in Oberrieden, Switzerland by the parties hereto
effective as of the day and year first above written.
/s/ Xxxxx Xxxxxxx
/s/ Xxxx Rigendinger
By: Xxxxx Xxxxxxx
By: Hans Rigendinger
Chief Executive Officer
Chief Operating Officer
AUTHORIZED SIGNATORY
AUTHORIZED SIGNATORY
SUNVESTA HOLDING AG
/s/ Xxxxx Xxxxxxx
/s/ Xxxx Rigendinger
By: Xxxxx Xxxxxxx
By: Hans Rigendinger
Chief Executive Officer
Chief Executive Officer
AUTHORIZED SIGNATORY
AUTHORIZED SIGNATORY
AIRES INTERNATIONAL INVESTMENTS, INC.
/s/ Greorg Nigg
By: Greorg Nigg
AUTHORIZED SIGNATORY
/s/ Xxxxxx Xxxxxx
By: Xxxxxx Xxxxxx
AUTHORIZED SIGNATORY
Exhibit A
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Exhibit 10.8
THE ISSUANCE AND SALE OF THE SECURITY REPRESENTED BY THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(“SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS SINCE SAME IS
BELIEVED TO BE EXEMPT FROM REGISTRATION UNDER REGULATION “S” THERETO.
THIS SECURITY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED TO US PERSONS (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITY UNDER THE SECURITIES ACT, OR (B) AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE
144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THIS SECURITY MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THIS SECURITY.
PROMISSORY NOTE
Principal Amount: CHF (Swiss Francs) 10,044,370
Issue Date: December 31, 2012
FOR VALUE RECEIVED, SUNVESTA, INC., a Florida corporation (hereinafter called the
“Borrower”), hereby promises to pay to the order of Aires International Investments, Inc., a British
Virgin Islands company, or registered assigns (the “Holder”) the sum of CHF 10,044,370 together with
any interest as set forth herein, on December 31, 2015 (the “Maturity Date”), and to pay interest on the
unpaid principal balance hereof at the rate of seven and one half percent (7 ½%) (the “Interest Rate”) per
annum from the date hereof (the “Issue Date”) until the same becomes due and payable, whether at
maturity or upon acceleration or by prepayment or otherwise. This Promissory Note (the “Note”) may be
prepaid in whole or in part. Any amount of principal or interest on this Note which is not paid when due
shall bear interest at the rate of ten percent (10%) per annum from the due date thereof until the same is
paid (“Default Interest”). Interest shall commence accruing on the date that the Note is issued and shall
be computed on the basis of a 365-day year and the actual number of days elapsed. All payments due
hereunder shall be made in lawful money of Switzerland. All payments shall be made at such address as
the Holder shall hereafter give to the Borrower by written notice made in accordance with the provisions
of this Note. Alternatively, the interest may be added to the principal amount.
Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a
business day, the same shall instead be due on the next succeeding day which is a business day and, in the
case of any interest payment date which is not the date on which this Note is paid in full, the extension of
the due date thereof shall not be taken into account for purposes of determining the amount of interest due
on such date. As used in this Note, the term “business day” shall mean any day other than a Saturday,
Sunday or a day on which commercial banks in the city of Zurich, Switzerland are authorized or required
by law or executive order to remain closed.
This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall
not be subject to preemptive rights or other similar rights of shareholders of the Borrower and will not
impose personal liability upon the holder thereof. This Note has been issued by the Borrower pursuant to
the Assignment of Debt Agreement, dated effective December 31, 2012 (the “Assignment Agreement”),
by and among the Borrower, SunVesta Holding AG. (Borrower’s subsidiary), and the Holder.
The following additional terms shall apply to this Note:
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Exhibit 10.8
ARTICLE I. CERTAIN COVENANTS
1.1
Distributions on Capital Stock. So long as the Borrower shall have any obligation under
this Note, the Borrower shall not without the Holder’s written consent (a) pay, declare or set apart for
such payment, any dividend or other distribution (whether in cash, property or other securities) on shares
of capital stock or (b) directly or indirectly or through any subsidiary make any other payment or
distribution in respect of its capital stock.
1.2
Restriction on Stock Repurchases. So long as the Borrower shall have any obligation
under this Note, the Borrower shall not without the Holder’s written consent redeem, repurchase or
otherwise acquire (whether for cash or in exchange for property or other securities or otherwise) in any
one transaction or series of related transactions any shares of capital stock of the Borrower or any
warrants, rights or options to purchase or acquire any such shares.
ARTICLE II. EVENTS OF DEFAULT
If any of the following events of default (each, an “Event of Default”) shall occur:
2.1
Failure to Pay Principal or Interest. The Borrower fails to pay the principal hereof or
interest thereon when due on this Note, whether at maturity, upon acceleration or otherwise and the
Holder has not agreed to add the interest to the principal amount.
2.2
Breach of Covenants. The Borrower breaches any material covenant or other material
term or condition contained in this Note and any collateral documents including but not limited to the
Assignment Agreement and such breach continues for a period of ten (10) days after written notice
thereof to the Borrower from the Holder.
2.3
Breach of Representations and Warranties. Any representation or warranty of the
Borrower made herein or in any agreement, statement or certificate given in writing pursuant hereto or in
connection herewith (including, without limitation, the Assignment Agreement), shall be false or
misleading in any material respect when made and the breach of which has (or with the passage of time
will have) a material adverse effect on the rights of the Holder with respect to this Note or the Assignment
Agreement.
2.4
Receiver or Trustee. The Borrower or any subsidiary of the Borrower shall make an
assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee
for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be
appointed.
2.5
Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other
proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of
debtors shall be instituted by or against the Borrower or any subsidiary of the Borrower.
2.6
Liquidation. Any dissolution, liquidation, or winding up of Borrower or any substantial
portion of its business.
2.7
Cessation of Operations. Any cessation of operations by Borrower or Borrower admits it
is otherwise generally unable to pay its debts as such debts become due, provided, however, that any
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Exhibit 10.8
disclosure of the Borrower’s ability to continue as a “going concern” shall not be an admission that the
Borrower cannot pay its debts as they become due.
2.8
Maintenance of Assets. The failure by Borrower to maintain any material intellectual
property rights, personal, real property or other assets which are necessary to conduct its business
(whether now or in the future).
Upon the occurrence and during the continuation of an Event of Default specified in this Article II, the
Note shall become immediately due and payable and the Borrower shall pay to the Holder, an amount
equal to the Default Amount (as defined below) effective on the delivery of written notice to the
Borrower by the Holder (the “Default Notice”), in full satisfaction of its obligations hereunder, an
amount equal to (x) the sum of the then outstanding principal amount of this Note plus (y) accrued and
unpaid interest on the unpaid principal amount of this Note to the date of payment plus (z) Default
Interest, if any (the amounts referred to in clauses (x), (y) and (z) shall collectively be known as the
“Default Amount”) and all other amounts payable hereunder shall immediately become due and payable,
all without demand, presentment or notice, all of which hereby are expressly waived, together with all
costs, including, without limitation, legal fees and expenses, of collection, and the Holder shall be entitled
to exercise all other rights and remedies available at law or in equity.
ARTICLE III. MISCELLANEOUS
3.1
Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder in the
exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privileges. All rights and remedies existing hereunder are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
3.2
Subordination. Holder acknowledges that its interest in the properties and assets of the
Borrower, on the occurrence and continuation of an Event of Default, is subordinate to those additional
amounts, if any, due by Borrower to non-affiliated third party creditors.
Notices. All notices, demands, requests, consents, approvals, and other communications required
or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally
served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other address as such party shall have
specified most recently by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or number designated below
(if delivered on a business day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur. The addresses for such communications shall be:
If to the Borrower, to:
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Exhibit 10.8
Xxxxxxxxxx 00
Xxxxxxxxx
Xxxxxxxxxxx CH-8942
Attn: Xxxxx Xxxxxxx, Chief Executive Officer
facsimile: 011 41 43 388 40 60
e-mail: xxxxx.xxxxxxx@xxxxxxxx.xxx
If to the Holder:
Aires International Investments, Inc.
Quatisky Building, 3rd Floor
Post Office Box 905
Road Town
Tortola, British Virgin Islands
Attn:
facsimile:
e-mail:
3.2
Amendments. This Note and any provision hereof may only be amended by an
instrument in writing signed by the Borrower and the Holder. The term “Note” and all reference thereto,
as used throughout this instrument, shall mean this instrument as originally executed, or if later amended
or supplemented, then as so amended or supplemented.
3.3
Assignability. This Note shall be binding upon the Borrower and its successors and
assigns, and shall inure to be the benefit of the Holder and its successors and assigns. Each transferee of
this Note must not be a “US Person” (as that term is defined in Rule 902 of Regulation S, and is not
acquiring the securities for the account or benefit of any U.S. person; as defined in Rule 501(a) of the
Securities Act). Notwithstanding anything in this Note to the contrary, this Note may be pledged as
collateral in connection with a bona fide margin account or other lending arrangement.
3.4
Cost of Collection. If default is made in the payment of this Note, the Borrower shall pay
the Holder hereof costs of collection, including reasonable attorneys’ fees.
3.5
Governing Law. This Note shall be governed by and construed in accordance with the
laws of the Switzerland without regard to principles of conflicts of laws. The parties to this Note hereby
irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not
assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The
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Exhibit 10.8
Borrower and Holder waive trial by jury. The prevailing party shall be entitled to recover from the other
party its reasonable attorney's fees and costs. In the event that any provision of this Note or any other
agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith
and shall be deemed modified to conform with such statute or rule of law. Any such provision which may
prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other
provision of any agreement. Each party hereby irrevocably waives personal service of process and
consents to process being served in any suit, action or proceeding in connection with this Note 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 other manner permitted by law.
3.6
Certain Amounts. Whenever pursuant to this Note the Borrower is required to pay an
amount in excess of the outstanding principal amount (or the portion thereof required to be paid at that
time) plus accrued and unpaid interest plus Default Interest on such interest, the Borrower and the Holder
agree that the actual damages to the Holder from the receipt of cash payment on this Note may be difficult
to determine and the amount to be so paid by the Borrower represents stipulated damages and not a
penalty.
3.7
Assignment Agreement. By its acceptance of this Note, each party agrees to be bound by
the applicable terms of the Assignment Agreement.
3.8
Remedies. The Borrower acknowledges that a breach by it of its obligations hereunder
will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction
contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach of its
obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by
the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other
available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction
or injunctions restraining, preventing or curing any breach of this Note and to enforce specifically the
terms and provisions thereof, without the necessity of showing economic loss and without any bond or
other security being required.
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized
officer this December 31, 2012.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Chief Executive Officer
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