Apollo Gold Corporation: Montana Tunnels Mine General Security Agreement
Agreement
Apollo
Gold Corporation: Montana Tunnels Mine
General
Security
Agreement
Apollo
Gold Corporation
RMB
Resources Inc.
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QV1.Building,
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Australia
Sydney
Melbourne Perth Brisbane Singapore
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Telephone:
+ ▇ ▇▇▇▇ ▇▇▇▇ Facsimile + 61 8 9211 7878
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offices Hanoi Ho Chi Minh City Jakarta Kuala
Lumpur
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Contents
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Table
of contents
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The
agreement
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3
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1
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Security
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4
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1.1
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Terms
incorporated by reference
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4
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1.2
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Grant
of security
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4
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1.3
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Excepted
Mining Claims
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4
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1.4
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Obligations
secured
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5
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1.5
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Attachment
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5
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1.6
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Scope
of Security Interest
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5
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1.7
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Care
and custody of Collateral
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6
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1.8
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Amalgamation
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6
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2
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Representations
and warranties of the corporation
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7
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2.1
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Representations
and warranties
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7
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2.2
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Representations
and warranties in Transaction Documents
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8
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2.3
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Survival
of representations and warranties
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8
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3
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Enforcement
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8
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3.1
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Enforcement
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8
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3.2
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Remedies
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8
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3.3
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Additional
rights
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9
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3.4
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Receiver's
powers
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9
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3.5
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Appointment
of attorney
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10
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3.6
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Dealing
with the Collateral
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10
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3.7
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Standards
of sale
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10
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3.8
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Dealings
by third parties
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11
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4
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General
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11
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4.1
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Discharge
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11
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4.2
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Amendments
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11
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4.3
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Waivers
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11
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4.4
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No
merger
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12
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4.5
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Further
assurances
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12
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4.6
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Supplemental
security
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12
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4.7
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Notices
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12
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4.8
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Successors
and assigns
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12
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4.9
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Waiver
and Variation
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12
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4.10
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Gender
and number
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12
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4.11
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Headings
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13
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4.12
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Language
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13
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4.13
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Severability
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13
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4.14
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Governing
law
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13
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Contents
1
Contents
|
Schedules
|
|
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APG
place of business
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15
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Leasehold
Real Property
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16
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Freehold
Real Property
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17
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Mining
Claims
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19
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Ontario
Personal Property Registrations
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20
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Signing
page
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21
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Contents
2
The
agreement
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Date
►June 30, 2008
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Between
the parties
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Apollo
Gold Corporation
a
corporation existing under the laws of the Yukon Territory,
Canada
of
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Village, Colorado
80111-3220 United States of America
(APG)
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Agent
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RMB
Resources Inc.
of
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of
America
(Agent, and
collectively with RMB Australia Holdings Limited the Finance
Parties)
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|
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Background
|
1
|
RMB
Australia Holdings Limited has agreed to make certain credit facilities
available to Montana Tunnels Mining, Inc. (Montana
Tunnels)
on the terms and conditions contained in a facility agreement between
APG,
Apollo Gold Inc., Montana Tunnels, certain other parties and the
Finance
Parties dated 12 October 2007, as amended and restated by way of
amendment
and restatement agreement dated 1 July 2008 (and as further amended,
supplemented, modified, extended, renewed, novated, refinanced, restated
or replaced from time to time) (the Facility
Agreement).
|
|
| 2 |
Montana
Tunnels has entered into commodity hedging arrangements with RMB
Australia
Holdings Limited pursuant to an ISDA Master Agreement dated 12 October
2007 (ISDA
Master Agreement,
and collectively with the Facility Agreement, the Facility
Agreements).
|
||
| 3 |
APG
has agreed to execute and deliver this agreement to and in favour
of the
Finance Parties as security for the payment and performance of its
guarantee of Montana Tunnels’ obligations to the Finance Parties under the
Facility Agreements.
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The
parties agree
|
In
consideration of, among other things, the mutual promises contained
in
this agreement and other good and valuable consideration (the receipt
and
adequacy of which is acknowledged), APG agrees as
follows:
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page
3
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1 Security
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| 1 |
Security
|
| 1.1 |
Terms
incorporated by reference
|
Terms
defined in:
| (a) |
the
Personal
Property Security Act
(Ontario) (as amended from time to time) (PPSA);
or
|
| (b) |
the
Facility Agreements,
|
which
are
used in this agreement will have the same meanings in this agreement unless
the
context requires otherwise.
| 1.2 |
Grant
of security
|
Subject
to clauses 1.3 and 1.6, APG grants to the Agent (for its own benefit and the
benefit of the other Finance Parties) a security interest in all APG’s right,
title and interest in and to all presently owned and hereafter acquired
property, assets and undertaking of APG (both real and personal) including
without limitation any and all of APG’s present and after-acquired:
| (a) |
inventory
including goods held for sale, lease or resale, goods furnished or
to be
furnished to third parties under contracts of lease, consignment
or
service, goods which are raw materials or work in process, goods
used in
or procured for packing and materials used or consumed in the business
of
APG;
|
| (b) |
equipment,
machinery, furniture, fixtures, plants, vehicles and other goods
of every
kind and description and all licences and other rights (including
all
mining claims described in Schedule 2) and all records, files, charts,
plans, drawings, specifications, manuals and documents relating to
those
items;
|
| (c) |
accounts
due or accruing due, the credit balance and all on deposit in those
accounts, and all agreements, books, accounts, invoices, letters,
documents and papers recording, evidencing or relating to those
accounts;
|
| (d) |
money,
documents of title, chattel paper, instruments and investment
property;
|
| (e) |
intangibles
including all security interests, goodwill, choses in action and
contractual rights, interests and benefits, and all trade-marks,
trade-▇▇▇▇ registrations and pending trade-▇▇▇▇ applications, patents
and
pending patent applications and copyrights and other intellectual
property;
|
| (f) |
leasehold
real property described in Schedule
2;
|
| (g) |
freehold
real property described in Schedule
3;
|
| (h) |
substitutions
and replacements of and increases, additions and, where applicable,
accessions to the property, rights, interests or benefits described
in
clause 1.2(a) to clause 1.2(g) inclusive;
and
|
| (i) |
proceeds
in any form derived directly or indirectly from any dealing with
all or
any part of the property, rights, interests or benefits described
in
clause 1.2(a) to 1.2(h) inclusive of the proceeds of those
proceeds,
|
all
such
property, assets and undertaking being, collectively, the Collateral.
| 1.3 |
Excepted
Property
|
The
parties acknowledge and agree that if after the date hereof APG acquires by
any
means any right, title or interest in any mining and exploration rights, whether
by way of license or claim, real or personal, or freehold or leasehold
(collectively, Mining
Assets)
other
than as described in Schedule 2, 3 or 4, such future Mining Assets will not
be
included in the Collateral and no security interest will be granted by APG
to
the Agent on or in respect of such future Mining Assets.
page
4
|
|
1 Security
|
| 1.4 |
Obligations
secured
|
| (a) |
The
security interest granted in this agreement (Security
Interest)
secures the payment and performance of all debts, liabilities and
obligations present or future, direct or indirect, absolute or contingent,
matured or unmatured at any time or from time to time due or accruing
due
and owing (including all charges and fees of the Finance Parties
due
from APG) to the Finance Parties (or any of them) pursuant to or
in
connection with the Transaction Documents (collectively,
and together with the expenses, costs and charges set out in clause
1.4(b), the Obligations).
|
| (b) |
All
expenses, costs and charges incurred by or on behalf of the Finance
Parties in connection with this agreement, the Security Interest
or the
Collateral, including all legal fees, court costs, receiver's or
agent's
remuneration and other expenses of taking possession of, repairing,
protecting, insuring, preparing for disposition, realizing, collecting,
selling, transferring, delivering or obtaining payment of the Collateral
or other lawful exercises of the powers conferred by the Transaction
Documents, and of taking, defending or participating in any action
or
proceeding in connection with any of those matters or otherwise in
connection with the Finance Parties’ interest in any Collateral, whether
or not directly relating to the enforcement of this agreement or
the
Facility Agreements, will be added to and form a part of the
Obligations.
|
| 1.5 |
Attachment
|
| (a) |
APG
acknowledges that:
|
|
(1)
|
value
has been given;
|
|
(2)
|
it
has rights in the Collateral (other than after-acquired
Collateral);
|
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(3)
|
it
has not agreed to postpone the time of attachment of the Security
Interest; and
|
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(4)
|
it
has received a duplicate original copy of this
agreement.
|
| (b) |
APG
will promptly inform the Finance Parties in writing of the acquisition
by
APG of any personal property which is not adequately described in
this
agreement, and APG will execute and deliver, at its own expense,
from time
to time, amendments to this agreement or additional agreements as
may be
required by the Finance Parties.
|
| 1.6 |
Scope
of Security Interest
|
| (a) |
The
Collateral does not include and the Security Interest will not extend
to
consumer goods.
|
| (b) |
The
Security Interest will not extend or apply to the last day of the
term of
any lease or sublease or any agreement for a lease or sublease now
held or
subsequently acquired by APG in respect of real property, but APG
will
stand possessed of that last day on trust to assign and dispose of
it as
the Agent may direct.
|
| (c) |
The
Security Interest will not extend or apply to the mining leases identified
in Schedule 2 unless and until the requisite Crown consent is obtained
pursuant to Section 1.9(a).
|
| (d) |
To
the extent that an assignment of amounts payable and other proceeds
arising under or in connection with, or the grant of a security interest
in any agreement, licence, permit or quota of APG would result in
the
termination of that agreement, licence, permit or quota (each, a
Restricted
Asset),
the Security Interest with respect to each Restricted Asset will
constitute a trust created in favour of the Agent pursuant to which
APG
holds as trustee all proceeds arising under or in connection with
the
Restricted Asset in trust for the Agent on the following
basis:
|
page
5
|
|
1 Security
|
|
(1)
|
until
the Security Interest is enforceable and, subject to the Facility
Agreements, APG is entitled to receive all those proceeds;
and
|
|
(2)
|
whenever
the Security Interest is
enforceable:
|
|
·
|
all
rights of APG to receive those proceeds cease and all those proceeds
will
be immediately paid over to the Agent;
and
|
|
·
|
APG
will take all actions requested by the Agent to collect and enforce
payment and other rights arising under the Restricted
Asset.
|
1.7 Care
and custody of Collateral
| (a) |
The
Finance Parties will have no obligation to keep Collateral in their
possession from time to time, if any,
identifiable.
|
| (b) |
The
Agent may, both before and after the Security Interest has become
enforceable:
|
|
(1)
|
notify
any person obligated on an account or on chattel paper or any obligor
on
an instrument to make payments to the Agent whether or not APG was
previously making collections on those accounts, chattel paper or
instruments; and
|
|
(2)
|
assume
control of any proceeds arising from the
Collateral.
|
| 1.8 |
Amalgamation
|
APG
acknowledges and agrees that if it amalgamates or merges with or into any other
corporation or corporations, then:
| (a) |
the
term APG will extend to and include the continuing corporation from
that
amalgamation or merger;
|
| (b) |
the
term "Obligations" will extend to and include the Obligations of
each of
the amalgamating or merging corporations at the time of that amalgamation
or merger arising after that amalgamation or merger;
and
|
| (c) |
the
Collateral secured in this agreement and the Security Interests over
the
Collateral of APG will extend to and include all of the property,
assets
and undertakings of each of the amalgamating or merging corporations
at
the time of that amalgamation or merger and any and all property,
assets
and undertakings of the continuing corporation from that amalgamation
or
merger owned or acquired by that continuing corporation after that
amalgamation or merger.
|
| 1.9 |
Post-Closing
Undertakings
|
| (a) |
APG
undertakes and agrees to make its best efforts to obtain Crown consent
to
the extension of the Security Interest over the mining leases set
out in
Schedule 2 and, as soon as reasonably practicable following the receipt
of
any such consent, to deliver to the Agent a first registrable leasehold
mortgage with respect to the mining lease in question together with
a
title opinion from counsel to APG with respect to the registration
and
priority of such mortage (or title insurance in lieu of such opinion),
all
such materials to be in form and substance satisfactory to the Agent
acting reasonably.
|
| (b) |
APG
undertakes and agrees to, on or by August 11, 2008, deliver to the
Agent a
first registrable mortgage over the freehold real property interests
described in Schedule 3, together with a title opinion from counsel
to APG
with respect to the registration and priority of such mortgages (or
title
insurance in lieu of such opinion), all such materials to be in form
and
substance satisfactory to the Agent acting
reasonably.
|
| (c) |
APG
undertakes and agrees to, as soon as practicable and in any event
within
30 days from the date hereof, deliver to the Agent an estoppel letter
from
the applicable secured party with respect to each of the Ontario
personal
property registrations set out in Schedule 5, such letter to be in
form
and substance satisfactory to the Agent acting reasonably, provided
such
undertaking with respect to any such registration shall also be satisfied
with the discharge of such
registration.
|
page
6
|
|
2 Representations
and warranties of the corporation
|
| (d) |
| (e) |
APG
undertakes and agrees to keep the Collateral free from all Encumbrances
other than Permitted Encumbrances.
|
| 2 |
Representations
and warranties of the corporation
|
| 2.1 |
Representations
and warranties
|
APG
represents and warrants to the Agent (for the benefit of itself and the other
Finance Party) as follows, and acknowledges that the Finance Parties are relying
on those representations and warranties in connection with this
agreement:
| (a) |
Incorporation
and qualification:
APG is a corporation incorporated and validly existing under the
laws of
the Yukon Territory, Canada.
|
| (b) |
Corporate
power:
APG has all the requisite corporate power and authority
to:
|
|
(1)
|
own,
lease and operate its properties and assets and to carry on its business
as now being conducted by it; and
|
|
(2)
|
enter
into and perform its obligations under this
agreement.
|
| (c) |
Conflict
with other instruments:
The execution and delivery by APG and the performance by it of its
obligations under, and compliance with the terms, conditions and
provisions of this agreement do not and will not violate any law,
regulation, authorisation, ruling, consent, judgment, order or decree
of a
governmental agency, its constating documents or by-laws, or an
Encumbrance or document which is binding on it or on its
assets.
|
| (d) |
Execution
and binding obligation:
This agreement has been duly executed and delivered by APG and constitute
legal, valid and binding obligations of APG enforceable against it
in
accordance with its terms, subject only to any limitation under applicable
laws relating to:
|
|
(1)
|
bankruptcy,
insolvency, arrangement or creditors' rights generally; and
|
|
(2)
|
the
discretion that a court may exercise in the granting of equitable
remedies.
|
| (e) |
Continuous
perfection: Schedule
1 sets out APG’s place of business or, if more than one, APG’s chief
executive office, and the jurisdictions in which APG’s tangible personal
are located. APG will not change these locations without providing
at
least 30 days’ prior written notice to the Finance
Parties.
|
| (f) |
Leasehold
Real Property.
Schedule 2 sets out all real property in which APG (including any
nominee
thereof) has any leasehold interest as of the date hereof.
|
| (g) |
Freehold
Real Property.
Schedule 3 sets out all real property in which APG (including any
nominee
thereof) has any freehold interest as of the date
hereof.
|
| (h) |
Mining
Claims. Schedule
4 sets out all mining claims in which APG (including any nominee
therof)
as any right, title or interest.
|
| (i) |
Permitted
Encumbrances.
The Collateral is free of all Encumbrances other than Permitted
Encumbrances.
|
page
7
|
|
3 Enforcement
|
| 2.2 |
Representations
and warranties in Transaction
Documents
|
Notwithstanding
the representations and warranties of APG set forth in clause 2.1 of this
agreement, APG further represents and warrants to the Agent (for the benefit
of
itself and the other Finance Party), and further acknowledges that the Finance
Parties are relying on those representations and warranties in connection with
this agreement, that the representations and warranties of APG contained in
the
Transaction Documents are true and correct in all respects as of the date of
this agreement.
| 2.3 |
Survival
of representations and
warranties
|
The
representations and warranties in this agreement and in any certificates or
documents delivered to the Finance Parties will not merge in or be prejudiced
by
and will survive any advance and will continue in full force and effect so
long
as any amounts are owing by APG to the Finance Parties under the Transaction
Documents.
| 3 |
Enforcement
|
| 3.1 |
Enforcement
|
The
Security Interest will be and become enforceable against APG if
and
when APG fails to repay or perform any of the Obligations when due and payable
or when due to be performed, as the case may be, or on
the
occurrence and during the continuance of an Event of Default (as specified
in
clause 11 of the Facility Agreement or
Section
5 of the ISDA Master Agreement).
| 3.2 |
Remedies
|
| (a) |
Subject
to clause 3.2(b), whenever the Security Interest has become enforceable,
the Agent may realize on the Collateral and enforce its rights
by:
|
|
(1)
|
entry
onto any premises where Collateral consisting of tangible personal
property may be located;
|
|
(2)
|
entry
into possession of the Collateral by any method permitted by
law;
|
|
(3)
|
sale
or lease of all or any part of the
Collateral;
|
|
(4)
|
collection
of any proceeds arising in respect of the
Collateral;
|
|
(5)
|
collection,
realization or sale of, or other dealing with, the
accounts;
|
|
(6)
|
appointment
by instrument in writing of a receiver (which term as used in this
agreement includes a receiver and manager) or agent of all or any
part of
the Collateral and removal or replacement from time to time of any
receiver or agent;
|
|
(7)
|
institution
of proceedings in any court of competent jurisdiction for the appointment
of a receiver of all or any part of the
Collateral;
|
|
(8)
|
institution
of proceedings in any court of competent jurisdiction for sale or
foreclosure of all or any part of the
Collateral;
|
|
(9)
|
filing
of proofs of claim and other documents to establish claims to the
Collateral in any proceeding relating to
APG;
|
|
(10)
|
any
other remedy or proceeding available, authorized or permitted under
the
PPSA or otherwise by contract, law or equity;
and
|
|
(11)
|
application
of any moneys constituting Collateral or proceeds of
Collateral.
|
page
8
|
|
3 Enforcement
|
| (b) |
The
remedies referred to in clause 3.2(a) may be exercised from time
to time
separately or in combination and are in addition to, and not in
substitution for, any other rights of the Finance Parties however
created.
The Finance Parties will not be bound to exercise any right or remedy,
and
the exercise of any rights and remedies will be without prejudice
to the
rights of the Finance Parties in respect of the Obligations including
the
right to claim for any deficiency.
|
| 3.3 |
Additional
rights
|
In
addition to the remedies referred to in clause 3.2, the Agent may, whenever
the
Security Interest has become enforceable:
| (a) |
require
APG, at APG's expense, to assemble the Collateral at a place or places
designated by notice in writing and APG agrees to so assemble the
Collateral;
|
| (b) |
require
APG, by notice in writing, to disclose to the Agent the location
or
locations of the Collateral and APG agrees to make that disclosure
when so
required;
|
| (c) |
repair,
process, modify, complete or otherwise deal with the Collateral and
prepare for the disposition of the Collateral, whether on the premises
of
APG or otherwise;
|
| (d) |
carry
on all or any part of the business of APG and, to the exclusion of
all
others including APG, enter on, occupy and use all or any of the
premises,
buildings, and other property of or used by APG for that time as
the Agent
sees fit, free of charge, and the Finance Parties will not be liable
to
APG for any act, omission or negligence in so doing or for any rent,
charges, depreciation or damages incurred in connection with or resulting
from that action;
|
| (e) |
require
APG to engage a consultant or consultants of the Agent’s sole choice, that
consultant to receive the full cooperation and support of APG and
its
directors, officers and employees, including unrestricted access
to the
premises and books and records of APG; all reasonable fees and expenses
of
that consultant will be for the account of APG and APG authorizes
that
consultant to report directly to the Agent and to disclose to the
Agent
any and all information obtained by that
consultant;
|
| (f) |
borrow
for the purpose of carrying on the business of APG or for the maintenance,
preservation or protection of the Collateral and grant a security
interest
in the Collateral, whether or not in priority to the Security Interest,
to
secure repayment;
|
| (g) |
commence,
continue or defend any judicial or administrative proceedings for
the
purpose of protecting, seizing, collecting, realizing or obtaining
possession or payment of the Collateral, and give good and valid
receipts
and discharges in respect of the Collateral and compromise or give
time
for the payment or performance of all or any part of the accounts
or any
other obligation of any third party to APG;
and
|
| (h) |
require
APG to execute and deliver any and all instruments, documents, notices
or
writings necessary to permit the Agent to realize on and enforce
its
rights to any of the Collateral.
|
| 3.4 |
Receiver's
powers
|
| (a) |
Any
receiver appointed by the Agent will be vested with the rights and
remedies which could have been exercised by the Agent in respect
of APG or
the Collateral and those other powers and discretions as are granted
in
the instrument of appointment and any supplemental instruments. The
identity of the receiver, its replacement and its remuneration will
be
within the sole and unfettered discretion of the
Agent.
|
| (b) |
Any
receiver appointed by the Agent will act as agent for the Finance
Parties
for the purposes of taking possession of the Collateral, but otherwise
and
for all other purposes (except as provided below), as agent for APG.
The
receiver may sell, lease, or otherwise dispose of Collateral as agent
for
APG or as agent for the Agent as the Agent may determine in its
discretion. APG agrees to ratify and confirm all actions of the receiver
acting as agent for APG, and to release and indemnify the receiver
in
respect of all those actions.
|
page
9
|
|
3 Enforcement
|
| (c) |
The
Agent, in appointing or refraining from appointing any receiver,
will not
incur liability to the receiver, APG or otherwise and will not be
responsible for any misconduct or negligence of the
receiver.
|
| 3.5 |
Appointment
of attorney
|
APG
irrevocably appoints each of the Agent (including any officer or agent of the
Agent), as attorney of APG (with full power of substitution) to do, make and
execute, in the name of and on behalf of APG, on
the
occurrence and during the continuance of an Event of Default and at any other
time
that the
Security Interest will be enforceable, all further acts, documents, matters
and
things which a Agent may deem necessary or advisable to accomplish the purposes
of this agreement including the execution, endorsement and delivery of documents
and any notices, receipts, assignments or verifications of the accounts. This
power of attorney is irrevocable, is coupled with an interest, has been given
for valuable consideration (the receipt and adequacy of which is acknowledged)
and survives and does not terminate upon the bankruptcy, dissolution, winding
up
or insolvency of APG. All acts of the attorney are ratified and approved, and
the attorney will not be liable for any act, failure to act or any other matter
or thing, other than arising out of its own wilful misconduct, fraud or gross
negligence.
| 3.6 |
Dealing
with the Collateral
|
| (a) |
The
Finance Parties will not be obliged to exhaust their recourse against
APG
or any other person or against any other security they may hold in
respect
of the Obligations before realizing on or otherwise dealing with
the
Collateral in any manner as the Agent may consider
desirable.
|
| (b) |
The
Finance Parties may grant extensions or other indulgences, take and
give
up securities, accept compositions, grant releases and discharges
and
otherwise deal with APG and with other persons, sureties or securities
as
they may see fit without prejudice to the Obligations, the liability
of
APG or the rights of the Finance Parties in respect of the
Collateral.
|
| (c) |
Except
as otherwise provided by law or this agreement, the Finance Parties
will
not be:
|
|
(1)
|
liable
or accountable for any failure to collect, realize or obtain payment
in
respect of the Collateral;
|
|
(2)
|
bound
to institute proceedings for the purpose of collecting, enforcing,
realizing or obtaining payment of the Collateral or for the purpose
of
preserving any rights of any persons in respect of the
Collateral;
|
|
(3)
|
responsible
for any loss occasioned by any sale or other dealing with the Collateral
or by the retention of or failure to sell or otherwise deal with
the
Collateral; or
|
|
(4)
|
bound
to protect the Collateral from depreciating in value or becoming
worthless.
|
| 3.7 |
Standards
of sale
|
Without
prejudice to the ability of the Agent to dispose of the Collateral in any manner
which is commercially reasonable, APG acknowledges that:
| (a) |
Collateral
may be disposed of in whole or in
part;
|
| (b) |
Collateral
may be disposed of by public auction, public tender or private contract,
with or without advertising and without any other
formality;
|
| (c) |
any
assignee of that Collateral may be a customer of the Finance
Parties;
|
page
10
|
|
4 General
|
| (d) |
a
disposition of Collateral may be on those terms and conditions as
to
credit or otherwise as the Finance Parties, in their sole discretion,
may
deem advantageous; and
|
| (e) |
the
Finance Parties may establish an upset or reserve bid or price in
respect
of Collateral.
|
| 3.8 |
Dealings
by third parties
|
| (a) |
No
person dealing with the Agent or an agent or receiver will be required
to
determine:
|
|
(1)
|
whether
the Security Interest has become enforceable;
|
|
(2)
|
whether
the powers which that person is purporting to exercise have become
exercisable;
|
|
(3)
|
whether
any money remains due to the Finance Parties by APG;
|
|
(4)
|
the
necessity or expediency of the stipulations and conditions subject
to
which any sale or lease is made;
|
|
(5)
|
the
propriety or regularity of any sale or other dealing by the Finance
Parties with the Collateral; or
|
|
(6)
|
how
any money paid to the Finance Parties has been
applied.
|
| (b) |
Any
bona fide purchaser of all or any part of the Collateral from the
Agent or
a receiver or agent will hold the Collateral absolutely, free from
any
claim or right of whatever kind, including any equity of redemption,
of
APG, which it specifically waives (to the fullest extent permitted
by law)
as against any purchaser together with all rights of redemption,
stay or
appraisal which APG has or may have under any rule of law or statute
now
existing or adopted in the future.
|
| 4 |
General
|
| 4.1 |
Discharge
|
| (a) |
The
Security Interest will be discharged on, but only
on:
|
|
(1)
|
full
payment and performance of the Obligations; and
|
|
(2)
|
the
Transaction Parties having no obligations under the Facility
Agreements.
|
| (b) |
On
discharge of the Security Interest and at the request and expense
of APG,
the Agent will execute and deliver to APG those releases and discharges
as
APG may reasonably require.
|
| 4.2 |
Amendments
|
No
amendment or waiver of any provision of this agreement, nor consent to any
departure by APG from those provisions, is effective unless in writing and
approved by the Agent. Any amendment, waiver or consent is effective only in
the
specific instance and for the specific purpose for which it was
given.
| 4.3 |
Waivers
|
No
failure on the part of the Finance Parties to exercise, and no delay in
exercising, any right under this agreement will operate as a waiver of that
right; nor will any single or partial exercise of any right under this agreement
preclude any other or further exercise of that right or the exercise of any
other right.
page
11
|
|
4 General
|
| 4.4 |
No
merger
|
This
agreement will not operate by way of merger of any of the Obligations and no
judgment recovered by the Finance Parties will operate by way of merger of,
or
in any way affect, the Security Interest, which is in addition to, and not
in
substitution for, any other security now or subsequently held by the Finance
Parties in respect of the Obligations.
| 4.5 |
Further
assurances
|
| (a) |
APG
will, from time to time, whether before or after the Security Interest
has
become enforceable, do all acts and things and execute and deliver
all
transfers, assignments and instruments as the Agent may reasonably
require
for:
|
|
(1)
|
protecting
the Collateral;
|
|
(2)
|
perfecting
the Security Interest; and
|
|
(3)
|
exercising
all powers, authorities and discretions conferred on the Agent.
|
| (b) |
APG
will, from time to time after the Security Interest has become
enforceable, do all acts and things and execute and deliver all transfers,
assignments and instruments as the Agent may require for facilitating
the
sale or other disposition of the Collateral in connection with its
realization.
|
| 4.6 |
Supplemental
security
|
This
agreement is in addition to and without prejudice to and is supplemental to
all
other security now held or which may subsequently be held by the Finance
Parties.
| 4.7 |
Notices
|
Any
notices, directions or other communications provided for in this agreement
must
be in writing and given in accordance with the provisions of the Facility
Agreements.
| 4.8 |
Successors
and assigns
|
This
agreement is binding on APG, its successors and assigns, and enures to the
benefit of the Finance Parties and their successors and assigns. All rights
of
the Finance Parties are assignable and in any action brought by an assignee
to
enforce any of those rights, APG will not assert against the assignee any claim
or defence which APG now has or may have against the Finance
Parties.
| 4.9 |
Waiver
and Variation
|
| (a) |
Waiver
of a Power arising under, or a provision of, this agreement (including
this clause), must be in writing and signed by the party granting
the
waiver.
|
| (b) |
A
failure or delay in exercise, or partial exercise, of a Power (arising
on
the occurrence of an Event of Default or otherwise) does not operate
as a
waiver of that Power or preclude another or further exercise of that
or
another Power.
|
| (c) |
Any
variation of a term of this agreement must be in writing and signed
by the
parties.
|
| 4.10 |
Gender
and number
|
Any
reference in this agreement to gender includes all genders and words importing
the singular number includes the plural and vice versa.
page
12
|
|
4 General
|
| 4.11 |
Headings
|
The
division of this agreement into clauses and the insertion of headings are for
convenient reference only and are not to affect its interpretation.
| 4.12 |
Language
|
The
parties to this agreement expressly request and require that this agreement
and
all related documents be drafted in English. Les
parties aux présentes conviennent et exigent que cette convention et tous les
documents qui s'y rattachent soient rédigés en anglais.
| 4.13 |
Severability
|
If
any
provision of this agreement is taken by any court of competent jurisdiction
to
be invalid or void, the remaining provisions will remain in full force and
effect.
| 4.14 |
Governing
law
|
This
agreement is governed by and interpreted and enforced in accordance with the
laws of the Province of Ontario and the laws of Canada which are applicable
in
the Province of Ontario.
page
13
Schedules
|
Table
of contents
|
|
|
▇-
▇▇▇ ▇▇▇▇▇ of business
|
15
|
|
2-
Leasehold Real Property
|
16
|
|
3-
Freehold Real Property
|
17
|
|
4-
Mining Claims
|
19
|
|
5
- Ontario Personal Property Registrations
|
20
|
page
14
Schedule
▇
|
▇▇▇
▇▇▇▇▇ of business
|
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ Village
|
|
|
Colorado
80111-3220
|
|
|
United
States of America
|
|
|
Contact:
|
R.
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
|
|
|
Location
of Tangible Property
|
|
|
Province
of Ontario
|
|
page
15
|
|
Schedule
2 Leasehold
Real Property
|
Schedule
2
Leasehold
Real Property
PIN
65366-0199 (LT)
Part
Lot
6 Concession 1 ▇▇▇▇▇▇ being all of Mining claim L 1115059 designated as Part
1,
6R7912, Black River-▇▇▇▇▇▇▇▇.
PIN
65380-0670 (LT)
Part
Lot
5 Concession 6 Hilsop, Mining claim L 104334 being Part 5, 6R7913; Part Lot
6
Concession 6, Mining claim L 104335 being Part 6, 6R7913, Black
River-▇▇▇▇▇▇▇▇.
PIN
65380-0671 (LT)
Mining
rights Part of the bed of Froome Lake in front of Part Lot 7 Concession 6
▇▇▇▇▇▇, Mining claim L 1113087 being Part 1, 6R7911, Black River-▇▇▇▇▇▇▇▇.
Mining Rights Only.
page
16
|
|
Schedule
3 Freehold
Real Property
|
Schedule
3
|
Freehold
Real Property
|
PARCEL
1: PIN
65366-0129 (LT)
Parcel
23874 SEC (Mining Rights Only), The Mines, Minerals and Mining Rights of Part
of
▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ except Part 1 on Plan 6R-3881, C98447 and C98448,
Black River - ▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
2: PIN
65380-0556 (LT)
Parcel
23876 SEC (Mining Rights Only), The Mines, Minerals and Mining Rights of the
North half of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ and Part of the North
Part
of Broken ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, lying East of the Lake and
Creek and North of a line drawn East ast’y across said lot from a point in the
West boundary thereof distant 41 chains, 64 links North from the South West
angle of the lot, containing by admeasurement 100.5 Acres more or less,
excepting that part described as follows: starting at the NE angle of the above
Lot thence Wly along the N boundary of said Lot 891 Ft; thence S Ast’y 33 Ft to
the POC; thence S Ast’y 330 Ft; thence W Ast’y 264 Ft; thence N Ast’y 330 Ft;
thence E Ast’y 264 Ft to the POC; containing by admeasurement 2 acres, more or
less, Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
3: PIN
65380-0557 (LT)
Parcel
2582 SEC, The North half of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, except C679085, C506571
and MRO as in C436459, Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
4: PIN
65380-0555 (LT)
Parcel
15466 SEC, Part of the north part of Broken ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, lying East of the Lake and Creek and North of a line drawn East ast’y
across said lot from a point in the west boundary thereof distant 41 chains,
64
links North from Southwest angle of the lot, containing an admeasurement 100
½
Acres, more or less, excepting that part described as follows: starting at
the
NE angle of the above Lot; thence Wly along the N boundary of said Lt 891 Ft;
thence S Ast’y 33 Ft to the POC; thence S Ast-y 330 Ft; thence W Ast’y 264 Ft;
thence N Ast’y 330 Ft; thence E Ast’y 264 Ft to the POC; containing by
admeasurement two (2) acres, more or less, except C69085 & C506571 and MRO
as in C436459; Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
5: PIN
65366-0127 (LT)
Parcel
14572 SEC, Part of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, as in Instrument
No.
C130522, except Expropriation C69085, subject to C341846, Black River-▇▇▇▇▇▇▇▇,
District of Cochrane.
PARCEL
6: PIN
65380-0552 (LT)
Parcel
7745 SEC, The North Half of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, except
surface rights C69085, Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
7: PIN
65380-0534 (LT)
Parcel
388 SEC, Part of broken ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, as in
Instrument No. TP6616, except Part 1, Plan 6R3065, Black River-▇▇▇▇▇▇▇▇,
District of Cochrane.
PARCEL
8: PIN
65380-0532 (LT)
Parcel
6413 SEC, The South West Quarter of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
page
17
|
|
Schedule
3 Freehold
Real Property
|
PARCEL
9: PIN 65380-0553 (LT)
Parcel
4707 SEC, Part of the North part of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
lying west of a lake and creek on said lot, and lying north of line drawn east
astronomically across said lot from a point in the west limit thereof distant
41
chains 64 links north from the south west angle of the lot, containing 46 acres
more or less, Black River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
10: PIN
65380-0559 (LT)
Parcel
3393 SEC, Part of the North half of Lot 4 Concession 6, ▇▇▇▇▇▇, except Part
1,
plan 6R7375 & SRO C69085, Black River- ▇▇▇▇▇▇▇▇, District of
Cochrane.
PARCEL
11: PIN
65380-0558 (LT)
Parcel
11511 SEC, Part of the Northeast ¼ of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ as in
Instrument ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇- ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
PARCEL
12: PIN
65366-0126 (LT)
Parcel
24577 SEC, South ½ of Lot 5, Concession 1, ▇▇▇▇▇▇, excepting therefrom the lands
required for highway purposes described as follows; premising that the bearings
hereinafter mentioned are astronomical and are referred to the meridian through
the centre of the Township of ▇▇▇▇ in longitude 80 degrees 28 minutes west,
commencing at the SE angle of said Lt; Thence N 00 degrees 07 minutes 30 seconds
west along the E boundary of said Lot 33 Ft, thence S 89 degrees 49 minutes
30
seconds west 2656.49 Ft to a point in the W boundary of said Lt; thence S 00
degrees 07 minutes E along the said W boundary 33 Ft to the SW angle of said
Lt;
thence N 89 degrees 49 minutes 30 seconds E along the S boundary of said Lt
2656.49 Ft to the POC, containing 2.012 acres, more or less; SRO N ½ of Lt 5 Con
1 being; Mining Claim L13391 ▇▇▇▇▇▇; Mining Claim L15799 ▇▇▇▇▇▇; Mining Claim
L22257 ▇▇▇▇▇▇; Mining Claim L22258 ▇▇▇▇▇▇; SRO W1/2 Lt 4 Con 1 ▇▇▇▇▇▇ being;
Mining Claim L11397 ▇▇▇▇▇▇; Mining Claim L16477 ▇▇▇▇▇▇, Mining Claim L22527
▇▇▇▇▇▇; Mining Claim L22915 ▇▇▇▇▇▇ SRO; Pt Lt 4 Con 2 ▇▇▇▇▇▇ being the SW1/4
of
S1/2; Mining Claim L13510 ▇▇▇▇▇▇ SRO; Pt Lt 5 Con 2 ▇▇▇▇▇▇ being the S1/2 of
S1/2; Mining Claim L13508 ▇▇▇▇▇▇, Mining Claim L13509 ▇▇▇▇▇▇; Black
River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
13: PIN
65366-0143 (LT)
Parcel
4150 SEC SEC; South ½ of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, excepting C506564, C69085,
C511438; Black River-▇▇▇▇▇▇▇▇.
PARCEL
14: PIN 65380-0520 (LT)
Parcel
23687, SEC SEC Firstly: Surface Rights Only of: West 1/2 of North 1/2 of ▇▇▇
▇,
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, excepting that part as described as follows:
Commencing at the North-West angle of the above Lot 4; Thence along the North
boundary 933.38 Ft; Thence Southerly parallel to the West boundary 933.38 Ft;
Thence Westerly parallel to the North boundary 933.38 Ft to a point on the
West
boundary; Thence Northerly along the West boundary 933.38 Ft to the point of
commencement; containing 20 acres, more or less; except Part 3, 6R-6577;
Secondly: Surface Rights Only of the East 1/2 of the North 1/2 of ▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, excepting Part 1, 6R-2510 and Part 5, 6R-5694;
Thirdly: North 1/2 of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇; Black
River-▇▇▇▇▇▇▇▇, District of Cochrane.
PARCEL
15: PIN 65380-0521 (LT)
Parcel
24023, SEC SEC Surface Rights Only; Part of North 1/2 of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇
▇,
▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, Part 1, 6R-6577; Black River-▇▇▇▇▇▇▇▇, District of
Cochrane.
PARCEL
16: PIN 65380-0525 (LT)
Parcel
10255, SEC SEC Surface Rights Only; North 1/2 of North 1/2 of ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, Black River-▇▇▇▇▇▇▇▇, District of
Cochrane.
page
18
|
|
Schedule
4 Mining
Claims
|
Schedule
4
|
Mining
Claims
|
L1048333
page
19
|
|
Schedule
4 Ontario
Personal Property Registrations
|
Schedule
5
|
Ontario
Personal Property Registrations
|
|
Secured Party
|
File Number
|
Registration Number
|
Maturity Date
|
Collateral
Classification
|
||||
|
▇▇▇▇▇▇▇ Group Inc.
|
622380816
|
20060131 1106
1583 1706
|
December
31, 2008
|
Equipment,
Motor Vehicle
|
||||
|
Caterpillar
Financial Services Limited
|
616970403
|
20050713
1658 8077 8925
|
5
years
|
Equipment,
Other, Motor Vehicle
|
||||
|
Nexcap
Financial Corporation
|
891969957
|
20030226
1444 1530 3556
20050913
1951 1531 9814
20050914
1951 1531 1052
20080116
1950 1531 8087
|
5
years
|
Equipment,
Accounts, Other
|
||||
|
The
Toronto-Dominion Bank
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1047 1529 0055
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5
years
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Accounts,
Other
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page
20
Signing
page
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Executed
as an agreement
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Signed
by
Apollo
Gold Corporation
By
its authorised signatory
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By:
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Authorised
Signatory
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print name
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title
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I
have
authority to bind the corporation.
page
21
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Signing
page
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Signed
for
RMB
Resources Inc.
By
its authorised officer
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By
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Authorised
Officer
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print name
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title
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page
22
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Signing
page
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page
23