EXHIBIT 10.72
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT ("Agreement") is made as of this 3rd
day
of July, 2008, between U.S. HELICOPTER CORPORATION (the "Company"),
a Delaware
corporation, BARRY J. BELMONT, an individual residing in St. John,
U.S. Virgin
Islands (the "Purchaser"), and for purposes of Sections 2.4, 3.2,
4.3 and 5.4(c)
of this Agreement only, those officers of the Company whose names
are set forth
on the signature page hereof (each, a "Company Officer" and
together, the
"Company Management").
RECITALS
WHEREAS, the Company has authorized the issuance and sale of
the
Company's Convertible Promissory Note (the "Note) to the Purchaser
in the
aggregate principal amount of $1,500,000.00, having the terms set
forth in
Exhibit A attached hereto and certain warrants as described herein;
and
WHEREAS, the Purchaser desires to purchase, and the Company desires
to
issue, the Note and warrants on the terms set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the terms
and
conditions contained in this Agreement, the Company and the
Purchaser agree as
follows:
1. PURCHASE AND SALE OF THE NOTE.
1.1 Subject to the terms and conditions contained in this
Agreement, at the Closing (as hereinafter defined) the Purchaser
shall purchase
from the Company and the Company shall sell to the Purchaser, the
Note for
$1,500,000.00 (One Million Five Hundred Thousand Dollars and
00/100) (the "Loan
Amount") which shall be payable via wire transfer to the Company's
designated
account (not later than the Closing Date (as hereinafter
defined)).
1.2 The Note shall be repaid, together with all accrued and
unpaid interest, on the earlier of (a) the first closing of a
private placement
of the Company's debt or equity securities to institutional
investors in the
Company's institutional capital raise currently proposed to be
conducted by
Raymond James & Associates, Inc. and Chart Group Advisors, LLC
(or any other
placement agent to institutional investors) (the "Institutional
Private
Placement"), or (b) December 31, 2008. Repayment of the Note shall
be secured by
a pledge of 375,000 shares of common stock of [Redacted], a
Delaware
corporation. Hereinafter these shares shall be referred to as the
"Pledged
Collateral".
1.3 The Note, together with accrued but unpaid interest, shall
be convertible at the option of the Purchaser, into shares of the
Company's
common stock, par value $0.001 per share (the "Common Stock"), at a
price equal
to the lower of (a) the conversion price for convertible debt
issued in the
first closing of the Institutional Private Placement or (b) $0.20
per share. The
shares issuable upon conversion of the Note (the "Conversion
Shares") shall be
entitled to piggyback registration rights.
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1.4 The Note shall bear interest at the rate of 15% per annum
based on a 360-day year, of which 60 days' worth of interest, equal
to $37,500,
shall be prepaid on the Closing Date. The interest prepaid shall
be
non-refundable in the event of early repayment.
1.5 As additional consideration, the Purchaser shall receive
from the Company an origination fee of five percent (5%) of the
Loan Amount,
equal to $75,000, which shall be payable on the Closing Date.
2. CLOSING.
2.1 DATE OF CLOSING. The closing of the purchase and sale of
the Note (the "Closing") shall take place on June 30, 2008, or such
other day as
agreed to by the parties (the "Closing Date"). Time is of the
essence such that
the Closing shall take place as soon as possible.
2.2 ITEMS TO BE DELIVERED BY THE PURCHASER TO THE COMPANY. The
following shall be delivered by the Purchaser to the Company on the
Closing
Date:
(a) this Agreement executed by the Purchaser;
(b) the Loan Amount, less the prepaid interest as set
forth in Section 1.4 hereof and the origination fee as set forth
in
Section 1.5 hereof, by check or wire transfer to the account
designated
by the Company; and
(c) the Pledge and Escrow Agreement (the "Pledge
Agreement") with respect to the Pledged Collateral executed by
the
Purchaser and the Escrow Agent.
2.3 ITEMS TO BE DELIVERED TO THE PURCHASER BY THE COMPANY. The
following shall be delivered by the Company to the Purchaser on the
Closing
Date:
(a) this Agreement executed by the Company;
(b) the Pledge Agreement executed by the Company, the
Escrow Agent, the Pledgors and the Key Holders (all as defined
therein);
(c) Consent to transactions contemplated hereby from
YA Global Investments, L.P. ("YA Global") in form and scope
reasonably
satisfactory to YA Global, the Company and the Purchaser;
(d) Consent to transactions contemplated by the
Pledge Agreement from [Redacted] and its stockholders,
including
Univest Miami Holdings Limited, in form and scope reasonably
satisfactory to [Redacted] and its stockholders;
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(e) the Note; and
(f) the Warrant (as defined below).
2.4 ITEMS TO BE DELIVERED TO THE PURCHASER BY COMPANY
MANAGEMENT. The following shall be delivered by Company Management
to the
Purchaser on the Closing Date:
(a) this Agreement executed by Company Management as
to Sections 2.4, 3.2, 4.3 and 5.4(c) of this Agreement only;
(b) certificates representing the Management Shares;
and
(c) duly executed stock powers or other appropriate
transfer documents with respect to the Management Shares executed
in
blank by Company Management.
3. INDUCEMENT WARRANT AND SHARES.
3.1 WARRANT. As an inducement to purchase the Note, the
Purchaser shall be entitled to receive warrants to purchase up to
3,000,000
shares of the Company's common stock (the "Warrant"). The Warrant
shall be
exercisable for a period of five years from the Closing Date at an
exercise
price of $0.20 per share. The shares issuable upon exercise of the
Warrant (the
"Warrant Shares") shall be entitled to piggyback registration
rights.
3.2 SHARES. As an inducement to purchase the Note, the
Purchaser shall be entitled to receive 525,000 share of the
Company's common
stock (the "Management Shares") to be transferred and assigned to
Purchaser by
Company Management from their respective individual holdings (in
such proportion
as Company Management may determine in their sole discretion). The
Management
Shares shall be entitled to piggyback registration rights.
4. REPRESENTATIONS AND WARRANTIES.
4.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants that as of the date of this Agreement:
(a) EXISTENCE. The Company is a corporation duly
organized and in good standing under the laws of the State of
Delaware
and is duly qualified to do business and is in good standing in
all
states where such qualification is necessary, except for those
jurisdictions in which the failure to qualify would not, in the
aggregate, have a material adverse effect on the Company's
financial
condition, results of operations or business.
(b) AUTHORITY. The execution and delivery by the
Company of this Agreement and the issuance of the Note, the
Conversion
Shares, the Warrant and the Warrant Shares (together, the
"Company
Securities") (i) are within the Company's corporate powers; (ii)
have
been duly authorized by the Company's board of directors; (iii) are
not
in contravention of the terms of the Company's certificate of
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incorporation or bylaws; (iv) are not in contravention of any law
or
laws; (v) except for the filing of a Form D Notice with the
Securities
and Exchange Commission (the "SEC") and any exemption filing
related
thereto which may be required to be made pursuant to applicable
state
securities or "blue sky" laws, do not require any governmental
consent,
registration or approval; (vi) do not contravene any contractual
or
governmental restriction binding upon the Company; and (vii) will
not
result in the imposition of any lien, charge, security interest
or
encumbrance upon any property of the Company under any existing
indenture, mortgage, deed of trust, loan or credit agreement or
other
material agreement or instrument to which the Company is a party or
by
which the Company or any of the Company's property may be bound
or
affected.
(c) BINDING EFFECT. This Agreement, the Note and the
Warrant have been duly authorized, executed and delivered by
the
Company and constitute the valid and legally binding obligations of
the
Company, enforceable in accordance with their respective terms,
subject
to bankruptcy, insolvency, reorganization and other laws of
general
applicability relating to or affecting creditors' rights and to
general
equity principles. Upon issuance, the Conversion Shares and the
Warrant
Shares shall be duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock.
(d) CAPITALIZATION. The authorized capital stock of
the Company consists of 95,000,000 shares of Common Stock,
45,654,168
shares of which were issued and outstanding as of May 15, 2008,
and
5,000,000 shares of authorized Preferred Stock, par value $0.001
per
share, none of which are issued and outstanding.
(e) DISCLOSURE DOCUMENTS. The Company has furnished
to the Purchaser or made available at the website of the SEC
(HTTP://WWW.SEC.GOV), copies of the Company's (i) Annual Report on
Form
10-KSB for the fiscal year ended December 31, 2007 as filed with
the
SEC on April 15, 2008; and (ii) the Company's Quarterly Report on
Form
10-QSB for the fiscal quarter ended March 31, 2008 as filed with
the
SEC on May 20, 2008 (together, the "SEC Documents").
(f) SECURITIES MATTERS. Subject to the accuracy of
the representations of the Purchaser set forth in Section 4.2
hereof,
the offer, sale and issuance of the Company Securities as
contemplated
by this Agreement are exempt from the registration requirements of
the
Securities Act of 1933, as amended (the "Securities Act"). The
Company
has complied and will comply with all applicable state securities
or
"blue sky" laws in connection with the offer, sale and issuance of
the
Company Securities as contemplated by this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants that as of the date of this
Agreement:
(a) AUTHORIZATION OF THE AGREEMENT. This Agreement
constitutes a valid and legally binding obligation of the
Purchaser
except to the extent that enforceability may be limited by
bankruptcy,
insolvency or similar laws affecting creditors' rights generally or
by
general principles of equity.
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(b) NO CONFLICT. The execution, delivery and
performance by the Purchaser of this Agreement and the consummation
by
the Purchaser of the transactions contemplated hereby do not and
will
not at the Closing (a) violate any provision of law, statute, rule
or
regulation, or any ruling, writ, injunction, order, judgment or
decree
of any court, administrative agency or other governmental body
applicable to the Purchaser, or any of its properties or assets, or
(b)
conflict with or result in any breach of any of the terms,
conditions
or provisions of, or constitute (with due notice or lapse of time,
or
both) a default (or give rise to any right of termination,
cancellation
or acceleration) under, or result in the creation of any
encumbrance
upon any of the properties or assets of the Purchaser under any
material contract to which the Purchaser is a party.
(c) INVESTMENT REPRESENTATIONS.
(i) The Purchaser has, or the Purchaser's
designated representatives have, received and reviewed the SEC
Documents, concluded a satisfactory due diligence
investigation of the Company and had an opportunity to review
the documents provided by the Company and to have all
questions related thereto satisfactorily answered.
(ii) The Purchaser understands the
fundamental risks of the Company Securities and the Management
Shares (together, the "Securities"). The Purchaser has
determined (a) that he can reasonably benefit from the
investment based upon net worth, income, overall investment
objectives and portfolio structure, (b) that the Purchaser's
overall commitment to investments which are not readily
marketable is not disproportionate to the Purchaser's net
worth, and that the Securities will not cause such overall
commitment to be
