ASSIGNMENT OF DEBT AGREEMENT
EXHIBIT 10.11
THIS ASSIGNMENT OF DEBT AGREEMENT, dated effective December 31, 2013,
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 Twenty Million Eight Hundred and
Eleven Thousand Nine Hundred and Forty Two (CHF20,811,942) Swiss Franc funds as of
December 31, 2013 (the “Debt”) pursuant to that Loan Agreement dated effective the 31st day of
October, 2013.
B. Parent wishes to assume Ten Million (CHF 10,000,000) in Swiss Franc funds of the Debt as of
December 31, 2013, (the “Assumed Debt”), 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
Assumed 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 Assumed 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 Assumed Debt and not as an intercompany
obligation.
NOW THEREFORE, in consideration of the foregoing and such other consideration as the parties
mutually agree, the parties hereto 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 Assumed Debt by the Subsidiary to Parent;
(b) the full amount of the Assumed Debt is owed by the Subsidiary to the Creditor; and
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.
![[exhibit1011002.gif]](https://www.sec.gov/Archives/edgar/data/1060409/000121152414000068/exhibit1011002.gif){kind=small}
![[exhibit1011004.gif]](https://www.sec.gov/Archives/edgar/data/1060409/000121152414000068/exhibit1011004.gif)
ASSIGNMENT OF DEBT AGREEMENT AIRES2013
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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 Assumed 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 Assumed Debt by
causing Parent to execute a Promissory Note to reflect the Assumed Debt, in consideration of the
premises and the consideration set out in Section 2.3.
2.3 In consideration of the assignment of the Assumed 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 Assumed 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 Assumed
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
Assumed Debt is evidenced by the Promissory Note of even date, (b) the Assumed Debt has not been
prepaid in full or in part, and (c) the Assumed 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 Assumed 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 Assumed 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.
[SIGNATURE PAGE FOLLOWS]
ASSIGNMENT OF DEBT AGREEMENT AIRES2013
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IN WITNESS WHEREOF this agreement was signed in Oberrieden, Switzerland by the parties hereto
effective as of the day and year first above written.
SUNVESTA, INC.
/s/ Xxxxx Xxxxxxx
/s/ Xxxx Rigendinger
By: Xxxxx Xxxxxxx
By: Hans Rigendinger
Chief Executive Officer
Chief Operating Officer
AUTHORIZED SIGNATORY
SUNVESTA HOLDING AG
/s/ Hans Rigendinger
/s/ Xxxxx Xxxxxxx
By: Xxxx Rigendinger
By: Xxxxx Xxxxxxx
Chairman of the Board of Directors
Vice-Chairman of the Board of
Directors
AUTHORIZED SIGNATORY
AIRES INTERNATIONAL INVESTMENTS, INC.
/s/ Xxxxx Xxxx
/s/ Xxxxxx Xxxxxx
By: Xxxxx Xxxx
By: Xxxxxx Xxxxxx
AUTHORIZED SIGNATORY
AUTHORIZED SIGNATORY
ASSIGNMENT OF DEBT AGREEMENT AIRES2013
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Exhibit A
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) 10,000,000
Issue Date: December 31, 2013
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 10,000,000 together with
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 quarter percent (7 ¼%) (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 the United States of America. 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. 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 Oberrieden, 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, 2013 (the “Assignment of Debt 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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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.
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
of Debt 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 of Debt 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 of Debt
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
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).
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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.
3.3
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:
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
Aires Note 2013
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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:
3.4
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.
3.5
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.
3.6
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.
3.7
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 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.
3.8
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.
3.9
Assignment Agreement. By its acceptance of this Note, each party agrees to be bound by the
applicable terms of the Assignment of Debt Agreement.
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3.10
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, 2013.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Chief Executive Officer
By: /s/ Hans Rigendinger
Hans Rigendinger, Chief Operating Officer
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