EXHIBIT 99.1
LOAN AGREEMENT
This Loan Agreement (Agreement) is made this 1st day of August, 2003 by
and between Calais Resources, Inc. a British Columbia, Canada corporation
(Calais BC), Calais Resources Colorado, Inc., a Nevada corporation authorized to
do business in Colorado, (Calais Colorado), Aardvark Agencies, Inc. a Washington
corporation, (Aardvark), and Broadway Mortgage Corporation, a Colorado
corporation ("Broadway" or "Lender").
RECITALS
WHEREAS, Calais Colorado and Aardvark are the fee or patent owners of
certain real property located in Colorado, (Properties) the descriptions of
which are more fully set forth in Exhibit A;
WHEREAS, Calais Colorado is a working mining company;
WHEREAS, Calais BC is the parent company of Calais Colorado and is a
publically traded corporation that is actively traded on the OTC-BB;
WHEREAS, Calais Colorado, Calais BC, Aardvark and Broadway have reached
an agreement wherein Broadway and its assigns will loan to Calais Colorado the
sum of $4.5 million in good US funds (Loan), subject to the terms of this
Agreement;
WHEREAS, Calais Colorado, Calais BC and Aardvark have agreed that in
order to secure the Loan, they shall sign the "Note" as that term is defined
below to be secured so much of the Property as it owns with a deed of trust
(Calais Deed of Trust) and the "UCC- 1 Documents" as that term is described
below;
WHEREAS, Calais BC has agreed that in consideration of the Loan it
shall issue to Broadway and its assigns 8,181,818 shares of its stock - the
"Broadway Stock" as that term is more fully described below;
WHEREAS, in order to further secure the Loan Aardvark has agreed that
it shall encumber so much of the Property as it owns with a deed of trust
(Aardvark Deed of Trust), and the UCC- 1 Documents and shall sign a non-recourse
"Guaranty" as to the performance of Calais with the understanding that the
Guaranty shall only permit Broadway to take the Aardvark Property pursuant to
the powers of the Aardvark Deed of Trust;
NOW, THEREFORE, for and in consideration of the mutual covenants found
herein and for other good and valuable consideration, all of which is deemed to
be adequate, it is agreed as follows:
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COVENANTS
1. The Loan
a. Subject to the terms found herein, Broadway agrees to loan to
Calais the sum of $4.5 million in good funds US (Total Loan Amount).
b. the Loan shall be evidenced by a promissory note (Note)
containing the following terms (a copy of which is attached as Exhibit B:
i. the $4.5 million in good US funds consists of Three Million
Six Hundred Thousand ($3,600,000) in Principal (Principal), $928,800
representing 24 months of interest (prepaid) at the rate of 12.9% per annum from
the date hereof and the costs of the closing thereby making the Total Loan
Amount.;
ii. interest shall be 12.9% per annum;
iii. subject to paragraph 1(e) below, the loan is due and payable
24 months from the date of signature on the Note (Term);
iv. subject to paragraph 2(b) below, the principal and all
accrued interest shall be due and payable on or before July 31, 2005 (Balloon
Date);
v. there shall be no prepayment penalty;
vi. there shall be default interest at the rate of 15%;
vii. there shall be a one time right to cure which shall give
Calais Colorado and Calais BC three (3) calendar days from the date of receipt
of the notice of breach within which cure the same. If not cured within that
period, Broadway shall accelerate all accrued interest and the principal.
c. The Total Loan Amount shall be disbursed as follows:
i. $928,800 as prepaid interest to be disbursed to the Lender on
or before September 15, 2003, and/ or best efforts;
ii. all costs incurred by Lender during the loan process,
including but not limited to attorney's fees, tax certification fees and all
other costs shall be disbursed to the Lender on or before September 15, 2003,
and/ or best efforts;
iii. $1,750,000 to be disbursed to the Borrowers on or before
August 5, 2003;
iv. $1,750,000 to be disbursed to Borrowers on or before
August 30, 2003, and! or best efforts; and,
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v. $1,000,000 to be disbursed to the Borrowers on or before
September 15, 2003, and/ or best efforts.
d. The Note shall be secured as follows:
i. with the Calais Deed of Trust and Aardvark Deed of Trust, in
the forms attached hereto as Exhibit C (and jointly referred to as the First
Deeds of Trust) which shall encumber all fee interests; and all mineral
interests, patent rights, mineral rights, rights to exploit all Properties for
the purpose of obtaining the minerals and any and all other rights whether they
be personalty or real property, whether surface or sub-surface, whether placer
rights or other mining rights (the "Mineral Rights") as may be necessary to
secure in the name of Broadway all of the Mineral Rights Calais Colorado and
Aardvark have as to the Properties. In furtherance thereof, Calais Colorado and
Aardvark shall be deliver to Lender a title policy (Policy) sufficient to secure
the Properties free and clear of all liens or encumbrances except those that arc
approved and accepted by the Lender in accordance with Exhibit D;
ii. a UCC-1 security agreement and finance statement (UCC-1
Documents) securing all personalty owned by Calais Colorado and Aardvark in
Colorado and used on the Property a copy of which is attached as Exhibit E;
2. Issuance of Stock - Requirement to Register Shares to Be Issued
a. As a further inducement to Broadway and its assigns for securing
and loaning the Total Loan Amount, Calais BC shall issue 8,181,818 shares of
restricted common treasury stock (Broadway Stock) which shall, upon proper
registration, be freely tradable subject to a plan of distribution and
unrestricted to Broadway as soon as is commercially and legally practicable
which shall be subject to the following:
i. that Calais BC shall use its good faith best efforts to get
the Stock registered in any manner necessary in Canada and/or the United States
so as to get it transferred as above described as being freely tradeable subject
to a plan of distribution and unrestricted.
ii. that Calais BC shall bear the cost of registering the Stock
as above described.
iii. at the Balloon Date, Calais Colorado and Calais BC will be
required to pay any accrued interest, costs, and the principal of $4.5 million
US, less any Pay- down Money generated in accordance with sub-paragraph b next
below.
b. Notwithstanding anything herein to the contrary, subject to the
deliver to Broadway of the Broadway Stock, and in accordance with the terms
found below, Broadway shall pay-down or pay off, if possible the Total Loan
Amount from the Broadway Stock as follows:
i. Broadway agrees that upon receipt of the Broadway Stock it
shall
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deliver into escrow with a financial institution of good repute and standing
(Escrow Agent) a total of 1,500,000 share of Broadway Stock (plus so many shares
as may reasonably be required to pay any sales costs associated with the sale
thereof), (Escrowed Stock). The Escrowed Stock shall be subject to an escrow
agreement (Escrow Agreement) the terms of which shall be approved by Calais BC
and Broadway;
ii. the Escrowed Stock shall be held by the Escrow Agent until
the earlier of: (A) the date that the shares of Calais BC are trading at an
average price of $3.00 US per share over an average of five (5) business days as
quoted on the stock exchange on which the Stock is quoted (Trigger Price); or,
(B), the Balloon Date. At any time during the Term, when the shares of Calais BC
reach the Trigger Price, the Escrow Agent shall cause so much of the Escrowed
Stock as can be commercially reasonably sold to sell said shares at a minimum
price of $3.00 US, provided that the shares are not restricted. In making the
decision as to the number of shares to sell once the Trigger Price has been
reached, the Escrow Agent and any of its advisors shall take into consideration
the effect that the sale of a large number of shares will have on the Trigger
Price. Further, if the Trigger Price fluctuates during the Term, the Escrow
Agent shall use its good faith efforts to dispose of so much of the Escrowed
Stock as it can, with the understanding that it shall not be required to sell
any Escrowed Stock of the price of the shares falls below the Trigger Price.
iii. The proceeds from such sale or sales, less all costs of
sales, shall then be disbursed by the Escrow Agent to Broadway solely for the
purpose of paying down the Total Loan Amount. (Pay-down Money). Broadway shall
not take or use any of the Pay-down Money for any other purpose; and it shall
account for the Pay-down Money by supplying reasonable evidence that the funds
were used for this purpose only
iv. Escrowed Stock shall continue be sold in this manner until
the earlier of: (A) the date that the Total Loan Amounts has been paid in full
or, (b) until the Balloon Date. If the Total Loan Amount has not be paid in full
by the Balloon Date, Borrowers shall timely pay any balance then due. Further
if, on the Balloon Date, there remains any Escrowed Stock, the same shall be
delivered over to Broadway and the Escrow shall be closed.
v. Costs of sales of the Escrowed Stock shall be paid under the
same terms and conditions as above.
3. Conditions Precedent to Closing the Loan
The obligation of Broadway to fund the Loan is subject for the
following conditions precedents:
a. there shall be in place an American Land Title Association (ATLA)
title commitment (Commitment) from a reputable and licensed title insurer in the
state of Colorado, (Insurer) which secures in the name of Broadway, the first
position deed of trust as to all of the Properties, the patents, and the Mineral
Rights. Prior to funding, Broadway shall first approve the Commitment as to the
requirements necessary to deliver to Broadway the first position deeds of trust
as to the Properties and as to the exceptions that will not be insured at the
time of the
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delivery of the title policy (Policy).
b. Broadway shall receive opinions from attorney's licensed in the
state of Colorado as to the following matters:
i. that a shareholders meeting (Meeting) approving the Loan is
not required; or if required, that the Meeting has been held; that the Loan has
been approved; and that minutes reflecting the approval are attached;
ii. that Calais Colorado and Calais BC and Aardvark:
A. have the power and authority to deliver the Property and
the Mineral Rights free and clear of all liens and encumbrances except for those
approved by Broadway as set forth in Exhibit D;
B. have the power and authority to sign and deliver the Note,
the First Deed of Trust, the Mineral Rights, and the UCC-1 and shall state the
name of the person who has authority to enter into the Agreement;
C. shall deliver a Certificates of Good Standing for both
Calais Colorado and Aardvark and minutes necessary to prove the same;
D. that there are no contracts, claims, rights, duties, law
or encumbrances, which would limit or deny Calais Colorado and Aardvark the
right to use the Property in the manner set forth herein - including but not
limited to the matters concerning National Capital located in California.
iii. that Calais BC has the present right to issue 8,181,818
shares of unrestricted, common shares of freely tradable stock (Stock) or if
there is not the present right, then setting forth the terms and conditions
under which the Stock can be issued.
c. that Calais Colorado shall deliver adequate proof of insurance
insuring Calais Colorado and the Properties against such risks as is customarily
carried by owners of similar businesses and properties naming Broadway as an
additional secured party with the standard mortgage clause for that amount
sufficient to cover all furniture, fixtures, equipment and the like as more
fully described in the Hazard Insurance Authorization and Requirements as
attached, (Insurance) at the time of "Closing" as that term is defined below.
Such insurance shall require that the insurer provide thirty (30) calendar days
written notice before cancellation of the policy.
d. Calais Colorado has previously delivered to Broadway a budget and
use of proceeds for the Loan. The same shall be appended hereto as Exhibit F.
The same shall be updated as of the date of Closing.
e. that Calais BC shall, if required by the attorney's opinion
letter, immediately take the steps necessary to cause the Stock to be registered
with any municipal, county, state, federal or Canadian entity so that the Stock
can be delivered to Broadway unrestricted and freely tradeable. Such acts shall
include but not be limited to, preparing and filing all registration statements;
filing responses to any comments; and the filing any amendments.
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f. As to each condition precedent, Broadway shall have such
reasonable time as may be necessary after receipt of the document or thing to
review it and approve or disapprove of its content. Should Broadway disapprove
of the same, it shall provide written notice to Calais Colorado and as necessary
Calais BC. Thereafter Calais Colorado and/or Calais BC shall have five (5)
business days within which to provide such additional information or opinions as
may be necessary to satisfy the concerns of Broadway. If it fails or refuses to
provide such information within said time period, Broadway may: (i) terminate
this Agreement in which case all Parties shall be relieved of any further
liability and Broadway shall have no obligation to fund; or (ii) Broadway can
waive its disapproval in which event that condition precedent is deemed to be
acceptable.
4. Closing
Subject to the satisfaction of Broadway as the above conditions
precedent, the closing of the funding shall take place as follows:
a. delivery of the First Disbursement upon the approval by Broadway
of the Commitment and the delivery by Calais Colorado of the Insurance. The
Parties shall use their good faith effort to make a First Disbursement on or
before July 31, 2003.
b. deliver of the Second Disbursement upon approval by Broadway of
all other conditions precedent. The Parties shall use their good faith efforts
to make the Second Disbursement on or before Aug 30, 2003
c. deliver of the Third Disbursement upon approval by Broadway of
all other conditions precedent. The Parties shall use their good faith efforts
to make the Second Disbursement on or before September 15, 2003
d. At the time of the Closing of the First Disbursement, the Parties
shall deliver the following:
i. As to Calais Colorado and Calais BC:
A. the Note duly signed by the authorized officer;
B. the First Deed of Trust as the Properties owned or
controlled by Calais Colorado;
C. the UCC-l documents;
D. all closing documents required by the title company
managing the Closing:
E. any and all other documents necessary to effectuate the
terms and intent of this Agreement.
ii. As to Aardvark;
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A. the First Deed of Trust as to the Properties owned or
controlled by Aardvark;
B. the Guaranty of Aardvark;
C. all closing documents required by the title company
managing the Closing;
D. any and all other documents necessary to effectuate the
terms and intent of this Agreement.
iii. As to Broadway:
A. the First Disbursement
B. any mid all documents necessary to effectuate the terms
and intent of this Agreement.
e. at the Closing to the subsequent disbursements, the Parties agree
to sign any and all documents necessary to effectuate the terms and intent of
this Agreement.
5. Restrictions during the term of the Loan
For so long as any portion of the Loan remains unpaid, Calais Colorado,
Calais BC and Aardvark agree as follows:
a. that none will encumber, create a security interest in, pledge,
use, expose or commit the Properties or the assets of Calais Colorado (as the
term "assets" is normally and usually defined using generally accepted
accounting principals consistently applied in the City and County of Denver,
Colorado by national accounting firms) (Assets) to any liens, mechanics liens,
judgment liens, encumbrances, easements, pledges, or other restrictions without
first obtaining the express written permission of Broadway;
b. strike 5b
c. enter into any merger, consolidation, or other agreement in which
any portion of the assets (as that term is normally and usually defined using
generally accepted accounting principals) or any shares of stock in Calais BC in
excess of 5,000,000 are to be sold or pledged, except with express written
permission of the Lender with the understanding that Calais BC may be required
to sell shares of stock to raise capital;
d. guaranty, endorse or otherwise become a surety for any
obligations of others;
e. do any other act or refrain from doing any act which in any
commercially reasonable manner may be deemed to have exposed the Property or the
Assets to attachment, diminution in value, loss, judgments, liens or
encumbrances, without first obtaining the express written permission of
Broadway.
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f. the terms, covenants and conditions of this paragraph 4 shall
survive the closing and shall remain the continuing obligations of Calais
Colorado, Calais BC and, if applicable Aardvark.
6. Covenants, Warranties and Representations of Calais Colorado, Calais
BC and Aardvark
Calais Colorado, Calais BC and Aardvark covenant, warrant and represent
the following:
a. As to Calais Colorado and Calais BC that:
i. each has the power and authority to: (A) enter into this
Agreement; (B) issue the Stock; and (C) making all of the covenants, warranties
and representations found herein.
ii. Calais Colorado is fully seized of Calais' Colorado portion
of the Properties free and clear of all liens and encumbrances except as fully
set forth in Exhibit D;
iii. Calais Colorado and Calais BC have disclosed to Broadway all
material positive or negative facts about Calais Colorado and Calais BC, its
operations, personnel, Assets, the Calais Property and otherwise so as to permit
Broadway to make an informed decision whether to hind the Loan;
iv. they have paid all taxes of any nature and kind due or about
to become due from the operation of Calais and shall continue to do so through
the dates of Closing;
v. there is not pending or threatened litigation, government
action, complaint, or notice, from any person or entity, concerning any matter
including but not limited matters relating to hazardous wastes, clean water or
clean air acts, which could in any manner materially affect the Calais Property,
the Assets, the right of Calais BC to issue the Broadway Stock, or the operation
of either entity;
vi. all financial statements delivered to Broadway were, at the
time delivered, at the time that this Agreement is signed and on the date of
Closing of each disbursement, true and correct and they fairly represent the
financial condition of the corporation;
vii.
A. once each fiscal quarter each entity shall supply
unaudited consolidated financial statements, including a profit and loss
statement and balance sheet, verified as being true and accurate by Calais;
B. as soon as practicable after the end of their individual
fiscal years, supply Broadway with its federal and state tax returns with all
schedules;
viii. the execution and delivery of this Agreement and the
performance of the Parties hereunder, including the delivery of the Note, the
deeds of trust, the UCC-l Documents and the Broadway Stock will not conflict
with or result in the breach of any of the
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terms covenants and conditions of any agreement, covenant, or contract, whether
express or implied, written or oral.
viii. they shall:
A. timely pay for all payroll taxes including withholding
and RCA, for all employees;
B. timely pay all other taxes due on the Properties, the
Assets or any other possession of Calais Colorado and Calais BC; except that it
may apply for an extension of the payment of such taxes if the same is made in
writing within the time required by the taxing authority, with a copy of the
same being delivered to Broadway;
C. maintain all insurance presently in place and required
by the Agreement;
D. continue to operate Calais Colorado and Calais BC in the
normal course of business using sound and reasonable business judgment;
E. pay when due, all accounts payable and other debts of
the corporation;
F. use the Loan proceeds for the purposes set forth in
Exhibit F;
G. maintain such books and records as may be necessary to
satisfy any municipal, county, state or federal entity including but not limited
to the Securities and Exchange Commission;
H. maintain the corporation in such a manner as to permit
to remain on the stock exchange on which it is now quoted;
I. use Calais BC's good faith efforts to cause the
corporation to be listed on the National Association of Securities Dealers
(NASD) exchange (NASDAQ);
J. not act in such a manner or refrain from taking action
the consequence of which would result in the violate any term, covenant or
condition of this Agreement.
K. Not do anything in or around the Property which would in
any manner violate any municipal, county, state, or federal hazardous materials
or clean water or air acts;
L. Not make any arrangement or agreement with any "insider"
as that term is defined by any applicable Securities and Exchange Act rule or
regulation, concerning any of shares of the corporation's stock without first
disclosing the same to Broadway and obtaining its express written permission.
b. as to Aardvark that:
i. it has the power and authority to: (A) enter into this
Agreement; (B) reserved, and (C) making all of the covenants, warranties and
representations found herein.
ii. it is fully seized of the Aardvark portion of the Properties
free and clear of all liens and encumbrances except as fully set forth herein;
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iii. it has disclosed to Broadway all material positive or
negative facts about Aardvark its operations, personnel, Assets, the Aardvark
Property and otherwise so as to permit Broadway to make an informed decision
whether to fund the Loan;
iv. it has paid all taxes of any nature and kind due or about to
become due from the Aardvark Property and shall continue to do so through the
dates of Closing;
v. there is not pending or threatened litigation, government
action, complaint, or notice, from any person or entity, concerning any matter
including but not limited to concerns about hazardous wastes, clean water or
clean air acts, which could in any manner materially affect the Properties, the
Assets, or the operation of Aardvark
vii. it shall:
A. timely pay all other taxes due on the Aardvark
Properties; except that it may apply for an extension of the payment of such
taxes if the same is made in writing within the time required by the taxing
authority, with a copy of the same being delivered to Broadway;
B. maintain all insurance presently in place and required by
the Agreement;
C. pay when due, all accounts payable and other debts of the
corporation;
D. maintain such books and records as may be necessary to
satisfy any municipal, county, state or federal entity including but not limited
to the Securities and Exchange Commission (SEC);
E. not act in such a manner or refrain from taking action
the consequence of which would result in the violate any term, covenant or
condition of this Agreement.
F. Not do anything in or around the Property which would in
any manner violate any municipal, county, state, or federal hazardous materials
or clean water or air acts.
c. the terms, covenants and conditions of this paragraph 4 shall
survive the closing and shall remain the continuing obligations of Calais
Colorado, Calais BC, and, if applicable Aardvark.
7. Default
a. Any of the following shall be deemed to be an event of default:
i. failure to perform each and every term of the Note;
ii. failure to perform each and every term of the the Aardvark or
Calais Deeds of Trust;
iii. failure to perform each and every terms of the UCC-1
Documents;
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iv. failure to perform each and every term of this Agreement;
v. the determination that any representation, warranty or
covenant of Calais Colorado, Calais BC, or Aardvark and found in the Note, the
Deeds of Trust, the UCC-1 Documents, or this Agreement is deemed to be untrue in
any material aspect as of the date it was made;
vi. any act or any failure to act which results in the placement
of any manner of lien, encumbrance, pledge, or impediment being filed or
perfected against any portion of the Properties or any portion of the Assets;
vii. the assignment by Calais Colorado, Calais BC and/or Aardvark
of any of the Properties or Assets for the benefit of any creditor;
viii. the determination by Broadway using generally accepted
accounting principals consistently applied in the City and County of Denver,
that Calais Colorado, Calais BC and/or Aardvark is insolvent; or
ix. the application by Calais Colorado, Calais BC and/or Aardvark
for protection under any applicable bankruptcy statutes, rules or regulations of
either the United States or Canada;
x. the failure of Calais BC to use its best efforts to pursue, if
necessary registration of the Stock;
xi. the inability for any reason, of Calais BC to issue the Stock
unrestricted and freely tradable within 13 months of the date of the First
Disbursement.
b. Upon the occurrence of any event of default as above described,
Broadway shall provide written notice to Calais Colorado, Calais BC, and/or
Aardvark, as the case may be, which shall describe the nature of the default.
Thereafter Calais Colorado, Calais BC, and/or Aardvark shall have the following
right to cure:
i. if the breach was as to the Note, the Deeds of Trust, or the
UCC-1 Documents, the cure shall be any that is provided in the affected
document;
ii. if the breach is in the performance of any term covenant or
condition of this Agreement, Calais Colorado, Calais BC and/or Aardvark shall
have five (5) business days from the date of the written notice within which to
cure the same; except that if cure cannot be completed in said period, then
Calais Colorado, Calais BC and/or Aardvark shall be permitted to diligently
pursue such cure with the understanding that any cure must be completed no later
than ten (10) business days after written notice is received. Notwithstanding
anything herein to the contrary, in the event of any ambiguity or conflict
between the cure granted in this sub-paragraph, and the cure offered in any of
the documents described in the next preceding sub-paragraph, the shortest cure
period will prevail.
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c. If Calais Colorado, Calais BC and/or Aardvark is unable or
unwilling to cure, then Broadway shall have the following remedies:
i. it may immediately accelerate the Note with no further right
to cure;
ii. it may take any such action or avail itself of any remedies
offered by the Deeds of Trust or the UCC- I Documents including but not limited
to the institution of foreclosure proceedings;
iii. it may seek damages, specific performance, equitable relief
including, but not limited to injunctions, or any combination of the same.
iv. strike c. iv.
v. it may avail itself of any other remedies available in law or
equity with the understanding that all such remedies shall be cumulative and the
election of one remedy shall not eliminate its right to any other remedy.
8. Indemnification
a. Calais Colorado, Calais BC, and as the case may be, Aardvark,
will indemnify and hold Broadway, its officers, directors, shareholders, and
employees, from any claim, cause of action, damage, judgment, right, obligation
to cure, expenditure, assessment, liability, or expense arising out of, and
incurred by Broadway as a result of any statement, omission, action, inaction,
performance, failure to perform, the breach of any term covenant or condition of
the Note, the Deeds of Trust, the UCC-1 Documents and this Agreement of Calais
Colorado, Calais BC and, as the case may be, Aardvark, the result of which is to
cause Broadway to incur any expense, cost, fees, including reasonable attorney's
fees, make any defense in any court, tribunal, or by written response, or pay
any damages, judgments or awards; except that Calais Colorado, Calais BC and as
applicable, Aardvark will not be required to so indemnify if the same was as a
result of the gross negligence of Broadway.
b. Calais Colorado, Calais BC, and as the case may be, Aardvark,
shall indemnify and hold harmless Broadway, its officers, directors,
shareholders and employees from any claim, cause of action, damage, judgment,
right, obligation to cure, expenditure, assessment, liability, or expense
arising out of, and incurred by Broadway as a result of any statement, omission,
action, inaction, performance, failure to perform, arising from any
environmental, or health and safety liability, arising out of or relating to the
ownership or operation by Calais Colorado and Aardvark of the Properties and the
mining and mineral extraction processes occurring thereon at any time on or
prior to the or after the date of the Closings; (ii) the disposition of any
"Hazardous Materials" "Hazardous Waste Disposal" as those terms may be defined
by an municipal, county, state or federal entity, or similar laws intended to
protect the environment; (iii) any bodily injury (including illness, disability
and death, regardless of when any such bodily injury occurred, was incurred or
manifested itself), personal injury, property damage (including trespass,
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nuisance, wrongful eviction and deprivation of the use of real property) or
other damage of or to any person or entity which occurred in or around the
Properties and by the use of the Assets,
9. Miscellaneous
a. Time is of the essence herein.
b. All covenants, conditions and obligations found in this Agreement
which must survive the Closings in order to remain in force, will survive so as
to remain the continuing obligation of the party to whom it is directed.
c. This Agreement, its exhibits, the Note, the Deeds of Trust, and
the UCC-1 Documents form the entire understanding of the Parties hereto in
regard to the subject matter described herein. All previous understandings or
agreements, express or implied, oral or written, shall be merged herein. The
documents described herein cannot be amended except in a writing signed and
dated by all Parties. An oral amendment which seeks to delete or alter the terms
of this sub-paragraph shall not be effective.
d. Calais Colorado and Calais BC shall reimburse Broadway for any
costs, expenses, fees, charges, attorney's fees, accountancy fees, and any other
expenditure incurred by Broadway as a result of entering into this Agreement.
Such reimbursement shall be accounted for in the disbursements in any manner
that the Parties reasonably agree.
e. The Parties will cooperate to make any such public announcements
as may be necessary and appropriate to inform the general public of the closing
of this transaction. Any such public announcement must be made only after taking
into consideration any relevant disclosure laws, including the rules and
regulations of the SEC
f. This Agreement, the Note, the Deeds of Trust, and the UCC-1
Documents shall be interpreted in accordance with Colorado law. The Parties
hereto irrevocably agree that jurisdiction shall be in the District Court in and
for the County of Arapahoe. The Parties further agree that each such Party has a
right to elect the seating of a jury in any controversy, in recognition of the
same, each Party specifically waives its right to a jury trial with the
understanding that all controversies shall be heard by the court.
g. Each Party has obtained the services of professionals of its own
choosing including lawyers and accountants (Professionals).
h. The Parties agree that the terms of this Agreement, the Note the
Deeds of Trust, and the UCC- 1 Documents were reached as a result of the
collaborative efforts of all Parties and their Professionals. As a result in the
event of any ambiguity or other inconsistency in these documents, the same shall
not be construed against the Party that drafted it.
i. In the event of any ambiguity, conflict or inconsistency in or
between this Agreement, the Note, the Deeds of Trust, or the UCC-1 Documents,
the court of competent jurisdiction shall interpret and determine the same so as
to give Broadway the greatest protection
13
and rights, even if the same works to the detriment of Calais Colorado, Calais
BC and/or Aardvark.
j. Notice shall be effective when written and delivered in the
following method: (i) on the date and at the time of hand delivery; (ii) on the
date and at the time of delivery of any overnight package; (iii) three (3) days
after mailing, postage prepaid, certified, return receipt, any letter mailed to
the United States; (iv) five (5) days after mailing, postage prepaid, certified,
return receipt, any letter mailed to Canada. Notice shall be sent to the
following person and address all of which may be changed from time to time:
To Broadway: Xxxxx Xxxxxx, President
Broadway Mortgage Corporation
0000 Xxxxxxx Xxxxxx 0000
Xxxxxx, XX 00000
with a copy to: Xxxxxxx X. Xxxx
Corporon, Eyler & Xxxx, LLC
00000 X. Xxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
To Calais BC: Xxxxxx Xxxxxxxxx, President
Calais Resources, Inc.
X.X. Xxx 000
Xxxxxxxxx, XX 00000
To Calais Colorado: Xxxxxx Xxxxxxxxx, Pres.
Calais Resources Colorado, Inc
X.X. Xxx 000
Xxxxxxxxx, XX 00000
with a copy to: Xxxx Xxxxxxxxx
Xxxxxxx and Xxxxxx, LLP
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
To Aardvark: 000-0000 Xxxxxxxx Xx
Xxxxxxxxxx XX
X0X 0X0
k. Failure of any Party at any time to require performance of any
provision of this Agreement shall not limit the Party's right to later enforce
the provision, nor shall any waiver of any breach of any provision be a waiver
of any succeeding breach of any provision or a waiver of the provision itself
for any other provision.
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l. Calais Colorado, Calais BC and Aardvark may not assign any of its
rights or delegate any of its obligations under this Agreement without the prior
written consent of Broadway. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon and inure to the benefit of the
successors and permitted assigns of the Parties hereto.
m. If any term, covenant or condition of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the court may
refashion the offending term, covenant, or condition so as to give full force
and effect to the tenor of the offending language. Regardless of the foregoing,
all other terms, covenants or conditions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not
held invalid or unenforceable.
n This Agreement may be executed in one or more counterparts, each
of which will be deemed to he an original copy of this Agreement and all of
which, when taken together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of signature pages by
facsimile transmission shall constitute effective execution and delivery of this
Agreement as to the parties and may be used in lieu of the original Agreement
for all purposes. Signatures of the parties transmitted by facsimile shall be
deemed to be their original signatures for all purposes.
o. Except for a violation of the Note, Deeds of Trust and UCC-1
Documents, in which case the terms of said document shall prevail as to the
subject matter of this sub-paragraph, in the event any action is brought by any
Party under this Agreement or in any appeal therefrom, it is agreed that the
"Prevailing Party" shall be entitled to reasonable attorneys fees to be fixed by
the arbitrator, trial court, and/or appellate court. For the purposes of this
Agreement, the "Prevailing Party" shall be deemed to be the party that has
prevailed on a majority of the material issues before the trier of fact and law.
p. Subsequent to the signing of this Agreement, or the completion of
the Closings, the Parties hereto shall execute and deliver all documents,
provide all information and take or forbear from all such action as may be
necessary or appropriate to achieve the purposes of this Agreement, the Note,
the Deeds of Trust and the UCC-1 Documents.
BROADWAY MORTGAGE CORPORATION CALAIS RESOURCES, INC.
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------------- ------------------------------------
President President
AARDVARK AGENCIES, INC. CALAIS RESOURCES COLORADO, INC.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------------- ------------------------------------
As Attorney in Fact President
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EXHIBIT A
LEGALS
16
EXHIBIT B
NOTE
17
EXHIBIT C
Deeds of Trust
18
EXHIBIT D
Title Commitment B-2 Exceptions
19
EXHIBIT E
UCC-1 DOCUMENTS
20
EXHIBIT F
BUDGET AND USE OF PROCEEDS
21
