Exhibit 10.28
PROMISSORY NOTE
$180,000 Lake Forest, California
January 4, 2006
FOR VALUE RECEIVED, the undersigned, RECLAMATION CONSULTING
AND APPLICATIONS, INC., a Colorado corporation (together with its successors and
assigns, the "Borrower"), hereby promises to pay to the order of BILLFIGHTER
INVESTMENTS, LIMITED, an Anguilla limited liability company (together with its
successors and assigns, the "Lender"), at the Lender's offices located at Hannah
Waiver House, The Valley, Anguilla BWI (or such other place as the Lender may
designate in writing to the Borrower), the aggregate principal sum of One
Hundred Eighty Thousand Dollars ($180,000) with interest with interest on the
balance outstanding from time to time at the rate of ten percent (10%) per
annum., in lawful money of the United States, upon the terms and subject to the
conditions set forth herein. This unsecured promissory note (the "Note") is the
promissory note referred to Section 3.3 of the License Agreement, dated of even
date herewith (the "License Agreement") by and between the Lender and the
Borrower.
1. Payment and Prepayment.
(a) Repayment of Principal and Interest. The entire unpaid principal
balance, together with any accrued interest and other unpaid charges
or fees hereunder, shall be due and payable on first anniversary of
the date hereof (the "Maturity Date").
(b) Prepayment. Prepayment in whole or part may occur at any time
hereunder without penalty or premium; provided that the Lender shall
be provided with not less than ten (10) days notice of the
Borrower's intent to pre-pay; and provided further that any such
partial prepayment shall not operate to postpone or suspend the
obligation to make, and shall not have the effect of altering the
time for payment of the remaining balance of the Note as provided
for above, unless and until the entire obligation is paid in full.
All payments received hereunder shall be applied, first, to any
costs or expenses incurred by Lender in collecting such payment or
to any other unpaid charges or expenses due hereunder; second, to
accrued interest; and third, to principal.
2. Events of Default. The occurrence and continuation of any one or more of
the following events shall constitute an event of default under this Note
("Event of Default"):
(a) Payment Default. The Borrower shall fail to make any required payment
of principal of or interest on this Note and such failure shall continue for
more than five (5) business days after written notice from the Lender to the
Borrower thereof.
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(b) Bankruptcy Default. The Borrower shall (i) commence any case,
proceeding or other action under any existing or future law of any jurisdiction
relating to seeking to have an order for relief entered with respect to it or
its debts, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other such relief with respect to it or
its debts, or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or substantially all of its assets (each of
the foregoing, a "Bankruptcy Action"); (ii) become the debtor named in any
Bankruptcy Action which results in the entry of an order for relief or any such
adjudication or appointment described in the immediately preceding clause (i),
or remains undismissed, undischarged or unbonded for a period of sixty (60)
days; or (iii) make a general assignment for the benefit of its creditors.
In each and every Event of Default under clause (a) of this Section 2, the
Lender may, without limiting any other rights it may have at law or in equity,
by written notice to the Borrower, declare the unpaid principal of and interest
on this Note due and payable, whereupon the same shall be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which the Borrower hereby expressly waives, and the Lender may proceed to
enforce payment of such principal and interest or any part thereof in such
manner as it may elect in its discretion. In each and every Event of Default
under clause (b) of this Section 3, the unpaid principal of and interest on this
Note shall be immediately due and payable without presentment, demand, protest
or notice of any kind, all of which the Borrower hereby expressly waives, and
the Lender may proceed to enforce payment of such principal and interest or any
part thereof in such manner as it may elect in its discretion.
3. Notices. All notices, requests, demands or communications required or
permitted under this Note shall be given in accordance with the provisions
applicable to the giving of notices in the License Agreement.
4. Waivers, Rights and Remedies.
(a) Waiver. No failure, delay or course of dealing on the part of the
Lender in exercising any right, power or privilege under this Note shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege hereunder preclude the simultaneous or later exercise of any
other right, power or privilege hereunder. The Borrower hereby waives to the
extent not prohibited by applicable law (i) all presentments, demands for
performance or notices of nonperformance (except to the extent specifically
required under Section 3); (ii) any requirement of diligence or promptness on
the part of the Lender to enforce its rights under this Note; (iii) any and all
notices of every kind and description which may be required to be given by any
law; and (iv) any defense of any kind (other than payment) which it may now or
hereafter have with respect to its obligations under this Note.
(b) Rights and Remedies. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which the Lender may
otherwise have.
5. Indemnification. The Borrower shall pay and shall indemnify and hold the
Lender harmless against any and all costs and expenses, including reasonable
attorneys' fees and disbursements, actually incurred by the Lender for the
collection of this Note upon an Event of Default.
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6. Governing Law; Venue for Suit; Jurisdiction of Court. This Note shall be
governed by and construed in accordance with the internal laws of the State of
California applicable to the performance and enforcement of contracts made
within such state, without giving effect to the law of conflicts of laws applied
thereby. In the event that any dispute shall occur between or among the Parties
arising out of or resulting from the construction, interpretation, enforcement
or any other aspect of this Note, the Parties hereby agree to accept the
exclusive jurisdiction of the Courts of the State of California sitting in and
for the County of Orange. The Parties hereby agree that venue is proper in those
courts, hereby consent to such venue in and personal jurisdiction over them by
those courts, and hereby waive all objections to such venue and to the courts'
personal jurisdiction over them.
7. Amendment. No amendment or other modification of this Note may be made
without the written consent of the Lender.
THE BORROWER
RECLAMATION CONSULTING
AND APPLICATIONS, INC.
/s/ Gordon W. Davies
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Gordon Davies
President
THE LENDER
BILLFIGHTER INVESTMENTS LIMITED
/s/ Bernadine Romney
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Bernadine Romney
Authorized Signatory
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