Guaranty Agreement
Exhibit 10.8
between
Xxxxx Xxxxxxx, Xxxxxxxxxxxxxx 00, XX-0000 Xxxxxxxxx
Hans Rigendinger, Xxxxxxxxxxxxxxx 00, XX-0000 Chur
Xxx Xxxxxxx, Xxxxxx 0, XX-0000 Xxxxxxxxx
Zypam Ltd., 00x Xxxxxxx Xxxxx, Xxxxxx Xx, Xxxxxx-Xxxx, Xxxxxx
represented by Xxxxx Xxxxxxx
hereinafter referred to as "Guarantors"
and
SunVesta Holding AG
Xxxxxxxxxx 00
XX-0000 Xxxxxxxxxx
hereinafter referred to as "Beneficiary"
1. Statements, declaration of intention and principle
1.1 The balance sheet of the beneficiary dated 31.12.2011 prepared on the basis of going concern
values as well as the cash flow planned as of 15th June 2012 (both documents are listed in
Appendix A for this Agreement) show a capital requirement that is not yet secured at the present
time which has to be covered at any time up to the date when the whole project financing is
secured (construction loan) "Paradisus Papagayo Bay".
1.2 The guarantors are together majority shareholders or principal lenders of the beneficiary and
since the establishment of the beneficiary they have covered the capital requirements that have
arisen. With regard to this and in the endeavour to guarantee cover to creditors of the beneficiary
and for the purpose of ensuring the capital requirement of the beneficiary up to the time of
securing the whole project finance "Paradisus Papagayo Bay" this Guarantee Agreement
(hereinafter referred to as "Agreement") is concluded.
2. Guarantee performance
2.1 The guarantors undertake, irrespective of the validity and legal effectiveness of any further
contracts concluded between them and the beneficiaries and agreeing to waive any right to
objections and arguments from the same, irrevocably, to pay to the beneficiary upon the first
written payment demand, within 30 days from receipt of the demand, the amount necessary to
guarantee the cover mentioned under §1.
2.2 Recourse to this guarantee shall be deemed to have taken place if the written payment
demand is in the possession of the guarantors.
3. Further duties of the guarantors
3.1 The guarantors shall inform the company immediately if they are no longer able to fulfill their
obligations in accordance with this Agreement.
3.2 During the period of this Agreement the guarantors shall refrain from selling, encumbering or
decreasing their current equity holding in the beneficiary. In the same way the liabilities of the
beneficiary in relation to the guarantors shall not be paid off during the period of this Agreement.
The guarantors shall refrain from assigning to third parties any claims they have in relation to the
beneficiary.
3.3 All claims of the guarantors in relation to the beneficiary based on the provision of guarantee
payments to the beneficiary or the latter's creditors shall count in full as subordinated in rank as
defined by Art. 725 OR (code of obligations).
The parties relinquish all rights of offsetting and retention in relation to each other.
4. Assignability
A party is not permitted to transfer or assign to third parties individual rights or all rights of this
Agreement without the prior written consent of the other party. Any transfer or assignment
without such consent shall be invalid.
5. Period of validity
5.1 Notice of termination cannot be issued for this Agreement. It may be cancelled only if the
beneficiary has succeeded in securing the project finance (construction loan) for the project
"Paradisus Papagayo Bay".
6. Approval, credit standing
6.1 This Agreement has been approved by the board of directors of the beneficiary in
acknowledgement of the credit standing of the guarantors.
7. Final provisions
7.1 This Agreement contains the whole contractual intention of the parties concluding the
contract and it replaces all previous written and verbal agreements between the parties relating to
this matter.
7.2 If a party makes no use or only partial use of their right under this Agreement, this shall not
signify a general relinquishment of the entitlement to assert such rights.
7.3 Changes and additions to this Agreement, including this provision, shall require written form
and the consent and signature of both parties.
7.4 If individual provisions of this Agreement are or become invalid, this shall not affect the
validity or effectiveness of the other provisions of the Agreement. The parties undertake to
replace the invalid or ineffective provision with a valid and effective regulation that comes as
close as possible to the sense and purpose of the invalid or ineffective provisions. The same shall
apply, mutatis mutandis, for gaps in the contract.
8. Applicable law and place of jurisdiction
8.1 This Agreement shall be subject to Swiss law with exclusion of any rules concerning conflicts
of laws such as international private law.
8.2 The courts of law at the registered office of the debtor shall have exclusive jurisdiction for
judgment on all disputes from or in connection with this Agreement – including any that relate to
the question of formation of this Agreement or its validity.
City, date:
City, date:
Oberrieden, 16th July 2012
Oberrieden, 16th July 2012
The Guarantors:
SunVesta Holding AG
/s/ Hans Rigendinger
/s/ Hans Rigendinger
Hans Rigendinger
Hans Rigendinger
/s/ Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
Zypam Ltd.
represented by Xxxxx Xxxxxxx
