LOAN AGREEMENT
This Agreement dated the 26th day of March, 2002.
BETWEEN:
XXXX XXXXX, a businessman, of 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX,
X.X.X. 00000
(the "Lender")
AND:
GLOBALTEX INDUSTRIES INC. a company incorporated under the laws of
the Province of British Columbia, having an office at #000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
(the "Borrower")
WHEREAS:
A. The Borrower requires additional funds to finance an investor relations
program.
B. The Borrower wishes to borrow from the lender, and the Lender wishes to
lend to the Borrower the aggregate sum of U.S. $40,000 to finance the above-
mentioned investor relations program upon the terms and subject to the
conditions hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises
and the mutual covenants hereinafter set forth, the parties hereto agree as
follows:
1. INTERPRETATION
1.1 Definitions. In this Agreement:
(a) "Agreement" means this agreement, as amended, supplemented or restated from
time to time in writing.
(b) "Business Day" means a day other than a Saturday, Sunday or statutory
holiday in British Columbia.
(c) "Event of Default" has the meaning given to it in Section 7.1.
(d) "Loan" has the meaning given to it in Section 2.1.
(e) "Notice" means any notice, approval, election, demand, direction, consent,
designation, request, agreement, instrument, certificate or other communication
required or permitted to be given or made under this Agreement.
(f) "Permitted Action" means any suit, action, or other proceeding in any way
related to or arising out of this Agreement or the Security commenced in the
courts of British Columbia and all courts having appellate jurisdiction over
those courts, by any party to this Agreement against any other party to this
Agreement.
(g) "Person" means any natural person, sole proprietorship, partnership,
corporation, trust, joint venture, any Governmental Authority or any
incorporated or unincorporated entity or association of any nature.
(h) "Promissory Note" has the meaning given to it in Section 3.1 hereof.
1.2 Business Day. If under this Agreement any payment or calculation is to be
made, or any other action is to be taken, on or as of a day which is not a
Business Day, the payment or calculation is to be made, or that other action is
to be taken, on or as of the next day that is a Business Day.
1.3 Currency. All references to amounts of money, unless otherwise indicated,
mean lawful currency of the United States.
1.4 Governing Law. This Agreement and each of the documents contemplated by or
delivered under or in connection with this Agreement are governed exclusively
by, and are to be enforced, construed and interpreted exclusively in accordance
with, the laws of British Columbia and the laws of Canada applicable in British
Columbia which will be deemed to be the proper law of the Agreement.
1.5 Severability. Each provision of this Agreement is several. If any
provision of this Agreement is or becomes illegal, invalid or unenforceable in
any jurisdiction, the illegality, invalidity or unenforceability of that
provision will not affect:
(a) the legality, validity or enforceability of the remaining provisions of
this Agreement, or
(b) the legality, validity or enforceability of that provision in any other
jurisdiction except that if:
(c) on the reasonable construction of this Agreement as a whole, the
applicability of the other provision presumes the validity and enforceability
of the particular provision, the other provision will be deemed also to be
invalid or unenforceable, and
(d) as a result of the determination by a court of competent jurisdiction that
any part of this Agreement is unenforceable or invalid and, as a result of this
Section 1.5, the basic intentions of the parties in this Agreement are entirely
frustrated, the parties will use all reasonable efforts to amend, supplement or
otherwise vary this Agreement to confirm their mutual intention in entering
into this Agreement.
1.6 Time of Essence. Time is of the essence of this Agreement.
1.7 Number and Gender. Unless otherwise specified, words importing the
singular include the plural and vice versa and words importing gender include
all genders.
2. LOAN COMMITMENT
2.1 The Loan. Subject to the terms and conditions hereof, the Lender will lend
to the Borrower U.S. $40,000 (the "Loan"). The Loan is available on a non-
revolving basis. The Lender will advance the Loan proceeds by wire transfer to
the account of the Borrower or the Borrower's Canadian legal counsel by April 5
2002.
2.2 Interest. The principal amount of the Loan will bear interest at the rate
of 10% per annum calculated daily in arrears and compounded annually, both
before and after maturity, default and judgment, with interest on overdue
interest at the same rate.
2.3 Repayment of Loan. The Borrower will repay the outstanding principal of
the Loan plus all accrued interest on or before April 5, 2003.
2.4 Prepayment of Loan. The Borrower may, at its option, pay the Loan, in
whole or in part at any time and from time to time, without bonus or penalty.
Notwithstanding the payment covenants in Section 2.3, the Borrower will pay the
principal amount of the Loan and all then-accrued interest promptly upon the
Borrower raising sufficient funds to effect such payment from third-party
alternative debt or equity financing sources.
2.5 Place of Payment. The Borrower will make all payments pursuant to this
Agreement in immediately available funds at the office of the Lender set out
herein or as otherwise directed by the Lender from time to time.
3. SECURITIES LAW
3.1 Securities Law. The Loan will be made in accordance with applicable
securities laws and will be subject to the rules and policies of the Canadian
Venture Exchange.
3.2 Promissory Note. As evidence of the Loan the Borrower will, commensurate
with the advance of the loan pursuant to Section 2.1 above, execute and
deliver, or cause to be executed and delivered, to the Lender a promissory note
in the form attached hereto as Schedule A (the "Promissory Note").
4.CONDITION PRECEDENT TO BORROWING
The Lender will have no obligation to advance the Loan in whole or in part
unless the Lender has received and is satisfied with the form and substance of
the Promissory Note and such other documents which the Borrower is required to
execute and deliver, or cause to be executed and delivered, to the Lender.
5. REPRESENTATIONS AND WARRANTIES
5.1 Borrower's Representation and Warranties. The Borrower represents and
warrants to the Lender that:
(a) the Borrower is a company duly incorporated and validly existing under the
laws of British Columbia and is in good standing with respect to the filing of
annual reports with the Registrar of Companies for British Columbia;
(b) the Borrower has all requisite corporate power capacity and authority to
enter into, execute and deliver this Agreement and to execute and deliver the
Promissory Note, the Security and to carry out the obligations contemplated
herein and therein;
(c) the execution and delivery of this Agreement and the Promissory Note have
been duly and validly authorized by the Borrower; and
(d) no Event of Default has occurred or is continuing.
5.2 Lender's Representations and Warranties. The Lender represents and
warrants to the Borrower that he is aware that the Promissory Note is being
distributed under an exemption from the registration and prospectus
requirements of the Securities Act (British Columbia) and the Rules promulgated
thereunder, and states that this Agreement is not being entered into as a
result of any information about the affairs of the Borrower that is not
generally known to the public save knowledge of this particular transaction.
6. COVENANTS
6.1 Covenants of the Borrower. Until the Lender receives payment in full of
the Loan, the Borrower covenants and agrees with the Lender that the Borrower
will:
(a) take all reasonable steps to remain in good standing under the Company Act
(British Columbia);
(b) give the Lender prompt notice of any Event of Default or any event which,
with notice or lapse of time or both would constitute an Event of Default;
(c) observe and perform each of its covenants and agreements set forth in this
Agreement; and
(d) not pledge, charge or otherwise further encumber any of its assets while
any of the Loan remains outstanding without the prior written consent of the
Lender.
6.2 Covenants of the Lender. The Lender will, at the request of the Borrower,
provide information and formal declarations as required by applicable laws,
regulations and policies in connection with this Agreement or the rules and
policies of the Canadian Venture Exchange.
7. DEFAULT
7.1 Events of Default Defined. Event of Default means the occurrence of any of
the following events:
(a) the Borrower defaults in any payment when the same is due under this
Agreement;
(b) the Borrower becomes insolvent or makes a general assignment for the
benefit of its creditors, or if an order is made or effective resolutions are
passed for the winding-up, merger or amalgamation of the Borrower or if the
Borrower is declared bankrupt or if a custodian or receiver is appointed for
the Borrower under any bankruptcy legislation, or if a compromise or
arrangement is proposed by the Borrower to its creditors or any class of its
creditors, or if a receiver or other officer with like powers is appointed for
the Borrower; or
(c) the Borrower defaults in observing or performing any other covenant or
agreement of this Agreement on its part to be observed or performed; or
(d) the Borrower breaches any of Borrowers Representations and Warranties or is
otherwise in material breach of this Agreement.
7.2 Consequences of Default. If any Event of a Default occurs and is
continuing for a period of 21 days after written notice has been given by
Lender to the Borrower, the Lender may declare the outstanding Loan to be
immediately due and payable and may exercise all of its rights and remedies
available at law, including under the Security.
8. GENERAL
8.1 No Assignment by Borrower. The Borrower will not assign this Agreement, or
any part of this Agreement, without the prior written consent of the Lender,
such consent not to be unreasonably withheld or delayed. Any purported
assignment without the required consent is not binding or enforceable against
any party.
8.2 Assignment by Lender. The Lender may assign all or any part of this
Agreement to any person. By signing this Agreement, the Borrower irrevocably
consents to any assignment by the Lender and agrees that the Lender will be
released and discharged from this Agreement when, and to the extent that, the
Lender has assigned this Agreement.
8.3 Notice. Each Notice to a party to this Agreement must be given in writing.
A Notice may be given by delivery to an individual or by fax, and will be
validly given if delivered on a Business Day to an individual at the following
address, or, if transmitted on a Business Day by fax addressed to the following
party:
if to the Borrower:
Globaltex Industries Inc.
Xxxxx 000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention.: Chief Executive Officer
Fax No.: (000) 000-0000
if to the Lender:
Xxxx Xxxxx
c/o Oakwood Laboratories Ltd.
0000 Xxxxx Xxxxx
X.X. Xxx 000000
Xxxxxxx, Xxxx
00000
Fax No.: (000) 000-0000
or to any other address, fax number or individual that the party designates.
Any Notice:
(a) if validly delivered, will be deemed to have been given when delivered;
(b) if validly transmitted by fax before 3:00 p.m. (local time at the place of
receipt) on a Business Day, will be deemed to have been given on that Business
Day, and
(c) if validly transmitted by fax after 3:00 p.m. (local time at the place of
receipt) on a Business Day, will be deemed to have been given on the Business
Day after the date of the transmission.
8.4 Waivers. No waiver of any provision of this Agreement is binding unless it
is in writing and signed by all the parties to this Agreement except that any
provision which does not give rights or benefits to particular parties may be
waived in writing, signed only by those parties who have rights under, or hold
the benefit of, the provision being waived if those parties promptly send a
copy of the executed waiver to all other parties. No failure to exercise, and
no delay in exercising, any right or remedy under this Agreement will be deemed
to be a waiver of that right or remedy. No waiver of any breach of any
provision of this Agreement will be deemed to be a waiver of any subsequent
breach of that provision or of any similar provision.
8.5 Further Assurances. The parties hereto will do, execute and deliver or
will cause to be done, executed and delivered promptly on request from the
Lender or the Borrower as the case may be, all further documents and take all
further action reasonably necessary or appropriate to give effect to the
provisions and intent of this Agreement and to complete the transactions
contemplated by this Agreement.
8.6 Remedies Cumulative. The rights and remedies under this Agreement are
cumulative and are in addition to and not in substitution for any other rights
and remedies available at law or in equity or otherwise. No single or partial
exercise by a party of any right or remedy precludes or otherwise affects the
exercise of any other right or remedy to which that party may be entitled.
8.7 Counterparts. This Agreement and all documents contemplated by or
delivered under or in connection with this Agreement may be executed and
delivered in any number of counterparts with the same effect as if all parties
had all signed and delivered the same document and all counterparts will be
construed together to be an original and will constitute one and the same
agreement.
8.8 Delivery by Fax. Any party may deliver an executed copy of this Agreement
by fax but that party will immediately dispatch by delivery in person to the
other parties an originally executed copy of this Agreement.
8.9 Amendments. Except as permitted for certain waivers in Section 8.4, no
amendment, supplement, restatement or termination of any provision of this
Agreement is binding unless it is in writing and signed by each Person that is
a party to this Agreement at the time of the amendment, supplement, restatement
or termination.
8.10 Submission to Jurisdiction. Each of the parties irrevocably submits to
the jurisdiction of the courts of British Columbia in any Permitted Action and
each party to this Agreement waives, and will not assert by way of motion, as a
defense, or otherwise, in any Permitted Action, any claim that:
(a) that party is not subject to the jurisdiction of the courts of British
Columbia;
(b) the Permitted Action is brought in an inconvenient forum;
(c) the venue of the Permitted Action is improper, or
(d) any subject matter of the Permitted Action may not be enforced in or by the
courts of British Columbia.
In any suit or action brought to obtain a judgment for the recognition or
enforcement of any final judgment rendered in a Permitted Action, no party to
this Agreement will seek any judicial review with respect to the merits of any
Permitted Action, whether or not that party appears in or defends the Permitted
Action.
8.11 Entire Agreement. This Agreement and all documents contemplated by or
delivered under or in connection with this Agreement, constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior agreements, negotiations, discussions,
undertakings, representations, warranties and understandings, whether
written or oral, express or implied, statutory or otherwise .
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
first date above written.
GLOBALTEX INDUSTRIES INC.
Per: "Xxxx Xxxxxx"
Authorized Signatory
XXXX XXXXX
SCHEDULE A
PROMISSORY NOTE
PRINCIPAL AMOUNT: U.S. $40,000 DUE DATE: April 5, 2003
FOR VALUE RECEIVED, Globaltex Industries Inc. (the "Borrower"), a British
Columbia company having its registered and records office at 3000 - 1055 West
Georgia Street, Vancouver, British Columbia, V6E 3R3, HEREBY PROMISESTO PAY to
the order of Xxxx Xxxxx, of 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX, 00000, (the
"Lender") by April 5, 2003 the sum of:
FORTY THOUSAND UNITED STATES DOLLARS
(U.S. $40,000)
This note is given pursuant to a loan agreement between the Borrower and
the Lender made as of April 5, 2002 and is to be construed and enforced in
accordance therewith.
The Borrower hereby waives presentment for payment, notice of protest and
notice of non-payment.
DATED at Vancouver, B.C., this 26th day of March, 2002.
GLOBALTEX INDUSTRIES INC.
Per: "Xxxx Xxxxxx" (C/S)
_____________________
Authorized Signatory
