EXHIBIT 4.37
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated for reference July 4, 2003, is made
BETWEEN:
XXXXXX HOME SALES LTD. of 000 - 0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Lender");
AND:
XXXXXX GOLD CORP., a corporation incorporated under
the laws of British Columbia, with an office at
00000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Borrower").
WHEREAS the Borrower wishes to borrow and the Lender is willing to lend to the
Borrower CDN$350,000 on the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
the mutual covenants and agreements hereinafter set forth, the parties hereto
agree as follows:
1. DEFINITIONS
Where used in this Agreement, the following words and phrases shall have the
following meaning:
(a) "Agreement" means this Agreement and the schedules hereto, as
at any time amended or modified and in effect;
(b) "Bonus Shares" means the shares to be issued by the Borrower
to the Lender pursuant to subsection 3.5;
(c) "Charter" means the Memorandum and Articles, the Articles and
By-Laws or other constating documents of the Borrower, as at
any time amended or modified and in effect;
(d) "Event of Default" means any event specified in subsection
7.1;
(e) "Lender's Security" means the Note;
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(f) "Loan" means the loan by the Lender to the Borrower
established pursuant to subsection 3.1;
(g) "Loan Bonus" has the meaning assigned in subsection 3.5; and
(h) "Note" means the interest bearing promissory note to be made
by the Borrower to the Lender as evidence of the Loan which
shall substantially be in the form set out in Schedule "A".
2. INTERPRETATION
2.1 GOVERNING LAW
This Agreement is governed by the laws of the Province of British Columbia and
the parties attorn to the non-exclusive jurisdiction of the courts of British
Columbia for the resolution of all disputes under this Agreement.
2.2 SEVERABILITY
If any one or more of the provisions contained in this Agreement is found to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein will not in any way
be affected or impaired thereby.
2.3 PARTIES IN INTEREST
This Agreement enures to the benefit of and is binding on the parties hereto and
their respective successors and permitted assigns.
2.4 HEADINGS AND MARGINAL REFERENCES
The division of this Agreement into sections, subsections, paragraphs and
subparagraphs and the insertion of headings are for convenience of reference
only and do not affect the construction or interpretation of this Agreement.
2.5 CURRENCY
All statements of, or references to, dollar amounts in this Agreement means
lawful currency of Canada.
3. THE LOAN
3.1 ESTABLISHMENT OF THE LOAN
The Lender agrees, on the terms and conditions set forth in this Agreement, to
lend to the Borrower CDN$350,000 with interest on the principal advanced from
the date of disbursement, at the rate of 10% per annum, calculated and
compounded monthly in arrears.
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3.2 EVIDENCE OF INDEBTEDNESS
Indebtedness of the Borrower to the Lender in respect of the Loan will be
evidenced by the Note, which will be made by the Borrower to the Lender at the
time funds are advanced.
3.3 INTEREST
The Borrower will pay interest to the Lender on the principal amount advanced
under the Loan from the date of disbursement at the rate of 10% annually.
Interest will be calculated and compounded monthly in arrears and will be
payable to the Lender at the time the Loan is repaid.
3.4 REPAYMENT OF THE LOAN
The Borrower will repay the Loan on the earlier of:
(a) the date the Lender demands payment by notice in writing to
the Borrower; and
(b) the date which is one (1) year from the date the Loan was
advanced.
3.5 LOAN BONUS
As further consideration for providing the Loan, upon receiving the approval of
the TSX Venture Exchange, the Borrower will issue to the Lender (the "Loan
Bonus") 311,111 common shares in its capital stock.
3.6 PREPAYMENT OF LOAN
The Borrower may prepay the Loan at any time without penalty, bonus or charges.
4. SECURITY FOR THE LOAN
4.1 COSTS, CHARGES AND EXPENSES
The Borrower will assume and pay all costs, charges and expenses, including
reasonable solicitors' costs, charges and expenses on a special costs basis,
which may be incurred by the Lender in respect of this Agreement or the Lender's
Security or which may be incurred by the Lender in respect of any proceedings
taken or things done by the Lender in connection therewith to collect, protect,
realize or enforce the Lender's Security and the Borrower consents to such
costs, charges and expenses being charged and fixed on a lump sum basis in
accordance with the LEGAL PROFESSION ACT (British Columbia).
5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
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(a) the Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of British
Columbia;
(b) the Borrower has all requisite corporate power and authority
to enter into this Agreement and to grant the Lender's
Security and to carry out the obligations contemplated herein
and therein;
(c) this Agreement and the Lender's Security have been duly and
validly authorized, executed and delivered by the Borrower and
are valid obligations of it; and
(d) no Event of Default and no event which, with the giving of
notice or lapse of time would become an Event of Default, has
occurred or is continuing.
5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties made herein will survive the delivery of this
Agreement to the Lender and no investigation at any time made by or on behalf of
the Lender shall diminish in any respect whatsoever its rights to rely on those
representations and warranties. All statements contained in any certificate or
other instrument delivered by or on behalf of the Borrower under or pursuant to
this Agreement will constitute representations and warranties made by the
Borrower thereunder.
6. COVENANTS OF THE BORROWER
The Borrower covenants and agrees with the Lender that, at all times during the
currency of this Agreement, it will:
(a) pay the Loan and all other monies required to be paid to the
Lender pursuant to this Agreement in the manner set forth
herein;
(b) duly observe and perform each and every of its covenants and
agreements set forth in this Agreement and the Lender's
Security;
(c) provide the Lender with immediate notice of any Event of
Default; and
(d) do all things necessary to obtain and maintain the Lender's
Security in good standing and make payment of all fees and
charges in respect thereto.
7. EVENT OF DEFAULT
7.1 DEFINITION OF EVENT OF DEFAULT
The Loan, costs and any other money owing to the Lender under this Agreement
will immediately become payable upon demand by the Lender or, unless otherwise
waived in writing by the Lender, in any of the following events:
(a) if the Borrower defaults in any payment when due under this
Agreement;
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(b) if the Borrower commits any default under any of the Lender's
Security instruments;
(c) if the Borrower becomes insolvent or makes a general
assignment for the benefit of its creditors, or if any order
is made or an effective resolution is passed for the
winding-up, merger or amalgamation of the Borrower or if the
Borrower is declared bankrupt or if a custodian or receiver be
appointed for the Borrower under the applicable bankruptcy or
insolvency 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;
(d) if the Borrower defaults in observing or performing any other
covenant or agreement of this Agreement on its part to be
observed or performed and such default has continued for a
period of seven days after notice in writing has been given by
the Lender to the Borrower specifying the default.
8. GENERAL
8.1 WAIVER OR MODIFICATION
No failure on the part of the Lender in exercising any power or right hereunder
will operate as a waiver of power or right nor will any single or partial
exercise of such right or power preclude any other right or power hereunder. No
amendment, modification or waiver of any condition of this Agreement or consent
to any departure by the Borrower therefrom will be effective unless it is in
writing signed by the Lender. No notice to or demand on the Borrower will
entitle the Borrower to any other further notice or demand in similar or other
circumstances unless specifically provided for in this Agreement.
8.2 TIME
Time is of the essence of this Agreement.
8.3 FURTHER ASSURANCES
The parties to this Agreement will do, execute and deliver or will cause to be
done, executed and delivered all such further acts, documents and things as may
be reasonably required for the purpose of giving effect to this Agreement.
8.4 ASSIGNMENT
The Borrower may not assign this Agreement or its interest herein or any part
hereof except with the prior written consent of the Lender.
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9. NOTICES
9.1 Any notice under this Agreement will be given in writing and may be
sent by fax, telex, telegram or may be delivered or mailed by prepaid
post addressed to the party to which notice is to be given at the
address indicated above, or at another address designated by that party
in writing.
9.2 If notice is sent by fax, telex, telegram or is delivered, it will be
deemed to have been given at the time of transmission or delivery.
9.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
9.4 If there is an interruption in normal mail service due to strike,
labour unrest or other cause at or before the time a notice is mailed
the notice will be sent by fax, telex, telegram or will be delivered.
10. AMENDMENTS
This Agreement may be amended, waived, discharged or terminated only by
instrument in writing signed by the party against whom enforcement of the
amendment, waiver, discharge or termination is sought.
IN WITNESS WHEREOF the Lender and the Borrower have executed and delivered this
Agreement.
XXXXXX HOME SALES LTD.
"S/S XXXXXXX XXXXXX"
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Xxxxxxx Xxxxxx, President
XXXXXX GOLD CORP.
By: "S/S XXXXXX X. XXXXXXX"
-----------------------------------
Xxxxxx X. Xxxxxxx
By: "S/S XXXX X. XXXX"
-----------------------------------
Xxxx X. Xxxx
SCHEDULE "A"
to the Loan Agreement dated for reference July 4, 2003
between XXXXXX HOME SALES LTD. and XXXXXX GOLD CORP.
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PROMISSORY NOTE
CDN$350,000 July 4, 2003
FOR VALUE RECEIVED, XXXXXX GOLD CORP. (the "Borrower"), of 00000 - 00xx Xxxxxx,
Xxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, PROMISES TO PAY to the order of XXXXXX HOME
SALES LTD. of 000 - 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0,
the sum of CDN$350,000 with interest on the principal advanced from the date of
disbursement, at the rate of 10% per annum, calculated and compounded monthly in
arrears on the earlier of:
(a) the date the Lender demands payment by notice in writing to
the Borrower; and
(b) the date which is one (1) year from the date the Loan was
advanced.
The Borrower waives presentment for payment, notice of protest and notice of
non-payment.
The Borrower may repay, at any time, all or any part of the CDN$350,000, plus
interest, without notice, bonus or penalty.
XXXXXX GOLD CORP. )
)
Per: )
)
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Xxxxxx X. Xxxxxxx ) (C/S)
)
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Xxxx X. Xxxx
