Exhibit
10.1
NOTE
PURCHASE AGREEMENT
This Note Purchase
Agreement (" Agreement "), is made and entered into as of
the 7th day of October 2009 by and between GULFSTREAM
INTERNATIONAL GROUP, INC. , a Delaware corporation (the
“Company”) having an executive office located at 3201
Griffin Road, 4 th Floor, Fort Lauderdale, Florida
33312; and GULFSTREAM FUNDING II, LLC , a Delaware limited
liability company (the “Lender”) having an address c/o
Taglich Brothers Inc., 275 Madison Avenue, Suite 1618, New
York, NY 10016. The Company and the Lender is
hereinafter sometimes referred to individually as a “
Party ” and collectively as the “ Parties
.”
RECITALS:
A.
the Company desires to
borrow funds from the Lender in to provide it with additional
working capital.
B.
The Lender is willing to
make a subordinated loans in the maximum principal amount of
$1,500,000 to the Company (the “ Loans “) to be
evidenced by the Company’s $1,500,000 12% subordinated note
due January 15, 2010 in the form of Exhibit A annexed
hereto and made a part hereof (the “ Note
”).
C.
As a material inducement
to cause the Lender to enter into this Agreement, make the Loans
and purchase the Note, the Company has agreed to enter into this
Agreement.
NOW,
THEREFORE, in
consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement,
the Parties hereto agree as follows:
DEFINITIONS
As used in this
Agreement, the following terms shall have the meanings set forth
below:
“ Applicable
Law” means any domestic or foreign law, statute,
regulation, rule, policy, guideline or ordinance applicable to the
Company and its Subsidiaries.
“ Affiliate
” means any one or more Person controlling, controlled by or
under common control with any other Person or their
affiliate.
“ Business
Day ” shall mean any day, excluding Saturday, Sunday and
any other day on which national banks located in New York, New York
shall be closed for business.
“ Certificate of
Incorporation ” shall mean the certificate of
incorporation of the Company, as amended to date.
“ Closing
Date ” shall mean the date upon which the transactions
contemplated by this Agreement shall be consummated.
“ Common
Stock ” shall mean the shares of common stock of the
Company that are authorized for issuance pursuant to the
Certificate of Incorporation.
“
Dollar” and “ $” means lawful money
of the United States of America.
“ Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“ Financial
Statements ” shall have the meaning as is defined in
Section 3.4 of this Agreement.
“ GAAP
” means generally accepted accounting principles in the
United States of America as promulgated by the American Institute
of Certified Public Accountants and the Financial Accounting
Standards Board or any successor Institutes concerning the
treatment of any accounting matter.
“ Knowledge
” means the knowledge after reasonable inquiry.
“ Material
Adverse Effect ” with respect to any entity or group of
entities means any event, change or effect that has or would have a
materially adverse effect on the financial condition, business or
results of operations of the Company and its Subsidiaries, when
taken as a consolidated whole.
“ National
Securities Exchange ” means the collective reference to
the New York Stock Exchange, the NYSE Amex Exchange, the Nadaq
Stock Exchange, the FINRA OTC Bulletin Board or any other
recognized national securities exchange in the United
States.
“ Person
” means any individual, corporation, partnership, trust or
unincorporated organization or a government or any agency or
political subdivision thereof.
“
Subsidiary ” of any Person means another Person, an
amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if
there are no such voting interests, 50% or more of the equity
interests of which) is owned directly or indirectly by such first
Person.
“ Tax
” (and, with correlative meaning, “ Taxes
” and “ Taxable ”) means:
(i) any income,
alternative or add-on minimum tax, gross receipts tax, sales tax,
use tax, ad valorem tax, transfer tax, franchise tax, profits tax,
license tax, withholding tax, payroll tax, employment tax, excise
tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax,
impost, levy, governmental fee or other like assessment or charge
of any kind whatsoever together with any interest or any penalty,
addition to tax or additional amount imposed with respect thereto
by any governmental or Tax authority responsible for the imposition
of any such tax (domestic or foreign), and
(ii) any liability for
the payment of any amounts of the type described in clause (i)
above as a result of being a member of an affiliated, consolidated,
combined or unitary group for any Taxable period, and
(iii) any liability for
the payment of any amounts of the type described in clauses (i) or
(ii) above as a result of any express or implied obligation to
indemnify any other person.
“ Tax
Return ” means any return, declaration, form, claim for
refund or information return or
-2-
statement relating to
Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
SECTION
1.
PURCHASE AND
SALE OF THE NOTE
1.1
The Note and
Payment .
(a)
On the Closing Date and
subject to and upon the terms and conditions of this Agreement, the
Company shall sell, assign, transfer and deliver the Note to the
Lender
(b)
On the Closing Date, and
against receipt of the Note, the Lender shall fund the proceeds of
the Loans to the Company by wire transfer of immediately available
funds to an account designated by the Company.
1.2
Exemption from
Registration . The Parties intend that the
Note to be issued by the Company to the Lender shall be exempt from
the registration requirements of the Securities Act of 1933, as
amended (the “ Securities Act ”), pursuant to
Section 4(2) of the Securities Act and the rules and regulations
promulgated thereunder.
1.3
Closing and Closing
Date.
The closing of the
transactions contemplated hereby (the “ Closing
”) will take place simultaneous with the execution and
delivery of this Agreement on October 7, 2009 or on such other date
as the Company and the Lender shall agree (the “ Closing
Date ”).
SECTION 2. REPRESENTATIONS AND
WARRANTIES OF THE LENDER .
The Lender hereby
represents and warrants to the Company as follows:
2.1
Organization and Good
Standing. The Lender is a limited
liability company duly organized and validly existing under the
laws of the State of Delaware.
2.2
Authority.
The Lender has the power
to enter into this Agreement and to perform its covenants and
agreements hereunder. The execution and delivery of this
Agreement and the consummation of the transaction contemplated
hereby have been duly authorized by the Board of Managers of the
Lender. The execution and performance of this Agreement will
not violate or conflict with any provision of the certificate of
formation or operating agreement of the Lender.
2.3
Investment
Purpose .
As of the date hereof and the Closing Date the Lender is
purchasing the Note for its own account and not with a present view
towards the public sale or distribution thereof, except pursuant to
sales registered or exempted from registration under the Securities
Act; provided, however , that by making the representations
herein, the Lender does not agree to hold any of the Note for any
minimum or other specific term and reserves the right to dispose of
the Note at any time in accordance with the Securities
Act.
2.4
Accredited
Investor .
The Lender is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation D under the Securities
Act (an “ Accredited Investor ”). Further,
the Lender represents that it is a sophisticated investor, can bear
the economic risk of this Investment for an
-3-
indefinite period of
time, and has such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and
risks of this Investment.
2.5
Reliance on
Exemptions .
the Lender understands that the Note
