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EXHIBIT
10.34
Loan Agreement dated as of December 31, 1997, between the Company and Stone
Pine Advisors, LLC
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LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made as of the 31st day of
December, 1997, between Consolidated Capital of North America, Inc., a Colorado
corporation ("Borrower") and Stone Pine Advisors, LLC, a Colorado limited
liability company ("Lender").
RECITAL
Borrower has requested that Lender make a loan to or for the benefit of
Borrower in the amount of $75,000.00, and Lender is willing to do so on the
following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing and of the terms and
conditions contained in this Agreement, Borrower and Lender agree as follows:
1. LOAN.
1.1 Loan. Subject to all of the terms and conditions contained in
this Agreement, Lender agrees to advance to Borrower, on the date hereof, the
principal sum of $75,000.00 (the "Loan"). The Loan shall be evidenced by and
repayable in accordance with the terms of Borrower's promissory note ("Note"),
the form of which is attached as Exhibit A.
1.2 Equity Shares. (a) As additional consideration for the
advancement of the Loan, Borrower shall issue to Lender Common Shares of
Borrower as follows: 33,333 Common Shares upon advancement of the Loan (the
"Common Shares").
(b) The Common Shares will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), and accordingly, will constitute
"restricted securities" for purposes of the Securities Act and Lender will not
be able to transfer such Common Shares except upon compliance with the
registration requirements of the Securities Act and applicable state securities
laws or an exemption therefrom. The certificates evidencing the Common Shares
shall contain a legend to the foregoing effect.
(c) Borrower, shall upon the demand of any holder of the Common
Shares, file a registration statement with the SEC to permit the sale of the
Common Shares by the holders of such shares from time to time. The holders of
the Common Shares shall also have "piggyback" registration rights.
2. CONDITIONS TO THE LOAN.
2.1 Documents. The making of the Loan is conditioned upon the
execution and/or
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delivery to Lender of the following agreements, instruments and documents by
the parties thereto: (a) this Agreement; (b) the Note; and (c) a stock
certificate for 33,333 Common Shares of Borrower issued in the name of Lender.
2.2 Representations and Warranties. All representations and
warranties contained in this Agreement shall be true in all material respects
on and as of the date of the making of the Loan as if such representations and
warranties had been made on and as of such date.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of Borrower. Borrower
represents and warrants that as of the date of the execution of this Agreement:
(a) Existence. Borrower is a corporation duly organized and in
good standing under the laws of the State of Colorado 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 Borrower's financial
condition, results of operations or business.
(b) Authority. The execution and delivery by Borrower of this
Agreement and the Note: (a) are within Borrower's corporate powers; (b) are
duly authorized by Borrower's board of directors; (c) are not in contravention
of the terms of Borrower's certificate of incorporation or bylaws; (d) are not
in contravention of any law or laws, or of the terms of any material indenture,
agreement or undertaking to which Borrower is a party or by which Borrower or
any of Borrower's property is bound; (e) do not require any governmental
consent, registration or approval; (f) do not contravene any contractual or
governmental restriction binding upon Borrower; and (g) will not result in the
imposition of any lien, charge, security interest or encumbrance upon any
property of Borrower under any existing indenture, mortgage, deed of trust,
loan or credit agreement or other material agreement or instrument to which
Borrower is a party or by which Borrower or any of Borrower's property may be
bound or affected.
(c) Binding Effect. This Agreement and the Note set forth the
legal, valid and binding obligations of Borrower and are enforceable against
Borrower in accordance with their respective terms.
3.2 Investment Representations of Lender. Lender represents and
warrants to Borrower as follows:
(a) Lender acknowledges that you have advised Lender that the Common
Shares have not been registered under the Securities Act or any other
securities regulation laws of any state and that your reliance on the
availability of certain exemptions from registration is based in part on the
representations made by Lender in this Agreement.
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(b) Lender hereby represents to you that Lender is acquiring the
Common Shares for the account of Lender for investment only and not with a view
to resell or otherwise distribute such Common Shares, and that Lender is not
acquiring the Common Shares on behalf of any other person or entity. Lender
further represents that Lender does not intend to resell, transfer or dispose
of all or any part of the Common Shares without registration under the
Securities Act or without an opinion from counsel acceptable to Borrower, that
registration is not required, and Lender represents that it is able to bear the
economic risk of this investment for an indefinite period of time under these
circumstances.
(c) Lender further acknowledges that the Common Shares are "restricted
securities" as that term is defined in Rule 144 of the General Rules and
Regulations under the Securities Act. Lender understands that stop transfer
instructions will be issued to the transfer agent for Borrower's stock, and
Lender consents to the placing of a legend in substantially the following form
on the back of the certificate issued to Lender:
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY OTHER STATE LAWS REGULATING THE ISSUANCE OF
SECURITIES AND ARE PURCHASED PURSUANT TO AN INVESTMENT
REPRESENTATION BY THE PURCHASER THEREOF. THESE SHARES SHALL NOT
BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, BY THE PURCHASER
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SHARES EXCEPT UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE
OPINION OF ITS COUNSEL TO THE EFFECT THAT SUCH TRANSFER SHALL NOT
BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS.
(d) Lender agrees to hold harmless and indemnify Borrower for any and
all liabilities resulting to it through violation by Lender of the above
warranties and representations.
4. DEFAULT AND RIGHTS AND REMEDIES.
4.1 Default and Rights and Remedies. Upon the occurrence of
default, Lender shall have the rights and remedies set forth in the Note and
the rights and remedies available to Lender under applicable law.
5. MISCELLANEOUS.
5.1 Reliance by Lender. All covenants, agreements, representations
and warranties
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made by Borrower shall, notwithstanding any investigation by Lender, be
deemed to be material to and to have been relied upon Lender.
5.2 Parties. Whenever in this Agreement there is reference made to
any of the parties, such reference shall be deemed to include, wherever
applicable, a reference to the respective successors and assigns of Borrower
and Lender.
5.3 Applicable Law; Severability. THIS AGREEMENT SHALL BE
CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS AND
DECISIONS OF THE STATE OF COLORADO. EACH PARTY TO THIS AGREEMENT HEREBY
CONSENTS TO JURISDICTION AND VENUE IN ANY CONTROVERSY INVOLVING THIS AGREEMENT
IN FEDERAL OR STATE COURT SITTING IN THE CITY OF DENVER, COLORADO. Wherever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
5.4 Maximum Interest. It is expressly stipulated and agreed to be
the intent of Borrower and Lender at all times to comply with the applicable
law governing the maximum rate of interest payable on or in connection with all
indebtedness and transactions hereunder (or applicable United States federal
law to the extent that it permits Lender to contract for, charge, take, reserve
or receive a greater amount of interest). If the applicable law is ever
judicially interpreted so as to render usurious any amount of money or other
consideration called for hereunder, or contracted for, charged, taken, reserved
or received with respect to any loan or advance hereunder, or if acceleration
of the maturity of the Loan or the indebtedness hereunder or if any prepayment
by Borrower results in Borrower's having paid any interest in excess of that
permitted by law, then it is Borrower's and Lender's express intent that all
excess cash amounts theretofore collected by Lender be credited on the
principal balance of the Loan (or if the Loan has been or would thereby be paid
in full, refunded to Borrower), and the provisions of this Agreement
immediately be deemed reformed and the amounts thereafter collectible hereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder. The right to accelerate maturity of the
Loan does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Lender does not intend
to collect any unearned interest in the event of acceleration.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
CONSOLIDATED CAPITAL OF
NORTH AMERICA, INC.
a Colorado corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Treasurer
STONE PINE ADVISORS, LLC
a Colorado limited liability company
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Chief Executive Officer
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Exhibit A to
Loan Agreement
Note
(See Exhibit 10.35)
