Exhibit 10.1
ASSIGNMENT AND RELEASE AGREEMENT
THIS ASSIGNMENT AND RELEASE
AGREEMENT (this “Agreement”) is entered into on December 8, 2023 by and among micromobility.com Inc. (f/k/a Helbiz
Inc.), a Delaware corporation (the “Borrower”), the financial institutions or entities parties hereto (the “Lenders”),
Securis Investment Partners, LLP, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”),
and YA II PN, Ltd., (the “Assignee”).
R E C I T A L S:
WHEREAS, the Borrower,
the Administrative Agent and the Lenders have entered into that certain Loan and Security Agreement, dated as of March 23, 2021 (as
amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), pursuant to which the
Administrative Agent and the Lenders agreed to make certain loans and other financial accommodations to the Borrower:
WHEREAS, the Borrower, the Administrative
Agent and the Lenders have entered into that certain settlement agreement, dated November 27, 2023 (the “Settlement Agreement”)
which provided for the Borrower to pay to the Administrative Agent for distribution to the Lenders consideration in an aggregate amount
of $3,595,000 (the “Settlement Amount”) on or before December 8, 2023, for the purposes of settling all outstanding
Obligations of the Borrower, pursuant to the terms and conditions, and such other agreements as set forth therein:
WHEREAS, the Administrative
Agent and the Lenders are the legal and equitable owner and holder on the Term Loans under the Loan Agreement; the aggregate principal
amount outstanding under the Loan Agreement as of the date hereof is $15,000,000 and the current maturity date is December 8, 2023;
WHEREAS, Assignee has offer to
purchase and the Administrative Agent and the Lenders have agreed to assign to Assignee, all of the rights, title and interests of the
Administrative Agent and the Lenders in, to and under the Loan Agreement and all other documents that evidence or secure the obligations
under the Loan Agreement (collectively, the “Loan Documents”) in exchange for the payment from the Assignor of the
Settlement Amount, subject to the terms and conditions contained herein; and
WHEREAS, capitalized terms used
herein and not otherwise defined herein shall have the meaning assigned to them in the Loan Agreement.
NOW, THEREFORE, in consideration
of the foregoing, and the respective agreements, warranties and covenants contained herein, the parties hereto agree as follows:
1.Assignment.
Subject to the terms of this Agreement, in exchange for payment of the Settlement Amount as set forth in Section 2 below, and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Assignee hereby agrees to absolutely, irrevocably
and unconditionally purchase and assume from the Administrative Agent and the Lenders, and the Administrative Agent and the Lenders agree
to absolutely, irrevocably and unconditionally sell, assign, convey, and endorse to the Assignee, all of the rights, title and interests
and all of the obligations of the Administrative Agent and the Lenders, in their capacities as Administrative Agent and Lenders, as applicable,
in, to and under the Loan Documents (collectively, the “Assigned Interests”), without recourse to the Administrative
Agent or any Lender, and, except as expressly provided herein, without representation or warranty of any kind, express or implied, by
the Administrative Agent or any Lender. None of the Administrative Agent nor any Lender assumes any responsibility with respect to (i)
any statements, warranties or representations made in or in connection with the Loan Documents, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance
or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under
any Loan Document.
2. Purchase
Price. The Assignee shall pay to the Administrative Agent for distribution to the Lenders, the Settlement Amount in cash in immediately
available funds, by wire transfer to the accounts detailed in Schedule A.
3.Closing.
The Administrative Agent and the Lenders and Assignee shall consummate the purchase and sale of the Loan Documents (the “Closing”)
on the date of execution of this Agreement (the “Closing Date”), but in any event not later than December 8, 2023 (unless
otherwise agreed by the Administrative Agent and the Lenders), upon (a) execution and delivery of this Agreement and any such documents
and instruments as may be legally necessary or otherwise reasonably required to effect the transfer of the Assigned Interests and (b)
payment of the Settlement Amount as set forth in Section 2 of this Agreement.
4.Further
Assurances. Effective upon the Closing, at Assignee’s sole cost and expense:
a) the
Administrative Agent agrees to take such further commercially reasonable action and to execute and deliver, or cause to be executed and
delivered, any and all other documents which are, in the reasonable opinion of the Assignee’s counsel, necessary or desirable to
effect the transfer of the Assigned Interests to Assignee;
b) the
Borrower, the Administrative Agent and the Lenders authorize the Assignee to file at any time financing statements, continuation statements
and amendments thereto with all appropriate jurisdictions to effect the transfer of the Assigned Interests to Assignee, including filings
with the United States Patent and Trademark Office, the United States Copyright Office and any applicable governmental or other authority
in any other jurisdiction;
c) the
Borrower, the Administrative Agent and the Lenders agree that the Settlement Agreement shall automatically terminate and no longer have
any force or effect, including, without limitation, the termination of the Loan Documents contemplated by Section 3.2 therein. The parties
intend for this Agreement to supersede and replace the Settlement Agreement in its entirety;
d)the
Administrative Agent and the Lenders agree to deliver to Assignee copies of any loan documents relating to the Loan Documents that the
Administrative Agent and the Lenders have in its possession;
e)the
Administrative Agent and the Lenders agree to execute and deliver such documents as might reasonably be requested by Assignee to fully
effectuate the transfer of the Assigned Interests; and
f) the
Administrative Agent shall resign as the administrative agent under the Loan Documents and the Assignee shall be appointed as the new
administrative agent, in each case, automatically upon Closing without further act by any Person. .
5. Representations
and Warranties of the Assignee. Assignee hereby represents, warrants and covenants to the Administrative Agent and the Lenders that
each of the following is true and accurate as of the date hereof, which representations, warranties and covenants shall survive the execution
and delivery of this Agreement.
a)Organization:
Authority. The Assignee is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate, partnership or other applicable power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations thereunder, and the execution, delivery and performance by the
Assignee of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on
the part of the Assignee. This Agreement, when executed and delivered by the Assignee, will constitute a valid and legally binding obligation
of the Assignee, enforceable against the Assignee in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’
rights generally, or (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable
remedies.
b)Investment
Experience: Access to Information. The Assignee (a) either alone or together with its representatives, has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of the purchase of the Loan Documents, (b) has the
ability to bear the economic risks of this investment and can afford a complete loss of such investment, (c) understands the terms of
and risks associated with the acquisition of the Loan Documents, and (d) has, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement and to purchase the Assigned Interests.
c)General
Solicitation. The Assignee is not accepting such Assignment as a result of any advertisement, article, notice or other communication
regarding the Loan Documents published in any newspaper, magazine or similar media or broadcast over television or radio or presented
at any seminar or any other general solicitation or general advertisement.
6.Representations
and Warranties of the Administrative Agent and the Lenders. The Administrative Agent and each of the Lenders, for itself alone hereby
represents, warrants and covenants to the Assignee that each of the following is true and accurate as of the date hereof, which representations,
warranties and covenants shall survive the execution and delivery of this Agreement.
a)Ownership.
The Administrative Agent and each of the Lenders is the sole legal and beneficial owner of the Assigned Interests and has not assigned
or otherwise transferred to any third party any rights with respect to its interest in the Assigned Interests or any rights to its interest
in the collateral securing the Term Loans and has not released any collateral securing the Term Loans or modified or terminated its security
interest in such collateral. The Loan Documents attached as Exhibit “A” to this Agreement are true, correct
and complete copies of such documents. The Loan Agreement has not been amended, revised, modified or changed in any manner from the form
attached as Exhibit “A” hereto.
b) Capacity.
The Administrative Agent and each of the Lenders has all right, power, legal capacity and authority to execute and deliver this Agreement
and to perform hereunder and under each other agreement that such Party may execute and deliver in connection herewith.
c) Binding
Effect of Documents. This Agreement, when executed and delivered by the Administrative Agent and each of the Lenders, will constitute
a valid and legally binding obligation of the Administrative Agent and each of the Lenders, enforceable against the Administrative Agent
and each of the Lenders in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, or (b) as
limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
7. Representations
and Warranties of the Borrower. Borrower hereby represents, warrants and covenants as follows:
a)Representations
in the Loan Agreement and the Other Loan Documents. Each of the representations and warranties made by or on behalf of the Borrower
to the Administrative Agent or any Lender in the Loan Agreement or any of the other Loan Documents is true and correct in all material
respects (except to the extent such representations and warranties are qualified by materiality or a Material Adverse Effect standard
in which case such representations and warranties are true and correct in all respects) on and as of the date of this Agreement, except
to the extent such representations and warranties relate to an earlier date, in which case they are true and correct (in compliance with
the foregoing standard) as of such earlier date, with the same full force and effect as if each of such representations and warranties
had been made by the Borrower on the date hereof and in this Agreement. All of the information contained in the schedules attached to
the Loan Agreement remains true and correct, as the same may have been amended, updated, supplemented or otherwise modified from time
to time. No amendments, modifications or other changes have been made to the Borrower’s organizational documents since the Closing
Date.
b) Binding
Effect of Documents. This Agreement, when executed and delivered by the Borrower, will constitute a valid and legally binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’
rights generally, or (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable
remedies.
c) No
Conflict. The execution, delivery and performance of this Agreement by the Borrower will not violate any requirement of law or contractual
obligation of the Borrower and will not result in, or require, the creation or imposition of any Lien on any of its respective properties
or revenues.
d) Principal
Balance. The aggregate principal amount outstanding under the Loan Agreement as of the date hereof is $15,000,000.
8.Loan
Document Releases.
a)
Each of the Borrower, the Administrative Agent, and each Lender, on behalf of itself and its successors
and assigns, and its present and former members, managers, shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents, legal representatives and other representatives (collectively, the “Releasing Parties”
and individually, a “Releasing Party”), hereby absolutely, unconditionally and irrevocably releases, remises and forever
discharges each other Releasing Party, and each of their respective successors and assigns, and their respective present and former shareholders,
members, managers, affiliates, subsidiaries, divisions, predecessors, directors, officers, investment managers, attorneys, employees,
agents, legal representatives and other representatives (collectively, the “Releasees” and individually, a “Releasee”),
of and from any and all demands, actions, causes of action, suits, damages and any and all other claims, counterclaims, defenses, rights
of set off, demands and liabilities whatsoever (individually, a “Claim” and collectively, the “Claims”)
of every kind and nature, known or unknown, suspected or unsuspected, at law or in equity, which any Releasing Party or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for,
upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the date of this Agreement,
including, without limitation, for or on account of, or in relation to, or in any way in connection with this Agreement, the Loan Agreement,
any of the other Loan Documents or any of the transactions hereunder or thereunder, except that the foregoing shall not release, waive
or discharge the right to enforce this Agreement (“Excluded Claims”).
b)
The Releasing Parties hereby represent to the Releasees that they have not assigned or transferred
any interest in any Claims against any Releasee prior to the date hereof.
c)
Notwithstanding any provision of law, statutory or otherwise, that provides that a general release
does not extend to Claims which a party does not know or suspect to exist in its favor at the time of executing the release, which if
known by it must have materially affected its agreement to settle, the releases set forth in this Section 8 shall apply, in accordance
with its terms, to Claims whether known or unknown, contingent or absolute, suspected or unsuspected, accrued or unaccrued, disclosed
or undisclosed. Each Releasing Party understands and acknowledges the significance and consequences of the release set forth in this Section
8 and hereby assumes full responsibility for any injuries, damages or losses that it may incur.
d)
Each Releasing Party understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense to any Claim and may be used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of such release.
e)
Each Releasing Party agrees that no fact, event, circumstance, evidence or transaction which could
now be asserted, or which may hereafter be discovered will affect in any manner the final, absolute and unconditional nature of the release
set forth above.
f)
Covenant Not to Sue. Each Releasing Party hereby absolutely, unconditionally and irrevocably
covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise)
any Releasee on the basis of any Claim (other than Excluded Claims) released, remised and discharged by any Releasing Party pursuant to
Section 8 of this Agreement. If any Releasing Party violates the foregoing covenant, such Releasing Party, agrees to pay, in addition
to such other damages as any Releasee may sustain as a result of such violation, all reasonable and documented attorneys’ fees and
costs incurred by any Releasee as a result of such violation.
9.Assignment
Releases.
a)
Each of the Assignee, the Administrative Agent, and each Lender, on behalf of itself and its successors
and assigns, and its present and former members, managers, shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents, legal representatives and other representatives (collectively, the “Assignment Releasing
Parties” and individually, an “Assignment Releasing Party”), hereby absolutely, unconditionally and irrevocably
releases, remises and forever discharges each other Assignment Releasing Party, and each of their respective successors and assigns, and
their respective present and former shareholders, members, managers, affiliates, subsidiaries, divisions, predecessors, directors, officers,
investment managers, attorneys, employees, agents, legal representatives and other representatives (collectively, the “Assignment
Releasees” and individually, an “Assignment Releasee”), of and from any and all demands, actions, causes
of action, suits, damages and any and all other claims, counterclaims, defenses, rights of set off, demands and liabilities whatsoever
(individually, an “Assignment Claim” and collectively, the “Assignment Claims”) of every kind and
nature, known or unknown, suspected or unsuspected, at law or in equity, which any Assignment Releasing Party or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Assignment Releasees or any
of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the date
of this Agreement, including, without limitation, for or on account of, or in relation to, or in any way in connection with this Agreement,
the Loan Agreement, any of the other Loan Documents or any of the transactions hereunder or thereunder, except that the foregoing shall
not release, waive or discharge the right to enforce this Agreement (“Assignment Excluded Claims”).
b)
The Assignment Releasing Parties hereby represent to the Assignment Releasees that they have not
assigned or transferred any interest in any Assignment Claims against any Assignment Releasee prior to the date hereof.
c)
Notwithstanding any provision of law, statutory or otherwise, that provides that a general release
does not extend to Assignment Claims which a party does not know or suspect to exist in its favor at the time of executing the release,
which if known by it must have materially affected its agreement to settle, the releases set forth in this Section 9 shall apply, in accordance
with its terms, to Assignment Claims whether known or unknown, contingent or absolute, suspected or unsuspected, accrued or unaccrued,
disclosed or undisclosed. Each Assignment Releasing Party understands and acknowledges the significance and consequences of the release
set forth in this Section 9 and hereby assumes full responsibility for any injuries, damages or losses that it may incur.
d)
Each Assignment Releasing Party understands, acknowledges and agrees that the release set forth above
may be pleaded as a full and complete defense to any Assignment Claim and may be used as a basis for an injunction against any action,
suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
e)
Each Assignment Releasing Party agrees that no fact, event, circumstance, evidence or transaction
which could now be asserted, or which may hereafter be discovered will affect in any manner the final, absolute and unconditional nature
of the release set forth above.
f)
Covenant Not to Sue. Each Assignment Releasing Party hereby absolutely, unconditionally and
irrevocably covenants and agrees with and in favor of each Assignment Releasee that it will not sue (at law, in equity, in any regulatory
proceeding or otherwise) any Assignment Releasee on the basis of any Assignment Claim (other than Assignment Excluded Claims) released,
remised and discharged by any Assignment Releasing Party pursuant to Section 9 of this Agreement. If any Assignment Releasing Party violates
the foregoing covenant, such Assignment Releasing Party, agrees to pay, in addition to such other damages as any Assignment Releasee may
sustain as a result of such violation, all reasonable and documented attorneys’ fees and costs incurred by any Assignment Releasee
as a result of such violation.
10.Governing
Law: Submissions to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES. EACH PARTY AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT
SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION SITTING IN THE STATE OR FEDERAL COURTS OF NEW YORK, EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
11.Amendments.
No provision hereof may be waived or modified other than by an instrument in writing signed by the party against whom enforcement is sought.
12. Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
13. Counterparts.
This Agreement may be executed and delivered via facsimile or other electronic transmission (including .pdf format) with the same force
and effect as if an original were executed and may be executed in any number of counterparts, but all of such counterparts will together
constitute but one and the same agreement. No party hereto or to any such other Loan Document shall raise the use of a facsimile machine
or other electronic transmission to deliver a signature or the fact that any signature or agreement or amendment was transmitted or communicated
through the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability of a contract
and each such party forever waives any such defense.
IN
WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first
written above.
BORROWER:
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MICROMOBILITY.COM INC.
By: /s/ Salvatore Palella
Name: Salvatore Palella
Title: CEO/Founder
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LENDERS:
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SECURIS INVESTMENT PARTNERS LLP IN ITS CAPACITY AS INVESTMENT MANAGER FOR
AND ON BEHALF OF SECURIS II FUND – SPC,
for and on behalf of
SEGREGATED PORTFOLIO ELEVEN 1ST – ILS,
as a Lender
By: /s/ Herbie Lloyd_____________________
Name: Herbie Lloyd_____________________
Title: CIO___________________________
|
|
SECURIS INVESTMENT PARTNERS LLP IN ITS CAPACITY AS INVESTMENT MANAGER FOR
AND ON BEHALF OF SECURIS II FUND – SPC,
for and on behalf of
SEGREGATED PORTFOLIO EIGHT –
NON-LIFE AND LIFE,
as a Lender
By: /s/ Herbie Lloyd_____________________
Name: Herbie Lloyd_____________________
Title: CIO___________________________
|
|
SECURIS INVESTMENT PARTNERS LLP IN ITS CAPACITY AS INVESTMENT MANAGER FOR
AND ON BEHALF OF SECURIS II FUND – SPC,
for and on behalf of
SEGREGATED PORTFOLIO SIX – TCCC,
as a Lender
By: /s/ Herbie Lloyd_____________________
Name: Herbie Lloyd_____________________
Title: CIO___________________________
|
|
SECURIS INVESTMENT PARTNERS LLP IN ITS CAPACITY AS INVESTMENT MANAGER FOR
AND ON BEHALF OF SECURIS I MASTER FUND,
as a Lender
By: /s/ Herbie Lloyd_____________________
Name: Herbie Lloyd_____________________
Title: CIO___________________________
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ADMINISTRATIVE AGENT:
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SECURIS INVESTMENT PARTNERS LLP
By: /s/ Johnathan Ford___________________
Name: Johnathan Ford ___________________
Title: General Counsel____________________
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ASSIGNEE:
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YA II PN, LTD.
By: Yorkville Advisors Global, LP
Its: Investment Manager
By:Yorkville Advisors Global II, LLC
Its:General Partner
By: _/s/ Matthew Beckman________________
Name: _Matthew Beckman_______________
Title: Member________________________
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SCHEDULE A
[attached]
