EXHIBIT 10.4
This GUARANTEE AND POSTPONEMENT OF CLAIM is dated for reference May 30, 2007
(P948 Release No. 1)
BETWEEN:
GORDON DAVIES, 3203 Rancho Compenaro, Carlsbad, California 92009, USA.
(hereinafter referred to as "the Guarantor")
OF THE FIRST PART
AND:
0761291 B.C. Ltd., a British Columbia company (Incorporation No.BC0761291)
which has its registered and records office located at Suite 107 - 20644
Eastleigh Crescent, Langley, British Columbia, V3A 4C4.
Paul Hughes, 7288 Beechwood Street, Vancouver, B.C. V6P 5V4
Eat-Me Foods, Ltd., 404-1066 Hamilton Street, Vancouver, B.C. V6B 2R9
(hereinafter referred to as "the Lender")
OF THE SECOND PART
A. WHEREAS the Guarantor is associated in business with Reclamation Consulting
and Applications, Inc., a Colorado corporation (hereinafter referred to as the
"Borrower") and has a financial interest in the business success of the
Borrower;
B. AND WHEREAS the Lender has agreed to lend to the Borrower the sum of $400,000
on the security, INTER ALIA, of a Secured Convertible Debenture (hereinafter
referred to as "the "Debenture");
C. AND WHEREAS the Lender, as a condition of making the said loan to the
Borrower, has requested that the Guarantor provide the guarantee hereinafter
contained;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the sum of
$400,000 now paid by the Lender to Reclamation Consulting and Applications, Inc.
(the sufficiency and receipt of which by the Borrower is hereby acknowledged by
the Guarantor), and in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, the participants hereby agree each with
the other as follows:
ARTICLE 1 -- DEFINITIONS AND INTERPRETATION
- -------------------------------------------
1.1 "Indebtedness" includes any and all advances to and debts (whether for
principal, interest or otherwise), obligations, endorsements, duties,
responsibilities, guarantees, indemnities, undertakings, promises and
liabilities of the Borrower to the Lender under the Debenture heretofore,
now, or henceforth made, incurred or created, whether due or not due,
absolute or contingent, determined or undetermined, or whether recovery
upon such indebtedness may be or may henceforth become barred by reason of
any statute of limitations or may be, or may henceforth become otherwise
unenforceable and irrespective of the genuineness, validity or regularity
thereof, or of any security therefor or of the existence or extent of any
such security.
1.2 "Participant" means either party to this Agreement. "Participants" means
both parties to this Agreement.
1.3 "Person" means any natural person, partnership, trust, society, body
corporate, body politic and any other legal entity, including (without
limiting the generality of the foregoing) any ministry, department, agency
of, or statutory body created by, any government, including a municipal
government. The term "person" as used herein means "person or persons"
wherever the circumstances to which the provisions of this Agreement are
to be applied shall reasonably admit or require.
1.4 Where a word or an expression is defined in this Agreement, other parts of
speech and grammatical forms of the same word or expression have
corresponding meanings. The words and expressions defined in this article
shall have the meanings herein set out throughout this Agreement
irrespective of whether they are printed in a bold font or otherwise
emphasized, and irrespective of whether the first letter of each appears
in upper case or lower case type.
1.5 Wherever any pronoun is used in this Agreement, the same shall be
construed to mean the masculine or the feminine, the singular or the
plural, or the body politic or body corporate, where the context in which
this term is found within this Agreement or the circumstances to which the
provisions of this Agreement are to be applied shall reasonably admit or
require.
1.6 The terms and conditions herein set out shall enure to the benefit of and
shall bind each of the participants and his every successor in interest,
including, without limiting the generality of the foregoing, any and all
companies succeeding a corporate participant by reason of amalgamation,
all receivers and receiver-managers, all liquidators, all
trustees-inbankruptcy, all committees, personal representatives and heirs.
ARTICLE 2 -- GUARANTEE
- ----------------------
2.1 The Guarantor hereby unconditionally guarantees and covenants to pay or to
cause to be paid to the order of the Lender any and all indebtedness of
the Borrower to the Lender at any time immediately up on the Lender's
demand for the same only at the time of default of the loan agreement
between the Lender and the Borrower.
ARTICLE 3 -- REPRESENTATIONS AND WARRANTIES
- -------------------------------------------
3.1 The Guarantor represents and warrants to the Lender as follows:
3.1.1 The execution and delivery of this Guarantee is not, and the
performance of this Guarantee will not be, in contravention of, or
in conflict with, any agreement, indenture or undertaking to which
the Guarantor is a party or by which his property is or may be bound
or affected and does not, and will not, cause any security interest,
lien or other encumbrance to be created or imposed upon any such
property, other than as herein contemplated.
3.1.2 There is no litigation or other proceeding pending, or to the
knowledge of the Guarantor, threatened against, or affecting him or
his property which, if determined adversely to him, would have a
materially adverse effect on his financial condition or property.
3.1.3 The Guarantor is not in default with respect to any order, writ,
injunction, decree or demand of any court of other governmental or
regulatory authority which would have a materially adverse effect on
his financial condition or property.
ARTICLE 4 -- GUARANTEE INDEPENDENT
- ----------------------------------
4.1 The liability of the Guarantor hereunder is independent of the obligations
of the Borrower, and a separate action may be brought and prosecuted
against the Guarantor whether such action is brought or prosecuted against
the Borrower or whether the Borrower is joined in any such action or
actions. The liability of the Guarantor hereunder is independent of and
not in consideration of or contingent upon the liability of any other
person under any similar instrument and the release of, or cancellation
by, any grantor of any similar instrument shall not act to release or
otherwise affect the liability of the Guarantor hereunder.
ARTICLE 5 -- AUTHORIZATION
- --------------------------
5.1 The Guarantor authorizes the Lender, without notice or demand and without
affecting the Guarantor's liability hereunder, from time to time:
(a) to take and to hold security for the payment of the indebtedness
hereby guaranteed, or any part thereof, and to exchange, to enforce,
to waive or to release any such security and to apply any such
security and direct the order or manner of sale thereof as the
Lender in its discretion may determine;
(b) to release or to substitute any one or more endorsers, guarantors
and/or other obligors of this Guarantee or any other guarantee of
the indebtedness hereby guaranteed, or any part thereof;
(c) to grant any other indulgence to the Borrower or to any other person
in respect of the indebtedness hereby guaranteed; and/or
(d) to make advances under the Debenture to the Borrower or to such
other person as any officer of the Borrower may direct.
ARTICLE 6 -- WAIVERS
- --------------------
6.1 The Guarantor waives the right to require the Lender to proceed against
the Borrower, to proceed under or to exhaust any security held from the
Borrower or to pursue any other remedy in the power of the Lender
whatsoever and the Guarantor waives the right to have the property of the
Borrower first applied to discharge the indebtedness hereby guaranteed.
The Lender may, at its election, exercise any right or remedy against the
Borrower or any security held by the Lender, including, without
limitation, the right to foreclose upon any such security or to exercise
any power of sale without affecting or impairing in any way the liability
of the Guarantor hereunder, and the Guarantor waives any defense arising
out of the absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other right or remedy of the Guarantor
against the Borrower, or any such security, whether resulting from such
election by the Lender or otherwise. The Guarantor waives any defense
arising by reason of the Borrower ceasing to be liable, either in whole or
in part, to the Lender for the indebtedness hereby guaranteed by way of
bankruptcy, insolvency or other proceedings whereby liability otherwise
existing is extinguished by operation of law.
6.2 Until all of the indebtedness hereby guaranteed has been paid in full the
Guarantor shall have no right of subrogation. The Guarantor waives any
right to enforce any remedy which the Lender now has or may in future have
against the Borrower in respect of the indebtedness hereby guaranteed, and
the Guarantor waives any benefit of, and any right to participate in, any
security, whether on real or personal property or otherwise, now or
henceforth held by the Lender until the indebtedness hereby guaranteed has
been paid in full. The Guarantor acknowledges that this Guarantee is
security in addition to the Debenture and that the Guarantor is obligated
to pay any indebtedness of the Borrower to the Lender remaining unpaid,
notwithstanding any sale of the land and the payment of the proceeds of
sale to the Lender. The Guarantor waives presentment, notice of
nonperformance, protest, notice of protest, notice of dishonour and notice
of acceptance of this Guarantee and of the creation or incurring of new or
additional indebtedness of the Borrower to the Lender. The Guarantor
assumes the responsibility for being and keeping himself informed of the
financial condition of the Borrower, and of all other circumstances
bearing upon the risk of nonpayment of the indebtedness which diligent
inquiry would reveal and agrees that the Lender shall have no duty to
advise the Guarantor of information known to it regarding any such
condition or circumstance.
ARTICLE 7 -- SECURITY
- ---------------------
7.1 This Guarantee and the agreements of the Guarantor herein contained shall
take effect and shall be and are hereby declared to be binding upon the
Guarantor notwithstanding any defect in or omission from any instrument
under which the Lender has taken any security for the indebtedness hereby
guaranteed, or any part thereof, or any non-registration or non-filing or
defective registration or filing thereof. The Guarantor hereby further
agrees that any loss of any security received by the Lender from the
Borrower or any other person, whether occasioned through the fault of the
Lender or otherwise, shall not discharge pro tanto or limit or lessen the
liability of the Guarantor under this Guarantee.
ARTICLE 8 -- EVIDENCE OF INDEBTEDNESS
- -------------------------------------
8.1 A certificate issued by the Lender which avers the amount of the
indebtedness of the Borrower to the Lender remaining unpaid at any time
shall be conclusive and binding evidence of the amount of the said
indebtedness, and all right to question in any way the Lender's present or
future method of dealing with the Borrower or any person now or in future
liable to the Lender for the indebtedness hereby guaranteed, or any part
thereof, or with any security now or henceforth held by the Lender, or
with any property covered by such security, is hereby waived by the
Borrower.
ARTICLE 9 -- PRINCIPAL DEBTOR
- -----------------------------
9.1 For greater certainty, it is hereby declared to be the intention of the
participants that this Guarantee shall be construed so as to impose the
like obligation upon the Guarantor, as if the Guarantor had covenanted as
principal obligant with the Borrower with respect to the indebtedness
hereby guaranteed.
ARTICLE 10 -- BANKRUPTCY
- ------------------------
10.1 Upon the bankruptcy of the Borrower or of any surety of the whole or of
any part of the indebtedness hereby guaranteed, the rights of the Lender
shall not be affected or impaired by any omission by the Lender to prove
its claim or to prove its full claim. The Lender may prove such claim as
it sees fit and may refrain from proving any claim and in the discretion
of the Lender may value as it sees fit or refrain from valuing any
security held by it without in any way releasing, reducing, or otherwise
affecting the liability to the Lender of the Guarantor.
ARTICLE 11 -- POSTPONEMENT OF CLAIMS
- ------------------------------------
11.1 All indebtedness and liability, present and future of the Borrower to the
Guarantor is hereby assigned to the Lender and postponed to the
indebtedness of the Borrower to the Lender, and all monies received by the
Guarantor in respect thereof are received in trust for the Lender and
forthwith on receipt shall be paid to the Lender, the whole without
limiting the liability of the Guarantor under this Guarantee.
ARTICLE 12 -- GOVERNING LAW AND JURISDICTION
- --------------------------------------------
12.1 This Agreement shall be governed by and shall be construed in accordance
with both the procedural and the substantive laws of the Province of
British Columbia, Canada, to the exclusion of the law of any other
jurisdiction. By entering into this Agreement the participants:
(a) agree that any cause of action which arises in respect of the
construction and/or the performance of this Agreement or any
provision hereof shall be deemed to have arisen in the Province of
British Columbia; and
(b) accept and to attorn to the jurisdiction of the Supreme Court of
British Columbia. The participants agree that no resort shall be
taken to any other Court or tribunal in any other jurisdiction, save
only where and in those instances in which it shall become necessary
to seek the enforcement of an Order of the Supreme Court of British
Columbia beyond its territorial jurisdiction.
12.2 In the event that there should be carried on any litigation between or
among the participants in respect of the construction or the performance
of this Agreement, the Guarantor hereby waives any conduct money and which
may be required to be paid to him pursuant to the Rules of Court. The
Guarantor agrees to bear all costs of his transportation and accommodation
and all living expenses incurred by him for the purpose of attending at
examinations for discovery and trials conducted in the Province of British
Columbia.
ARTICLE 13 -- GENERAL PROVISIONS
- --------------------------------
13.1 All agreements, representations and warranties made herein shall survive
the execution and delivery of this Guarantee.
13.2 No failure or delay on the part of the Lender in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude any other or further exercise of any such power, right or
privilege. All powers, rights and privileges hereunder are in addition to,
and not in substitution for, any powers, rights or privileges otherwise
available.
13.3 No alteration, modification or waiver of this Guarantee or any of its
terms, provisions or conditions shall be binding on the Lender unless made
in writing.
13.4 Upon the execution and delivery by the Guarantor to the Lender of this
Guarantee, this Guarantee shall be deemed to be finally executed and
delivered by the Guarantor notwithstanding the failure or refusal of any
other party to execute any like guarantee and shall not be subject to or
affected by any promise or condition affecting or limiting the liability
of the Guarantor except as set forth herein and no statement,
representation, agreement or promise on the part of the Lender or any
officer, employee or agent of the Lender unless contained herein forms any
part of this guarantee, or has induced the making of it, or shall be
deemed to affect the liability of the Guarantor hereunder.
13.5 Except as otherwise provided herein, any notice herein required or
permitted to be given shall be in writing and may be sent by prepaid
registered post, properly addressed, and if so sent shall be deemed to
have been received 3 clear days after the mailing thereof, or may be
delivered personally to a participant, and if so delivered shall be deemed
to have been received at the time of delivery if a business day and
otherwise if not a business day on the next succeeding business day. For
the purpose hereof, the addresses of the participants shall be as shown on
the first page hereof or such other address as may stipulated from time to
time by notice in writing.
13.6 In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, such provision shall be severable from the rest of this
Guarantee and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
13.7 This Guarantee shall be binding upon the Guarantor and his heirs,
successors, executors, administrators and assigns and shall enure to the
benefit of the Lender and its successors and assigns. The Lender may
assign this Guarantee or any of its rights and powers hereunder without
notice, together with all or any of the indebtedness hereby guaranteed,
and in such event the assignee shall have the same rights and remedies as
if originally named herein in place of the Lender and be subject to all
equities between the Lender and the Guarantor then applicable.
13.8 The headings of the Articles of this Guarantee are inserted for
convenience only and shall not be deemed to constitute a part hereof.
13.9 The Guarantor hereby agrees to be responsible for and to pay all costs and
expenses, including, without limitation, reasonable solicitor's fees and
accountant's fees, incurred by the Lender in connection with the
collection from the guarantors of the indebtedness hereby guaranteed.
IN WITNESS WHEREOF the Guarantor gives, grants, executes and delivers this
Guarantee to the Lender.
SIGNED, SEALED & DELIVERED BY GORDON DAVIES THE PRESENCE OF THE
UNDERSIGNED WITNESS:
/s/ Gordon Davies
---------------------------------------
Signature GORDON DAVIES
Print Name