GENERAL SECURITY AGREEMENT
Exhibit
10.1
THIS
AGREEMENT
made as
of the 4th day of January, 2006.
BY:
APOLLO
GOLD CORPORATION,
a
corporation existing under the laws of the Yukon Territory
(the
"Debtor")
THE
CANADA TRUST COMPANY, a
trust
company amalgamated under the laws of Canada, as Trustee for the benefit of
the
Debentureholders (as hereinafter defined)
(the
"Secured
Party")
WHEREAS
the
Debtor, Apollo Gold Inc. ("AGI")
and
the Secured Party entered into a trust indenture dated November 4, 2004 (as
supplemented by a first supplemental indenture dated December 13, 2004)
(collectively, the "Indenture")
providing for the issue of up to U.S.$12,500,000 principal amount of 12% Series
2004-B convertible secured debentures of the Debtor (collectively, the
"Debentures");
AND
WHEREAS pursuant
to the terms of the Indenture, the Debtor and AGI originally provided the
Secured Party with security over the Existing Security (as defined in the
Indenture) as security for, among other things, the payment of the principal
sum, interest and all other amounts from time to time owing or payable under
the
Debentures, and the performance by the Debtor and AGI of all their obligations
under the Debentures and the Indenture;
AND
WHEREAS
pursuant
to a cash collateral trust agreement dated November 18, 2005, the Debtor and
AGI
substituted the Existing Security with the Cash Collateral Trust, in accordance
with the terms of the Indenture;
AND
WHEREAS
in
accordance with the terms of the Indenture the Debtor and AGI wish to substitute
the Cash Collateral Trust with the Black Fox Charge (as defined in the
Indenture), in accordance with the terms of the Indenture;
NOW
THEREFORE
in
consideration of the sum of $1.00 and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the Debtor
agrees with the Secured Party as follows:
ARTICLE 1
1.1 Definitions
Unless
the context requires otherwise, or unless expressly defined, all capitalized
terms used herein will have the meanings specified in the Indenture. Where
used
herein or in any amendments or schedules hereto, the following terms shall
have
the following meanings:
"Accessions"
means
Goods that are installed in or affixed to other Goods;
"Accounts"
means
all debts, accounts, demands, claims and choses in action which now are, or
which may at any time hereafter be, due or owing to or owned by the Debtor;
all
securities, mortgages, bills, notes and other documents now held or owned,
or
which may be hereafter taken, held or owned, by or on behalf of the Debtor,
in
respect of the said debts, accounts, demands, claims and choses in action or
any
part thereof; and all books, documents and papers recording, evidencing or
relating to the said debts, accounts, demands, claims and choses in action
or
any part thereof, all of which are herein collectively called the "Accounts";
"this
Agreement",
"hereto", "herein", "hereof", "hereby", "hereunder" and any similar expressions
refer to this Agreement as it may be amended, supplemented, restated or replaced
from time to time, and not to any particular Article, section or other portion
hereof;
"Applicable
Law"
means,
at any time, with respect to any Person, property, transaction or event, the
common law and all applicable laws, statutes, regulations, treaties, judgments
and decrees and, provided in each case they have the force of law, all then
applicable official directives, requirements, orders and policies of any
governmental authorities made under such laws, by-laws, statutes and
regulations;
"Black
Fox Property"
means
the real and immovable property described in Schedule "A" annexed hereto
together with all abutting real property and non-abutting real property acquired
by the Debtor in the future in the area located approximately 10 kilometers
east
of the Town of Xxxxxxxx, Ontario along the east-west 200 km Destor-Porcupine
Fault Zone, together with all rights, options, interests, and mining and mineral
rights and interests therein, now owned or hereafter acquired by the Debtor
including, without limitation, all licences, easements, rights-of-way,
privileges, benefits, immunities, rights and options connected therewith and/or
appertaining thereto and all amendments thereto, replacements thereof and
substitutions therefor from time to time, and all buildings, erections,
structures, improvements, fixtures, fixed plant, fixed machinery, fixed
equipment and all personal property of every kind and nature at present situate
thereon or therein or which may at any time hereafter be constructed or brought
or placed thereon or therein or used in connection therewith or related thereto,
including in each and all cases any greater or other right, title and interest
therein or in any part thereof which the Debtor may acquire and hold during
the
currency of the Indenture, and all proceeds in connection
therewith;
"Business
Day"
means
any day other than Saturday, Sunday or any statutory holiday on which banks
are
generally open for business in Toronto, Ontario;
"Chattel
Paper"
means
one or more than one writing that evidences both a monetary obligation and
a
security interest in or a lease of specific Goods;
"Collateral"
means
all of the present and future undertaking, property, both real and personal,
and
assets of the Debtor which is located on or related to the Black Fox Property
subject to, or intended to be subject to, the Security Interest, and any
reference to "Collateral" shall be deemed to be a reference to "Collateral
or
any part thereof" except where otherwise specifically provided;
"Debentures"
has the
meaning attributed to such term in the recitals hereto;
"Documents"
means
all books, accounts, invoices, letters, papers, documents and other records
in
any form evidencing or relating to collateral subject to the Security Interest,
all of which are herein collectively called the "Documents";
"Document
of Title"
means
any writing that purports to be issued by or addressed to a bailee and purports
to cover such Goods in the bailee's possession as are identified or fungible
portions of an identified mass, and that in the ordinary course of business
is
treated as establishing that the Person in possession of it is entitled to
receive, hold and dispose of the documents and the Goods it covers;
"Encumbrance"
means
any encumbrance of any kind whatsoever, xxxxxx or inchoate, whether arising
by
contract, statute or otherwise, including, without limitation, any mortgage,
debenture, pledge, hypothec, lien, charge, assignment by way of security,
consignment, lease, hypothecation, security interest or other security
agreement, trust or deemed trust, conditional sales agreement, or arrangement
having the effect of granting security for the payment or performance of any
debt, liability or obligation, and "Encumbrances", "Encumber" and "Encumbered"
shall have corresponding meanings;
"Equipment"
means
Goods that are not Inventory or consumer goods (as such term is defined in
the
PPSA);
"Events
of Default"
has the
meaning attributed to such term in Section 7.1 hereto;
"GAAP"
means
generally accepted accounting principles from time to time approved by the
Canadian Institute of Chartered Accountants or any successor institute including
those set out in the Handbook of the Canadian Institute of Chartered
Accountants, consistently applied;
"Goods"
means
all now owned or after acquired tangible personal property located on or related
to the Black Fox Property (whether or not physically located on the Black Fox
Property) other than Chattel Paper, Documents of Title, Instruments, Money
and
Securities, and includes fixtures and minerals and hydrocarbons to be
extracted;
"Indebtedness"
means
the obligations, indebtedness and liability of the Debtor (i) for payment of
the
principal sum, interest and all amounts from time to time owing or payable
under
the Debentures and the performance of all its obligations under the Debentures;
and (ii) the Debtor's obligations under the Indenture;
"Indenture"
has the
meaning attributed to such term in the recitals hereto as the same may be
amended, modified, supplemented, restated or updated from time to
time;
"Instrument"
means,
(a) |
a
xxxx, note or cheque within the meaning of the Bills of Exchange
Act
(Canada) or any other writing that evidences a right to the payment
of
Money and is of a type that in the ordinary course of business is
transferred by delivery with any necessary endorsement or assignment,
or
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(b) |
a
letter of credit and an advice of credit if the letter or advice
states
that it must be surrendered upon claiming payment
thereunder;
|
but
does
not include a writing that constitutes part of Chattel Paper, a Document of
Title or a Security;
"Intangibles"
means
all intangible property now owned or hereafter acquired by the Debtor and which
is not Accounts including, without limitation, all contractual rights, chattel
paper, goodwill, patents, trademarks, trade names, copyrights and other
intellectual property of the Debtor, all of which are herein collectively called
the "Intangibles";
"Inventory"
means
Goods that are held by a Person for sale or lease or that have been leased
or
that are to be furnished or have been furnished under a contract of service,
or
that are raw materials, work in process or materials used or consumed in a
business or profession;
"Lien"
means
any mortgage, pledge, charge, assignment, security interest, hypothec, lien
or
other encumbrance, including, without limitation, any agreement to give any
of
the foregoing, or any conditional sale or other title retention
agreement;
"Money"
means a
medium of exchange authorized or adopted by the Parliament of Canada as part
of
the currency of Canada or by a foreign government as part of its
currency;
"Obligations"
means
the aggregate of all indebtedness, liabilities or other obligations of the
Debtor to the Secured Party, under or in respect of the Indebtedness, the Black
Fox Charge and this Agreement, whether actual or contingent, direct or indirect,
matured or not, wheresoever and however incurred, prior to, at the time of,
or
subsequent to the execution hereof, whether incurred alone or with another
or
others including extensions and renewals and now existing or hereafter
arising;
"Permitted
Encumbrances"
means
the encumbrances described in Schedule "B" annexed hereto;
"Person"
means
any individual, partnership, limited partnership, joint venture, syndicate,
sole
proprietorship, company or corporation with or without share capital,
unincorporated association, trust, trustee, executor, administrator or other
legal personal representative, regulatory body or agency, government or
governmental agency, authority or entity however designated or
constituted;
"PPSA"
means
the Personal
Property Security Act
(Ontario), or other jurisdictional equivalents as amended from time to time,
and
any Act substituted therefor and amendments thereto;
"Proceeds"
means
identifiable or traceable personal property in any form derived directly or
indirectly from any dealing with property or the proceeds therefrom, and
includes any payment representing indemnity or compensation for loss of or
damage to property or proceeds therefrom;
"Security"
means
all present and future securities, as defined in the Securities
Act
(Ontario), held by the Debtor, including shares, options, rights, warrants,
joint venture interests, interests in limited partnerships, bonds, debentures
and all other documents which constitute evidence of a share, participation
or
other interest of the Debtor in property or in an enterprise or which constitute
evidence of an obligation of the issuer; and including an uncertificated
security within the meaning of Part VI (Investment Securities) of the
Business
Corporations Act
(Ontario) and all substitutes therefor and dividends and income derived
therefrom, all of which are herein collectively called the "Securities";
"Security
Interest"
has the
meaning attributed to such term in Section 2.1 hereto; and
"Undertaking"
means
all present and future personal property, business, and undertaking of the
Debtor not being Inventory, Equipment, Accounts, Intangibles, Documents of
Title, Instruments, Money, Securities or Documents all of which is herein
collectively called the "Undertaking".
1.2 Headings
The
inclusion of headings in this Agreement is for convenience of reference only
and
shall not affect the construction or interpretation hereof.
Whenever
in this Agreement a particular Article, section or other portion thereof is
referred to then, unless otherwise indicated, such reference pertains to the
particular Article, section or portion thereof contained herein.
1.4 Currency
Except
where otherwise expressly provided, all amounts in this Agreement are stated
and
shall be paid in U.S. dollars.
In
this
Agreement, unless the context otherwise requires, words importing the singular
include the plural and vice versa and words importing gender include all
genders.
Each
of
the provisions contained in this Agreement is distinct and severable and a
declaration of invalidity or unenforceability of any such provision or part
thereof by a court of competent jurisdiction shall not affect the validity
or
enforceability of any other provision hereof. To the extent permitted by
applicable law, the parties waive any provision of law which renders any
provision of this Agreement invalid or unenforceable in any
respect.
No
amendment or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby and in the case of the Secured Party,
such waiver to be obtained in accordance with the terms of the Indenture. No
waiver of any provision of this Agreement shall constitute a waiver of any
other
provision nor shall any waiver of any provision of this Agreement constitute
a
continuing waiver unless otherwise expressly provided.
This
Agreement and all documents delivered pursuant hereto shall be governed by
and
construed in accordance with the PPSA and the other laws of the Province of
Ontario and the federal laws of Canada applicable therein and the Debtor hereby
irrevocably attorns to the non-exclusive jurisdiction of the courts of
Ontario.
ARTICLE 2
Subject
to Sections 2.2 and 2.3 hereof, as continuing collateral security for the due
and timely payment and performance by the Debtor of the Obligations, the Debtor
hereby mortgages, charges, pledges, assigns, transfers, and sets over to the
Secured Party a general and continuing security interest (the "Security
Interest")
in all
of the present and future undertaking, property, both real and personal, and
assets of the Debtor which is located on or related to or used in connection
with the Black Fox Property including, without limitation of the
foregoing;
(a) |
all
Goods (including without limitation all parts, accessories, attachments,
additions and Accessions to all such Goods) whether or not such Goods
are
now or hereafter become fixtures, and all other tangible personal
property
located on or related to the Black Fox Property, if any, in each
case now
owned or hereafter acquired by or on behalf of the Debtor or in respect
of
which the Debtor now or hereafter has any right, title or interest
(including, without limitation, such as may be returned to or repossessed
by the Debtor);
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(b) |
all
Inventory located on or related to the Black Fox
Property;
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(c) |
all
Accounts related to the Black Fox
Property;
|
(d) |
all
Equipment (other than Inventory) located on or related to the Black
Fox
Property, including, without limitation, all machinery, tools, apparatus,
plant, furniture, fixtures and vehicles of whatsoever nature or
kind;
|
(e) |
all
Documents related to the Black Fox
Property;
|
(f) |
all
Documents of Title related to the Black Fox
Property;
|
(g) |
all
Intangibles related to the Black Fox
Property;
|
(h) |
all
Securities related to the Black Fox
Property;
|
(i) |
all
Undertakings related to the Black Fox
Property;
|
(j) |
all
renewals of, accretions to and substitutions for any of the property
described in Sections 2.1(a) through (e);
and
|
(k) |
all
Proceeds (including Proceeds of Proceeds) of any of the property
described
in Sections 2.1(a) through 2.1(e).
|
For
greater certainty, the Secured Party will only have a Secured Interest in
Accounts, Documents, Documents of Title, Intangibles, Securities and
Undertakings to the extent any of the foregoing items are related to or used
in
connection with the Black Fox Property.
The
last
day of any term of years reserved by any lease or any extension or renewal
thereof, oral or written, or any agreement therefor, now held or hereafter
acquired by the Debtor, is hereby excepted out of the security created hereby
or
by any other instrument supplemental hereto and does not and shall not form
part
of the Collateral or by any such other instrument, but the Debtor shall stand
possessed of the reversion remaining in the Debtor of any leasehold interest
for
the time being demised as aforesaid, upon trust to assign and dispose thereof
as
the Secured Party shall direct; and upon any sale of the leasehold interest,
or
any part thereof, the Secured Party for the purpose of vesting the aforesaid
reversion of any such term or any renewal thereof in any purchaser or purchasers
thereof, shall be entitled by deed or other writing to appoint such purchaser
or
purchasers or any other person or persons a new trustee or trustees of the
aforesaid reversion of any such term or renewal thereof in the place of the
Debtor and to vest the same accordingly in the new trustee or trustees so
appointed, freed and discharged from any obligation respecting the
same.
Notwithstanding
anything else herein, the security interests in the Collateral when created
hereby shall not extend to, and the Collateral shall not include, any agreement,
right, license or permit (the "Contractual
Rights")
to
which the Debtor is party or of which the Debtor has the benefit, to the extent
that the creation of the security interests herein would constitute a breach
of
the terms, or permit any person to terminate the Contractual Rights, but in
such
event the Debtor shall hold its interest in such Contractual Rights in trust
for
the Secured Party for the benefit of the Debentureholders with the obligation
to
assign same to any person acquiring all or any part of the Collateral in the
course of enforcement of the security interests herein created. The Debtor
covenants and agrees to use its commercially reasonable efforts to obtain any
consent to assign the Contractual Rights to the Secured Party as may be
requested by the Secured Party from time to time.
2.4 Attachment
and Value
The
Debtor acknowledges and agrees that:
(i) |
value
has been given, and
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(ii) |
the
security interests created hereby attach to the Collateral immediately
upon execution of this Agreement and the Secured Party and the Debtor
have
not agreed to postpone the time of attachment of either such pledge
by the
Debtor;
|
and,
to
the extent that the Debtor does not acquire rights or interests in any of the
Collateral until after the execution and delivery of this Agreement, the
security interests created hereby shall attach to such Collateral at the time
the Debtor acquires rights or interests therein.
ARTICLE 3
The
Security Interest granted hereby secures payment, performance and satisfaction
of the Obligations.
ARTICLE 4
The
Debtor represents and warrants and so long as this Agreement remains in effect
shall be deemed to continuously represent and warrant that:
(a) |
The
Collateral is genuine and owned by the Debtor free of all Liens,
save for
the Permitted Encumbrances.
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(b) |
The
Debtor is the sole legal and beneficial owner of the Black Fox
Property.
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(c) |
No
other Real Property - The Debtor does not own any abutting lands
to the
Black Fox Property. The Debtor represents and warrants that the Black
Fox
Property is all of the real property in which it owns or has an interest
within a five (5) kilometer radius of the boundaries of the Black
Fox
Property.
|
(d) |
Right
to Encumber - The Debtor has good right and lawful authority to grant,
assign, transfer, mortgage and charge the Collateral as provided
in and by
this Agreement.
|
(e) |
Permitted
Encumbrances - The Collateral is free and clear of any Liens except
the
security created or intended to be created by this Agreement, the
Black
Fox Charge and the Permitted
Encumbrances.
|
(f) |
No
Orders, Notices - Except as disclosed on Schedule "C", there are
no
outstanding orders, notices or similar requirements relating to the
Collateral issued by any building, environmental, fire, health, labour
or
police authorities or from any other federal, provincial or municipal
authority and there are no matters under discussion with any such
authorities relating to orders, notices or similar
requirements.
|
(g) |
Environmental
-
|
(i) |
The
Collateral and the activities and operations of the Debtor, and to
the
Debtor’s best knowledge, those of owner, lessee, licensee or other
occupant comply in all material respects with Environmental Law,
and are
not subject to any existing judicial, governmental, regulatory or
other
investigations, proceedings, inquiries or notices, and neither the
Debtor
nor any present or prior lessee, owner, occupant or licensee of the
Collateral or any part thereof, or any person having the charge,
management or control thereof, has filed any notice or report pursuant
to
any Environmental Law in connection with the
Collateral;
|
(ii) |
the
Debtor has no knowledge of any Environmental Activity in respect
of the
Release of any Contaminant at, upon, under, over, within or with
respect
to the Collateral or any contiguous real or immovable property to
or from
which the Release of a Contaminant could reasonably be
anticipated;
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(iii) |
neither
the Debtor nor any other party has been, or is, involved in any operations
at, near or with respect to the Collateral which operations could
lead to
the imposition of liability on the Debtor or on any subsequent or
former
owner or occupier or person who has or will have the charge, management
or
control of the Collateral, or the creation of a lien or charge on
any
property under any Environmental Law;
and
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(iv) |
no
underground storage tanks or surface impoundments or equipment containing,
or that has contained PCBs or related chemical substances, are located
on
or under any property.
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(i) |
Due
Authorization and No Conflict - The Debtor has taken or caused to
be taken
all necessary corporate action to authorize the creation, execution,
delivery and performance of this Agreement and the borrowing of money
hereunder, and no such action requires the consent or approval of
any
Governmental Authority or any other Person, nor is any such action
in
contravention of or in conflict with any applicable law, rule or
regulation, or the articles, by-laws or resolutions of Directors
or
shareholders of the Debtor or the provisions of any material term,
covenant or condition under or in respect of any judgment, order,
indenture, instrument, agreement or undertaking to which the Debtor
or any
of its subsidiaries is a party or by which its assets or properties
are
bound, except those that have been obtained. The entering into of
this
Agreement will not result in the acceleration of any indebtedness
under
any other agreements to which the Debtor or any of its subsidiaries
is a
party.
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(k) |
UCC
Registration - Except in connection with the filing of any Uniform
Commercial Code financing statements to perfect the Security Interest
granted under this Agreement, to the best of the Debtor's knowledge,
after
due inquiry, the Debtor is not aware of, and has not authorized,
the
filing of any Uniform Commercial Code financing statements against
it with
respect to the Collateral since the search conducted on January 5,
2006
with the currency date of January 4, 2006 of the Article 9 Uniform
Commercial Code electronic records maintained by the Colorado Secretary
of
State.
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ARTICLE 5
(a) |
The
Debtor hereby covenants and agrees with the Secured Party on behalf
of the
Holders that it will not, without the prior written consent of the
Secured
Party (which consent shall only be given if proved by Debentureholders
by
an Extraordinary Resolution), do the
following:
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(i) |
at
any time agree to create or suffer to exist any mortgage, charge,
pledge,
lien, privilege, security interest or other encumbrance of any nature
upon
the Collateral, except for
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(1) |
encumbrances
in favour of the Secured Party for the benefit of the Holders; and
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(2) |
the
Permitted Encumbrances; provided that no provision hereof or elsewhere
including in the Indenture shall be construed as a subordination
or
postponement of the security interest and charge created hereunder
to or
in favour of any other charge, lien, security interest or encumbrance,
whether or not it is a Permitted Encumbrance;
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(ii) |
so
long as any monies secured by this Agreement and the Indenture remain
outstanding, sell, remove, lease, destroy or otherwise dispose of
all or
any part of the Black Fox Property except as contemplated by Sections
5.1.1(c) and 5.4.1(a)(ii) of the Indenture; and except that the Debtor
may
sell or otherwise dispose of furniture, machinery, equipment, vehicles
and
accessories subject to the Security Interest created hereunder which
may
have become worn out or damaged or otherwise unsuitable for their
purpose
on condition that it shall substitute therefor, subject to the lien
hereof
and free from prior liens or charges except Permitted Encumbrances,
property of equal value so that the security hereby constituted shall
not
be in any way reduced or impaired;
or
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(iii) |
consolidate,
amalgamate or merge with any other corporation or
entity.
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(b) |
The
Debtor covenants that, in order to prevent any accumulation after
maturity
of unpaid interest or of unpaid Debentures, the Debtor will not directly
or indirectly extend or assent to the extension of time for payment
of any
interest upon any Debentures or of any principal payable in respect
of any
Debentures and that it will not directly or indirectly be or become
a
party to or approve any such arrangement by purchasing or funding
any
interest on the Debentures or any principal thereof or in any other
manner
and that the Debtor will deliver to the Secured Party all Debentures
when
paid as evidence of such payment.
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(c) |
If
the time for the payment of any interest or principal shall be so
extended, whether or not such extension is by or with the consent
of the
Debtor, notwithstanding anything herein or in the Debentures contained,
such interest or principal shall not be entitled, in case of default
hereunder, to the benefit of this Agreement except subject to the
prior
payment in full of the principal of all the Debentures then outstanding
and of all matured interest on such Debentures the payment of which
has
not been so extended.
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(d) |
The
Debtor shall not change its name or address without giving at least
ten
days’ prior notice to the Secured Party of the new name or address and
the
date upon which such change of name or address is to take effect
and,
within five Business Days of the change of name or address, the Debtor
shall provide the Secured Party
with:
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(i) |
a
notarial or certified copy of the articles of amendment effecting
the
change of name;
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(ii) |
an
opinion from legal counsel to the Debtor satisfactory to the Secured
Party
as to the correct name of the Debtor and confirming that all appropriate
registrations, filings or recordings have been made to ensure the
continued validity and enforceability of this Agreement, the Indenture
and
the Black Fox Charge; and
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(iii) |
a
Certificate of the Debtor stating the new address of the
Debtor.
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(e) |
The
Debtor shall not permit any Person (including any subsidiary of the
Debtor) to acquire any property which forms part of the Collateral,
without the prior written consent of the Secured
Party.
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The
Debtor hereby covenants and agrees with the Secured Party on behalf of the
Debentureholders as follows:
(a) |
The
Debtor will duly and punctually pay or cause to be paid to every
Debentureholder the principal, Redemption Premium and interest accrued
on
the Debentures of which he is the Holder (including, in the case
of
default, interest on the amount in default) on the dates, at the
places,
in the money, and in the manner mentioned in the Indenture and in
the
Debentures.
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(c) |
Defence
of Interest - The Debtor will, and will cause its subsidiaries to,
defend
their respective right, title and interest in and to their respective
properties (including in the case of the Debtor the Collateral) against
all claims and demands whatsoever of all persons
whomsoever.
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(f) |
(i) |
The
Debtor will insure and keep insured the Black Fox Property against
loss or
damage by fire and other insurable hazards and perils which such
several
assets are commonly insured against in the jurisdiction in which
the
Collateral are located to the full insurable value thereof. The Debtor
will provide the Secured Party with certificates of such insurance
and, if
required, duplicate originals thereof. Each policy of insurance shall
show
the Secured Party as loss payee (and named insured under any and
all
liability insurance), as its interest may appear, and the Debtor
will
cause to be affixed to each policy of insurance a mortgage clause
or
mortgage endorsement in form satisfactory to the Secured Party and
providing for a minimum of 30 days’ notice to the Secured Party of
cancellation or lapse. If the Debtor fails to obtain any such insurance
the Secured Party shall be entitled (but not obligated) to obtain
such
insurance in accordance with Section 6.5 of the
Indenture.
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(ii) |
Any
proceeds of insurance received by, or payable to, the Secured Party
under
the terms hereof shall be payable as in accordance with Section Section
6.11 of the Indenture.
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(g) |
Maintenance
of the Collateral - The Debtor will not permit waste to be committed
or
suffered on the Black Fox Property or the Collateral, will diligently
maintain, use, operate and repair the Black Fox Property and will
carry on
and conduct its business with respect to the Black Fox Property in
a
proper and efficient manner so as to preserve and protect the Collateral
and the earnings, incomes, rents, issues, profits, benefits and advantages
thereof. The Secured Party may be entitled (but not obligated) to
make
such repairs as it reasonably deems necessary and any such repairs
shall
be paid in accordance with Section 6.5 of the
Indenture.
|
(n) |
Further
Assurances - At any time and all times the Debtor will do, execute,
acknowledge and deliver or will cause to be done, executed, acknowledged
and delivered all such further acts, deeds, conveyances, mortgages,
transfers and assurances in law as is required for the purpose of
giving
the Secured Party a valid mortgage, charge or security of the nature
herein specified upon all property intended to be covered hereby,
and for
the better assuring, conveying, mortgaging, assigning, confirmation
or
charging unto the Secured Party all and singular the hereditament
and
premises, estates and property hereby mortgaged and charged, or intended
so to be, in favour of the Secured
Party.
|
(p) |
Environmental
Indemnity - The Debtor shall at all times indemnify and hold harmless
the
Secured Party and each Debentureholder, and their respective officers,
directors, employees, agents, representatives and shareholders against
and
from any and all claims, suits, actions, debts, damages, costs, losses,
obligations, judgments, charges, and expenses, of any nature whatsoever
suffered or incurred by the Secured Party or Debentureholder, whether
upon
realization of the security interests created by this Agreement,
or as
successor to or assignee of any right or interest of the Debtor,
or as a
result of any order, investigation or action by any governmental
or
regulatory authority relating to the Debtor or the subsidiaries or
their
respective business, undertaking, property or assets or as privileged
or
hypothecary creditor or mortgagee in possession of property or as
successor or successor-in-interest to the Debtor as a result of any
taking
of possession of all or any property or by foreclosure deed or deed
in
lieu of foreclosure or by any other means relating to the Debtor
or its
subsidiaries, under or on account of any breach of Environmental
Law, or
the assertion of any lien thereunder with respect
to:
|
(i) |
the
Release of a Contaminant, the threat of the Release of any Contaminant,
or
the presence of any Contaminant affecting the Black Fox Property
and the
Collateral, whether or not the same originates or emanates from the
Black
Fox Property or any contiguous real or immovable property or personal
property located thereon, including any loss of value of the Black
Fox
Property as a result of any of the
foregoing;
|
(ii) |
the
Release of a Contaminant owned by, or under the charge, management
or
control of the Debtor, or any predecessor or assignor of the Debtor
or its
subsidiaries;
|
(iii) |
any
costs incurred by any federal, state, provincial, municipal, local
or
other governmental or regulatory authority or any other person or
damages
from injury to, destruction of, or loss of natural resources in relation
to, the Black Fox Property or personal property located thereon including
the Collateral, including reasonable costs of assessing such injury,
destruction or loss incurred pursuant to any Environmental
Law;
|
(iv) |
liability
for personal injury or property damage arising by reason of any civil
law
offences or quasi-offences or under any statutory or common law tort
or
similar theory, including, without limitation, damages assessed for
the
maintenance of a public or private nuisance or for the carrying on
of a
dangerous activity at, near, or with respect to the Black Fox Property
or
property of the subsidiaries or elsewhere,
and/or
|
(v) |
any
other environmental matters affecting the Black Fox Property, the
Collateral or the operations and activities of the Debtor or its
subsidiaries within the jurisdiction of any federal, state, provincial,
municipal or local environmental
agency.
|
The
Debtor’s obligation under this Section 5.2(p)
shall
arise upon the discovery of the presence of any Contaminant, whether or not
any
federal, state, provincial, municipal or local environmental agency has taken
or
threatened any action in connection with the presence of any Contaminant. The
Debtor acknowledges that the Secured Party has relied and will continue to
rely
as applicable, upon the Debtor’s representations, warranties and covenants. It
is the intention of the Debtor and the Secured Party that the provisions of
this
Section shall supersede any other provisions in this Agreement, and all other
documents and instruments which in any way limit the liability of the Debtor
and
that the Debtor shall be liable for any obligations arising under this Section
even if the amount of the liability incurred exceeds the aggregate outstanding
amount of the Debentures. The obligations of the Debtor arising under this
Section are absolute and unconditional and shall not be affected by any act,
omission or circumstance whatsoever, except in respect of negligence or wilful
misconduct by the Secured Party in the case of indemnity in favour of the
Secured Party and except in respect of negligence or wilful misconduct by a
Debentureholder in the case of indemnity in favour of a
Debentureholder.
This
Section shall survive the repayment of the principal sum of the Debentures,
the
removal or resignation of the Secured Party and the termination of the trusts
created hereunder and shall survive the transfer of any or all right, title
and
interest in and to the Black Fox Property and the Collateral by the Debtor
to
any party, whether or not affiliated with the Debtor. Any amount payable or
owing under this Section 5.2(p)
shall be
added to the principal sums of the Debentures on a pro
rata
basis
and shall be secured hereby and shall be payable together with interest thereon
calculated and payable at the rate and at the times and in the manner provided
for herein for interest arrears on the principal sum of the Debentures.
(r) |
To
Hold the Proceedings of Unauthorized Sale in Trust. In the event
the Black
Fox Property, the Collateral or any part thereof are sold or disposed
of
prior to the full discharge of this Agreement, in any manner not
authorized by this Agreement, the Debtor shall hold all proceeds
of such
sale or disposition received by the Debtor as trustee for the Secured
Party until the Debtor has been fully released from this Agreement
by the
Secured Party.
|
(s) |
Not
to Remove. Prior to the removal of any of the Black Fox Property
or the
Collateral from the province or other jurisdiction in which it is
situated
at the date of this Agreement or to leasehold the property, the Debtor
shall, and shall cause its subsidiaries to, effect such further
registrations and obtain such other consents and give such other
security,
at the sole cost and expense of the Debtor, as may be required or
desirable to protect or preserve the security hereby created, and
the
Debtor shall forthwith notify the Secured Party of the intended removal
and the action proposed to be
taken.
|
ARTICLE 6
Upon
the
occurrence of an Event of Default, the Secured Party may give notice of the
Security Interest to any Person obligated to pay any debt or liability
constituting Collateral and may also direct such Person to make all payments
on
account of any such debt or liability to the Secured Party. The Debtor
acknowledges that any payments received by the Debtor from such Persons, whether
before or after notification of the Security Interest to such Persons and
whether before or following the occurrence of an Event of Default, shall be
received and held by the Debtor in trust, or as agent in the Province of Quebec,
for the Secured Party and shall be turned over to the Secured Party upon
request.
ARTICLE 7
The
security hereby constituted shall become enforceable, subject to the terms
herein contained, in each and every one of the following events (hereinafter
sometimes referred to as an "Event
of Default"):
(a) |
Failure
to Pay - If the Debtor does not pay when due any principal, interest
or
other amount payable by it under any Debenture at the place and in
the
currency in which such amount is expressed to be
payable.
|
(b) |
Misrepresentation
- If any representation or warranty or statement made herein, in
the
Indenture or in the Black Fox Charge proves to be untrue when
made.
|
(c) |
Default
in Covenant - If the Debtor makes default in the observance or performance
of some other thing hereby required to be done or some other covenant
or
condition hereby required to be observed or performed under this
Agreement, the Indenture, the Black Fox Charge, any Debenture or
an "Event
of Default" or "Default" shall have occurred under the Black Fox
Charge.
|
(g) |
CCAA
Proceedings - If any proceedings with respect to the Debtor or any
of its
subsidiaries are commenced under the Companies’
Creditors Arrangement Act
(Canada).
|
(h) |
Encumbrances
- If an encumbrancer or secured creditor shall appoint a receiver
or agent
or other similar official over any part of the Collateral, or take
possession of any part of the Collateral or the property of any its
subsidiaries or if any execution, distress or other process of any
court
becomes enforceable against any of the Collateral or the property
of any
its subsidiaries, or a distress or like process is levied upon any
of the
Collateral.
|
(i) |
Execution,
Seizure or Garnishment - If any execution, seizure, garnishment,
sequestration, extent or any other process of any court becomes
enforceable against the Debtor or if a distress or analogous process
is
levied upon the Collateral or the property of any its subsidiaries
or any
part thereof.
|
(j) |
Ceasing
to Carry on Business - If the Debtor takes any corporate proceedings
for
its dissolution, liquidation or amalgamation with any other company
or if
the corporate existence of the Debtor or any of its subsidiaries
shall be
terminated by expiration, forfeiture or otherwise, or if the Debtor
ceases
or threatens to cease, to carry on all or a substantial part of its
business.
|
(k) |
Unlawful
Obligations - If at any time it is unlawful for the Debtor to perform
any
of its obligations under this Agreement, the Black Fox Charge or
the
Indenture in the manner contemplated hereunder or
thereunder.
|
(l) |
Failure
to Satisfy Environmental Orders - If any environmental order or
environmental lien is issued under any Environmental Law against
the
Collateral or the Debtor or the business or the property of any of
its
subsidiaries, provided that any environmental order has not been
satisfied
or discharged within thirty (30) days of the date the environmental
order
was received by the Debtor.
|
If
any
Event of Default has occurred and is continuing, the Secured Party may in its
discretion, and shall upon receipt of a Debentureholders' Request, subject
to
Section 7.4 of the Indenture, by notice in writing to the Debtor declare the
principal of and interest on the Debentures then outstanding and any other
moneys
payable hereunder to be due and payable and the same shall forthwith become
immediately due and payable to the Secured Party and the Debtor shall pay
forthwith to the Secured
Party
for the
benefit of the Debentureholders the principal of and accrued and unpaid interest
(including interest on amounts in default) on such Debentures and all other
moneys payable hereunder, together with subsequent interest thereon at the
rate
borne by the Debentures from the date of such declaration until payment is
received by the Secured
Party.
Such
payment when made shall be deemed to have been made in discharge of the Debtor's
obligations hereunder and any moneys so received by the Secured
Party
shall be
applied as provided in Section 8.7 of the Indenture. Notwithstanding anything
contained in the foregoing or elsewhere in this Indenture, in the event that
the
Event of Default (other than the Event of Default set out in Sections 7.1.1(d),
7.1.1(e), 7.1.1(f) and 7.1.1(g) of the Indenture has occurred and
the
Applicable Cure Period has expired,
then
all principal and interest on the Debentures then outstanding and any other
monies due and payable hereunder shall forthwith immediately become due and
payable to the Secured Party without further action by the Secured
Party.
ARTICLE 8
8.1 Remedies
Whenever
an Event of Default shall have occurred and the Applicable Cure Period has
expired, and has not been waived by the Debentureholders in accordance with
Section 7.4 of the Indenture, the Secured Party on behalf of the
Debentureholders, may, subject to Section 13.4 of the Indenture, proceed to
realize the security hereby constituted and to enforce its rights:
(a) |
by
entry, with the right to have, hold, use, occupy, possess and enjoy
the
Collateral without the let, suit, hindrance, interruption or denial
of the
Debtor, its successors or assigns;
|
(b) |
by
entry, with the right to make such arrangements for completing the
construction of, repairing or putting in order any buildings or other
improvements on the Collateral, or for inspecting, taking care of,
leasing, collecting the rents of and managing generally the Collateral
as
it may deem expedient, and all reasonable costs, charges and expenses,
including allowances for the time and service of any employee or
representative of the Secured Party or other person appointed for
the
above purposes shall be paid in accordance with Section 13.4.4 of
the
Indenture;
|
(c) |
by
the appointment, by an instrument in writing, of any person or persons,
as
a receiver (which term includes a receiver and manager) or receivers
of
all or any part of the Collateral, and the Secured Party may remove
any
receiver or receivers so appointed and appoint another or others
in his or
their stead;
|
(d) |
under
the provisions of Section 8.4 of the Indenture or other sale permitted
at
law;
|
(e) |
by
proceedings in any court of competent jurisdiction for the appointment
of
a receiver or receivers;
|
(f) |
by
proceeding in any court of competent jurisdiction for
foreclosure;
|
(g) |
by
any other action, suit, proceeding or other remedy authorized or
permitted
by law or by equity; and
|
(h) |
enjoy
and exercise all of the rights and remedies of a secured party under
the
PPSA.
|
No
such
remedy for the realization of the security hereby constituted or for the
enforcement of the rights of the Secured Party shall be exclusive of or
dependent upon any other such remedy but any one or more of such remedies may
from time to time be exercised independently or in combination.
8.3 Receiver
Subject
to compliance with Section 13.4 of the Indenture and subject to the provisions
of any instrument in writing appointing a receiver or receivers, upon the
appointment hereunder of a receiver for the Collateral or any part thereof,
the
following provisions shall apply:
(a) |
Every
such receiver shall have unlimited access to the Collateral as agent
and
attorney for the Debtor (which right of access shall not be revocable
by
the Debtor) and shall have full power and unlimited authority
to:
|
(i) |
take
possession of the Collateral or any part
thereof;
|
(ii) |
carry
on or concur in carrying on the business of the Debtor in respect
of the
Collateral;
|
(iii) |
collect
the rents and profits from tenancies whether created before or after
these
presents;
|
(iv) |
lease
or concur in leasing any portion of the Collateral which may become
vacant
on such terms and conditions as he considers advisable and enter
into and
execute leases, accept surrenders and terminate
leases;
|
(v) |
complete
the construction of any building or buildings or other erections
or
improvements on the Collateral left by the Debtor in an unfinished
state
or award the same to others to complete and purchase, repair and
maintain
any personal property including, without limitation, appliances and
equipment, necessary or desirable to render the premises operable
or
rentable, and take possession of and use or permit others to use
all or
any part of the Debtor's materials, supplies, plans, tools, equipment
(including appliances) and property of every kind and
description;
|
(vi) |
insure,
manage, operate, repair, alter or extend the Collateral;
and
|
(vii) |
sell
or otherwise dispose of all or any part of the
Collateral;
|
and
the
Debtor undertakes to ratify and confirm whatever any such receiver may do with
respect to the Collateral.
(b) |
The
Secured Party may at its discretion vest the receiver with all or
any of
the rights and powers of the Secured
Party.
|
(c) |
The
Secured Party may fix the reasonable remuneration of the receiver
who
shall be entitled to deduct the same out of the revenue or the sale
proceeds of the Collateral.
|
(d) |
Every
such receiver shall be deemed the agent or attorney of the Debtor
and, in
no event, the agent of the Secured Party shall not be in any way
responsible for the acts or omissions of any such
receiver.
|
(e) |
The
appointment of any such receiver by the Secured Party shall not result
in
or create any liability or obligation on the part of the Secured
Party to
the receiver or to the Debtor or to any other person and no appointment
or
removal of a receiver and no actions of a receiver shall constitute
the
Secured Party a mortgagee in possession or responsible as
such.
|
(f) |
No
such receiver shall be liable to the Debtor to account for monies
other
than monies actually received by him in respect of the Collateral,
or any
part thereof, and out of such monies so received every such receiver
shall, in the following order, pay:
|
(i) |
his
remuneration as aforesaid;
|
(ii) |
all
costs and expenses of every nature and kind incurred by him in connection
with the exercise of his powers and authority hereby
conferred;
|
(iii) |
interest,
principal and other money which may, from time to time, be or become
charged upon the Collateral in priority to these presents, including
taxes;
|
(iv) |
to
the Secured Party all interest, principal and other monies due hereunder
to be paid in such order as the Secured Party in its discretion shall
determine;
|
(v) |
and
thereafter, every such receiver shall be accountable to the Debtor
for any
surplus.
|
The
remuneration and expenses of the receiver shall be paid by the Debtor on demand
and shall be a charge on the Collateral and shall bear interest from the date
of
demand at the interest rate being charged pursuant to Section 2.2.1 of the
Indenture.
(g) |
Save
as to claims for accounting under Section 8.3.1(f) of the Indenture,
the
Debtor hereby releases and discharges any such receiver from every
claim
of every nature, whether sounding in damages or not which may arise
or be
caused to the Debtor or any person claiming through or under him
by reason
or as a result of anything done by such receiver unless such claim
be the
direct and proximate result of dishonesty or
fraud.
|
(h) |
The
Secured Party may, at any time and from time to time, terminate any
such
receivership by notice in writing to the Debtor and to any such
receiver.
|
(i) |
The
statutory declaration of an officer of the Secured Party as to default
under the provisions of these presents and as to the due appointment
of
the receiver pursuant to the terms hereof shall be sufficient proof
thereof for the purposes of any person dealing with a receiver who
is
ostensibly exercising powers herein provided for and such dealing
shall be
deemed, as regards such person, to be valid and
effectual.
|
(j) |
The
rights and powers conferred herein in respect of the receiver are
supplemental to and not in substitution of any other rights and powers
which the Secured Party may have.
|
8.4 Sales
Subject
to compliance of Section 13.4 of the Indenture, the Secured Party may enforce
the security granted hereunder as follows:
(b) |
Rescission
and Resale - The Secured Party may also rescind or vary any contract
of
sale that may have been entered into and resell with or under any
of the
powers conferred hereunder and adjourn any such sale from time to
time
without being answerable for any loss occasioned by such sale or
by any
postponement thereof.
|
(c) |
Deeds
- The Secured Party may execute and deliver to the purchaser or purchasers
of the Black Fox Property or any part thereof good and sufficient
deeds,
assurances and conveyances for the same, the Secured Party being
hereby
constituted the irrevocable attorney of the Debtor for the purpose
of
making such sale and executing such deeds, assurances and
conveyances.
|
(d) |
Sale,
Bars, Claims through Debtor - Any such sale made as aforesaid shall
be a
perpetual bar both in law and in equity against the Debtor and all
other
persons claiming the said property or any part thereof, by, from,
through
or under the Debtor.
|
(e) |
Sale
Proceeds - In the case of a sale for cash or credit, or part cash
and part
credit, the Secured Party shall be bound to pay to the Debtor only
such
moneys as have been actually received from purchasers after the
satisfaction of all claims of the Secured Party including payment
of any
costs, charges and expenses incurred by the Secured Party in the
taking,
recovering, keeping possession of, and any sale of, the Black Fox
Property.
|
The
Secured Party may pay the amount of any encumbrance, lien or charge now or
hereafter existing, or to arise or to be claimed upon the Black Fox Property
having priority over this Agreement, including any taxes, utility charges or
other rates on the Black Fox Property, or any of them, and may pay all costs,
charges and expenses and all solicitors’ fees as between a solicitor and his
client, which may be incurred in taking, recovering and keeping possession
of
the Black Fox Property, or in protecting, repairing, restoring or preserving
the
Black Fox Property, and generally in any proceedings or steps of any nature
whatever properly taken in connection with or to realize this security, or
in
respect of the collection of any overdue interest, principal, insurance premiums
or any other monies whatsoever payable by the Debtor hereunder whether any
action or any judicial proceedings to enforce such payments has been taken
or
not. The amount so paid shall be added to the debt hereby secured and be a
charge on the Black Fox Property and shall bear interest at the rate aforesaid,
and shall be payable forthwith by the Debtor to the Secured Party. Further,
the
non-payment of such amount shall be an Event of Default and shall entitle the
Secured Party to exercise the remedies hereby given. In the event of the Secured
Party paying the amount of any such encumbrance, lien or charge, taxes or rates,
either out of the monies advanced on the security or otherwise, the Secured
Party shall be entitled to all the rights, equities and securities of the person
or persons, company, corporation, or government so paid.
If
an
Event of Default shall have occurred hereunder or default shall have occurred
under the Black Fox Charge, but subject to Sections 7.4 and 13.4 of the
Indenture and to the provisions of any Extraordinary Resolution that may be
passed by the Debentureholders as provided in the Indenture:
(a) |
the
Secured Party may in its discretion proceed to enforce the rights
of the
Secured Party and of the Debentureholders by any action, suit, remedy
or
proceeding authorized or permitted by this Agreement, the Indenture,
the
Black Fox Charge or by law or equity; and may file such proofs of
claim
and other papers or documents as may be necessary or advisable in
order to
have the claims of the Secured Party and of the Debentureholders
filed in
any bankruptcy, insolvency, winding-up or other judicial proceedings
relating to the Debtor or AGI;
|
(b) |
no
such remedy for the enforcement of the rights of the Secured Party
or the
Debentureholders shall
be
exclusive of or dependent on any other such remedy but any one or
more of
such remedies may from time to time be exercised independently or
in
combination;
|
(c) |
all
rights
of action hereunder may be enforced by the Secured Party without
the
possession of any of the Debentures or the production thereof on
the trial
or other proceedings relating thereto;
and
|
(d) |
upon
receipt of a Debentureholders' Request and upon receiving sufficient
funds
and being indemnified to its satisfaction as provided in Section
13.4 of
the Indenture, the Secured Party shall exercise or take such one
or more
of such remedies as the Debentureholders' Request may direct, provided
that if any such Debentureholders' Request directs the Secured Party
to
take proceedings out of court the Secured Party may in its discretion
take
judicial proceedings in lieu
thereof.
|
ARTICLE 9
To
the
extent permitted by Applicable Law, the Debtor hereby appoints the Secured
Party
as the Debtor's attorney, with full power of substitution, in the name and
on
behalf of the Debtor, to execute, deliver and do all such acts, deeds, leases,
documents, transfers, demands, conveyances, assignments, contracts, assurances,
consents, financing statements and things as the Debtor has herein agreed to
execute, deliver and do or as may be required by the Secured Party or any
Receiver to give effect to this Agreement or in the exercise of any rights,
powers or remedies hereby conferred on the Secured Party, and generally to
use
the name of the Debtor in the exercise of all or any of the rights, powers
or
remedies hereby conferred on the Secured Party. This appointment, coupled with
an interest, shall not be revoked by the insolvency, bankruptcy, dissolution,
liquidation or other termination of the existence of the Debtor or for any
other
reason.
The
Debtor will register this Agreement or notice thereof without delay at every
office where the registration or recording thereof may, in the opinion of
Counsel for the Secured Party, be necessary or desirable to preserve, perfect
or
protect the security hereby created, and it will deliver or exhibit to the
Secured Party, on demand, certificates, or other evidence satisfactory to the
Secured Party, establishing such registration or recording, and from time to
time renew the same, if such renewal is, in the opinion of Counsel for the
Secured Party, necessary or desirable to preserve, perfect or protect the
security hereby created.
9.3 Notice
(a) |
Any
notice to the Debtor under the provisions of this Agreement shall
be valid
and effective if delivered personally or by courier to, or by facsimile
transmission, addressed to, the Debtor
at:
|
0000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx
00000-0000
Fax: 000-000-0000
Attn:
President
with
a
copy to:
Fogler,
Xxxxxxxx LLP
00
Xxxxxxxxxx Xxxxxx West, Suite 0000
Xxxxxxx-Xxxxxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Fax:
000-000-0000
Attn: Xxxxxxx
Xxxxxx
and
to
Xxxxx
Xxxxxx & Xxxxxx LLP
0000
00xx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxx
00000-0000
Fax: 000-000-0000
Attn: Xxxxxxx
Xxxxxxxx
and
shall
be deemed to have been given on the date of delivery. The Debtor may from time
to time notify the Secured Party of a change in address which thereafter, until
changed by further notice, shall be the address of the Debtor for all purposes
of this Agreement.
(b) |
Any
notice to the Secured Party under the provisions of this Agreement
shall
be valid and effective if delivered personally to, or by facsimile
transmission, or, subject to Section 12.4 of the Indenture, if given
by
registered mail, postage prepaid, addressed to, the Secured Party
at:
|
The
Canada Trust Company
00
Xxxxxxxxxx Xxxxxx Xxxx
0xx
Xxxxx
TD
Xxxxxxxxxx Xxxxx
Xxxxxxx-Xxxxxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Fax: 000-000-0000
Attn: Vice
President Corporate Trust and Registered Plan Trust Services
with
a
copy contemporaneously hand delivered or by facsimile to:
WeirFoulds
LLP
Xxxxx
0000, 000 Xxxx Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Fax: 000-000-0000
Attn.: Xxxxx
X.
Xxxxx
(c) |
Any
notice, consent, waiver, direction or other communication aforesaid
shall,
if delivered, be deemed to have been given and received on the date
on
which it was delivered to the address provided herein (if a Business
Day
and, if not, the next succeeding Business Day) and if sent by facsimile
transmission be deemed to have been given and received at the time
of
receipt unless actually received after 5:00 p.m. at the point of
delivery
in which case it shall be deemed to have been given and received
on the
next Business Day. The Secured Party may from time to time notify
the
Debtor of a change in address which thereafter, until changed by
further
notice, shall be the address of the Secured Party for all purposes
of this
Agreement.
|
9.4 Discharge
Upon
proof being given to the reasonable satisfaction of the Secured Party that
all
the Debentures and interest (including interest on amounts in default) thereon
have been paid or satisfied or that all the outstanding Debentures having
matured or having been duly called for redemption or the Secured Party having
been given irrevocable instructions by the Debtor to give within 90 days notice
pursuant to Section 3.3 of the Indenture of redemption of all the outstanding
Debentures, such payment or redemption has been duly provided for by payment
to
the Secured Party or otherwise, and upon payment of all costs, charges and
expenses properly incurred by the Secured Party in relation to Indenture, this
Agreement and the Black Fox Charge, and all interest thereon and the
remuneration of the Secured Party, or upon provision satisfactory to the Secured
Party being made therefor, the Secured Party shall, at the request and at the
expense of the Debtor, execute and deliver to the Debtor such deeds or other
instruments as shall be necessary to evidence the satisfaction and discharge
of
the Indenture, this Agreement and the Black Fox Charge, and to release the
Debtor from its covenants contained herein and in the Indenture except those
relating to the indemnification of the Secured Party.
If
the
proceeds of realization by or on behalf of the Secured Party from the
disposition of the Collateral are not sufficient to satisfy the Obligations
in
full, the Debtor shall be liable to pay such deficiency to the Secured Party
forthwith on demand.
In
the
event of any conflict, contradiction or inconsistency between this Agreement
and
the Indenture, or in the event that any matter is dealt with in different terms
not necessarily in conflict, the Secured Party shall have the sole right to
determine which provision or provisions apply.
9.7 Amendment
This
Agreement may only be amended, supplemented or terminated by a written agreement
signed by the Debtor and the Secured Party.
9.8 Entire
Agreement
There
are
no representations, agreements, warranties, conditions, covenants or terms,
express or implied, collateral or otherwise, affecting this Agreement or the
Security Interest, the Collateral, or the Debtor's Obligations and liabilities
hereunder other than as expressed herein.
9.9 Fax
This
Agreement may be executed by facsimile or electronic copy, such copy when so
executed being deemed to be an original.
9.10 Further
Assurances
The
Debtor shall do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered such further acts, deeds, mortgages, transfers,
assurances or other documents as the Secured Party shall reasonably require
to
give effect to or preserve and perfect the Security Interest in the Collateral
intended to be granted to the Secured Party hereunder, or any security interest
the Debtor may hereafter grant or become bound to grant to the Secured Party
for
the purpose of accomplishing and effecting the intention of this Agreement.
The
Debtor hereby irrevocably appoints the Secured Party to be attorney of the
Debtor, coupled with interest, with full power of substitution for and in the
name of the Debtor to execute and to do any deeds, documents, transfers,
demands, assignments, assurances, consents and things which the Debtor is
obliged to sign, execute or do hereunder.
IN
WITNESS WHEREOF
the
Debtor has executed this Agreement as of the date first written
above.
APOLLO GOLD CORPORATION | ||
|
|
|
By: | /s/ R. Xxxxx Xxxxxxx | |
Authorized Signing Officer |
||
I have the authority to bind the corporation. |
SCHEDULE
"A"
MINING
CLAIMS
PIN
65366-0129(LT)
Parcel
23874 SEC (Mining Rights Only), The Mines, Minerals and Mining Rights of
Part of
Xxx 0, Xxxxxxxxxx 0, Xxxxxx except Part 1 on Plan 6R-3881, C98447 and C98448,
Black River - Xxxxxxxx, District of Cochrane.
PIN
65380-0556(LT)
Parcel
23876 SEC (Mining Rights Only), The Mines, Minerals and Mining Rights of
the
North half of Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx and Part of the North
Part
of Broken Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx, 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-Xxxxxxxx, District of Cochrane.
PIN
65380-0557(LT)
Parcel
2582 SEC, The North half of Xxx 0, Xxxxxxxxxx 0, Xxxxxx, except C679085,
C506571
and MRO as in C436459, Black River-Xxxxxxxx, District of Cochrane.
PIN
65380-0555(LT)
Parcel
15466 SEC, Part of the north part of Broken Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx
xx
Xxxxxx, 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-Xxxxxxxx, District of Cochrane.
PIN
65366-0127(LT)
Parcel
14572 SEC, Part of Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx, as in Instrument
No.
C130522, except Expropriation C69085, subject to C341846, Black River-Xxxxxxxx,
District of Cochrane.
PIN
65380-0552(LT)
Parcel
7745 SEC, The North Half of Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx, except
surface rights C69085, Black River-Xxxxxxxx, District of Cochrane.
PIN
65380-0534(LT)
Parcel
388 SEC, Part of broken Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx, as in
Instrument No. TP6616, except Part 0, Xxxx 0X0000, Xxxxx Xxxxx-Xxxxxxxx,
Xxxxxxxx of Cochrane.
PIN
65380-0532
Parcel
6413 SEC, The South West Quarter of Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx,
Black River-Xxxxxxxx, District of Cochrane.
PIN
65380-0553(LT)
Parcel
4707 SEC, Part of the North part of Xxx 0, Xxxxxxxxxx 0, Xxxxxxxx xx Xxxxxx,
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-Xxxxxxxx, District of Cochrane.
PIN
65380-0559 (LT)
Parcel
3393 SEC, Part of the North half of Lot 4 Concession 6, Xxxxxx, except
Part 1,
plan 6R7375 & SRO C69085, Black River- Xxxxxxxx, District of
Cochrane.
PIN
65380-0558 (LT)
Parcel
11511 SEC, Part of the Northeast ¼ of Xxx 0, Xxxxxxxxxx 0, Xxxxxx as in
Instrument Xx. XX0000, Xxxxx Xxxxx- Xxxxxxxx, Xxxxxxxx xx Xxxxxxxx.
PIN
65366-0126(LT)
Parcel
24577 SEC, South ½ of Lot 5, Concession 1, Xxxxxx, 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 Xxxx 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 Xxxxxx; Mining Claim L15799 Xxxxxx; Mining
Claim
L22257 Xxxxxx; Mining Claim L22258 Xxxxxx; SRO W1/2 Lt 4 Con 1 Xxxxxx being;
Mining Claim L11397 Xxxxxx; Mining Claim L16477 Xxxxxx, Mining Claim L22527
Xxxxxx; Mining Claim L22915 Xxxxxx SRO; Pt Lt 4 Con 2 Xxxxxx being the
SW1/4 of
S1/2; Mining Claim L13510 Xxxxxx SRO; Pt Lt 5 Con 2 Xxxxxx being the S1/2
of
S1/2; Mining Claim L13508 Xxxxxx, Mining Claim L13509 Xxxxxx; Black
River-Xxxxxxxx, District of Cochrane.
UNPATENTED
MINING CLAIMS
L1048333
Xxxxxx Township
L1048334
Xxxxxx Township
L1048335
Xxxxxx Township
L1113087
Xxxxxx Township
L1115059
Xxxxxx Township