LOAN AGREEMENT
THIS AGREEMENT dated as of the 10th day of February, 2005
BETWEEN:
XXXXX XXXXXXXXX of 0000 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
(hereinafter called the "Borrower")
OF THE FIRST PART
AND:
EYI INDUSTRIES INC., a Nevada corporation with its
corporate address at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx 00000
(hereinafter called the "Lender")
OF THE SECOND PART
WHEREAS:
A. The Borrower wishes to borrow $180,000 US from the Lender in
order to permit the Borrower to exercise certain employee options
under the Lender's Stock Compensation Program;
B. Section 5 of Part II of the Stock Compensation Program permits the
Lender to lend money to employees to exercise options under the
Stock Compensation Program.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in
consideration of the sum of $1.00 paid by each party to the other (the
receipt of which is hereby acknowledged) the parties hereto mutually
covenant and agree as follows:
1. INTERPRETATION
1.1 Definitions. Where used herein or in any amendment hereto each
of the following words and phrases shall have the meanings set forth
as follows:
(a) "Agreement" means this Loan Agreement including the Schedules
hereto together with any amendments hereof;
(b) "Closing Date" means the date of execution of this Agreement;
(c) "Event of Default" means any event set forth in paragraph 5.1;
(d) "Loan" means the loan to be made by the Lender to the Borrower
in accordance with this Agreement; and
(e) "Principal Sum" means the principal amount outstanding from time
to time under the loan.
1.2 Number and Gender. Wherever the singular or the masculine are
used herein the same shall be deemed to include the plural or the
feminine or the body politic or corporate where the context or the
parties so require.
1.3 Headings. The headings to the articles, paragraphs,
subparagraphs or clauses of this Agreement are inserted for
convenience only and shall not affect the construction hereof.
1.4 References. Unless otherwise stated a reference herein to a
numbered or lettered article, paragraph, subparagraph or clause refers
to the article, paragraph, subparagraph or clause bearing that number
or letter in this Agreement. A reference to this Agreement or herein
means this Loan Agreement, including the Schedule hereto, together
with any amendments thereof.
1.5 Currency. All dollar amounts expressed herein refer to lawful
currency of The United States of America.
2. TERMS OF LOAN
2.1 Loan and Repayment. The Lender hereby agrees to lend to the
Borrower $180,000. The Loan shall be made in United States currency
and shall be repaid by the Borrower on demand. The proceeds of the
Loan will be used by the Borrower to exercise options under the
Company's Stock Compensation Program (the "Options"). The
proceeds will be deemed to be advanced upon the exercise of the
Options.
2.2 Interest. The Borrower shall pay on the amount of the Principal
Sum, interest at a rate of 4% per annum. The Borrower shall pay
interest at the aforesaid rate on all overdue interest.
2.3 Promissory Note. The Loan shall be secured by a promissory note
in favor of the Lender in the form attached as Schedule A hereto.
3. EXTENSIONS & WAIVER
3.1 Extensions. The Lender may grant extensions as the Lender may
see fit without prejudice to the liability of the Borrower or to the
Lender's rights under this Agreement.
3.2 Waiver. The Lender may waive any breach by the Borrower of this
Agreement or of any default by the Borrower in the observance or
performance of any covenant or condition required to be observed or
performed by the Borrower hereunder. No failure or delay on the
part of the Lender to exercise any right, power or remedy given herein
or by statute or at law or in equity or otherwise shall operate as a
waiver thereof, nor shall any single or partial exercise of any right
preclude any other exercise thereof or the exercise of any other right,
power or remedy, nor shall any waiver by the Lender be deemed to be
a waiver of any subsequent similar or other event.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations. The Borrower represents and warrants to the
Lender, and acknowledges that the Lender is relying upon such
representations and warranties in entering into this Agreement, the
Borrower has the capacity to enter into this Agreement, and the
execution of this Agreement and the completion of the transactions
contemplated hereby shall not be in violation any agreement to which
the Borrower is a party.
5. EVENTS OF DEFAULT AND REMEDIES
5.1 Events of Default. Any one or more of the following events,
whether or not any such event shall be voluntary or involuntary or be
effected by operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body, shall constitute an Event
of Default:
(a) if the Borrower defaults in the payment of any monies due
hereunder as and when the same is due;
(b) if the Borrower defaults in the observance or performance of any
other provision hereof;
(c) if the Borrower commits an act of bankruptcy or makes a general
assignment for the benefit of its creditors or otherwise acknowledges
its insolvency; or
(d) if the Borrower makes default in the due payment, performance or
observance, in whole or in part, of any debt, liability or obligation of the
Borrower to the Lender, whether secured hereby or otherwise.
5.2 Remedies Upon Default. Upon the occurrence of any Event of
Default and at any time thereafter, provided that the Borrower has not
by then remedied such Event of Default, the Lender may, in its
discretion, by notice to the Borrower, declare this Agreement to be in
default. At any time thereafter, while the Borrower shall not have
remedied such Event of Default, the Lender, in its
discretion, may:
(a) declare the Loan and other monies owing by the Borrower to the
Lender to be immediately due and payable;
(b) demand payment from the Borrower and exercise all remedies
available to the Lender.
6. MISCELLANEOUS
6.1 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and may be given by delivering same or
mailing same by registered mail or sending same by telegram, telex,
telecopier or other similar form of communication to the
following addresses:
The Borrower: 0000 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
The Lender: 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxx 00000
Any notice so given shall:
(a) if delivered, be deemed to have been given at the time of delivery;
(b) if mailed by registered mail, be deemed to have been given on the
fourth business day after and excluding the day on which it was so
mailed, but should there be, at the time of mailing or between the time
of mailing and the deemed receipt of the notice, a mail strike,
slowdown or other labour dispute which might affect the delivery of
such notice by the mails, then such notice shall be only effective if
actually delivered; and
(c) if sent by telegraph, telex, telecopier or other similar form of
communication, be deemed to have been given or made on the first
business day following the day on which it was sent. Any party may
give written notice of a change of address in the aforesaid manner, in
which event such notice shall thereafter be given to such party as
above provided at such changed address.
6.2 Amendments. Neither this Agreement nor any provision hereof
may be amended, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom enforcement
of the amendment, waiver, discharge or termination is sought.
6.3 Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto and supersedes all
prior agreements and undertakings, whether oral or written, pertaining
to the subject matter hereof.
6.4 Action on Business Day. If the date upon which any act or
payment hereunder is required to be done or made falls on a day
which is not a business day, then such act or payment shall be
performed or made on the first business day next following.
6.5 No Merger of Judgment. The taking of a judgment on any
covenant contained herein or on any covenant set forth in any other
security for payment of any indebtedness hereunder or performance of
the obligations hereby secured shall not operate as a merger of
any such covenant or affect the Lender's right to interest at the rate
and times provided in this Agreement on any money owing to the
Lender under any covenant herein or therein set forth and such
judgment shall provide that interest thereon shall be calculated at the
same rate and in the same manner as herein provided until such
judgment is fully paid and satisfied.
6.6 Severability. If any one or more of the provisions of this Agreement
should be invalid, illegal or unenforceable in any respect in any
jurisdiction, the validity, legality or enforceability of such provision shall
not in any way be affected or impaired thereby in any other
jurisdiction and the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
6.7 Successors and Assigns. This Agreement shall enure to the
benefit of and be binding upon all parties hereto and their respective
heirs, personal representatives, successors and assigns, as the case
may be.
6.8 Governing Law. This Agreement shall be governed by and be
construed in accordance with the laws of the Province of British
Columbia and the parties hereto agree to submit to the jurisdiction of
the courts of British Columbia with respect to any legal proceedings
arising herefrom.
6.10 Independent Legal Advice. This Agreement has been prepared
by X'Xxxxx Law Group PLLC acting solely on behalf of the Lender and
the Borrower acknowledges that she has been advised to obtain
independent legal advice.
6.11 Time. Time is of the essence of this Agreement.
6.12 Headings. The headings of the paragraphs of this Agreement are
inserted for convenience only and do not define, limit, enlarge or alter
the meanings of any paragraph or clause herein.
6.13 Counterparts. This agreement may be executed in one or more
counter-parts, each of which so executed shall constitute an original
and all of which together shall constitute one and the same
agreement.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year
first written above.
THE BORROWER:
/s/ Xxxxx Xxxxxxxxx
XXXXX XXXXXXXXX
THE LENDER:
EYI INDUSTRIES, INC.
by its authorized signatory:
/s/ Xxxx X. X'Xxxxx
XXXX X. X'XXXXX,
Vice President, Secretary & Treasurer
Schedule A
To The Loan Agreement
Between Xxxxx Xxxxxxxxx and EYI Industries, Inc.
Effective February 10, 2005
PROMISSORY NOTE
PROMISSORY NOTE
FOR VALUE RECEIVED the undersigned hereby promises to pay to
or to the order of EYI Industries, Inc. (the "Lender") at 0000 Xxxxxx
Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 on demand,
the principal sum of $180,000 US together with interest thereon at the
rate of 4% per annum both before and after maturity from the date
hereof.
Should the undersigned commit an event of default under the terms
and conditions of the loan agreement between the undersigned and
the Lender dated the 10th day of February, 2005, the principal sum
remaining unpaid together with interest thereon as aforesaid shall be
due and payable forthwith without demand.
The undersigned waives presentment, demand, notice, protest and
notice of dishonour and all other demands and notices in connection
with the delivery, acceptance, performance, default or enforcement of
this Promissory Note.
DATED at Vancouver, British Columbia, this 10th day of February,
2005.
/s/ Xxxxx Xxxxxxxxx
XXXXX XXXXXXXXX
