Montana Tunnels Amendment and
Agreement
Montana
Tunnels
Amendment
and
Restatement
Agreement
Montana
Tunnels Mining, Inc.
Apollo
Gold Corporation
Apollo
Gold Inc.
RMB
Australia Holdings Limited
RMB
Resources Inc.
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offices in Hanoi Ho Chi Minh City
Jakarta
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Contents
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Table
of contents
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Operative
Part
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3
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1
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Definitions
and interpretation
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3
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1.1 Definitions
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3
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1.2 Interpretation
|
3
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1.3 Terms
defined in the Amended Facility Agreement
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3
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2
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Amendments
to the Facility Agreement
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3
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3
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Conditions
Precedent
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4
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4
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Satisfaction
of Conditions Precedent
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4
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5
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Ratification
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4
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6
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Acknowledgments
and covenants
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4
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6.1 General
acknowledgements and covenants
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4
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6.2 Guarantor
acknowledgements and covenants
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5
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7
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Governing
law and jurisdiction
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5
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8
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Counterparts
|
5
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9
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Attorneys
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5
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10
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Costs
and stamp duty
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5
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Schedule
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Notice
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7
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Signing
page
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8
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| Attachment – Amended Facility Agreement | ||
Contents 1
Date
►
|
Between
the parties
|
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Borrower
|
Montana
Tunnels Mining, Inc.
a
corporation existing under the laws of Delaware, United States of
America
of
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80111-3220, United States of America
(Borrower)
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Guarantors
|
Apollo
Gold Corporation
a
corporation existing under the laws of the Yukon Territory, Canada
of
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80111-3220, United States of America
(APG)
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|
Apollo
Gold Inc.
a
corporation existing under the laws of Delaware, United States of
America
of
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80111-3220, United States of America
(AGI)
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|
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Financier
|
RMB
Australia Holdings Limited
a
company incorporated under the laws of Australia of
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▇▇▇▇▇▇▇▇▇
(Financier)
|
|
Agent
|
RMB
Resources Inc.
a
company incorporated under the laws of Delaware, United States of
America
of
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▇▇▇▇▇▇ of
America
(Agent)
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Recitals
|
1
Under
a facility agreement dated 12 October 2007 between the Borrower,
the
Financier, the
Guarantors
and
the Agent the Lender provided to the Borrower a
credit
facility of up to US$8,000,000 to finance the development of the
Montana
Tunnels
Mine
located near Helena, in Jefferson County, Montana,
United States
of America
(Facility
Agreement).
|
page
1
|
2
At
the request of the Borrower, the Lender and the Agent have agreed
to amend
and
supplement
the
Facility Agreement on the terms
and conditions contained in
this agreement.
|
page
2
Operative
Part
|
This
agreement witnesses as follows:
|
| 1. |
Definitions
and interpretation
|
| 1.1 |
Definitions
|
The
meanings of the terms used in this agreement are set out below.
|
Term
|
Meaning
|
|
Amended
Facility Agreement
|
the
Facility Agreement as amended and supplemented in accordance with
clause
1.3.
|
|
Conditions
Precedent
|
the
conditions precedent set out in clause 3
of
this agreement.
|
|
Effective
Date
|
the
date specified as the ‘Effective Date’ in the notice given by the Agent
under clause 4.
|
|
Relevant
Transaction Documents
|
1 this
agreement;
2 the
Amended Facility Agreement; and
3
the
Securities.
|
| 1.2 |
Interpretation
|
| (a) |
This
agreement is supplemental to the Facility
Agreement.
|
| (b) |
The
principles of interpretation contained in clause 1.2 of the Facility
Agreement apply, with any necessary changes, to this
agreement.
|
| 1.3 |
Terms
defined in the Amended Facility
Agreement
|
Any
term
defined in the Amended Facility Agreement has the same meaning when used in
this
agreement unless the context otherwise requires.
| 2 |
Amendments
to the Facility
Agreement
|
On
and
from the Effective Date the Borrower, each Guarantor, the Lender and the Agent
covenant and agree that the Facility Agreement is amended and supplemented
in
the manner set out in the Attachment.
page
3
|
3 Conditions
Precedent
|
| 3 |
Conditions
Precedent
|
The
operation of this agreement is subject to and conditional on the Agent receiving
each condition precedent described in clause 2.2 of the Amended Facility
Agreement in form and substance satisfactory to the Agent.
| 4 |
Satisfaction
of Conditions Precedent
|
Once
the
Agent has received all of the Conditions Precedent, it must give written notice
in the form of the schedule to the Borrower stating that the Conditions
Precedent have been satisfied and nominating a date to be the Effective Date
for
the purposes of this agreement and the Amended Facility Agreement.
| 5 |
Ratification
|
| (a) |
The
parties to this agreement ratify and confirm the Amended Facility
Agreement and each of the other Transaction
Documents.
|
| (b) |
On
the Effective Date, the Borrower and each Guarantor gives all the
representations and warranties set out in clause 7 of the Amended
Facility
Agreement with reference to the present facts and circumstances,
as if
made on the Effective Date.
|
| 6 |
Acknowledgments
and covenants
|
| 6.1 | General acknowledgements and covenants |
The
Borrower and each Guarantor acknowledge, covenant and agree with the Lender
and
the Agent that:
| (a) |
it
is a Default under the Amended Facility Agreement and the other
Transaction Documents (including the Relevant Transaction Documents)
if,
immediately before the Effective Date occurs and the amendment set
out in
clause 2 of this agreement takes effect, a ‘Default’ (as that term is
defined in the Facility Agreement) has occurred and is
continuing;
|
| (b) |
the
Relevant Transaction Documents are Transaction Documents for the
purposes
of the Amended Facility Agreement and each other Transaction
Document;
|
| (c) |
this
agreement and the Amended Facility Agreement will not abrogate, prejudice,
discharge or limit in any way the enforceability of the Securities
which
continue to secure all obligations under the Amended Facility
Agreement;
|
| (d) |
except
to the extent expressly provided under this agreement, this agreement
will
not abrogate, prejudice, discharge, limit or affect in any way its
duties,
obligations and liabilities under any Transaction Document;
and
|
| (e) |
each
of the Securities to which it is a party secures each of its obligations
under the Transaction Documents.
|
page
4
|
7 Governing
law and jurisdiction
|
| 6.2 |
Guarantor
acknowledgements and
covenants
|
Each
Guarantor guarantees the obligations of the Borrower under the Amended Facility
Agreement and acknowledges, covenants and agrees that each of the Securities
to
which it is a party is:
| (a) |
a
principal obligation and is not ancillary to any Encumbrance (other
than
another Collateral Security) or other obligation however created;
and
|
| (b) |
independent
of and unaffected by any Collateral Security or other obligation
however
created which the Lender or Agent may hold at any time in respect
of
moneys secured under the
Securities.
|
| 7 |
Governing
law and jurisdiction
|
| (a) |
| (b) |
Each
Transaction Party and each Finance Party irrevocably submits to the
non-exclusive
jurisdiction of the federal courts of the State of
Colorado.
|
| (c) |
Each
Transaction Party and each Finance 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
Transaction Party and each Finance 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 the service of notice, attachment before judgment, attachment
in
aid of execution or execution.
|
| 8 |
Counterparts
|
This
agreement may be executed in any number of counterparts and different parties
to
this agreement on separate counterparts, each complete set of which, when so
executed by all parties, are original but all counterparts together constitute
one and the same instrument.
| 9 |
Attorneys
|
Each
of
the attorneys executing this agreement respectively acknowledges that the
attorney has at the time of executing this agreement no notice of the revocation
of the power of attorney under the authority of which the attorney executes
this
agreement.
| 10 |
Costs
and stamp duty
|
The
Borrower must pay all:
| (a) |
costs
and disbursements incurred in connection with the negotiation,
preparation, execution and completion of this agreement and all
counterparts of this agreement; and
|
| (b) |
all
stamp duty payable on or in respect of this
agreement.
|
page
5
|
10 Costs
and stamp duty
|
page
6
Schedule
Notice
| To: |
The
Directors
|
| Montana Tunnels Mining, Inc. |
| From: | RMB Resources Inc. (Agent) |
We
refer
to the agreement dated [insert date] entitled ‘Amendment and Restatement
Agreement between Montana Tunnels Mining, Inc. (as Borrower),
Apollo
Gold Corporation, Apollo Gold Inc. (as Guarantors),
RMB
Australia Holdings Limited (as Financier)
and RMB
Resources Inc. (as Agent)
(Amendment
and Restatement Agreement).
Under
clause 4 of the Amendment and Restatement Agreement we give you notice
that:
|
1
|
the
conditions precedent in clause 4 of the Amendment and Restatement
Agreement have been satisfied;
|
|
2
|
the
Effective Date for the purposes of the Amendment and Restatement
Agreement
and the Amended Facility Agreement (as defined in the Amendment and
Restatement Agreement) is [insert date];
and
|
|
3
|
the
amendments set out in clause 2 of the Amendment and Restatement Agreement
take effect on and from the Effective
Date.
|
Dated:
Signed
for and on behalf of the Agent
by
Authorised
Officer of the Agent
page
7
Signing
page
|
Executed
as an agreement
|
|
Borrower
|
|
|
Signed
for
Montana
Tunnels Mining, Inc.
By
its authorised signatory
|
|
|
By:
|
|
|
Authorised
Signatory
|
|
|
print name
|
|
|
title
|
|
Guarantor
|
|
|
Signed
for
Apollo
Gold Corporation
By
its authorised signatory
|
|
|
By:
|
|
|
Authorised
Signatory
|
|
|
print name
|
|
|
title
|
|
Guarantor
|
|
|
Signed
for
Apollo
Gold Inc.
By
its authorised signatory
|
|
|
By:
|
|
|
Authorised
Signatory
|
|
|
print name
|
|
|
title
|
page
8
|
|
Signing
page
|
|
Agent
|
|
|
Signed
for
RMB
Resources Inc.
By
its authorised officer
|
|
|
By:
|
|
|
Authorised
Officer
|
|
|
print name
|
|
|
Title
|
page
9
|
Financier
|
||
|
Signed
for
RMB
Australia Holdings Limited
By
|
||
|
By:
|
||
|
Director
|
||
|
print
name
|
||
|
By:
|
||
|
Director
/ Secretary
|
||
|
print name
|
||
|
title
|
||
page
10
Attachment –
Amended Facility Agreement
page
1