Apollo - Black Fox Financing Priority agreement
EXHIBIT
10.4
Agreement
Apollo -
Black Fox Financing
RMB
Resources Inc.
Macquarie
Bank Limited
RMB
Australia Holdings Limited
Apollo
Gold Corporation
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QV.1
Building 000 Xx Xxxxxxx Xxxxxxx Xxxxx XX 0000 Xxxxxxxxx
GPO
Xxx X0000 Xxxxx XX 0000 Xxxxxxxxx
Xxxxxx Melbourne Perth Brisbane Singapore
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Telephone
x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX
000 Xxxxx
Xxxxxxxxxxxxx
offices in Hanoi Ho Chi Minh
City Jakarta
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Contents
| Table of contents | |||
| The agreement |
1
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| Operative part |
3
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|
1
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Definitions
and interpretation
|
3
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1.1
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Definitions
|
3
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1.2
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Interpretation
|
7
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1.3
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Inclusive
expressions
|
8
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1.4
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Business
Day
|
8
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2
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Priorities
|
8
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2.1
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Order
of priority
|
8
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2.2
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Term
of priorities
|
8
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3
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Payments
|
9
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3.1
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Accounting
for funds received or recovered
|
9
|
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3.2
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Currency
of payments
|
9
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3.3
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Amounts
payable on demand
|
9
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4
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Representations
and warranties
|
9
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4.1
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Representations
and warranties of the parties
|
9
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4.2
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Representations
and warranties of the Creditors
|
10
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4.3
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Survival
of representations and warranties
|
10
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5
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Undertakings,
consents, acknowledgments
|
10
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5.1
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Execution
of the Securities
|
10
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5.2
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Dealing
with the Securities
|
10
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5.3
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Documents
of title
|
10
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5.4
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Insurance
and compensation
|
11
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5.5
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Acknowledgments
of APG
|
11
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5.6
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Default
by a Creditor
|
11
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5.7
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Further
assurance
|
11
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6
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Enforcement
|
12
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6.1
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Enforcement
of Securities
|
12
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6.2
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Manner
of enforcement
|
12
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6.3
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No
obligation to marshal
|
12
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7
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Tax,
costs and expenses
|
12
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7.1
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Tax
|
12
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7.2
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Costs
and expenses
|
13
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8
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Saving
provisions
|
13
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8.1
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Non-avoidance
|
13
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8.2
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Exclusion
of moratorium
|
14
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8.3
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Continuing
indemnities
|
14
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9
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General
|
14
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9.1
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Confidential
information
|
14
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9.2
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Notices
|
14
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Priority
agreement Contents
1
|
Contents
|
9.3
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Governing
law and jurisdiction
|
15
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9.4
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Prohibition
and enforceability
|
15
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9.5
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Waivers
|
15
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9.6
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Variation
|
15
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9.7
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Cumulative
rights
|
15
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9.8
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Assignment
|
16
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9.9
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Attorneys
|
16
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9.10
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Security
Agent’s limitation of liability protection
|
16
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Schedules
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18
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|||
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Signing
page
|
19
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Priority
agreement Contents
2
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The
agreement
Date December 10,
2008
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Between
the parties
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First
Creditors
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RMB
Resources Inc.
a
company incorporated under the laws of Delaware, United States of
America
of
Xxxxx 000, 000 Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America
Macquarie
Bank Limited
a
company incorporated under the laws of Australia
ACN
000 000 000 of Level 1, No. 0 Xxxxxx Xxxxx, Xxxxxx XXX 0000,
Xxxxxxxxx
RMB
Australia Holdings Limited
a
company incorporated under the laws of Australia
of
Xxxxx 00, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000,
Xxxxxxxxx
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|
Second
Creditors
|
RMB
Resources Inc.
a
company incorporated under the laws of Delaware, United States of
America
of
Xxxxx 000, 000 Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America
RMB
Australia Holdings Limited
a
company incorporated under the laws of Australia
of
Xxxxx 00, 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000,
Xxxxxxxxx
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|
APG
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Apollo
Gold Corporation
a
corporation existing under the laws of the Yukon Territory,
Canada
of
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxx Village, Colorado
80111-3220, United States of
America
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Priority
agreement Page
1
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The
agreement
|
Background
|
1
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APG
has granted, or will grant, the First Securities to the First
Creditors.
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2
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APG
has granted, or will grant, the Second Securities to the Second
Creditors.
|
||
|
3
|
The
parties have agreed to regulate the order of priorities between the First
Securities and the Second Securities as provided in this
agreement.
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||
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This
agreement witnesses
|
that
in consideration of, among other things, the mutual promises contained in
this agreement, the parties agree as set out in the Operative part of this
agreement.
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Priority
agreement Page
2
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Operative
part
|
1
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Definitions
and interpretation
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1.1
|
Definitions
|
The
meanings of the terms used in this document are set out below.
|
Term
|
Meaning
|
||
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APG
|
Apollo
Gold Corporation, a corporation existing under the laws of the Yukon
Territory, Canada.
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||
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Business
Day
|
1
|
for
the purposes of clause 9.2, a day on which banks are open for
business in the city where the notice or other communication is received
excluding a Saturday, Sunday or public holiday; and
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2
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for
all other purposes, a day on which banks are open for business in Denver,
United States of America and Toronto, Canada, excluding a Saturday, Sunday
or public holiday.
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Controller
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in
relation to a body corporate, any receiver, receiver and manager or any
other person (whether or not as agent for that body corporate), which is
in possession or has control of that body corporate’s property for the
purposes of enforcing an Encumbrance.
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Creditor
|
1
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the
First Creditor; or
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2
|
the
Second Creditor.
|
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Debt
|
the
First Debt or the Second Debt and, in relation to the First Creditors,
means the First Debt and, in relation to the Second Creditors, means the
Second Debt.
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Encumbrance
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an
interest or power:
|
||
|
1
|
reserved
in or over an interest in any asset including any retention of title;
or
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2
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created
or otherwise arising in or over an interest in any asset under a xxxx of
sale, mortgage, charge, lien, pledge, trust or power,
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||
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by
way of, or having similar commercial effect to, security for the payment
of a debt, any other monetary obligation or the performance of any other
obligation and includes any agreement to grant or create any of the
above.
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|||
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Priority
agreement Page
3
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Term
|
Meaning
|
||
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Facility
Agreement
|
1
|
the
First Facility Agreement; and
|
|
|
2
|
the
Second Facility Agreement.
|
||
|
First
Creditor
|
each
of:
|
||
|
0
|
XXX
Resources Inc. in its capacity as the Security Agent and in its capacity
as agent under the First Facility Agreement;
|
||
|
2
|
RMB
Australia Holdings Limited and Macquarie Bank Limited, each in their
capacity as financiers under the First Facility Agreement;
and
|
||
|
3
|
each
‘Beneficiary’ as that term is defined in the Security Agent
Agreement.
|
||
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First
Debt
|
all
debts and monetary liabilities of APG to the First Creditors on any
account and in any capacity from time to time secured by the First
Securities, irrespective of whether the debts or liabilities:
|
||
|
1
|
are
present or future;
|
||
|
2
|
are
actual, prospective, contingent or otherwise;
|
||
|
3
|
are
at any time ascertained or unascertained;
|
||
|
4
|
are
owed or incurred by or on account of APG alone, or severally or jointly
with any other person;
|
||
|
5
|
are
owed or incurred to or for the account of the First Creditors alone, or
severally or jointly with any other person;
|
||
|
6
|
are
owed or incurred as principal, interest, fees, charges, taxes, duties or
other imposts, damages (whether for breach of contract or tort or incurred
on any other ground), losses, costs or expenses, or on any other account;
or
|
||
|
7
|
comprise
any combination of the above.
|
||
|
First
Facility Agreement
|
the
Bridge Facility Agreement dated on or about the date of this agreement
between APG, the Security Agent, RMB Australia Holdings Limited and
Macquarie Bank Limited, as amended, supplemented, modified, extended,
renewed, novated, refinanced, restated or replaced from time to
time.
|
||
|
First
Securities
|
1
|
General
Security Agreement dated on or about the date of this agreement between
the Security Agent and APG;
|
|
|
2
|
the
Security Agent Agreement;
|
||
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3
|
Real
Property Charge / Mortgage dated on or about the date of this agreement
between the Security Agent and APG;
|
||
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4
|
the
Blocked Account and Control Agreement dated on or about the date of this
agreement between the Security Agent, APG and U.S. Bank National
Association; and
|
||
|
5
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any
other present or future Encumbrance, Guarantee or other document or
agreement created or entered into as security for the payment of any of
the First Debt.
|
||
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Priority
agreement Page
4
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Term
|
Meaning
|
||
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Fund
|
has
the meaning given in the Security Agent Agreement.
|
||
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Government
Agency
|
any
government or any governmental, semi-governmental, administrative, fiscal
or judicial body, department, commission, authority, tribunal, agency or
entity.
|
||
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Guarantee
|
any
guarantee, suretyship, letter of comfort or any other
obligation:
|
||
|
1
|
to
provide funds (whether by the advance or payment of money, the purchase of
or subscription for shares or other securities, the purchase of assets or
services, or otherwise) for the payment or discharge
of;
|
||
|
2
|
to
indemnify any person against the consequences of default in the payment
of; or
|
||
|
3
|
to
be responsible for,
|
||
|
any
indebtedness of any other person or the assumption of any responsibility
or obligation in respect of the insolvency or the financial condition of
any other person.
|
|||
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Officer
|
1
|
in
relation to APG, a director or a secretary, or a person notified to the
Creditors to be an authorised officer, of APG; and
|
|
| 2 |
in
relation to a Creditor, a person whose title includes the word ‘Director’,
‘Managing Director’, ‘Manager’, ‘President’ or ‘Vice President’ and any
other person appointed by the Creditor to act as its authorised officer
for the purposes of this agreement.
|
||
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Order
of Priority
|
the
order of priority set out in clause 2.1.
|
||
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Power
|
any
right, power, authority, discretion or remedy conferred on a Creditor by
this agreement or any applicable law or the Securities.
|
||
|
Receiver
|
a
receiver or a receiver and manager appointed under a
Security.
|
||
|
Second
Creditor
|
each
of:
|
||
|
0
|
XXX
Resources Inc. in its capacity as agent under the Second Facility
Agreement and the Second Securities; and
|
||
|
2
|
RMB
Resources Australia Holdings Limited in its capacity as financier under
the Second Facility Agreement.
|
||
|
Second
Debt
|
all
debts and monetary liabilities of APG to the Second Creditors on any
account and in any capacity from time to time secured by the Second
Securities, irrespective of whether the debts or liabilities:
|
||
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Priority
agreement Page
5
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|
Term
|
Meaning
|
||
|
1
|
are
present or future;
|
||
|
2
|
are
actual, prospective, contingent or otherwise;
|
||
|
3
|
are
at any time ascertained or unascertained;
|
||
|
4
|
are
owed or incurred by or on account of APG alone, or severally or jointly
with any other person;
|
||
|
5
|
are
owed or incurred to or for the account of the Second
Creditors alone, or severally or jointly with any other
person;
|
||
|
6
|
are
owed or incurred as principal, interest, fees, charges, taxes, duties or
other imposts, damages (whether for breach of contract or tort or incurred
on any other ground), losses, costs or expenses, or on any other account;
or
|
||
|
7
|
comprise
any combination of the above.
|
||
|
Second
Facility Agreement
|
the
Facility Agreement dated 12 October 2007 between Montana Tunnels Mining,
Inc., Apollo Gold, Inc., APG and each Second Creditor, as amended and
restated by an Amendment and Restatement Agreement dated 30 June 2008, and
as further amended, supplemented, modified, extended, renewed, novated,
refinanced, restated or replaced from time to time.
|
||
|
Second
Securities
|
1
|
the
Share Pledge Agreement over the shares in Apollo Gold, Inc. dated 12
October 2007 between the Security Agent and APG;
|
|
|
2
|
the
General Security Agreement dated 30 June 2008 between the Security Agent
and APG;
|
||
|
3
|
the
Charge / Mortgage dated 31 July 2008 between the Security Agent and APG;
and
|
||
|
4
|
any
other present or future Encumbrance, Guarantee or other document or
agreement which covers the collateral secured by the First Securities and
created or entered into as security for the payment of any of the Second
Debt.
|
||
|
Security
|
a
First Security or a Second Security and, in relation to the First
Creditors, means a First Security and, in relation to the Second
Creditors, means a Second Security.
|
||
|
Security
Agent
|
RMB
Resources Inc., in its capacity as security agent under the First
Securities.
|
||
|
Security
Agent Agreement
|
the
Security Agent Agreement dated on or about the date of this agreement
between APG, the Security Agent, RMB Australia Holdings Limited and
Macquarie Bank Limited.
|
||
|
Tax
|
1
|
any
tax, levy, charge, impost, duty, fee, deduction, compulsory loan or
withholding; or
|
|
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Priority
agreement Page
6
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|
Term
|
Meaning
|
||
|
2
|
any
income, stamp or transaction duty, tax or charge,
|
||
|
which
is assessed, levied, imposed or collected by any Government Agency and
includes any interest, fine, penalty, charge, fee or other payment imposed
on or in respect of any of the above.
|
|||
|
US$ and
United States Dollars
|
the
lawful currency of the United States of America.
|
||
|
1.2
|
Interpretation
|
In this
agreement, headings and bold type are for convenience only and do not affect the
interpretation of this agreement and, unless the context otherwise
requires:
|
(a)
|
words
indicating the singular include the plural and vice
versa;
|
|
(b)
|
words
indicating a gender include any
gender;
|
|
(c)
|
other
parts of speech and grammatical forms of a word or phrase defined in this
agreement have a corresponding
meaning;
|
|
(d)
|
an
expression suggesting or referring to a natural person includes any
company, partnership, joint venture, association, corporation or other
body corporate and any Government
Agency;
|
|
(e)
|
a
reference to any thing (including any right) includes a part of that thing
but nothing in this clause 1.2(e) implies that performance of part of
an obligation constitutes performance of the
obligation;
|
|
(f)
|
a
reference to a clause, party, attachment, exhibit or schedule is a
reference to a clause of, and a party, attachment, exhibit and
schedule to, this agreement and a reference to this agreement includes any
attachment, exhibit and schedule;
|
|
(g)
|
a
reference to a statute, regulation, proclamation, ordinance or by-law
includes all statutes, regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, whether passed by the same or
another Government Agency with legal power to do so, and a reference to a
statute includes all regulations, proclamations, ordinances and by-laws
issued under that statute;
|
|
(h)
|
a
reference to a document includes all amendments or supplements to, or
replacements or novations of, that
document;
|
|
(i)
|
a
reference to liquidation includes official management, appointment of an
administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding up, dissolution, assignment for the benefit of a
creditor, scheme, composition or arrangement with a creditor, insolvency,
bankruptcy, or a similar procedure or, where applicable, changes in the
constitution of any partnership or person or
death;
|
|
(j)
|
a
reference to a party to a document includes that party’s successors and
permitted assigns;
|
|
(k)
|
a
reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement or
understanding whether or not in
writing;
|
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Priority
agreement Page
7
|
|
(l)
|
a
reference to an asset includes all property of any nature, including a
business, and all rights, revenues and
benefits;
|
|
(m)
|
a
reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any
kind;
|
|
(n)
|
no
provision of this agreement will be construed adversely to a party solely
on the ground that the party was responsible for the preparation of this
agreement or that provision;
|
|
(o)
|
a
covenant or agreement on the part of two or more persons binds them
jointly and severally; and
|
|
(p)
|
a
reference to a body, other than a party to this agreement (including an
institute, association or authority), whether statutory or
not:
|
|
|
(1)
|
which
ceases to exist; or
|
|
|
(2)
|
whose
powers or functions are transferred to another
body,
|
is a
reference to the body which replaces it or which substantially succeeds to its
powers or functions.
|
1.3
|
Inclusive
expressions
|
Specifying
anything in this agreement after the words ‘include’ or ‘for example’ or similar
expressions does not limit what else is included unless there is express wording
to the contrary.
|
1.4
|
Business
Day
|
Where the
day on or by which any thing is to be done is not a Business Day, that thing
must be done on or by the preceding Business Day.
|
2
|
Priorities
|
|
2.1
|
Order
of priority
|
|
(a)
|
The
order of priority in respect of the Securities
is:
|
|
|
(1)
|
first priority: the
First Securities for the First Debt;
and
|
|
|
(2)
|
second priority: the
Second Securities for the Second
Debt.
|
The
rights of the Second Creditors under the Second Securities are postponed to the
rights of the First Creditors under the First Securities to the extent necessary
to give effect to this agreement.
|
2.2
|
Term
of priorities
|
The Order
of Priority applies until the later of:
|
(a)
|
the
date the First Debt is fully paid;
and
|
|
(b)
|
the
date the First Securities are discharged in accordance with their
terms,
|
or until
this agreement is terminated by agreement in writing between the
Creditors.
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Priority
agreement Page
8
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|
|
3 Payments
|
|
3
|
Payments
|
|
3.1
|
Accounting
for funds received or recovered
|
|
(a)
|
If
at any time a Creditor or a Receiver under a Security of that Creditor
receives or recovers any part of the Debts in excess of the amount to
which the Creditor is entitled under the terms of this agreement, whether
by payment, set-off, banker’s right of combination of accounts, banker’s
lien, counterclaim, abatement or otherwise it
must:
|
|
|
(1)
|
promptly
notify the other Creditor of the amount received or recovered;
and
|
|
|
(2)
|
pay
to the other Creditor so much of the amount received or recovered to the
extent necessary to give effect to this
agreement.
|
|
(b)
|
If
an amount is paid by a Creditor to the other Creditor under
clause 3.1(a):
|
|
|
(1)
|
the
payer is regarded as not having received or recovered the amount from
APG;
|
|
|
(2)
|
APG
remains liable to the payer for the amount;
and
|
|
|
(3)
|
subject
to clause 3.1(c), the Debt of the payee is reduced by that
amount.
|
|
(c)
|
To
the extent that clause 3.1(b) is void, voidable or otherwise not
enforceable, APG indemnifies the payer against the payment of the amount
paid under clause 3.1(a) by the payer to the other
Creditor.
|
|
3.2
|
Currency
of payments
|
All
payments under this agreement must be made in US$.
|
3.3
|
Amounts
payable on demand
|
If any
amount payable under this agreement is not expressed to be payable on a
specified date, that amount is payable on demand.
|
4
|
Representations
and warranties
|
|
4.1
|
Representations
and warranties of the parties
|
Each
party represents and warrants to each other party that:
|
(a)
|
registration: it is a
corporation registered (or taken to be registered) in accordance with the
laws of its place of incorporation and validly existing under those
laws;
|
|
(b)
|
authority: it has power
and authority to enter into and perform its obligations under this
agreement;
|
|
(c)
|
authorisations: it has
taken all necessary action to authorise the execution, delivery and
performance of this agreement;
|
|
(d)
|
binding obligations:
this agreement constitutes its legal, valid and binding obligations and,
subject to any necessary stamping and registration, is enforceable in
accordance with its terms subject to laws generally affecting creditors’
rights and to principles of equity;
and
|
|
(e)
|
transaction permitted:
the execution, delivery and performance by it of this agreement do not and
will not violate, breach, or result in a contravention
of:
|
|
|
(1)
|
any
law, regulation or authorisation;
|
|
Priority
agreement Page
9
|
|
|
(2)
|
its
constitution or other constituent
documents.
|
|
(f)
|
default under its
Securities: it has not received any notice of, and is not otherwise
aware of, any default or event of default (however described) under
any of the Securities.
|
|
4.2
|
Representations
and warranties of the Creditors
|
Each
Creditor represents and warrants to each other Creditor that it is absolutely
entitled to its Debt free from any Encumbrance.
|
4.3
|
Survival
of representations and warranties
|
The
representations and warranties in clause 4.1 survive the execution of this
agreement.
|
5
|
Undertakings,
consents, acknowledgments
|
|
5.1
|
Execution
of the Securities
|
Each
Creditor:
|
(a)
|
consents
to the creation and execution by APG of the Securities in favour of the
other Creditor; and
|
|
(b)
|
acknowledges
that the granting by APG of those Securities in favour of the other
Creditor does not constitute a breach by APG of any covenant or condition
contained in or implied by, or an event of default (however described)
under, any of its Securities or its Facility
Agreement.
|
|
5.2
|
Dealing
with the Securities
|
|
(a)
|
A
Creditor must
not:
|
|
|
(1)
|
deal
with, sell or otherwise part with possession
of;
|
|
|
(2)
|
create,
permit, suffer to exist, or agree to, any interest or Encumbrance, being
over; or
|
|
|
(3)
|
attempt
to do anything listed in clause 5.2(a)(1) and clause 5.2(a)(2)
in respect of,
|
any of
its Securities without the prior written consent of the other
Creditor.
|
(b)
|
The
consent of a Creditor required under clause 5.2(a) must not be
withheld or delayed if:
|
|
|
(1)
|
the
relevant dealing is made expressly subject to the terms of this agreement;
and
|
|
|
(2)
|
the
person with whom the relevant dealing is made enters into an agreement by
which it is bound by the provisions of this agreement in the same manner
as the relevant Creditor is bound.
|
|
(c)
|
Subject
to clause 6.1, clause 5.2(a) does not apply to any dealing which
represents or results from the enforcement of or the exercise any Power
under (including the appointment of a Controller) any of the
Securities.
|
|
5.3
|
Documents
of title
|
|
(a)
|
The
First Creditors are entitled to hold all documents evidencing or relating
to title to any property subject to the First
Securities.
|
|
Priority
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10
|
|
(b)
|
The
Second Creditors must deposit with the Security Agent all such title
documents held by it.
|
|
(c)
|
The
First Creditors must as soon as reasonably practicable
after:
|
|
|
(1)
|
the
First Debt has been fully paid; and
|
|
|
(2)
|
the
First Securities have been discharged in
full,
|
if the
Second Securities have not yet been discharged in full, deliver to the Second
Creditors all documents of title held by the First Creditors in relation to the
assets the subject of the Second Securities.
|
5.4
|
Insurance
and compensation
|
|
(a)
|
If
a Second Creditor has a right under the Second Securities or the Second
Facility Agreement to:
|
|
|
(1)
|
make,
enforce, settle or compromise claims;
or
|
|
|
(2)
|
xxx
for, recover or give any discharge for money
payable,
|
under, or
in respect of any insurance policy or right of compensation of APG, then the
Second Creditor must not exercise that right without the prior written consent
of the First Creditors.
|
(b)
|
If,
for any reason, a Second Creditor receives or recovers any money from any
insurance policy or right of compensation of that kind , the Second
Creditor must account for it in accordance with clause 3 as if it
were a recovery of its Debt.
|
|
5.5
|
Acknowledgments
of APG
|
APG
consents to the provisions of this agreement and agrees that:
|
(a)
|
no
benefit of any kind accrues to APG under this
agreement;
|
|
(b)
|
the
rights of a Creditor against APG, and the rights, obligations and
liabilities of APG, in respect of any of the Debts or Securities are only
affected by this agreement to the extent expressly provided in this
agreement; and
|
|
(c)
|
it
must not do any thing which causes a Creditor to be in breach of this
agreement.
|
|
5.6
|
Default
by a Creditor
|
Any
breach of, or any default under, this agreement by a Creditor does
not:
|
(a)
|
affect
any obligation of APG to that Creditor or any other Creditor under a
Facility Agreement or any of the
Securities;
|
|
(b)
|
permit
APG to exercise any right, power, authority, discretion or remedy against
that Creditor or any other Creditor;
or
|
|
(c)
|
make
either Creditor liable to APG as a result of the breach or
default.
|
|
5.7
|
Further
assurance
|
Each
party must, upon request by a Creditor, but at the cost of APG, do or cause to
be done anything which more satisfactorily secures the rights of that Creditor
under this agreement in a manner not inconsistent with any provision of this
agreement including the execution of any document and the delivery of documents
of title.
|
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11
|
|
6
|
Enforcement
|
|
6.1
|
Enforcement
of Securities
|
|
(a)
|
The
Second Creditors may not enforce, or exercise any Power (including the
appointment of a Controller) in relation to the Second Securities without
first giving the First Creditors 20 Business Days’ notice of their
intention to enforce or exercise any
Power.
|
|
(b)
|
Upon
receipt of notice under clause 6.1(a), the First Creditors, to the extent
they are entitled to do so under the First Facility Agreement or the First
Securities, may enforce or exercise any Power (including the appointment
of a Controller) in relation to the First Securities, or elect not to
enforce or exercise any Power.
|
|
(c)
|
If
the Second Creditors enforce or exercise any Power (including the
appointment of a Controller) or attempt to enforce or exercise any Power
(including the appointment of a Controller) in relation to the Second
Securities and the First Creditors then enforce or exercise any Power
(including the appointment of a Controller) in relation to the First
Securities in accordance with clause 6.1, then the First Creditor will
have the conduct of those enforcement proceedings with respect to the
property the subject of the First
Securities.
|
|
6.2
|
Manner
of enforcement
|
A
Creditor is free to determine in its absolute discretion the extent, if any, to
which it has recourse to any Security and the extent to which it has recourse to
any source other than a Security.
|
6.3
|
No
obligation to marshal
|
APG
waives any right it may have under the doctrine of marshalling and agrees that,
before a Creditor enforces a Security, the Creditor is not required to marshal,
or to enforce or apply under, or appropriate, recover or exercise:
|
(a)
|
any
Encumbrance held at any time by the Creditor;
or
|
|
(b)
|
any
money or asset which the Creditor at any time holds or is entitled to
receive.
|
|
7
|
Tax,
costs and expenses
|
|
7.1
|
Tax
|
|
(a)
|
APG
must pay any fine, penalty or other cost in respect of a failure to pay
any Tax described in clause 16.2(a) of the Facility Agreement and
incurred in relation to this agreement, except to the extent that the
fine, penalty or other cost is caused by a Creditor’s failure to lodge
money received from APG within 5 Business Days before the due date for
lodgement.
|
|
(b)
|
APG
indemnifies each Creditor against any amount payable by APG under
clause 7.1(a) or both which that Creditor
paid.
|
|
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|
|
7.2
|
Costs
and expenses
|
APG must
pay all costs and expenses of each Creditor in relation to:
|
(a)
|
the
negotiation, preparation, execution, delivery, stamping, registration,
completion, variation and discharge of this agreement or any document
contemplated by this agreement;
|
|
(b)
|
the
enforcement, protection or waiver, or attempted enforcement or protection,
of any rights under this agreement or any document contemplated by this
agreement;
|
|
(c)
|
the
consent or approval of the Creditor given under this agreement or any
document contemplated by this agreement;
and
|
|
(d)
|
any
enquiry by any Government Agency involving
APG,
|
including:
|
(e)
|
any
administration costs of the Creditor in relation to the matters referred
to in clauses 7.2(b), (c) and (d);
and
|
|
(f)
|
any
legal costs and expenses and any professional consultant’s fees for any of
the above on a full indemnity
basis.
|
|
8
|
Saving
provisions
|
|
8.1
|
Non-avoidance
|
The Order
of Priority applies despite:
|
(a)
|
the
respective times and dates upon which, or the order in which, any of the
Securities are executed, delivered or
registered;
|
|
(b)
|
the
respective times and dates upon which, or the order in which, the debts
and monetary liabilities comprising all or any part of any of the Debts
are incurred or become due;
|
|
(c)
|
anything
contained in any of the Securities;
|
|
(d)
|
the
enforcement or attempted enforcement of, or the exercise or attempted
exercise of any Power;
|
|
(e)
|
the
repayment from time to time of all or any part of any of the
Debts;
|
|
(f)
|
the
fluctuation (including any reduction and subsequent increase) from time to
time of all or any part of any Debt, whether by the advance or further
advance of any moneys, the provision or further provision of financial
accommodation, or otherwise;
|
|
(g)
|
a
Creditor being, or not being, from time to time obliged
to:
|
|
|
(1)
|
make
any advance or provide any other financial accommodation to, at the
request of, or for the benefit of, APG or any other
person;
|
|
|
(2)
|
do
anything which may cause moneys to become due by APG or any other person
to that Creditor;
|
|
(h)
|
all
or any part of any of the Debts being contingent or
prospective;
|
|
(i)
|
the
appointment of a liquidator, receiver, receiver and manager, official
manager, administrator, other Controller or other similar officer to APG
or any other person or to all or any part of the assets of
APG;
|
|
(j)
|
the
liquidation of APG or any other
person;
|
|
(k)
|
any
provision of any statute or any rule of law or equity to the
contrary;
|
|
(l)
|
any
other thing whether or not of the same kind as
above.
|
|
Priority
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13
|
|
8.2
|
Exclusion
of moratorium
|
To the
extent not excluded by law, a provision of any legislation which at any time
directly or indirectly lessens, stays, postpones, prevents or otherwise
prejudicially affects any Power is negatived and excluded from this agreement,
and all relief and protection conferred by or under that legislation is also
negatived and excluded.
|
8.3
|
Continuing
indemnities
|
|
(a)
|
Each
indemnity of APG contained in this agreement is a continuing obligation of
APG, despite:
|
|
|
(1)
|
any
settlement of account; or
|
|
|
(2)
|
the
occurrence of any other thing,
|
and
remains in full force and effect until the Debts have been paid in
full
|
(b)
|
Each
indemnity in this agreement is an additional, separate and independent
obligation of APG and no one indemnity limits the generality of any other
indemnity.
|
|
9
|
General
|
|
9.1
|
Confidential
information
|
Subject
to the confidentiality provisions in each Facility Agreement and each Security,
each Creditor may disclose to the other Creditor any documents or records of, or
information about, APG, the Debts, the Securities, the assets the subject of the
Securities or APG’s business or affairs.
|
9.2
|
Notices
|
|
(a)
|
Any
notice or other communication including any request, demand, consent or
approval, to or by a party to this agreement must be in legible writing
and in English addressed as shown at the commencement of this agreement in
Schedule 1 or as specified to the sender by any party by
notice;
|
|
(b)
|
If
the sender is a company, any such notice or communication must be signed
by an Officer or under the common seal of the
sender.
|
|
(c)
|
Any
notice or other communication described in this clause 9.2 is regarded as
being given by the sender and received by the
addressee:
|
|
|
(1)
|
if
by delivery in person or by recognised overnight courier, when delivered
to the addressee;
|
|
|
(2)
|
if
by post, on delivery to the addressee;
or
|
|
|
(3)
|
if
by facsimile transmission, when received by the addressee in legible
form,
|
but if
the delivery or receipt is on a day which is not a Business Day or is after
4.00pm (addressee’s time) it is regarded as received at 9.00am on the following
Business Day.
|
(d)
|
Any
notice or other communication described in this clause 9.2 can be relied
upon by the addressee and the addressee is not liable to any other person
for any consequences of that reliance if the addressee believes it to be
genuine, correct and authorised by the
sender.
|
|
Priority
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14
|
|
(e)
|
A
facsimile transmission is regarded as legible unless the addressee
telephones the sender within 24 hours after the transmission is
received or regarded as received under clause 9.2(c) and informs the
sender that it is not legible.
|
|
9.3
|
Governing
law and jurisdiction
|
|
(a)
|
|
(b)
|
Each
party irrevocably submits to the non-exclusive jurisdiction of the federal
courts of the Province of Ontario.
|
|
(c)
|
Each
party irrevocably waives any objection to the venue of any legal process
on the basis that the process has been brought in an inconvenient
forum.
|
|
(d)
|
Each
party irrevocably waives any immunity in respect of its obligations under
this agreement that it may acquire from the jurisdiction of any court or
any legal process for any reason including, but not limited to, the
service of notice, attachment before judgment, attachment in aid of
execution or execution.
|
|
9.4
|
Prohibition
and enforceability
|
|
(a)
|
Any
provision of, or the application of any provision of, this agreement which
is prohibited in any jurisdiction is, in that jurisdiction, ineffective
only to the extent of that
prohibition.
|
|
(b)
|
Any
provision of, or the application of any provision of, this agreement which
is void, illegal or unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that provision in any other
jurisdiction or of the remaining provisions in that or any other
jurisdiction.
|
|
9.5
|
Waivers
|
|
(a)
|
Waiver
of any right arising from a breach of this agreement or of any Power
arising upon default under this agreement must be in writing and signed by
the party granting the waiver.
|
|
(b)
|
A
failure or delay in exercise, or partial exercise,
of:
|
|
|
(1)
|
a
right arising from a breach of this agreement;
or
|
|
|
(2)
|
a
Power created or arising upon default under this
agreement,
|
does not
result in a waiver of that right or Power.
|
(c)
|
A
party is not entitled to rely on a delay in the exercise or non-exercise
of a right or Power arising from a breach of this agreement or on a
default under this agreement as constituting a waiver of that right or
Power.
|
|
(d)
|
A
party may not rely on any conduct of another party as a defence to
exercise of a right or Power by that other
party.
|
|
(e)
|
This
clause may not itself be waived except by
writing.
|
|
9.6
|
Variation
|
A
variation of any term of this agreement must be in writing and signed by the
parties.
|
9.7
|
Cumulative
rights
|
The
Powers are cumulative and do not exclude any other rights, powers, authorities,
discretions or remedies of a Creditor.
|
Priority
agreement Page
15
|
|
9.8
|
Assignment
|
|
(a)
|
A
Creditor may assign or novate any of its rights and obligations under this
agreement to any person without the consent of the other Creditors or APG
if:
|
|
|
(1)
|
any
necessary prior Authorisation is
obtained;
|
|
|
(2)
|
the
assignment or novation is to a person in the RMB group of companies or the
Macquarie group of companies (as applicable) (which term includes any
person, partnership or corporate entity in that group); and
|
|
|
(3)
|
it
notifies the Borrower and each other
Creditor.
|
|
(b)
|
APG
may not assign any of its rights under this agreement without the prior
written consent of each of the
Creditors.
|
|
9.9
|
Attorneys
|
Any
Attorney executing this agreement states that the Attorney has no knowledge of
the revocation of the power of attorney appointing that Attorney.
|
9.10
|
Security
Agent’s limitation of liability
protection
|
|
(a)
|
Limitation of
liability
|
|
|
(1)
|
The
Security Agent enters into this agreement only in its capacity as security
agent under the Security Agent Agreement and in no other
capacity.
|
|
|
(2)
|
A
liability arising under or in connection with this agreement (whether that
liability arises under a specific provision of this agreement, for breach
of contract or otherwise) can be enforced against the Security Agent only
to the extent to which it can be satisfied out of property of the Fund out
of which the Security Agent is actually indemnified for the
liability.
|
|
|
(3)
|
The
limitation of the Security Agent’s liability under this clause 9.10
applies despite any other provision of this agreement (other than
clause 9.10(c)) and extends to all liabilities and obligations of the
Security Agent in relation to any representation, warranty, conduct,
omission, agreement or transaction related to this
agreement.
|
|
(b)
|
No action against the Security
Agent personally
|
The
parties may not:
|
|
(1)
|
xxx
the Security Agent personally;
|
|
|
(2)
|
seek
the appointment of a liquidator, administrator, receiver or similar person
to the Security Agent; or
|
|
|
(3)
|
prove
in any liquidation, administration or arrangement of or affecting the
Security Agent.
|
|
(c)
|
Exception
|
The
provisions of this clause 9.10 will not apply to any obligation or
liability of the Security Agent to the extent that it is not satisfied because
there is a reduction in the extent, or an extinguishment, of the Security
Agent’s indemnification out of the assets of the Fund, as a result of the
Security Agent’s fraud, gross negligence or breach of trust.
|
Priority
agreement Page
16
|
Signing
page
Executed
as an agreement
|
First
Creditor
|
|
|
Signed
for
RMB
Resources Inc.
By
its authorised officer
|
|
|
By:
|
/s/ Xxxxxxx X Xxxxxxx
|
|
Authorised
Officer
|
|
|
print name
|
Xxxxxxx X Xxxxxxx
|
|
title
|
President
|
|
First
Creditor
|
|
|
Signed
by
RMB
Australia Holdings Limited
by
|
|
|
By:
|
/s/ Xxxxxxx P.C. Xxxxxx
|
|
Company
Secretary/Director
|
|
|
print
name
|
Xxxxxxx P.C.
Xxxxxx
|
|
sign
here
|
/s/ Xxxxxxx Xxx
|
|
Director
|
|
|
print
name
|
Xxxxxxx
Xxx
|
|
Priority
agreement Page
17
|
|
First
Creditor
|
|||
|
Signed
for
Macquarie
Bank Limited
by
its attorneys
|
|||
|
sign
here
|
/s/ Xxxxx Xxxx
|
/s/ Xxxxx Xxxxxxxx
|
|
|
Attorney
|
Attorney
|
||
|
print
name
|
Xxxxx Xxxx, Division
Director
|
Xxxxx Xxxxxxxx, Senior
Lawyer
|
|
|
in
the presence of
|
|||
|
sign
here
|
/s/ Neshaat Mirzaie
|
/s/ Neshaat Mirzaie
|
|
|
Witness
|
Witness
|
||
|
print
name
|
Neshaat Mirzaie, Lawyer
|
Neshaat Mirzaie,
Lawyer
|
|
|
Priority
agreement Page
18
|
|
Second
Creditor
|
|
|
Signed
for
RMB
Resources Inc.
By
its authorised officer
|
|
|
By:
|
/s/ Xxxxxxx X Xxxxxxx
|
|
Authorised
Officer
|
|
|
print
name
|
Xxxxxxx X Xxxxxxx
|
|
title
|
President
|
|
Second
Creditor
|
|
|
Signed
by
RMB
Australia Holdings Limited
by
|
|
|
sign here
|
/s/ Xxxxxxx P.C.
Xxxxxx
|
|
Company
Secretary/Director
|
|
|
print
name
|
Xxxxxxx P.C.
Xxxxxx
|
|
sign here
|
/s/ Xxxxxxx Xxx
|
|
Director
|
|
|
print
name
|
Xxxxxxx
Xxx
|
|
Priority
agreement Page
19
|
|
APG
|
|
|
Signed
for
Apollo
Gold Corporation
By
its authorised signatory
|
|
|
By:
|
/s/ X X Xxxxxxx
|
|
Authorised
Signatory
|
|
|
print
name
|
R Xxxxx Xxxxxxx
|
|
title
|
President and
CEO
|
|
Priority
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20
|
