AGREEMENT
AGREEMENT
AGREEMENT entered into this
20th day of April, 2010 between GLOBAL TELESAT CORP., a
Virginia corporation with offices at 00 Xxxx Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000
(“GTC”) and SANSWIRE CORP., a Delaware
corporation with offices at 00000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000 (“Sanswire”).
RECITALS
WHEREAS, Sanswire owns certain
components to an Airship (defined herein) which requires further development
work and funding before it can be marketed commercially to government and/or
private users thereof; and
WHEREAS, GTC has certain
existing and potential customers who may have an interest in purchasing or
otherwise utilizing the Airship and, therefore, wishes to purchase an interest
therein to provide the funding necessary to complete the requisite development
work so that the Airship can be tested and demonstrated to potential customers,
all on and subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in
consideration of the mutual promises and consideration contained herein, the
parties agree as follows:
ARTICLE
1
THE
AIRSHIP
1.1. The
term “Airship” shall
mean that singular airship to be delivered as per Section 1.2, designated
“SkySat Serial No. 0001,” it’s envelope and outer shell and all of the
components listed on Exhibit A hereto which has been designated and is known by
“Skysat” and not the
intellectual property related thereto and/or any license to build any additional
Airships.
1.2. Sanswire
shall, at its sole cost and expense, deliver the Airship to a
destination and facility designated by GTC (the “Facility”).
1.3. The
Airship as delivered to the Facility will not have a complete system of required
electronic components necessary to deliver a completed Airship. The
development work and activities contemplated by this Agreement will consist
principally of completing and installing various electronic components for the
Airship. Sanswire will engage an engineering contractor approved by
GTC to complete all of such development work and has estimated that the
development activities will be completed no later than December 30,
2010. Sanswire will report regularly to GTC with respect to the
progress of the development work on the Airship and hereby authorizes GTC to
discuss the same with the aforementioned engineering contractor and to inspect
the development work at the Facility. Sanswire will notify GTC when
the development work has been completed.
1.4. Notwithstanding
any term or provision of this Agreement to the contrary, GTC’s obligations under
this Agreement are conditioned upon and subject to GTC’s inspection of the
Airship after it arrives at the Facility and GTC’s determination, in its sole
discretion, that all of the components thereof have been delivered and are in
satisfactory condition to perform the development work contemplated under this
Agreement.
1.5. Sanswire
will provide to the aforementioned engineering contractor all required technical
assistance and information relating to the Airship, including, without
limitation, all necessary design materials, documents, and blueprints in order
to assist such engineering contractor in the completion of the requisite
development work on the Airship.
ARTICLE
2
PURCHASE PRICE; DEVELOPMENT
FUNDING
2.1. Subject
to satisfaction of the conditions set forth in Section 1.4 hereof, GTC will
purchase a 50% ownership interest in the Airship for a purchase price of
$250,000 (the “Purchase
Price”).
2.2. The
Purchase Price shall be payable as follows:
(i) $50,000
within three (3) business days after satisfaction of the condition in Section
1.4 hereof;
(ii) four
(4) equal payments of $50,000 each on thirty (30) day intervals following the
initial payment referred to in clause (i) above;
(iii) In
the event that GTC fails to make any of the payments under subsection (ii)
above, when due, unless such failure is caused in whole or in part by a breach
by Sanswire of any of its representations, warranties, covenants or obligations
under this Agreement, then Sanswire can terminate this Agreement thereafter upon
notice to GTC within thirty (30) days after any such failure, provided that it
gives notice of any such payment failure to GTC and GTC fails to cure such
failure within ten (10) days after receipt of any such notice. If
this Agreement is terminated, as aforesaid, neither Sanswire nor GTC shall have
any further obligation hereunder or in connection herewith and GTC shall not
have any ownership rights as contemplated herein
2.3. Upon
GTC’s payment of the final $50,000 referred to in Section 2.2(ii) above,
Sanswire will execute and deliver to GTC a xxxx of sale in the form annexed
hereto as Exhibit B
2.4. Notwithstanding
any provision of this Agreement to the contrary, in the event that the Airship
is not delivered or, if so, but not thereafter approved by GTC as provided in
Sections 1.2 and 1.4 hereof, in either case by April 30, 2010, GTC can terminate
this Agreement at any time thereafter upon notice to Sanswire and without any
further obligation of GTC hereunder or in connection
herewith.
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2.5. Sanswire
hereby acknowledges and agrees that the proceeds of the Purchase Price of
$250,000 for the first 50% of the Airship will be used solely for completing the
development work in connection with the Airship as contemplated hereunder and
for no other purpose. Sanswire shall, upon request of GTC, provide it
with an accountings of all funds obtained by it from GTC hereunder and shall
allow GTC to inspect Sanswire’s books and records relating thereto, during
normal business hours upon prior notice to Sanswire.
2.6. Sanswire
shall account to GTC for all revenues if, as and when received in connection
with the sale or use of the Airship by or to any third party at all times that
GTC retains an ownership interest therein. In order to secure such
obligation, and the other covenants and obligations of Sanswire under this
Agreement, and in consideration of the Purchase Price payable by GTC hereunder,
as well as the option provided for in Article 3 hereof, Sanswire hereby grants
upon the payment in full of the Purchase Price, GTC a first lien and security
interest in and to the Airship (the “Security
Interest”). Sanswire shall promptly file all UCC financing
statements required to perfect the Security Interest ( and will provide GTC with
as filed copies thereof) and hereby authorizes GTC as its attorney-in-fact to
file all UCC financing statements and all other documents which GTC determines
are required to perfect GTC’s Security Interest in the Airship and Sanswire will
fully cooperate with GTC in connection therewith. GTC will have all remedies of
a secured creditor under the applicable provisions of the Uniform Commercial
Code in the event of Sanswire’s breach of any of the aforementioned covenants
and obligations.
ARTICLE
3
PURCHASE
OPTION
Sanswire hereby grants GTC the
exclusive right, at any time prior to December 31, 2010 to notify Sanswire that
it will purchase Sanswire’s remaining fifty percent (50%) ownership interest in
the Airship (SkySat Serial No. 0001) for $750,000 (the “Option Price”). In
such event, the Option Price shall be payable to Sanswire as
follows: $250,000 within ten (10) business days after GTC provides
any such notice to Sanswire and two subsequent equal payments of $250,000 in
thirty (30) day succeeding intervals thereafter. Upon receipt by Sanswire of the
Option Price, it will promptly deliver to GTC a xxxx of sale and all other
documents requested by GTC to evidence GTC’s sole ownership
thereof.
ARTICLE
4
COVENANTS AND RIGHTS OF
APPROVAL
4.1.
Until such time as either the Airship is sold to a third party or GTC no longer
has an ownership interest in the Airship, Sanswire will not:
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(a) Grant
any lien or security interest to any third party in the Airship or otherwise
encumber the Airship, whether voluntarily or involuntarily;
(b) Transfer
or otherwise dispose of its ownership interest in the Airship;
(c) Grant
a license, option or any other right in or to the Airship to any third
party;
(d) Enter
into any agreement (including a demonstration agreement) with any third party
which in any way involves the Airship;
(e) Modify
the Airship in any way after the development work contemplated under this
Agreement has been completed;
(f) Move
or remove the Airship from the Facility, without the written consent of GTC;
or
(g) Engage
any engineering firm not approved by GTC to perform the development work
contemplated under this Agreement.
4.2. Sanswire
shall, promptly after its receipt thereof, provide to GTC copies of all
inquiries, proposals, or other communications in connection with any sale,
lease, license, or other disposition or arrangement proposed by any third party
with respect to the Airship.
ARTICLE
5
REPRESENTATIONS AND
WARRANTIES OF SANSWIRE
To induce
GTC to enter into this Agreement and to consummate the transactions contemplated
hereby, Sanswire hereby makes the following representations and warranties to
GTC:
5.1.
Sanswire is the sole owner of the Airship and has good and marketable title to
the Airship, free and clear of all liens, claims or encumbrances
whatsoever.
5.2. This
Agreement has been duly and validly executed and delivered by Sanswire and
constitutes the valid and binding obligation of Sanswire, enforceable against
Sanswire in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
5.3.
The authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby 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 the Sanswire is a party or
by which it is bound.
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5.4. There
is no action, suit, proceeding, or investigation pending or, to the knowledge of
Sanswire, threatened against Sanswire which in any way relates to the validity
of this Agreement or the right of Sanswire to enter into or to consummate this
Agreement and/or the transactions contemplated hereby.
5.5. Both
the Purchase Price and the Option Price represent fair and valuable
consideration for the rights granted to GTC under this Agreement.
5.6. Sanswire
has not granted any third party any right, title or interest whatsoever in or to
the Airship.
5.7. The
Security Interest is a valid first perfected lien in the Airship.
ARTICLE
6
REPRESENTATIONS AND
WARRANTIES OF GTC
To induce
Sanswire to enter into this Agreement and to consummate the transactions
contemplated hereby, GTC hereby makes the following representations and
warranties to Sanswire:
6.1. This
Agreement has been duly and validly executed and delivered by GTC and
constitutes the valid and binding obligation of GTC, enforceable against GTC in
accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
6.2.
The authorization, execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby 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 the GTC is a party or by
which it is bound.
6.3. There
is no action, suit, proceeding, or investigation pending or, to the knowledge of
GTC, threatened against GTC which in any way relates to the validity of this
Agreement or the right of GTC to enter into or to consummate this Agreement
and/or the transactions contemplated hereby.
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ARTICLE
7
MISCELLANEOUS
7.1. This
Agreement, including the Exhibit hereto, constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, representations, warranties, statements,
arrangements and understandings, whether oral or written, express or implied,
between the parties hereto with respect to the subject matter hereof and may not
be changed or modified except by an instrument in writing signed by the party to
be bound thereby. No course of conduct or dealing or trade usage or
custom or course of performance by the parties hereto shall constitute or be
relied upon as a modification, supplement, or waiver of any provision of this
Agreement. This Agreement has been subject to the mutual consultation,
negotiation and agreement of the parties hereto and shall not be construed for
or against either party hereto on the basis of such party having drafted this
Agreement.
7.2. Each
party acknowledges that it has consulted such legal, financial, technical and
other experts as it deems necessary or desirable prior to entering into this
Agreement. Each party represents and warrants that it has read,
knows, understands and agrees with the terms and conditions of this
Agreement. Neither party has relied upon any oral representations of
the other party in entering into this Agreement.
7.3. 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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(i)
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If
to GTC, to it at:
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Global
Telesat Corp.
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00
Xxxx Xxxxx Xxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Attn: Xxxxx
Xxxxxx, President and Chief Executive Officer
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with
a copy to:
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Xxxxxx
X. Xxxxxxx, Esq.
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00
Xxxx Xxxxx Xxxx
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Xxxxxxx,
Xxx Xxxx 00000
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(ii)
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If
to Sanswire, to it at:
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00000
Xxxxxxxx Xxxx
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Xxxxx
000
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Xxxxxxxx,
Xxxxxxx 00000
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Attn: Xxxxxx
Xxxxxxx, Chief Financial
Officer
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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.
7.4. Neither
party hereto may assign this Agreement or its or their respective rights,
benefits or obligations hereunder without the written consent of the other party
hereto, except that GTC may assign any of its rights and/or obligations under
this Agreement to any third party selected by it upon notice to
Sanswire.
7.5. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns. Nothing contained in this
Agreement is intended to confer upon any person or entity, other than the
parties hereto, or their respective successors or permitted assigns, any rights,
benefits, obligations, remedies or liabilities under or by reason of this
Agreement.
7.6. No
waiver of any provision of this Agreement or of any breach thereof shall be
effective unless in writing and signed by the party to be bound
thereby. The waiver by either party hereto of a breach of any
provision of this Agreement, or of any representation, warranty, obligation or
covenant in this Agreement by the other party hereto, shall not be construed as
a waiver of any subsequent breach or of any other provision, representation,
warranty, obligation or covenant of such other party, unless the instrument of
waiver expressly so provides.
7.7. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York with respect to agreements made and to be fully performed
therein, without regard to the conflicts of laws principles
thereof. The parties hereto hereby agree that any suit or proceeding
arising under this Agreement, or in connection with the consummation of the
transactions contemplated hereby, shall be brought solely in a federal or state
court located in the City, County and State of New York, or in any court of
competent jurisdiction selected by GTC, except for any suit or proceeding
seeking an equitable remedy hereunder which may be brought in any court of
competent jurisdiction. By its execution hereof, Sanswire hereby
consents and irrevocably submits to the in personam jurisdiction of the federal
and state courts located in the City, County and State of New York (or any such
other court of competent jurisdiction) and agrees that any process in any suit
or proceeding commenced in such courts under this Agreement may be served upon
it personally or by certified or registered mail, return receipt requested, or
by Federal Express or other courier service, with the same force and effect as
if personally served upon it in New York City (or in the City or County in which
such other court is located). The parties hereto each waive any claim that any
such jurisdiction is not a convenient forum for any such suit or proceeding and
any defense of lack of in personam jurisdiction with respect
thereto. Nothing in this Section shall affect the right of either of
the parties hereto to serve legal process in any other manner permitted by
law.
7.8. The
parties hereto hereby agree that, at any time and from time to time after the
date hereof, upon the reasonable request of the other party hereto, they shall
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such further acts, deeds, assignments, transfers,
conveyances, and assurances as may be reasonably required to more effectively
consummate this Agreement and the transactions contemplated thereby or to
confirm or otherwise effectuate the provisions of this
Agreement.
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7.9. Each
party hereto represents and warrants to the other that it has been represented
by counsel in connection with the negotiation, preparation, and consummation of
this Agreement. Except as expressly provided in this Agreement, each
of the parties hereto shall bear all of their respective costs and expenses
incurred in connection with the negotiation, preparation, execution,
consummation, performance and/or enforcement of this Agreement, including,
without limitation, the fees and disbursements of their respective
counsel. Notwithstanding the foregoing, in the event of any
action or proceeding instituted by either party hereto to enforce the provisions
of this Agreement, the party prevailing therein shall be entitled to
reimbursement by the other breaching party of the legal costs and expenses
incurred by the prevailing party in connection therewith. For purposes hereof,
“prevailing party” means the party in whose favor final judgment, after appeal
(if any), is rendered with respect to the claims asserted in any such action or
proceeding.
7.10. Sanswire
shall not issue any press release which includes or refers to GTC and in any way
relates to this Agreement, without the prior written consent of
GTC.
7.11. 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. It shall not
be necessary in making proof of this Agreement or any counterpart hereof to
produce or account for any of the other counterparts. A copy of this
Agreement signed by one party and faxed to the other party shall be deemed to
have been executed and delivered by the signing party as though an
original. A photocopy of this Agreement shall be effective as an
original for all purposes.
7.12. The
Section headings used in this Agreement have been used for convenience of
reference only and are not to be considered in construing or interpreting this
Agreement.
7.13. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of this Agreement shall remain in full force and effect.
7.14. No
remedy set forth in this Agreement is exclusive of any other available remedy or
remedies, whether legal or equitable, but each remedy is cumulative and in
addition to every other right or remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute. Either party hereto may
pursue its rights and remedies concurrently or in any sequence and no exercise
of one right or remedy shall be deemed to be an election.
7.15. Unless
the context of this Agreement clearly requires otherwise, the plural includes
the singular, the singular includes the plural, the part includes the whole,
"including" is not limiting, and "or" has the inclusive meaning of the phrase
"and/or". The words "hereof", "herein", "hereby", "hereunder" and
other similar terms in this Agreement refer to this Agreement as a whole and not
exclusively to any particular provision of this Agreement.
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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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By:
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Xxxxxx
Xxxxxxx
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Chief
Financial Officer
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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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EXHIBIT
A
THE
AIRSHIP
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Equipment
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Quantity
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Gas
Cells Bags
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5
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Envelope
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1
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Helium
Valves
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5
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Cable
Set
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1
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Blowers
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9
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Gas
Cell Holders
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5
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Envelope
Rigid Inserts
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1
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Propellers,
Design, Test & Manufacture.
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3
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Cross
Brace Structure Design & Construction for Fins & Keel
Interface.
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1
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Keel
Structure, Design & Construction.
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1
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Nose
Mast, Design & Construction.
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1
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Engine
Mounts (Set of 3), Structure, Design & Construction.
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1
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*Subject
to final inspection of shipping crates
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EXHIBIT
B
FORM OF XXXX OF
SALE
This Xxxx
of Sale (this “Xxxx of
Sale”) is made as of __________, 2010, by Sanswire Corp., a Delaware
corporation with offices at 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000 (“Sanswire”) in favor of Global
Telesat Corp., a Virginia corporation with offices at 00 Xxxx Xxxxx Xxxx,
Xxxxxxx, Xxx Xxxx 00000 (“GTC“).
Sanswire
and GTC have entered into an agreement dated April __, 2010 (the “Agreement”), pursuant to which
GTC purchased a fifty percent (50%) ownership interest in the
Airship. All capitalized terms used but not defined in this Xxxx of
Sale shall have the meanings set forth in the Agreement.
KNOW ALL MEN BY THESE
PRESENTS, that Sanswire, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, by these presents does hereby
grant, bargain, sell, transfer, set over, assign, convey, confirm and deliver
unto GTC, a fifty percent (50%) ownership interest in and to the Airship, free
and clear of all liens, claims and encumbrances whatsoever.
TO HAVE AND TO HOLD THE SAME,
unto GTC and its successors and assigns forever, and Sanswire hereby represents
and warrants to GTC that Sanswire has good and marketable title in and to the
Airship, free and clear of all liens, claims and encumbrances
whatsoever. Sanswire also hereby represents and warrants that it has
the right to sell an ownership interest in and to the Airship and will defend
the title to the same unto GTC and unto its successors and assigns forever,
against the claims and demands of any persons or entities
whomsoever.
Sanswire
agrees, upon the reasonable request of GTC, to make, execute and deliver any and
all documents or instruments of any kind or character, and to perform all such
other actions that may be necessary or proper and reasonable to effectuate,
confirm, perform, or carry out the terms and provisions hereof.
This Xxxx
of Sale and all questions relating to its validity, interpretation, performance
and enforcement shall be governed by and construed in accordance with the
internal laws of the State of New York without giving effect to principles of
conflicts of laws.
IN WITNESS WHEREOF, Sanswire
has executed and delivered this Xxxx of Sale as of the date first written
above.
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By:
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Print
Name and Title
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