NOTES PAYABLE | NOTE 8 — NOTES PAYABLE Notes payable included the following as of September 30, 2023 and December 31, 2022: Secured notes payable: September 30, December 31, 2023 2022 Secured note payable issued December 7, 2018 to a shareholder, bearing interest of 10% per year, due one year after issuance. In January 2023 the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was paid in full. $ — $ 100,000 Secured note payable issued December 7, 2018 to a shareholder, bearing interest of 10% per year, due one year after issuance. In January 2023 the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 100,000 Secured note payable issued December 7, 2018, bearing interest of 10% per year, due one year after issuance. During the nine months ended September 30, 2023, this note was paid in full. — 100,000 Secured note payable issued on December 7, 2018 related to the acquisition of MWTS, bearing interest of 6% per year and due in monthly installments of $7,500, with a maturity date of December 8, 2023. On September 29, 2022, the Company entered into a settlement of debt agreement and release. Per the agreement, the Company converted approximately $467,000 of debt into shares of common stock. The Company will pay six remaining quarterly payments of approximately $45,833 per month from December 2022 through March 31, 2024, the amended maturity date. 91,667 275,000 Secured note payable issued May 1, 2019 to a shareholder, bearing interest of 10% per year, with a principal balance of $100,000. During the nine months ended September 30, 2023, this note was paid in full. — 100,000 Secured note payable issued June 17, 2019 to a shareholder, bearing interest of 10% per year, due June 30, 2020. During the nine months ended September 30, 2023, this note was paid in full. — 80,000 Secured note payable with a related party issued February 27, 2020 in connection with the 5J acquisition, bearing interest of 10% per year, and which matured on February 1, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 2,000,000 Various notes payable secured by equipment of 5J Trucking, LLC, bearing interest ranging from 5.32% to 5.5% maturing from January 2023 through March 2023. During the nine months ended September 30, 2023, this note was paid in full. — 64,521 Secured note payable with a related party issued on February 27, 2020, bearing interest of 10.0% per year, which matured on March 1, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 77,856 Secured promissory notes for SMG Industries Inc., and 5J Trucking LLC, with Small Business Administration Economic Injury Disaster Loans, bearing interest of 3.75% annually and maturing in June, August, and September 2050. — 299,493 Secured promissory note issued on June 20, 2020 in connection with an equipment purchase. The note was due and payable in thirty-six monthly installments of $45,585 commencing on July 20, 2020, and the final installment was due on July 1, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 347,045 Secured promissory note issued on January 27, 2022. The note was due on May 1, 2026 and secured by machinery and equipment owned by the Company. The Company paid an initial installment of $95,025, with monthly payments of approximately $15,275 per month beginning in June 2022 through maturity. During the nine months ended September 30, 2023, this note was paid in full. — 538,613 Secured promissory note issued on July 11, 2022. The note is due on June 8, 2027 and secured by equipment owned by the Company. The Company will pay monthly payments of approximately $2,372 per month beginning in July 2022 through maturity. 91,860 109,833 Secured promissory note issued on November 30, 2022. The note was due and payable in thirty-six monthly installments of $3,304 commencing on December 30, 2022 and the final installment was due on November 30, 2025. During the nine months ended September 30, 2023, this note was paid in full. — 104,103 Secured promissory note with Amerisource, a related party, issued on September 7, 2021 in the amount of $12,740,000, bearing interest at 12%, and maturing September 7, 2026. The Company was required to make monthly payments of interest only beginning October 1, 2021, with payments of principal and interest beginning in October 2022. On March 15, 2022, the Company entered into an agreement with Amerisource, to amend the Loan Agreement dated September 7, 2021, pursuant to which Amerisource agreed to increase the loan commitment to the Company from $12,740,000 to $16,740,000. In January 2023, the Company received $1,000,000 in additional proceeds under this facility, which had a maturity date of June 30, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 15,911,485 Secured term loan issued July 7, 2023, bearing interest at a fluctuating rate of interest per year based on a Term SOFR Rate (as defined in the Term Loan Credit Agreement) plus a margin of 6.50%, which Applicable Rate (as defined in the Term Loan Credit Agreement) may adjust lower (but no lower than 5.50%) based on the leverage ratio of the borrowers and their subsidiaries commencing on the six-month anniversary from closing. The principal amount of the term loan shall be repaid in equal monthly installments of $396,075 commencing on September 1, 2023. The term loan matures on July 7, 2026. 31,289,982 — Total secured notes payable 31,473,509 20,207,949 Less unamortized discount and deferred finance costs (1,826,906) — Less current maturities (29,577,004) (6,987,802) Long term secured notes payable, net of current maturities $ 69,599 $ 13,220,147 Effective January 1, 2023, the Company issued 720,000 shares of common stock to holders of $480,000 in secured notes payable. During the nine months ended September 30, 2023, the Company entered into five new secured notes payable. The notes were due from April 2027 through March 2029 and secured by equipment owned by the Company. The Company was required to pay monthly payments ranging from $1,136 to $1,723 per month beginning in March 2023 through maturity. As of September 30, 2023, these notes were paid in full. On July 7, 2023, in connection with the Acquisition described in Note 4, the Company issued 41,211,909 shares of common stock in settlement of $9,945,048 of principal and $357,911 of accrued interest on secured notes payable. The Company recognized a gain on extinguishment of debt of $2,637,557 in connection with these settlements based on the fair value of the shares issued at settlement. Term Loan On July 7, 2023, the Company, 5J Transportation Group and, upon the consummation of the Acquisition, the Barnhart Companies (collectively, the “Borrowers”) entered into a Credit Agreement (the “Term Loan Credit Agreement”) among the Borrowers, the other loan parties party thereto from time to time, the lenders party thereto from time to time and Great Rock Capital Partners Management, LLC (“Great Rock”), as the administrative agent. The Term Loan Credit Agreement provides for a $31.7 million term loan (the “Term Loan”). The availability of the Term Loan on the date of closing of the Acquisition (the “Closing”) was based on 80% of the net orderly liquidation value of certain eligible equipment and rolling stock of the Borrowers (the “Term Loan Borrowing Base”). The principal amount of the Term Loan shall be repaid in equal monthly principal installments of $396,075 plus interest commencing on September 1, 2023, and the Borrowers may also be required to make certain other mandatory prepayments from time to time, including with a required prepayment premium, if the Term Loan Borrowing Base does not support the existing amount of the Term Loan outstanding and for certain other prepayment events, including from dispositions of assets, casualty events and certain extraordinary events. Borrowings under the Term Loan Credit Agreement bear interest at a fluctuating rate of interest per year based on a Term SOFR Rate (as defined in the Term Loan Credit Agreement) plus a margin of 6.50%, which Applicable Rate (as defined in the Term Loan Credit Agreement) may adjust lower (but no lower than 5.50%) based on the leverage ratio of the Borrowers and their subsidiaries commencing on the six-month anniversary from Closing. The Term Loan matures on July 7, 2026. The Borrowers’ obligations to repay the amounts borrowed under the Term Loan Credit Agreement are secured by liens on substantially all of the assets of the Borrowers, including any rolling stock owned by the Borrowers. The Term Loan Credit Agreement contains customary representations, warranties, affirmative and negative covenants, limitations, and events of default for a transaction of this type, including maintenance of a minimum fixed charge coverage ratio of not less than 1.0 to 1.0, minimum availability of not less than $3,750,000 at any time, minimum EBITDA levels in accordance with the terms of the Term Loan Credit Agreement and other restrictions, including restrictions on net maximum capital expenditures as set forth in the Term Loan Credit Agreement. At closing of the Term Loan, the Company paid $1,971,247 in closing costs that were recognized as deferred finance costs, which are being amortized through the maturity date of the Term Loan. The Company amortized $144,341 of the costs to interest expense during the three months ended September 30, 2023, and unamortized deferred finance costs were $1,826,906 as of September 30, 2023. The interest rate on the Term Loan was 11.89% as of September 30, 2023. As of September 30, 2023, the Company was not in compliance with all covenants under the Term Loan Credit Agreement. The Company is currently in discussions with our senior lenders to amend certain covenants in connection with our anticipated future operational plans. As of September 30, 2023, the Company has classified the debt as a current liability while it negotiates a waiver of the covenant violations, which has not been received as of the date of this filing. In connection with the Term Loan and related transactions described above, the Company’s borrowings and obligations under the First Amended and Restated Commercial Promissory Note, dated September 7, 2021, in the original principal amount of $16,740,000 with Amerisource were satisfied in full. Asset Based Lending Also on July 7, 2023, the Borrowers entered into a Credit Agreement (the “ABL Credit Agreement” and, collectively with the Term Loan Credit Agreement, the “Credit Agreements”) among the Borrowers, the other loan parties party thereto from time to time, the lenders party thereto from time to time and JPMorgan Chase Bank, N.A. (“JPMorgan”), as the administrative agent. The ABL Credit Agreement provides for a $25.0 million revolving credit facility (the “Revolving Line of Credit”). Availability under the ABL Credit Agreement is based upon 90% of certain eligible accounts receivable of the Borrowers (the “ABL Borrowing Base”) and the ABL Borrowing Base supported borrowings of approximately $16.4 million as of the date of Closing. The Borrowers borrowed approximately $10.9 million under the ABL Credit Agreement on July 7, 2023, leaving approximately $5.5 million of availability. The maturity date of the ABL Credit Agreement is July 7, 2026, and all principal amounts are due and payable on the maturity date or, upon certain mandatory prepayment events, including if the ABL Borrowing Base no longer supports outstanding borrowings and certain other asset dispositions and casualty events. Borrowings under the ABL Credit Agreement bear interest at a floating rate elected by the Borrowers (which includes a base rate, Term SOFR and REVSOFR30 rate), as well as an applicable rate of between 1.25% and 2.50% based upon the leverage ratio of the Borrowers, as well as a commitment fee of between 0.375% and 0.50% based upon the average daily amount of the Revolving Line of Credit available but unused during the most recent quarter. At the closing of the ABL Credit Agreement, the Company paid $1,402,708 in closing costs that were recognized as deferred finance costs, which are being amortized through the maturity date of the ABL Credit Agreement. The Company amortized $95,404 of the costs to interest expense during the three months ended September 30, 2023, and unamortized deferred finance costs were $1,307,254 as of September 30, 2023. As of September 30, 2023, the outstanding balance on the Revolving Line of Credit was $11,343,090. The interest rate as of September 30, 2023 was 7.93% and the availability was $3,356,928. As of September 30, 2023, the Company was not in compliance with all covenants under the ABL Credit Agreement. The Company is currently in discussions with its lender to amend certain covenants in connection with our anticipated future operational plans and to waive. As of September 30, 2023, the Company has classified the debt as a current liability while it negotiates a waiver of the covenant violations, which has not been received as of the date of this filing. Accounts Receivable Financing Facility (Secured Line of Credit) On February 27, 2020, the 5J Oilfield Services LLC and 5J Trucking LLC (the “5J Entities”) entered into a Revolving Accounts Receivable Assignment and Term Loan Financing and Security Agreement (the “Financing Agreement”) with Amerisource Funding Inc. (“Amerisource”) in the aggregate amount of $10,000,000 (the “Amerisource Financing”).The Amerisource Financing provided for: (i) an equipment loan in the principal amount of $1,401,559 (“Amerisource Equipment Loan”), (ii) a bridge term facility in the amount of $550,690, and (iii) an accounts receivable revolving line of credit up to $10,000,000 (the “AR Facility”). The Company recorded deferred financing costs of $223,558 recognized on the date of incurrence as a discount. During the nine months ended September 30, 2023 and 2022, $28,428 and $28,428, respectively, of debt discount was amortized to interest expense, and the unamortized discount was $0 and $28,428 as of September 30, 2023 and December 31, 2022, respectively. Amerisource is a related party of the Company due to its holdings of common stock and convertible debt of the Company and has an officer who serves on the Board of Directors of the Company (the “Board”). The AR Facility was issued in an amount not to exceed $10,000,000, with the maximum availability limited to 90% of the eligible accounts receivable (as defined in the Financing Agreement). The AR Facility was paid for by the assignment of the accounts receivable of each of the 5J Entities and was secured by all instruments and proceeds related thereto. The AR Facility had an interest rate of 4.5% in excess of the prime rate per annum, an initial collateral management fee of 0.75% of the maximum account limit per annum, a non-usage fee of 0.35% assessed on a quarterly basis on the difference between the maximum availability under the AR Facility and the average daily revolving loan balance outstanding, and a one time commitment fee equal to $100,000 paid at closing. The AR Facility could have been terminated by the 5J Entities with 60 days’ written notice. There was an early termination fee equal to two percent (2.0)% of the then maximum account limit if there were more than twelve (12) months remaining in term of the AR Facility, or one percent (1.0)% of the then maximum account limit if there were twelve months or less remaining in the term of the AR Facility. The Company was a guarantor of the Amerisource Financing. The AR Facility originally matured on February 27, 2023, but automatically extended for an additional 12 months per the terms of the Financing Agreement. On January 19, 2023, the Company and Amerisource entered into an agreement to provide the Company with an additional $1,000,000 advance amount on the existing AR Facility (the “Overadvance”). The Overadvance had monthly payments of principal and interest beginning February 1, 2023, bore interest at 12% per year, and would have matured on September 7, 2026. On June 1, 2023, the Company and Amerisource entered into an amendment to the AR Facility to increase the maximum borrowing amount to $13,000,000. In connection with the Acquisition on July 7, 2023, the AR Facility was repaid in full and terminated. The balances under the above Financing Agreement were $0 and $10,623,887 as of September 30, 2023 and December 31, 2022, respectively. Unsecured Notes Payable September 30, December 31, 2023 2022 Insurance premium financing note with original principal of $1,677,968, monthly payments of $174,154, with stated interest of 8.0%, and a maturity date of May 1, 2023. On February 1, 2023, the policy was extended with principal amount of $645,195, monthly payments of $164,543, stated interest of 9.6% and a maturity date of June 1, 2023. $ — $ 640,083 Insurance premium financing note with original principal of $485,830, monthly payments of $49,809, with stated interest of 5.470%, and which matured on February 14, 2023. — 98,780 Unsecured note payable with a shareholder. Note issued on August 10, 2018 for $40,000, due December 30, 2018 (extended to June 30, 2020) with 10% interest per year, and balance of payable was due on demand. An additional $25,000 was advanced and was due on demand. On September 9, 2022, the maturity date of the note was extended to December 31, 2022. In January 2023, the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was paid in full. — 44,559 Unsecured payable for settlement of lawsuit with an original settlement on April 13, 2021 for $196,188, monthly payments of $6,822 for 24 months, an interest rate of 6% and a default interest rate of 18%. — 2,925 Unsecured note payable with a shareholder, a related party. Note issued on December 22, 2021 for $150,000, due January 31, 2022 with 12% interest per year. During the year ended December 31, 2022, an additional $895,025 was loaned by the shareholder, related party. On August 3, 2022, the maturity date of the note was extended to December 31, 2022. In January 2023, the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was settled by issuance of common stock. — 1,045,025 Unsecured note payable with a shareholder, a related party. Note issued on December 22, 2021 for $150,000, due January 31, 2022 with 12% interest per year. On January 6, 2022, the shareholder, related party, loaned the Company an additional $100,000. On August 3, 2022, the maturity date of the note was extended to December 31, 2022. In January 2023, the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was settled by issuance of common stock. — 250,000 Unsecured note payable with a shareholder, a related party. Note issued on December 22, 2021 for $150,000, due January 31, 2022 with 12% interest per year. On January 6, 2022, the shareholder loaned the Company an additional $100,000. On August 3, 2022, the maturity date of the note was extended to December 31, 2022. In January 2023, the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was settled by issuance of common stock. — 250,000 Unsecured note payable with a shareholder, a related party. Note issued on February 14, 2022 for $134,073, due March 31, 2022 with 12% interest per year. On August 3, 2022, the maturity date of the note was extended to December 31, 2022. In January 2023, the maturity date of the note was extended to June 30, 2023. During the nine months ended September 30, 2023, this note was settled by issuance of common stock. — 134,073 Unsecured notes payable with a shareholder, a related party. Note issued on July 7, 2023 for $3,000,000, due on the 72-month anniversary of the closing with 6% interest per year. 3,000,000 — Unsecured note payable with a shareholder, a related party. Note issued on July 7, 2023 for $1,460,139, non-interest bearing and due on demand. 1,460,139 — Insurance premium financing note with original principal of $1,929,146 , monthly payments of $199,842 , with stated interest of 7.76% , and maturing on May 1, 2024 . 1,529,462 — Insurance premium financing note with original principal of $1,558,210 , monthly payments of $161,075 , with stated interest of 7.29% , and maturing on May 1, 2024 . 1,236,090 — Total notes payable - unsecured 7,225,661 2,465,445 Less discounts (413,090) — Less current portion (4,725,665) (2,465,445) Notes payable - unsecured, net of current portion $ 2,086,906 $ — Effective January 1, 2023, the Company issued 2,585,487 shares of common stock to holders of $1,723,657 of unsecured notes payable. On January 27, 2023, the Company issued an aggregate of 2,000,000 shares of its common stock to four purchasers of new promissory notes in the principal amount of $1,000,000. The Company recorded deferred financing cost of $360,000 based on the fair value of the shares issued to the lenders, which was recognized as a discount. The Company amortized total debt discount of $360,000 related to secured notes payable during the nine months ended September 30, 2023. During the nine months ended September 30, 2023, these notes were settled by issuance of common stock. On July 20, 2023, the Company entered into two Premium Finance Agreements related to an insurance policy. The policy premiums total $3,717,708 for a one-year policy period. The Company financed $3,487,356 of the policy over a ten-month period. The monthly payments under the agreements are due in ten installments of $161,075 and $199,842, at an annual interest rate of 7.29% and 7.76%, respectively. On July 7, 2023, in connection with the Acquisition described in Note 4, the Company issued 10,846,756 shares of common stock in settlement of $2,679,098 of principal and $32,590 of accrued interest and $49,500 of related party lease obligations on unsecured notes payable. The Company recognized a gain on extinguishment of $743,691 in connection with these settlements based on the fair value of the shares issued at settlement. Subsequent to the closing of the Acquisition, Apex Heritage Investments LLC (“Apex Heritage”), a company controlled by Steven H. Madden, a director and the Company’s former Chief Transition Officer, repaid Amerisource $1,460,139 of the outstanding secured note facility on behalf of the Company. The Company has included the amount owed to Mr. Madden as an unsecured note, bearing no interest and due on demand. Subsequent to September 30, 2023, the Company and Apex Heritage entered into a securities purchase agreement for the Company’s Series C Convertible Preferred Stock, whereby Apex Heritage was issued 146 shares of Series C Convertible Preferred Stock in exchange for $1,460,000 of the amount funded on behalf of the Company, with the Company owing a remaining $2,150. Convertible Notes Payable As of December 31, 2022, the convertible notes, net of discount balance was $7,327,288 with long term convertible notes payable of $0 and a current portion of convertible notes of $7,327,288. Accrued interest on the convertible notes was $244,090 as of December 31, 2022. On February 27, 2020, the Company entered into a loan agreement with Amerisource Leasing Corporation, which has an equity ownership of 12.2% and is considered a related party, for the sale of a 10% convertible promissory note in the principal amount of $1,600,000 (“Amerisource Stretch Note”). The Amerisource Stretch Note originally matured on March 31, 2023, which was extended to June 30, 2023, and was convertible into shares of the Company’s common stock at a conversion price of $0.25 per share. The interest rate on the Amerisource Stretch Note increased to 11% per annum on February 27, 2021 and to 12% per annum on February 27, 2022. Interest shall be paid on a quarterly basis. In addition, 2,498,736 shares of the Company’s common stock with a fair value of $419,788 were issued to the noteholder in connection with the issuance of the Amerisource Stretch Note. The Company recorded deferred financing costs of $419,788 recognized on the date of incurrence as a discount, which was amortized over the life of the loan. During the year ended December 31, 2022, $151,589 of debt discount was amortized to interest expense, and there was $0 of unamortized discount as of December 31, 2022. The Amerisource Stretch Note could be prepaid at any time by the Company on 10 days’ notice to the noteholder without penalty. During the nine months ended September 30, 2023, the note was settled by the issuance of 6,214,271 shares of the Company’s common stock. On March 22, 2023, the Company entered into secured note purchase agreements with an officer and director for the purchase and sale of convertible promissory notes in the principal amount of $422,164. The notes pay a 10% per annum interest rate and are convertible into shares of the Company’s common stock at a fixed conversion price of $0.10 per share with a two-year term. These convertible notes are secured by all of the assets of the Company, subject to prior liens and security interests. This officer and director was issued 633,246 shares of common stock related to the convertible notes payable, which were recognized as a deferred finance cost. On March 31, 2023, Mr. Madden was issued a $250,000 secured convertible note, paid in kind for services as Chief Transition Officer (“CTO”), that matures after two years, pays a 10% per annum interest rate, paid quarterly, and has a fixed conversion rate at $0.10 per share. The convertible note was recorded as a prepaid expense to be amortized over a one-year period. Mr. Madden was issued 375,000 shares of common stock related to the convertible note payable which were recognized as a deferred finance cost. In connection with the July 7, 2023 Acquisition, and the expiration of the CTO services agreement, the Company eliminated the CTO officer role. Effective January 1, 2023, the Company issued 3,253,500 shares of common stock to holders of $2,169,000 of convertible promissory notes. On July 7, 2023, in connection with the Acquisition described in Note 4, the holders of the convertible notes described above were issued 88,148,625 shares of common stock in conversion of $9,528,903 of principal and $217,803 of accrued interest pursuant to the terms of the convertible notes. The Company also repaid $50,000 in principal on a convertible note on July 7, 2023. As of September 30, 2023, all convertible notes payable were settled. During the nine months ended September 30, 2023 and 2022, $409,984 and $1,687,804, respectively, of debt discount and deferred financing cost was amortized to interest expense. Future maturities of the principal balance of all Company debt as of September 30, 2023 are as follows: 2024 $ 47,472,665 2025 523,994 2026 525,856 2027 519,761 2028 500,004 Thereafter 499,980 Total $ 50,042,260 |