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EXHIBIT 10.5
This GUARANTEE AND POSTPONEMENT OF CLAIM is dated for reference
May 30, 2007
(P948 Release No. 1)
BETWEEN:
MICHAEL DAVIES, 33251 Questa Way, Dana Point, California 92629,
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.
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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.
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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 gu
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