Exhibit 10.11
LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into by and between American
Consolidated Management Group, Inc., a Utah corporation (the "Company") and
Upstate Capital Investments, LLC ("Lender") to be effective as of the 14th day
of May, 2004.
WITNESSETH:
WHEREAS, the Company is in need of immediate capital to fund its
planned operations.
WHEREAS, Lender is willing to make a loan to the Company in the total
aggregate principal amount of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000
USD) upon the terms and conditions set forth herein and the Company is willing
to borrow the stated amount upon such terms.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1 The Loan.
1.1 On the date hereof, Lender agrees to make a loan (the "Loan") to
the Company in the principal amount of THREE HUNDRED FIFTY THOUSAND DOLLARS
($350,000 USD). The Loan shall be evidenced by a promissory note in
substantially the same form as attached hereto as Exhibit "A" (the "Note"),
which Note shall be executed by the Company and delivered to Lender upon receipt
of the Loan. The Note shall be in the principal amount of the funds borrowed.
1.2 The Company shall use the net proceeds of the Note for working
capital and other purposes.
SECTION 2 Finance Charges. All outstanding principal shall bear interest at the
rate of ten percent (10%) per annum. Principal and interest not paid when due
shall bear interest at the rate of eighteen percent (18%) per annum. Interest
will be computed on the basis on a 360-day year for actual days elapsed. In
addition, Lender shall receive 50,000 restricted shares of the Company's common
stock.
SECTION 3 Payments. Principal and interest shall be due and payable in a single
balloon payment on the six month anniversary of the Note. The Company may, from
time to time, in the Company's discretion, make one or more periodic payments to
Lender. Such payments shall be credited to the Company's account on the date
that such payment is received by Lender. Such payments shall be applied first to
late charges and collection costs, if any, then to accrued interest to the date
of payment, and then to the principal outstanding.
SECTION 4 Deliveries. Contemporaneously with the execution of this Agreement,
the parties shall deliver to each other the following:
a) The properly executed Note of even date herewith by and between Lender
and the Company.
b) The Loan proceeds.
SECTION 5 Representations of Lender.
5.1 Lender's representations in this Agreement are complete and
accurate to the best of Lender's knowledge, and the Company may rely upon them.
5.2 Lender is able to bear the economic risk of an investment in the
Note and the common stock (individually and collectively, the "Securities") can
afford the loss of the entire investment in the Securities, and will, after
making an investment in the Securities, have sufficient means of providing for
Lender's current needs and possible future contingencies.
5.3 The Securities will not be sold by Lender without registration
under applicable securities acts or a proper exemption from such registration.
5.4 The Securities subscribed for herein are being acquired for
Lender's own account and risk, for investment purposes, and not on behalf of any
other person or with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933. Lender is
aware that there are substantial restrictions on the transferability of the
Securities.
5.5 Lender has had access to any and all information concerning the
Company that Lender and its financial, tax and legal advisors required or
considered necessary to make a proper evaluation of this investment.
Specifically, Lender has had the opportunity to review the Company's annual
report on Form 10-KSB for the fiscal year ended December 31, 2003 and all
subsequent filings by the Company with the Securities and Exchange Commission
(the "SEC"). The Company does not have sufficient assets to repay the Loan and
has had minimal operations in past years. The Company has advised Lender that
(i) there have been material developments that are not described in the
Company's filings with the SEC, (ii) the Company's financial statements and
other information contained in such filings do not reflect material changes that
have occurred since the date of the financial statements in said filing and
(iii) the Company believes that updated financial and business information would
be material to Lender's investment decision. Notwithstanding the foregoing,
Lender has declined to review, accept or consider additional information in
making an investment decision. In making the decision to acquire the Securities,
the Lender and its advisers have relied solely upon their own independent
investigations, and fully understand that there are no guarantees, assurances or
promises in connection with any investment hereunder and understand that the
particular tax consequences arising from this investment in the Company will
depend upon its individual circumstances. Lender further understands that no
opinion is being given as to any securities or tax matters involving the
offering.
5.6 Lender also understands and agrees that stop transfer instructions
relating to the Securities will be placed in the Company's transfer ledger, and
that the Securities will bear a legend in substantially the following form:
THIS SECURITIES REPREENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THESE SECURITIES UNDER
SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR
RULE 144A OF SUCH ACT.
5.7 Lender knows that the Securities are offered and sold pursuant to
exemptions from registration under the Securities Act of 1933, and state
securities law based, in part, on these warranties and representations, which
are the very essence of this Agreement, and constitute a material part of the
bargained-for consideration without which this Agreement would not have been
executed.
5.8 Lender has the capacity to protect Lender's own interest in
connection with this transaction or has a pre-existing personal or business
relationship with the Company or one or more of its officers, directors or
controlling persons consisting of personal or business contacts of a nature and
duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
5.9 This Agreement when fully executed and delivered by the Company
will constitute a valid and legally binding obligation of Lender, enforceable in
accordance with its terms. Lender was not formed or organized for the specific
purpose of acquiring the Securities. In the event Lender is an entity, the
purchase of the Securities by Lender is a permissible investment in accordance
with Lender's Articles of Incorporation or other similar charter document, and
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has been duly approved by all requisite action by the entity's owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the
Securities has all requisite authority to sign such documents on behalf of
Lender.
5.10 Lender represents that Lender is a sophisticated and an
"accredited investor" as defined under Rule 501 of Regulation D.
SECTION 6 Representations of the Company.
6.1 The Company is a duly organized and validly existing corporation in
good standing under the laws of Utah.
6.2 The Company has all necessary corporate power and authority to
enter into and perform this Agreement. The Company has taken all corporate
action necessary to authorize this Agreement.
6.3 The execution and delivery of this Agreement, the performance by
the Company of its obligations under this Agreement, and the consummation of the
transactions provided for in this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company. This
Agreement will, as of the effective date, be duly executed and delivered by the
Company and will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its respective terms, subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
6.4 The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the consummation of
the transactions contemplated hereby, do not and will not (a) violate or
conflict with or result in a breach of any provision of the Certificate of
Incorporation or Bylaws of the Company; (b) require any consent, approval or
notice under, or registration under or payment on account of, or conflict with,
or result in a violation or breach of, or constitute (with or without the giving
of notice or the lapse of time or both) a default (or give rise to any right of
termination, modification (including, in the case of leases, any change in the
amount or nature of the rent), cancellation or acceleration or result in the
creation or imposition of any lien upon the property of the Company) under, any
of the terms, conditions or provisions of any (i) note, bond, mortgage,
indenture, license, lease, agreement or other instrument or obligation to which
the Company is a party or by which any portion of its properties or assets may
be bound, or (ii) permit, license, approval, franchise or other governmental or
regulatory authorization held or used by or binding on the Company; (c) violate
or contravene any law, statute, rule or regulation, or any order, writ,
judgment, injunction, decree or award of any governmental authority binding on
the Company; or (d) require any action, consent, approval or authorization of,
or review by, or declaration, registration or filing with, or notice to, any
governmental authority, except such filings as may be required in connection
with applicable securities laws.
6.5 The Company is not obligated to pay any broker's fee, finder's fee,
investment banker's fee or other similar transaction fee in connection with the
transactions contemplated hereby.
SECTION 7 Covenants.
7.1 The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Company.
7.2 The Company will comply with all applicable statutes, regulations,
orders and restrictions of the United States, any state, municipality or other
governmental division thereof, and agencies and instrumentalities of the
foregoing, in respect of the conduct of its business and the ownership of its
property, except where such non-compliance will not have a material adverse
effect on the Company or its business.
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7.3 The Company will file, when due, all federal, state and local tax
and information returns that it is required to file. The Company will pay when
due all taxes, interest and penalties, if any, reflected in such tax returns or
otherwise due and payable by it.
SECTION 8 Miscellaneous.
8.1 This Agreement, including any attached exhibits or schedules,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Agreement. All prior and contemporaneous agreements,
representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by
the Company and Lender.
8.2 The provisions of this Agreement shall be binding upon the Company,
its legal representatives, successors or assigns, and shall be for the benefit
of Lender and its respective successors and assigns.
8.3 The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument.
8.4 If any action is brought by either party in respect to its rights
under this Agreement, or to obtain an interpretation thereof, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs as
determined by the court.
8.5 No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provision of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
8.6 The representations, warranties, acknowledgments and agreements
made by Lender shall survive the closing of the transaction described herein and
run in favor of, and for the benefit of, the Company. The representations,
warranties, acknowledgments and agreements made by the Company shall survive the
closing of the transaction described herein and run in favor of, and for the
benefit of, Lender.
8.7 The obligations of the parties hereto shall not be delegated or
assigned to any other party without the prior written consent of the other
party.
8.8 This Agreement shall be governed by the laws of the State of
Georgia.
8.9 Any notices required or permitted hereunder shall be furnished in
writing to each party at such party's address appearing on the signature page
below or as such party may otherwise direct in writing actually received by the
other party.
8.10 The Company shall do, execute, acknowledge and deliver all such
further acts, deeds, assignments, transfers and assurances as Lender may
reasonably require to effectuate the purposes of this Agreement.
8.11 This Loan is one of two loans that are being made to the Company
by lenders, which loans are in the aggregate principal amount of SEVEN HUNDRED
THOUSAND DOLLARS ($700,000).
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC. LENDER
EIN ___87-0375093__________
EIN ___________________________
By George Mappin
Its: Director, Secretary and CFO By _____________________________
Its
Address:
American Consolidated Management Group, Inc. Address:
Attn: President ________________________________
P.O. Box 1584 Attn: _____________________
Duluth, Georgia, 30096
Phone: (770) 495-9405 Phone: ________________________
Fax: (770) 495-9405 Fax: __________________________
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EXHIBIT A
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE ACT, UNLESS THE COMPANY HAS RECEIVED THE WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE, ASSIGNMENT OR TRANSFER
DOES NOT INVOLVE A TRANSACTION REQUIRING REGISTRATION OF THE ACT.
PROMISSORY NOTE
$350,000 May 10, 2004
Duluth, Georgia
FOR VALUE RECEIVED, American Consolidated Management Group, Inc., a
Utah corporation (the "Borrower"), hereby promises to pay to the order of
Upstate Capital Investments, LLC (the "Lender") with a principal business
address at ____________, or such other place as the holder hereof shall
designate, the principal amount of THREE HUNDRED FIFTY THOUSAND DOLLARS
($350,000 USD) or such lesser amount as may be outstanding from time to time, in
lawful money of the United States in immediately available funds with accrued
interest on the unpaid principal hereof from the date hereof at the rate of ten
percent (10%) per annum. Principal plus interest accrued thereon shall be due
and payable in a single installment upon the earlier of (i) the six month
anniversary of this Note or (ii) the occurrence of an Event of Default as
defined in Section 2 hereof. In the event that any amount owing hereunder is not
paid when due, then interest shall accrue from and after the date of such demand
at the lower of (i) eighteen percent (18%) per annum or (ii) the highest
interest rate acceptable under applicable usury laws, compounded monthly (the
"Default Rate"). Interest shall be calculated on the basis of actual days
elapsed and a 360-day year.
1. Events of Default. The entire outstanding principal amount of, and
all accrued unpaid interest on, this Note shall become forthwith due and
payable, without presentment, demand, protest, or notice of any kind, upon the
happening of any of the following events (each, an "Event of Default"):
(a) The entry of any decree or order by a court having
jurisdiction adjudging the Borrower a debtor or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Borrower under the United States Bankruptcy
Code or any other applicable federal or state law, the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Borrower, or of any substantial part of the property of the Borrower, and
the continuance of any such decree or order unstayed, undischarged, or
undismissed and in effect for more than ninety (90) consecutive days.
(b) Institution by the Borrower of proceedings, under the
Bankruptcy Code or any other applicable federal or state law, seeking an order
for relief, or the consent of the Borrower to the institution of bankruptcy or
insolvency proceedings against the Borrower, or the consent by the Borrower to
the filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of or for the Borrower
or any substantial part of the property of the Borrower, or the making by the
Borrower of any assignment for the benefit of creditors, or the admission by the
Borrower of the Borrower's inability to pay its debts generally as they become
due, or the taking of any action by the Borrower in furtherance of any such
action.
Upon the occurrence of any Event of Default, the Lender may take all
actions available to it, at law or in equity, to collect and otherwise enforce
this Note.
2. Costs and Expenses of Enforcement and Collection. Upon receipt of
written evidence reasonably satisfactory to Borrower, the Borrower agrees to pay
on demand all reasonable costs and expenses, including reasonable attorneys'
fees, incurred or paid by the Lender in enforcing or collecting any of the
obligations of the Borrower hereunder.
3. Miscellaneous.
(a) The Borrower (i) waives presentment, demand, notice of
demand, protest, notice of protest, and notice of nonpayment and any other
notice required to be given under the law to the Borrower, in connection with
the delivery, acceptance, performance, default or enforcement of this Note,
except for notice and presentment upon conversion or at maturity of this Note
and notice or proposed transfer of this Note in accordance with the terms
hereof; and (ii) agrees that any failure to act or failure to exercise any right
or remedy on the part of the registered owner shall not in any way affect or
impair the obligations of the Borrower or be construed as a waiver by the owner
of, or otherwise affect, any of its rights under this Note.
(b) No act, omission or delay by the Lender or course of
dealing between the Lender and the Borrower shall constitute a waiver of the
rights and remedies of the Lender hereunder. No single or partial waiver by the
Lender of any default or right or remedy which it may have shall operate as a
waiver of any other default, right or remedy or of the same default, right or
remedy on a future occasion.
(C) No provision hereof shall be modified, altered or limited
except by a written instrument expressly referring to this Note and to such
provision, and executed by the Borrower and the Lender.
(d) This Note shall be governed by and construed in accordance
with the laws of the State of Georgia, without giving effect to the choice or
conflict of laws principles of that or any other jurisdiction.
(e) Any notice or demand which is required or provided to be
given under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand or by telecopy, e-mail or other
method of electronic transmission (provided such transmission generates evidence
of delivery), or five days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, or two days after being
sent by overnight delivery providing receipt of delivery, to the following
addresses:
if to the Borrower:
American Consolidated Management Group, Inc.
Attn: President
P.O. Box 1584 Duluth, Georgia, 30096 Fax: (770)
495-9405 E-mail: billstrenglis@earthlink.net
if to the Lender:
Upstate Capital Investments, LLC
_______________________
_______________________
Fax: __________________
E-mail: ________________
(f) In the event that any court of competent jurisdiction
shall determine that any provision, or any portion thereof, contained in this
Note shall be unreasonable or unenforceable in any respect, then such provision
shall be deemed limited to the extent that such court deems it reasonable and
enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall deem any such provision, or portion thereof, wholly
unenforceable, the remaining provisions of this Note shall nevertheless remain
in full force and effect.
(e) This Note and all obligations evidenced hereby shall be
binding upon the Successors and assigns of the Borrower and shall, together with
the rights and remedies of the Lender hereunder, inure to the benefit of the
Lender, its successors, permitted endorsees and assigns.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Borrower as of the date first written above.
BORROWER:
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
By: ________________________________________
Its: