ASSIGNMENT OF DEBT AGREEMENT THIS ASSIGNMENT OF DEBT AGREEMENT, dated effective December 31, 2014, AMONG: SUNVESTA, INC., of Seestrasse 97, Oberrieden, Switzerland CH-8942 (the "Parent") and parent company of Subsidiary; AND: SUNVESTA HOLDING AG., of...
Exhibit 10.12
THIS ASSIGNMENT OF DEBT AGREEMENT, dated effective December 31, 2014,
AMONG:
SUNVESTA, INC., of ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ CH-8942
(the "Parent") and parent company of Subsidiary;
AND:
SUNVESTA HOLDING AG., of ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ 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”) and creditor of
Subsidiary.
WHEREAS:
A. Subsidiary is indebted to the Creditor in the amount of Eleven Million Five Hundred and Forty
Two Thousand Eight Hundred and Seventy Nine (CHF11,542,879) Swiss Francs as of December
31, 2014 (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 Francs of the Debt as of December
31, 2014, (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.
exhibit1012.docx
1 | 8
Exhibit 10.12
2. ASSIGNMENT OF THE DEBT AND RESTRUCTURING OF TERMS
2.1 Subsidiary grants, assigns, transfers and sets over unto Parent its 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]
exhibit1012.docx
2 | 8
Exhibit 10.12
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ Rigendinger
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: Hans Rigendinger
Chief Executive Officer
Chief Operating Officer
AUTHORIZED SIGNATORY
SUNVESTA HOLDING AG
/s/ Hans Rigendinger
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇ Rigendinger
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Chairman of the Board of Directors
Vice-Chairman of the Board of
Directors
AUTHORIZED SIGNATORY
AIRES INTERNATIONAL INVESTMENTS, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
AUTHORIZED SIGNATORY
AUTHORIZED
SIGNATORY
exhibit1012.docx
3 | 8
Exhibit 10.12
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, 2014
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, 2017 (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 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. 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, 2014 (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:
exhibit1012.docx
4 | 8
Exhibit 10.12
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
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).
exhibit1012.docx
5 | 8
Exhibit 10.12
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:
SunVesta, Inc.
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ CH-8942
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
facsimile: 011 41 43 388 40 60
e-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
exhibit1012.docx
6 | 8
Exhibit 10.12
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.
exhibit1012.docx
7 | 8
Exhibit 10.12
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, 2014.
SUNVESTA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
By: /s/ Hans Rigendiner
Hans Rigendinger, Chief Operating Officer
exhibit1012.docx
8 | 8