This Forbearance Agreement (this " Agreement" ) is dated as of January 15, 2011 and is made by and among Brigus Gold Corp., a Yukon Territory corporation ( "BGC "), Brigus Gold, Inc., a Delaware corporation ("BGI and, together with BGC, " Brigus "), Calais Resources Inc., a British Columbia corporation (" CRI -, and Calais Resources Colorado, Inc .a Nevada corporation (" CRCI " and, together with CRI, "Borrowers ").
WHEREAS, Brigus is the holder of the indebtedness evidenced by the promissory notes set forth on Exhibit A hereto and issued by Borrowers (the " Promissory Notes ");
WHEREAS, in connection with the issuance of the Promissory Notes and Brigus' acquisition thereof, each of Brigus and Borrowers entered into certain endorsements, assignments, security documents and other instruments, documents and agreements, including, without limitation, the Purchase Agreement dated February 1, 2010, among Elkhorn Goldfields, LLC, CRI, CRCI and BGI (the " Montana Tunnels Purchase Agreement ") and the Purchase Agreement, dated March 12, 2010, among BGC, CRCI, CRI, Duane Duffy, Glenn Duffy, Luke Garvey and James Ober (the " Duffy Purchase Agreement " and together with the Montana Tunnels Purchase Agreement, the " Purchase Agreement ") (collectively, the Promissory Notes, the Purchase Agreements and such other endorsements, assignments, security documents and other instruments, documents and agreements entered into in connection therewith, the " Financing Agreements ");
WHEREAS, Borrowers are and have been in default under the Promissory Notes for, among other things, failure to pay principal and interest when due (the " Existing Defaults "):
WHEREAS, pursuant to the (i) Montana Tunnels Purchase Agreement, Brigus agreed to forbear from enforcing its rights with respect to the Additional Unsecured Note (as defined in the Montana Tunnels Purchase Agreement) until February 1, 2011 and (ii) the Duffy Purchase Agreement, Brigus agreed to forbear from enforcing its rights with respect to the promissory note dated August 11, 2005 in the original principal amount of $807,650 (the " Duffy Note ") until March 12, 2011;
WHEREAS, Borrowers have requested that Brigus agree to forbear from exercising its rights and remedies as a result of the Existing Defaults, which are continuing, notwithstanding such Existing Defaults; and
WHEREAS; Brigus is willing to agree to forbear from exercising certain of its rights and remedies for the period and on the terms and conditions specified herein;
NOW, THEREFORE, in consideration of the foregoing, and the respective agreements, warranties and covenants contained herein, the parties hereto agree, covenant and warrant as follows:
SECTION 1. ACKNOWLEDGMENT
1.1. Acknowledgment of Obligations. Each Borrower hereby acknowledges, confirms, affirms and agrees that Borrowers are indebted to Brigus in respect of the Promissory Notes. The indebtedness evidenced by the Promissory Notes, together with interest accrued and accruing thereon, and all fees, costs, expenses and other charges now or hereafter payable by Borrowers to Brigus, are unconditionally owing by Borrowers to Brigus, without offset, defense or counterclaim of any kind, nature or description whatsoever. Borrowers further hereby acknowledge, confirm, agree and reaffirm that the Promissory Notes and the other Financing Agreements are valid and enforceable against Borrowers and their respective affiliates.
1.2. Acknowledgment of Liens. Each Borrower hereby acknowledges, confirms and agrees that Brigus has and shall continue to have valid, enforceable and perfected liens upon and security interests in the collateral heretofore granted to Brigus pursuant to the Financing Agreements or otherwise granted to or held by Brigus.
1.3. Binding Effect of Documents. Each Borrower hereby acknowledges, confirms and agrees that: (a) each of the Financing Agreements to which it is a party has been duly executed and delivered to Brigus by such Borrower, and each is in full force and effect as of the date hereof, (b) the agreements and obligations of each Borrower contained in such documents and in this Agreement constitute the legal, valid and binding obligations of such Borrower, enforceable against such Borrower in accordance with their respective terms, and such Borrower has no valid defense to the enforcement of such obligations, and (c) Brigus is and shall be entitled to the rights, remedies and benefits provided for in the Financing Agreements and applicable law.
SECTION 2. FORBEARANCE IN RESPECT OF CERTAIN EVENTS OF DEFAULT
2.1. Acknowledgment of Default. Each Borrower hereby acknowledges and agrees that the Existing Defaults have occurred and are continuing, each of which entitles Brigus to exercise its rights and remedies under the Financing Agreements, applicable law or otherwise. Brigus has not waived, presently does not intend to waive, and may never waive such Existing Defaults and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute any such waiver. Each Borrower hereby acknowledges and agrees that Brigus has the presently exercisable right to declare the obligations to be immediately due and payable under the terms of the Financing Agreements.
(a) In reliance upon the representations, warranties and covenants of each Borrower contained in this Agreement, and subject to the terms and conditions of this Agreement and any documents or instruments executed in connection herewith, Brigus agrees (1) to forbear from exercising its rights and remedies under the Promissory Notes, applicable law or otherwise in respect of or arising out of the Existing Defaults for the period (the " Forbearance Period ") commencing on the date hereof and ending on the date which is the earliest to occur of: (i) June 30, 2011, (ii) execution of a definitive agreement between Borrower and Brigus that retires or transfers the Promissory Notes from Brigus to Borrower, (iii) a breach by any Borrower of this Agreement, (iv) insolvency of, appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, any Borrower; (v) the commencement of any proceedings under any bankruptcy or insolvency laws by any Borrower; or (vi) the
commencement of any involuntary proceedings under any bankruptcy or insolvency laws against Borrower if the same have not been fully discharged within thirty days after the commencement thereof and(2) that the interest rate payable under the Original Caribou Note (as defined in the Montana Tunnels Purchase Agreement), the Congo Note (as defined in the Montana Tunnels Purchase Agreement) and the Duffy Note shall be eight percent (8%) for the Forbearance Period, with such interest rates reverting to such rate as is set forth in such notes automatically upon the expiration of the Forbearance Period.
(b) Upon the termination of the Forbearance Period, the agreement of Brigus to forbear and reduce the applicable interest rates shall automatically and without further action terminate and be of no force and effect, it being expressly agreed that the effect of such termination will be to permit Brigus, to exercise imme