EXHIBIT 10.2
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated for reference October 19, 2001, is made
BETWEEN:
BOLDER INVESTMENT PARTNERS, LTD., a body corporate with an office at
0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Lender");
AND:
XXXXXXXXX.XXX, INC., a Nevada corporation with an office at Suite 300,
3605 Xxxxxxx Way, Burnaby, British Columbia, V5G 4X5
(the "Borrower").
WHEREAS:
A. The Borrower wishes to borrow and the Lender is willing to lend to the
Borrower US$50,000 on the terms of this Agreement; and
B. The Borrower anticipates closing a private placement of up to 4,200,000
Common shares at US$0.12 per share in the near future (the "Private Placement"),
a portion of the proceeds of which will be used to repay any amounts outstanding
pursuant to 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) "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;
(c) "Event of Default" means any event specified in subsection 6.1;
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(d) "Loan" means the loan by the Lender to the Borrower established
pursuant to subsection 3.1; and
(e) "Note" means the 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 mean
lawful currency of the United States of America.
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 $50,000. The Lender will advance the Loan to the Borrower
upon execution of this Agreement.
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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 of executing this Agreement.
3.3 Interest
The Borrower will pay interest to the Lender both before as well as after
payment is due on the principal advanced under the Loan from the date of
disbursement at 10% annually. Interest will be calculated and compounded
quarterly in arrears and will be payable to the Lender at the end of each
calendar quarter while the Loan is outstanding and at the time the Loan is
repaid.
3.4 Repayment of the Loan
The Borrower will repay the Loan on the earlier of November 30, 2001 and the
date the Borrower completes the Private Placement.
3.5 Prepayment of Loan
The Borrower may prepay the principal and interest outstanding under the Loan at
any time without penalty, bonus or charges.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties
The Borrower represents and warrants to the Lender that:
(a) the Borrower is a corporation duly incorporated, validly existing and in
good standing under the laws of Nevada, U.S.A.;
(b) the Borrower has all requisite corporate power and authority to enter
into this Agreement and to issue the Note and to carry out the
obligations contemplated herein and therein;
(c) this Agreement and the Note 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.
4.2 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
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or pursuant to this Agreement will constitute representations and warranties
made by the Borrower thereunder.
5. 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 principal sum, interest 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 Note; and
(c) provide the Lender with immediate notice of any Event of Default.
6. EVENT OF DEFAULT
6.1 Definition of Event of Default
The principal balance of 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;
(b) 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;
(c) 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.
7. GENERAL
7.1 Waiver or Modification
No failure on the part of the Lender in exercising any power or right hereunder
will operate as a waiver the power or right nor will any single or partial
exercise of such right or power preclude
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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.
7.2 Time
Time is of the essence of this Agreement.
7.3 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.
7.4 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.
7.5 Costs
The Borrower will reimburse and pay the Lender any expenses reasonably incurred
by the Lender with respect to the transaction contemplated by this Agreement,
including the Lender's legal fees and disbursements.
8. NOTICES
8.1 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.
8.2 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.
8.3 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
8.4 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.
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9. 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.
BOLDER INVESTMENT PARTNERS, LTD.
By: /s/ Xxxx Xxxxxxxx
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Authorized Signatory
By:
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Authorized Signatory
XXXXXXXXX.XXX, INC.
By: /s/ Xxxx XxXxxx
-----------------------
Authorized Signatory
SCHEDULE "A"
to the Loan Agreement dated for reference October 19, 2001
between Bolder Investment Partners, Ltd. and XXxxxxxxx.xxx, Inc.
PROMISSORY NOTE
TO: BOLDER INVESTMENT PARTNERS, LTD. Burnaby, British Columbia
FOR VALUE RECEIVED, XXXxxxxxx.xxx, Inc. ("Maker") hereby promises to pay to the
order of Bolder Investment Partners, Ltd. (hereinafter referred to, together
with any subsequent holder of this Note, as the "Holder"), on or before November
23rd, 2001 at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0 or at such other address as may be specified by any Holder, the principal
sum of $50,000 IN UNITED STATES FUNDS (hereinafter referred to as the "Principal
Sum") plus accrued interest at the rate of ten percent (10%) per annum.
The Principal Sum or such amount thereof as is outstanding plus accrued interest
as aforesaid shall become immediately due and payable upon November 23rd, 2001
or such earlier date as provided for in the loan agreement dated for reference
October 19, 2001 entered into between the Maker and the Holder. The Maker shall
be entitled to prepay the Principal Sum plus accrued interest at any time
without penalty or bonus.
Maker and all parties now or hereafter liable for payment of this Note,
primarily or secondarily, directly or indirectly, and whether as endorser,
guarantor, surety or otherwise, hereby severally (a) waive presentment, demand,
protest, notice of protest, notice of dishonour and all other notices and
demands whatever, (b) consent to impairment or release of collateral, extension
of time for payment, and acceptance of late or partial payments, (c) waive any
right to require Holder to proceed against any security for this Note before
proceeding hereunder, and (d) agree to pay all costs and expenses, including
legal fees, which may be incurred by Holder in collecting this Note or in
enforcing and realizing upon any security for this Note. In the event judgment
is obtained upon this Note, Maker waives all rights and benefits under any law
exempting its property from levy, execution, attachment or garnishment.
If any provision of this Note or of any other document securing or executed in
connection with this Note is, for any reason and to any extent, invalid or
unenforceable, then neither the remainder of the document in which such
provision is contained, nor the application of the provision to other persons,
entities or circumstances, nor any other document referred to in this Note,
shall be affected by such invalidity or unenforceability, and there shall be
deemed substituted for the invalid or unenforceable provision the most similar
provision which would be valid and enforceable under applicable law.
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The Maker hereby acknowledges that it has been advised to seek independent legal
advice with respect to this Note.
Regardless of the place of its execution, this Note shall be construed and
enforced in accordance with the laws of the Province of British Columbia.
Dated at Burnaby, British Columbia this 24th day of October, 2001.
SIGNED, SEALED AND DELIVERED by
XXXXXXXXX.XXX, INC.
Per:
/s/ Xxxx XxXxxx
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(Please sign)
Xxxx XxXxxx
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(Please print name of Authorized Signatory)
