CREDIT FACILITY AGREEMENT
AGREEMENT made this ___ day of
April, 2009 by and between SANSWIRE-TAO CORP., a Florida
corporation with offices at 000 XX 0xx Xxxxxx,
Xxxxx 0000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (the “Company”) and GLOBAL TELESAT CORP., a
Virginia corporation with offices at 00 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000
(“GTC”).
WITNESSETH:
WHEREAS, the Company wishes to
complete the construction of its first 34 meter unmanned autonomously controlled
mid-altitude airship designated as the “STS-111”; and
WHEREAS, the Company requires
additional funding for purposes of completing such construction of the first
STS-111; and
WHEREAS, GTC is agreeable to
providing funding for the aforementioned purposes, all on and subject to the
terms and conditions hereinafter set forth in this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned do hereby agree as follows:
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1.
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The
Loans.
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(a) GTC
agrees, from time to time during the Term (hereinafter defined) hereof, to make
loans (each a “Loan”
and, collectively, the “Loans”) to or for the account
of the Company, respectively the account of TAO Technologies upon the Company’s
(or its designee’s TAO Technologies) written request therefor, in the aggregate
principal amount of €800,000.
(b) The
Loans will be made within seven (7) days after GTC’s receipt of a written
request from the Company (or the Company’s designee) therefor.
(c) The
Loans shall mature and become due and payable, in full, together with all
accrued but unpaid interest thereon, on the later of December 30, 2011 or the
date on which the Company receives the proceeds from its customer from the sale
of the first STS-111 (the “Maturity Date”).
(d) The
outstanding principal amount of the Loans shall bear interest from the date of
each Loan until paid in full, at the lowest imputed rate of interest as provided
for under the Internal Revenue Code of 1986, as
amended. Interest shall accrue and be payable on the Maturity
Date and shall be calculated on the basis of a year consisting of 365 days.
Payment of interest shall be credited against GTC’s portion of the Revenue Share
Entitlement as described in Section 2, below.
(e) The
Company shall have the right, at any time and from time to time during the Term
hereof, to prepay the Loans, in whole or in part, without premium or
penalty.
(f) Proceeds
from the Loans will be provided directly to TAO Technologies, GmbH which will
use such funds exclusively for the construction of the first STS-111 and for
payments due under the License and Intellectual Property Acquisition Agreement
between Sanswire Corp. and Xx. Xxxxx-X. Xxxxxxx and TAO
Technologies.
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2.
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Revenue
Sharing Entitlement.
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(a) As
an inducement to GTC providing the credit facility to the company hereunder, the
Company has agreed to pay to GTC an amount equal to fifty percent (50%) of
the STS-111 Net Sales Proceeds, when, as and if the Company receives
such proceeds. For purposes hereof, the term “STS-111 Net Sales Proceeds”
shall mean the actual proceeds received by the Company from the sale of the
first STS-111 minus the actual cost of construction therefor (estimated to be
€1,600,000). Sanswire shall pay such amount to GTC, within ten (10)
days after its receipt of such proceeds with respect to such sale.
The
Company will, at all times, keep proper books of account, in which full, true
and correct entries will be made of transactions relating to STS-111 Net Sales
Proceeds. GTC shall have the right, at its expense, to inspect the
Company’s books and records relating to such proceeds during normal business
hours and upon reasonable prior notice to the Company.
(b) All
Loan payments (principal and accrued interest payments) made by the Company
under this Agreement shall be made to GTC on or before the due date thereof at
the address of GTC hereinbefore set forth or, at GTC’s written request, to GTC
at such other place as GTC may, from time to time, designate in writing at least
five (5) days prior to the due date of any such payment. If any such
payment becomes due on a Saturday, Sunday or legal holiday, such payment shall
become due on the next business day.
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3.
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Term.
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(a) The
term of this Agreement shall commence on the date hereof and expire on the
earlier of December 31, 2009 or the date on which GTC makes Loans to Sanswire
hereunder in the aggregate amount of €800,000 (the “Term”), unless extended by
the Company and GTC, in writing, or terminated earlier, pursuant to the
provisions of subparagraph (b) below.
(b) If
one or more of the following events shall occur, each such event shall give GTC
the right to terminate this Agreement, on ten (10) days notice to the
Company:
(i) the
Company's making of an assignment for the benefit of its creditors;
or
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(ii) the
entry of a final order, judgment or decree adjudicating the Company bankrupt or
insolvent; or
(iii) the
Company's petitioning or applying to any court of competent jurisdiction or
other tribunal for the appointment of a trustee or receiver for the Company, or
of any substantial part of the assets or properties of the Company, or the
commencement by the Company of any proceedings relating to the Company under any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution, or
similar law of any jurisdiction whether now or hereafter in effect; or the
filing of any such petition or application, or the commencement of any such
proceedings, against the Company, if the Company by any act indicates its
approval thereof, consents or acquiesces therein, or the entry of any order,
judgment or decree appointing any such trustee or receiver, or approving the
petition in any such proceedings, if such order, judgment or decree remains
unstayed or unbonded and in effect for more than sixty (60) days.
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4.
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Representations
and Warranties of the Parties.
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(a) All
action on the part of the Company and GTC necessary for the authorization,
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, has been properly taken and obtained by
them and this Agreement constitutes a valid and legally binding obligation of
the Company and GTC enforceable in accordance with its terms except (i) as the
same may be limited by bankruptcy, insolvency, reorganization, moratorium, or
other laws affecting generally the enforcement of creditors’ rights and by the
effect of rules governing the availability of equitable remedies, and (ii) as
rights to indemnity or contribution may be limited under applicable law or by
principles of public policy thereunder.
(b) There
is no action, suit, proceeding, or investigation pending or, to the knowledge of
the Company and GTC, threatened against the Company or GTC which in any way
relates to the validity of this Agreement or the right of the Company or GTC to
enter into or to consummate this Agreement and/or the transactions contemplated
hereby and thereby.
(c) The
authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby will not result
in any violation or be in conflict with or constitute, with or without the
passage of time or giving of notice, or both, a breach or default under any
instrument, judgment, order, writ, decree or agreement to which either the
Company or GTC is a party or by which either of them is bound.
5.
Notices. All
notices, consents, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and delivered
personally, receipt acknowledged, or mailed by registered or certified mail,
postage prepaid, return receipt requested, addressed to the parties hereto as
follows (or to such other addresses as either of the parties hereto shall
specify by notice given in accordance with this provision):
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(a) If
to the Company, to it at:
Sanswire-TAO Corp.
000 XX
0xx
Xxxxxx
Xxxxx
0000
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
With
copies to:
Xxxxxxxx
X. Xxxxxxxx, Esq.
00000 XX
00xx
Xxx., Xxxxx 000
Xxxxxxxx,
XX 00000
(b) If
to GTC, to it at:
Global Telesat Corp.
00 Xxxx Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
With copies to:
Xxxxxx X. Xxxxxxx, Esq.
00 Xxxx
Xxxxx Xxxx
Xxxxxxx,
Xxx Xxxx 00000
All such
notices, consents, requests, demands and other communications shall be deemed
given when personally delivered as aforesaid, or, if mailed as aforesaid, on the
third business day after the mailing thereof or on the day actually received, if
earlier, except for a notice of a change of address which shall be effective
only upon receipt.
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6.
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Miscellaneous.
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(a) This
Agreement constitutes the sole and entire agreement and understanding between
the Company and the GTC with respect to the subject matter hereof, supersedes
all prior agreements, understandings and representations between such parties
relating to the subject matter hereof and may not be modified or waived except
by a written instrument signed by the party to be bound thereby.
(b) This
Agreement shall be binding upon the parties hereto and their successors and
permitted assigns and shall inure to the benefit of the parties hereto and their
successors and assigns. The Company shall not have the right to assign this
Agreement or any of its obligations hereunder, without the written consent of
GTC, however, GTC may assign this Agreement, and its obligations
hereunder, to a third party selected by it, upon notice to the Company. Upon any
such assignment by GTC, GTC shall have no rights or obligations hereunder or in
connection herewith.
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(c) This
Agreement, and the respective rights and obligations of the Company and GTC
hereunder, shall be governed by and construed in accordance with the laws of the
State of New York with respect to contracts made and to be fully performed
therein and without regard to the principles of conflicts of laws thereof In the
event of any action brought by either party to enforce the terms of this
Agreement, the party prevailing therein shall be reimbursed by the
non-prevailing party for all costs and expenses (including legal fees) incurred
by the prevailing party in connection therewith..
(d) If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, the other provisions of this Agreement shall
remain in full force and effect and shall be unaffected thereby.
(e) Each
of the Company and GTC had counsel represent them in connection with the
negotiation, execution and delivery of this Agreement.
(f) This
Agreement may be executed in one or more counterparts, each of which, when
executed and delivered, shall be deemed an original, but all of which when taken
together, shall constitute one and the same instrument, and this Agreement may
be completed by facsimile transmission, which transmission will be deemed to be
an original and considered fully legal and binding on each of the parties
hereto.
IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands and seals as of the day and year
first above written.
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WITNESS:
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SANSWIRE-TAO
CORP.
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By:
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Xxxxxxxx
X. Xxxxxxxx
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Director
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Print
Name
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WITNESS:
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GLOBAL
TELESAT CORP.
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By:
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Xxxxx
X. Xxxxxx, President and
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Chief
Executive Officer
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Print
Name
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