Unassociated Document


    
       

    

    EXHIBIT
10.4

     

    Agreement

     

    Apollo -
Black Fox Financing


     

    Priority
agreement

    
      

    

     

    RMB
Resources Inc.

     

    Macquarie
Bank Limited

     

    RMB
Australia Holdings Limited

     

    Apollo
Gold Corporation

     

    
      
        
          	
                  

                
	 	 
	
                  QV.1
      Building 250 St Georges Terrace Perth WA 6000 Australia

                  GPO
      Box U1942 Perth WA 6845 Australia

                   

                  Sydney  Melbourne  Perth  Brisbane  Singapore

                	
                  Telephone
      +61 8 9211 7777  Facsimile +61 8 9211 7878

                  www.freehills.com  DX
      104 Perth

                   

                  Correspondent
      offices in Hanoi  Ho Chi Minh
      City  Jakarta

                


        

      

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      

       

    

     

    Contents

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 
      	Table
      of contents	 
      
	 
      	 
      	 
      	 
      
	 
      	The
      agreement	
                                1

                              
	 
      	 
      	 
      	 
      
	 
      	Operative
      part	
                                3

                              
	 
      	 
      	 
      	 
      
	
                                1

                              	
                                Definitions
      and interpretation

                              	
                                3

                              
	 
      	
                                1.1

                              	
                                Definitions

                              	
                                3

                              
	 
      	
                                1.2

                              	
                                Interpretation

                              	
                                7

                              
	 
      	
                                1.3

                              	
                                Inclusive
      expressions

                              	
                                8

                              
	 
      	
                                1.4

                              	
                                Business
      Day

                              	
                                8

                              
	 
      	 
      	 
      
	
                                2

                              	
                                Priorities

                              	
                                8

                              
	 
      	
                                2.1

                              	
                                Order
      of priority

                              	
                                8

                              
	 
      	
                                2.2

                              	
                                Term
      of priorities

                              	
                                8

                              
	 
      	 
      	 
      
	
                                3

                              	
                                Payments

                              	
                                9

                              
	 
      	
                                3.1

                              	
                                Accounting
      for funds received or recovered

                              	
                                9

                              
	 
      	
                                3.2

                              	
                                Currency
      of payments

                              	
                                9

                              
	 
      	
                                3.3

                              	
                                Amounts
      payable on demand

                              	
                                9

                              
	 
      	 
      	 
      
	
                                4

                              	
                                Representations
      and warranties

                              	
                                9

                              
	 
      	
                                4.1

                              	
                                Representations
      and warranties of the parties

                              	
                                9

                              
	 
      	
                                4.2

                              	
                                Representations
      and warranties of the Creditors

                              	
                                10

                              
	 
      	
                                4.3

                              	
                                Survival
      of representations and warranties

                              	
                                10

                              
	 
      	 
      	 
      
	
                                5

                              	
                                Undertakings,
      consents, acknowledgments

                              	
                                10

                              
	 
      	
                                5.1

                              	
                                Execution
      of the Securities

                              	
                                10

                              
	 
      	
                                5.2

                              	
                                Dealing
      with the Securities

                              	
                                10

                              
	 
      	
                                5.3

                              	
                                Documents
      of title

                              	
                                10

                              
	 
      	
                                5.4

                              	
                                Insurance
      and compensation

                              	
                                11

                              
	 
      	
                                5.5

                              	
                                Acknowledgments
      of APG

                              	
                                11

                              
	 
      	
                                5.6

                              	
                                Default
      by a Creditor

                              	
                                11

                              
	 
      	
                                5.7

                              	
                                Further
      assurance

                              	
                                11

                              
	 
      	 
      	 
      
	
                                6

                              	
                                Enforcement

                              	
                                12

                              
	 
      	
                                6.1

                              	
                                Enforcement
      of Securities

                              	
                                12

                              
	 
      	
                                6.2

                              	
                                Manner
      of enforcement

                              	
                                12

                              
	 
      	
                                6.3

                              	
                                No
      obligation to marshal

                              	
                                12

                              
	 
      	 
      	 
      
	
                                7

                              	
                                Tax,
      costs and expenses

                              	
                                12

                              
	 
      	
                                7.1

                              	
                                Tax

                              	
                                12

                              
	 
      	
                                7.2

                              	
                                Costs
      and expenses

                              	
                                13

                              
	 
      	 
      	 
      
	
                                8

                              	
                                Saving
      provisions

                              	
                                13

                              
	 
      	
                                8.1

                              	
                                Non-avoidance

                              	
                                13

                              
	 
      	
                                8.2

                              	
                                Exclusion
      of moratorium

                              	
                                14

                              
	 
      	
                                8.3

                              	
                                Continuing
      indemnities

                              	
                                14

                              
	 
      	 
      	 
      
	
                                9

                              	
                                General

                              	
                                14

                              
	 
      	
                                9.1

                              	
                                Confidential
      information

                              	
                                14

                              
	 
      	
                                9.2

                              	
                                Notices

                              	
                                14

                              


                      

                       

                    

                  

                

              

            

          

        

      

    

    
      
        	
                Priority
      agreement    Contents
      1

              


      

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
      
        
           

          

           

        

      

       

      Contents

       

    

    
      
        
          
            	 
      	
                    9.3

                  	
                    Governing
      law and jurisdiction

                  	
                    15

                  
	 
      	
                    9.4

                  	
                    Prohibition
      and enforceability

                  	
                    15

                  
	 
      	
                    9.5

                  	
                    Waivers

                  	
                    15

                  
	 
      	
                    9.6

                  	
                    Variation

                  	
                    15

                  
	 
      	
                    9.7

                  	
                    Cumulative
      rights

                  	
                    15

                  
	 
      	
                    9.8

                  	
                    Assignment

                  	
                    16

                  
	 
      	
                    9.9

                  	
                    Attorneys

                  	
                    16

                  
	 
      	
                    9.10

                  	
                    Security
      Agent’s limitation of liability protection

                  	
                    16

                  
	 
      	 
      	 
      	 
      
	 
      	
                    Schedules

                  	 
      
	 
      	
                    Notice
      details

                  	
                    18

                  
	 
      	 
      	 
      	 
      
	 
      	
                    Signing
      page

                  	
                    19

                  


          

        

      

    

     

    
      
        	
                Priority
      agreement    Contents
      2

              


      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
      
         

        

         

      

    

     

    The
agreement

     

    
      
        	
                 

              	
                Priority
      agreement

              


      

    

     

    Date     December 10,
2008

     

    
      
        
          
            
              
                
                  
                    	
                            Between
      the parties

                             

                          
	
                             

                            First
      Creditors

                          	
                             

                            RMB
      Resources Inc.

                             

                            a
      company incorporated under the laws of Delaware, United States of
      America

                             

                            of
      Suite 900, 143 Union Boulevard, Lakewood, Colorado, United States of
      America

                             

                            Macquarie
      Bank Limited

                             

                            a
      company incorporated under the laws of Australia

                             

                            ACN
      008 583 542 of Level 1, No. 1 Martin Place, Sydney NSW 2000,
      Australia

                             

                            RMB
      Australia Holdings Limited

                             

                            a
      company incorporated under the laws of Australia

                             

                            of
      Level 13, 60 Castlereagh Street, Sydney, New South Wales 2000,
      Australia

                             

                          
	
                             

                            Second
      Creditors

                          	
                             

                            RMB
      Resources Inc.

                             

                            a
      company incorporated under the laws of Delaware, United States of
      America

                             

                            of
      Suite 900, 143 Union Boulevard, Lakewood, Colorado, United States of
      America

                             

                            RMB
      Australia Holdings Limited

                             

                            a
      company incorporated under the laws of Australia

                             

                            of
      Level 13, 60 Castlereagh Street, Sydney, New South Wales 2000,
      Australia

                             

                          
	
                             

                            APG

                          	
                             

                            Apollo
      Gold Corporation

                             

                            a
      corporation existing under the laws of the Yukon Territory,
      Canada

                             

                            of
      5655 South Yosemite Street, Suite 200 Greenwood Village, Colorado
      80111-3220, United States of
America

                          


                  

                

              

            

          

        

      

    

    
       

      
        
          	
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      The
agreement

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	 	 	 	 
	
                                             

                                            Background

                                          	 	
                                             

                                            1

                                          	
                                             

                                            APG
      has granted, or will grant, the First Securities to the First
      Creditors.

                                          
	 	 	 	 
	 
      	 	
                                            2

                                          	
                                            APG
      has granted, or will grant, the Second Securities to the Second
      Creditors.

                                          
	 	 	 	 
	 
      	 	
                                            3

                                          	
                                            The
      parties have agreed to regulate the order of priorities between the First
      Securities and the Second Securities as provided in this
      agreement.

                                          
	 	 	 
	
                                             

                                            This
      agreement witnesses

                                          	 	
                                             

                                            that
      in consideration of, among other things, the mutual promises contained in
      this agreement, the parties agree as set out in the Operative part of this
      agreement.

                                             

                                          


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
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    Operative
part

     

    
      
        	
                1

              	
                Definitions
      and interpretation

                 

              


      

    

     

    
      	
              1.1

            	
              Definitions

            


    

     

    The
meanings of the terms used in this document are set out below.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      Term

                                       

                                    	 	
                                      Meaning

                                       

                                    
	
                                       

                                      APG

                                       

                                    	 	
                                       

                                      Apollo
      Gold Corporation, a corporation existing under the laws of the Yukon
      Territory, Canada.

                                       

                                    
	
                                       

                                      Business
      Day

                                    	 	
                                       

                                      1

                                    	
                                       

                                      for
      the purposes of clause 9.2, a day on which banks are open for
      business in the city where the notice or other communication is received
      excluding a Saturday, Sunday or public holiday; and

                                    
	 	 	 	 
	 
      	 	
                                      2

                                       

                                    	
                                      for
      all other purposes, a day on which banks are open for business in Denver,
      United States of America and Toronto, Canada, excluding a Saturday, Sunday
      or public holiday.

                                       

                                    
	
                                       

                                      Controller

                                    	 	
                                       

                                      in
      relation to a body corporate, any receiver, receiver and manager or any
      other person (whether or not as agent for that body corporate), which is
      in possession or has control of that body corporate’s property for the
      purposes of enforcing an Encumbrance.

                                       

                                    
	
                                       

                                      Creditor

                                    	 	
                                       

                                      1

                                    	
                                       

                                      the
      First Creditor; or

                                       

                                    
	 
      	 	
                                      2

                                       

                                    	
                                      the
      Second Creditor.

                                       

                                    
	
                                       

                                      Debt

                                    	 	
                                       

                                      the
      First Debt or the Second Debt and, in relation to the First Creditors,
      means the First Debt and, in relation to the Second Creditors, means the
      Second Debt.

                                       

                                    
	
                                       

                                      Encumbrance

                                    	 	
                                       

                                      an
      interest or power:

                                       

                                    
	 
      	 	
                                      1

                                    	
                                      reserved
      in or over an interest in any asset including any retention of title;
      or

                                       

                                    
	 
      	 	
                                      2

                                    	
                                      created
      or otherwise arising in or over an interest in any asset under a bill of
      sale, mortgage, charge, lien, pledge, trust or power,

                                       

                                    
	 
      	 	
                                      by
      way of, or having similar commercial effect to, security for the payment
      of a debt, any other monetary obligation or the performance of any other
      obligation and includes any agreement to grant or create any of the
      above.

                                       

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
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                            1   Definitions and
      interpretation

                          


                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    	
                            Term

                             

                          	 	
                            Meaning

                             

                          
	
                             

                            Facility
      Agreement

                             

                          	 	
                             

                            1

                          	
                             

                            the
      First Facility Agreement; and

                             

                          
	 
      	 	
                            2

                          	
                            the
      Second Facility Agreement.

                             

                          
	
                             

                            First
      Creditor

                             

                          	 	
                             

                            each
      of:

                             

                          
	 
      	 	
                            1

                          	
                            RMB
      Resources Inc. in its capacity as the Security Agent and in its capacity
      as agent under the First Facility Agreement;

                             

                          
	 
      	 	
                            2

                          	
                            RMB
      Australia Holdings Limited and Macquarie Bank Limited, each in their
      capacity as financiers under the First Facility Agreement;
and

                             

                          
	 
      	 	
                            3

                          	
                            each
      ‘Beneficiary’ as that term is defined in the Security Agent
      Agreement.

                             

                          
	
                             

                            First
      Debt

                             

                          	 	
                             

                            all
      debts and monetary liabilities of APG to the First Creditors on any
      account and in any capacity from time to time secured by the First
      Securities, irrespective of whether the debts or liabilities:

                             

                          
	 
      	 	
                            1

                          	
                            are
      present or future;

                             

                          
	 
      	 	
                            2

                          	
                            are
      actual, prospective, contingent or otherwise;

                             

                          
	 
      	 	
                            3

                          	
                            are
      at any time ascertained or unascertained;

                             

                          
	 
      	 	
                            4

                          	
                            are
      owed or incurred by or on account of APG alone, or severally or jointly
      with any other person;

                             

                          
	 
      	 	
                            5

                          	
                            are
      owed or incurred to or for the account of the First Creditors alone, or
      severally or jointly with any other person;

                             

                          
	 
      	 	
                            6

                          	
                            are
      owed or incurred as principal, interest, fees, charges, taxes, duties or
      other imposts, damages (whether for breach of contract or tort or incurred
      on any other ground), losses, costs or expenses, or on any other account;
      or

                             

                          
	 
      	 	
                            7

                          	
                            comprise
      any combination of the above.

                             

                          
	
                             

                            First
      Facility Agreement

                             

                          	 	
                             

                            the
      Bridge Facility Agreement dated on or about the date of this agreement
      between APG, the Security Agent, RMB Australia Holdings Limited and
      Macquarie Bank Limited, as amended, supplemented, modified, extended,
      renewed, novated, refinanced, restated or replaced from time to
      time.

                             

                          
	
                             

                            First
      Securities

                             

                          	 	
                             

                            1

                          	
                             

                            General
      Security Agreement dated on or about the date of this agreement between
      the Security Agent and APG;

                             

                          
	 
      	 	
                            2

                          	
                            the
      Security Agent Agreement;

                             

                          
	 
      	 	
                            3

                          	
                            Real
      Property Charge / Mortgage dated on or about the date of this agreement
      between the Security Agent and APG;

                             

                          
	 
      	 	
                            4

                          	
                            the
      Blocked Account and Control Agreement dated on or about the date of this
      agreement between the Security Agent, APG and U.S. Bank National
      Association; and

                             

                          
	 
      	 	
                            5

                          	
                            any
      other present or future Encumbrance, Guarantee or other document or
      agreement created or entered into as security for the payment of any of
      the First Debt.

                             

                          


                  

                

              

            

          

        

      

    

    
       

      
        
          	
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                              1   Definitions and
      interpretation

                            


                    

                  

                

              

            

          

        

      

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      Term

                                       

                                    	 	
                                      Meaning


                                    
	
                                       

                                      Fund

                                       

                                    	 	
                                       

                                      has
      the meaning given in the Security Agent Agreement.

                                       

                                    
	
                                       

                                      Government
      Agency

                                       

                                    	 	
                                       

                                      any
      government or any governmental, semi-governmental, administrative, fiscal
      or judicial body, department, commission, authority, tribunal, agency or
      entity.

                                       

                                    
	
                                       

                                      Guarantee

                                    	 	
                                       

                                      any
      guarantee, suretyship, letter of comfort or any other
      obligation:

                                    
	 
      	 	
                                       

                                      1

                                    	
                                       

                                      to
      provide funds (whether by the advance or payment of money, the purchase of
      or subscription for shares or other securities, the purchase of assets or
      services, or otherwise) for the payment or discharge
of;

                                    
	 
      	 	
                                       

                                      2

                                    	
                                       

                                      to
      indemnify any person against the consequences of default in the payment
      of; or

                                    
	 
      	 	
                                       

                                      3

                                    	
                                       

                                      to
      be responsible for,

                                    
	 
      	 	
                                       

                                      any
      indebtedness of any other person or the assumption of any responsibility
      or obligation in respect of the insolvency or the financial condition of
      any other person.

                                       

                                    
	
                                       

                                      Officer

                                       

                                    	 	
                                       

                                      1

                                    	
                                       

                                      in
      relation to APG, a director or a secretary, or a person notified to the
      Creditors to be an authorised officer, of APG; and

                                       

                                    
	 
      	 	2
      	
                                      in
      relation to a Creditor, a person whose title includes the word ‘Director’,
      ‘Managing Director’, ‘Manager’, ‘President’ or ‘Vice President’ and any
      other person appointed by the Creditor to act as its authorised officer
      for the purposes of this agreement.

                                       

                                    
	
                                       

                                      Order
      of Priority

                                       

                                    	 	
                                       

                                      the
      order of priority set out in clause 2.1.

                                       

                                    
	
                                       

                                      Power

                                       

                                    	 	
                                       

                                      any
      right, power, authority, discretion or remedy conferred on a Creditor by
      this agreement or any applicable law or the Securities.

                                       

                                    
	
                                       

                                      Receiver

                                       

                                    	 	
                                       

                                      a
      receiver or a receiver and manager appointed under a
Security.

                                       

                                    
	
                                       

                                      Second
      Creditor

                                    	 	
                                       

                                      each
      of:

                                    
	 
      	 	
                                       

                                      1

                                    	
                                       

                                      RMB
      Resources Inc. in its capacity as agent under the Second Facility
      Agreement and the Second Securities; and

                                       

                                    
	 
      	 	
                                      2

                                    	
                                      RMB
      Resources Australia Holdings Limited in its capacity as financier under
      the Second Facility Agreement.

                                       

                                    
	
                                       

                                      Second
      Debt

                                       

                                    	 	
                                       

                                      all
      debts and monetary liabilities of APG to the Second Creditors on any
      account and in any capacity from time to time secured by the Second
      Securities, irrespective of whether the debts or liabilities:

                                       

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
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                              1   Definitions and
      interpretation

                            


                    

                  

                

              

            

          

        

      

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  	
                                                                          Term

                                                                        	 	
                                                                          Meaning

                                                                           

                                                                        
	 
      	 	 
      	 
      
	 
      	 	
                                                                          1

                                                                        	
                                                                          are
      present or future;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          2

                                                                        	
                                                                          are
      actual, prospective, contingent or otherwise;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          3

                                                                        	
                                                                          are
      at any time ascertained or unascertained;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          4

                                                                        	
                                                                          are
      owed or incurred by or on account of APG alone, or severally or jointly
      with any other person;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          5

                                                                        	
                                                                          are
      owed or incurred to or for the account of the Second
      Creditors  alone, or severally or jointly with any other
      person;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          6

                                                                        	
                                                                          are
      owed or incurred as principal, interest, fees, charges, taxes, duties or
      other imposts, damages (whether for breach of contract or tort or incurred
      on any other ground), losses, costs or expenses, or on any other account;
      or

                                                                        
	 	 	 	 
	 
      	 	
                                                                          7

                                                                        	
                                                                          comprise
      any combination of the above.

                                                                        
	 	 	 	 
	 	 	 
	
                                                                          Second
      Facility Agreement

                                                                        	 	
                                                                          the
      Facility Agreement dated 12 October 2007 between Montana Tunnels Mining,
      Inc., Apollo Gold, Inc., APG and each Second Creditor, as amended and
      restated by an Amendment and Restatement Agreement dated 30 June 2008, and
      as further amended, supplemented, modified, extended, renewed, novated,
      refinanced, restated or replaced from time to time.

                                                                        
	 	 	 	 
	 	 	 	 
	
                                                                          Second
      Securities

                                                                        	 	
                                                                          1

                                                                        	
                                                                          the
      Share Pledge Agreement over the shares in Apollo Gold, Inc. dated 12
      October 2007 between the Security Agent and APG;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          2

                                                                        	
                                                                          the
      General Security Agreement dated 30 June 2008 between the Security Agent
      and APG;

                                                                        
	 	 	 	 
	 
      	 	
                                                                          3

                                                                        	
                                                                          the
      Charge / Mortgage dated 31 July 2008 between the Security Agent and APG;
      and

                                                                        
	 	 	 	 
	 
      	 	
                                                                          4

                                                                        	
                                                                          any
      other present or future Encumbrance, Guarantee or other document or
      agreement which covers the collateral secured by the First Securities and
      created or entered into as security for the payment of any of the Second
      Debt.

                                                                           

                                                                        
	 	 	 
	
                                                                          Security

                                                                        	 	
                                                                          a
      First Security or a Second Security and, in relation to the First
      Creditors, means a First Security and, in relation to the Second
      Creditors, means a Second Security.

                                                                        
	 	 	 
	 	 	 
	
                                                                          Security
      Agent

                                                                        	 	
                                                                          RMB
      Resources Inc., in its capacity as security agent under the First
      Securities.

                                                                        
	 	 	 
	 	 	 
	
                                                                          Security
      Agent Agreement

                                                                        	 	
                                                                          the
      Security Agent Agreement dated on or about the date of this agreement
      between APG, the Security Agent, RMB Australia Holdings Limited and
      Macquarie Bank Limited.

                                                                        
	 	 	 	 
	 	 	 	 
	
                                                                          Tax

                                                                        	 	
                                                                          1

                                                                        	
                                                                          any
      tax, levy, charge, impost, duty, fee, deduction, compulsory loan or
      withholding; or

                                                                        
	  
      	 	 	  
      


                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
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                              1   Definitions and
      interpretation

                            


                    

                  

                

              

            

          

        

      

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                Term

                              	 	
                                Meaning

                              
	 	 	 
	 
      	 	 
      	 
      
	 
      	 	
                                2

                              	
                                any
      income, stamp or transaction duty, tax or charge,

                              
	 	 	 
	 
      	 	
                                which
      is assessed, levied, imposed or collected by any Government Agency and
      includes any interest, fine, penalty, charge, fee or other payment imposed
      on or in respect of any of the above.

                              
	 	 	 
	 	 	 
	
                                US$ and
      United States Dollars

                              	 	
                                the
      lawful currency of the United States of America.

                              
	 	 	 


                      

                    

                  

                

              

            

          

        

      

    

     

    
      	
              1.2

            	
              Interpretation

            


    

     

    In this
agreement, headings and bold type are for convenience only and do not affect the
interpretation of this agreement and, unless the context otherwise
requires:

     

    
      	
              (a)

            	
              words
      indicating the singular include the plural and vice
  versa;

            


    

     

    
      	
              (b)

            	
              words
      indicating a gender include any
gender;

            


    

     

    
      	
              (c)

            	
              other
      parts of speech and grammatical forms of a word or phrase defined in this
      agreement have a corresponding
meaning;

            


    

     

    
      	
              (d)

            	
              an
      expression suggesting or referring to a natural person includes any
      company, partnership, joint venture, association, corporation or other
      body corporate and any Government
Agency;

            


    

     

    
      	
              (e)

            	
              a
      reference to any thing (including any right) includes a part of that thing
      but nothing in this clause 1.2(e) implies that performance of part of
      an obligation constitutes performance of the
  obligation;

            


    

     

    
      	
              (f)

            	
              a
      reference to a clause, party, attachment, exhibit or schedule is a
      reference to a clause of, and a party, attachment, exhibit and
      schedule to, this agreement and a reference to this agreement includes any
      attachment, exhibit and schedule;

            


    

     

    
      	
              (g)

            	
              a
      reference to a statute, regulation, proclamation, ordinance or by-law
      includes all statutes, regulations, proclamations, ordinances or by-laws
      amending, consolidating or replacing it, whether passed by the same or
      another Government Agency with legal power to do so, and a reference to a
      statute includes all regulations, proclamations, ordinances and by-laws
      issued under that statute;

            


    

     

    
      	
              (h)

            	
              a
      reference to a document includes all amendments or supplements to, or
      replacements or novations of, that
document;

            


    

     

    
      	
              (i)

            	
              a
      reference to liquidation includes official management, appointment of an
      administrator, compromise, arrangement, merger, amalgamation,
      reconstruction, winding up, dissolution, assignment for the benefit of a
      creditor, scheme, composition or arrangement with a creditor, insolvency,
      bankruptcy, or a similar procedure or, where applicable, changes in the
      constitution of any partnership or person or
  death;

            


    

     

    
      	
              (j)

            	
              a
      reference to a party to a document includes that party’s successors and
      permitted assigns;

            


    

     

    
      	
              (k)

            	
              a
      reference to an agreement other than this agreement includes an
      undertaking, deed, agreement or legally enforceable arrangement or
      understanding whether or not in
writing;

            


    

    
      
         

        
          
            	
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                              2   Priorities

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              (l)

            	
              a
      reference to an asset includes all property of any nature, including a
      business, and all rights, revenues and
benefits;

            


    

     

    
      	
              (m)

            	
              a
      reference to a document includes any agreement in writing, or any
      certificate, notice, instrument or other document of any
    kind;

            


    

     

    
      	
              (n)

            	
              no
      provision of this agreement will be construed adversely to a party solely
      on the ground that the party was responsible for the preparation of this
      agreement or that provision;

            


    

     

    
      	
              (o)

            	
              a
      covenant or agreement on the part of two or more persons binds them
      jointly and severally; and

            


    

     

    
      	
              (p)

            	
              a
      reference to a body, other than a party to this agreement (including an
      institute, association or authority), whether statutory or
      not:

            


    

     

    
      	
               
      

            	
              (1)

            	
              which
      ceases to exist; or

            


    

     

    
      	
               
      

            	
              (2)

            	
              whose
      powers or functions are transferred to another
  body,

            


    

     

    is a
reference to the body which replaces it or which substantially succeeds to its
powers or functions.

     

    
      	
              1.3

            	
              Inclusive
      expressions

            


    

     

    Specifying
anything in this agreement after the words ‘include’ or ‘for example’ or similar
expressions does not limit what else is included unless there is express wording
to the contrary.

     

    
      	
              1.4

            	
              Business
      Day

            


    

     

    Where the
day on or by which any thing is to be done is not a Business Day, that thing
must be done on or by the preceding Business Day.

     

    
      
        	
                2

              	
                Priorities

              


      

    

     

    
      	
              2.1

            	
              Order
      of priority

            


    

     

    
      	
              (a)

            	
              The
      order of priority in respect of the Securities
  is:

            


    

     

    
      	
               
      

            	
              (1)

            	
              first priority: the
      First Securities for the First Debt;
and

            


    

     

    
      	
               
      

            	
              (2)

            	
              second priority: the
      Second Securities for the Second
Debt.

            


    

     

    The
rights of the Second Creditors under the Second Securities are postponed to the
rights of the First Creditors under the First Securities to the extent necessary
to give effect to this agreement.

     

    
      	
              2.2

            	
              Term
      of priorities

            


    

     

    The Order
of Priority applies until the later of:

     

    
      	
              (a)

            	
              the
      date the First Debt is fully paid;
and

            


    

     

    
      	
              (b)

            	
              the
      date the First Securities are discharged in accordance with their
      terms,

            


    

     

    or until
this agreement is terminated by agreement in writing between the
Creditors.

    
       

      
        
          	
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                            3   Payments

                          


                  

                

              

            

          

        

      

    

     

    
      
        	
                3

              	
                Payments

              


      

    

     

    
      	
              3.1

            	
              Accounting
      for funds received or recovered

            


    

     

    
      	
              (a)

            	
              If
      at any time a Creditor or a Receiver under a Security of that Creditor
      receives or recovers any part of the Debts in excess of the amount to
      which the Creditor is entitled under the terms of this agreement, whether
      by payment, set-off, banker’s right of combination of accounts, banker’s
      lien, counterclaim, abatement or otherwise it
  must:

            


    

     

    
      	
               
      

            	
              (1)

            	
              promptly
      notify the other Creditor of the amount received or recovered;
      and

            


    

     

    
      	
               
      

            	
              (2)

            	
              pay
      to the other Creditor so much of the amount received or recovered to the
      extent necessary to give effect to this
  agreement.

            


    

     

    
      	
              (b)

            	
              If
      an amount is paid by a Creditor to the other Creditor under
      clause 3.1(a):

            


    

     

    
      	
               
      

            	
              (1)

            	
              the
      payer is regarded as not having received or recovered the amount from
      APG;

            


    

     

    
      	
               
      

            	
              (2)

            	
              APG
      remains liable to the payer for the amount;
and

            


    

     

    
      	
               
      

            	
              (3)

            	
              subject
      to clause 3.1(c), the Debt of the payee is reduced by that
      amount.

            


    

     

    
      	
              (c)

            	
              To
      the extent that clause 3.1(b) is void, voidable or otherwise not
      enforceable, APG indemnifies the payer against the payment of the amount
      paid under clause 3.1(a) by the payer to the other
      Creditor.

            


    

     

    
      	
              3.2

            	
              Currency
      of payments

            


    

     

    All
payments under this agreement must be made in US$.

     

    
      	
              3.3

            	
              Amounts
      payable on demand

            


    

     

    If any
amount payable under this agreement is not expressed to be payable on a
specified date, that amount is payable on demand.

     

    
      
        	
                4

              	
                Representations
      and warranties

              


      

    

     

    
      	
              4.1

            	
              Representations
      and warranties of the parties

            


    

     

    Each
party represents and warrants to each other party that:

     

    
      	
              (a)

            	
              registration: it is a
      corporation registered (or taken to be registered) in accordance with the
      laws of its place of incorporation and validly existing under those
      laws;

            


    

     

    
      	
              (b)

            	
              authority: it has power
      and authority to enter into and perform its obligations under this
      agreement;

            


    

     

    
      	
              (c)

            	
              authorisations: it has
      taken all necessary action to authorise the execution, delivery and
      performance of this agreement;

            


    

     

    
      	
              (d)

            	
              binding obligations:
      this agreement constitutes its legal, valid and binding obligations and,
      subject to any necessary stamping and registration, is enforceable in
      accordance with its terms subject to laws generally affecting creditors’
      rights and to principles of equity;
and

            


    

     

    
      	
              (e)

            	
              transaction permitted:
      the execution, delivery and performance by it of this agreement do not and
      will not violate, breach, or result in a contravention
  of:

            


    

     

    
      	
               
      

            	
              (1)

            	
              any
      law, regulation or authorisation;

            


    

    
      
         

        
          
            	
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                            5   Undertakings,
      consents,
acknowledgments

                          


                  

                

              

            

          

        

      

    

     

    
      	
               
      

            	
              (2)

            	
              its
      constitution or other constituent
documents.

            


    

     

    
      	
              (f)

            	
              default under its
      Securities: it has not received any notice of, and is not otherwise
      aware of, any default or event of default (however described) under
      any of the Securities.

            


    

     

    
      	
              4.2

            	
              Representations
      and warranties of the Creditors

            


    

     

    Each
Creditor represents and warrants to each other Creditor that it is absolutely
entitled to its Debt free from any Encumbrance.

     

    
      	
              4.3

            	
              Survival
      of representations and warranties

            


    

     

    The
representations and warranties in clause 4.1 survive the execution of this
agreement.

     

    
      
        	
                5

              	
                Undertakings,
      consents, acknowledgments

              


      

    

     

    
      	
              5.1

            	
              Execution
      of the Securities

            


    

     

    Each
Creditor:

     

    
      	
              (a)

            	
              consents
      to the creation and execution by APG of the Securities in favour of the
      other Creditor; and

            


    

     

    
      	
              (b)

            	
              acknowledges
      that the granting by APG of those Securities in favour of the other
      Creditor does not constitute a breach by APG of any covenant or condition
      contained in or implied by, or an event of default (however described)
      under, any of its Securities or its Facility
  Agreement.

            


    

     

    
      	
              5.2

            	
              Dealing
      with the Securities

            


    

     

    
      	
              (a)

            	
              A
      Creditor must
      not:

            


    

     

    
      	
               
      

            	
              (1)

            	
              deal
      with, sell or otherwise part with possession
of;

            


    

     

    
      	
               
      

            	
              (2)

            	
              create,
      permit, suffer to exist, or agree to, any interest or Encumbrance, being
      over; or

            


    

     

    
      	
               
      

            	
              (3)

            	
              attempt
      to do anything listed in clause 5.2(a)(1) and clause 5.2(a)(2)
      in respect of,

            


    

     

    any of
its Securities without the prior written consent of the other
Creditor.

     

    
      	
              (b)

            	
              The
      consent of a Creditor required under clause 5.2(a) must not be
      withheld or delayed if:

            


    

     

    
      	
               
      

            	
              (1)

            	
              the
      relevant dealing is made expressly subject to the terms of this agreement;
      and

            


    

     

    
      	
               
      

            	
              (2)

            	
              the
      person with whom the relevant dealing is made enters into an agreement by
      which it is bound by the provisions of this agreement in the same manner
      as the relevant Creditor is bound.

            


    

     

    
      	
              (c)

            	
              Subject
      to clause 6.1, clause 5.2(a) does not apply to any dealing which
      represents or results from the enforcement of or the exercise any Power
      under (including the appointment of a Controller) any of the
      Securities.

            


    

     

    
      	
              5.3

            	
              Documents
      of title

            


    

     

    
      	
              (a)

            	
              The
      First Creditors are entitled to hold all documents evidencing or relating
      to title to any property subject to the First
  Securities.

            


    

    
       

      
        
          	
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                                5   Undertakings,
      consents,
acknowledgments

                              

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              (b)

            	
              The
      Second Creditors must deposit with the Security Agent all such title
      documents held by it.

            


    

     

    
      	
              (c)

            	
              The
      First Creditors must as soon as reasonably practicable
    after:

            


    

     

    
      	
               
      

            	
              (1)

            	
              the
      First Debt has been fully paid; and

            


    

     

    
      	
               
      

            	
              (2)

            	
              the
      First Securities have been discharged in
full,

            


    

     

    if the
Second Securities have not yet been discharged in full, deliver to the Second
Creditors all documents of title held by the First Creditors in relation to the
assets the subject of the Second Securities.

     

    
      	
              5.4

            	
              Insurance
      and compensation

            


    

     

    
      	
              (a)

            	
              If
      a Second Creditor has a right under the Second Securities or the Second
      Facility Agreement to:

            


    

     

    
      	
               
      

            	
              (1)

            	
              make,
      enforce, settle or compromise claims;
or

            


    

     

    
      	
               
      

            	
              (2)

            	
              sue
      for, recover or give any discharge for money
  payable,

            


    

     

    under, or
in respect of any insurance policy or right of compensation of APG, then the
Second Creditor must not exercise that right without the prior written consent
of the First Creditors.

     

    
      	
              (b)

            	
              If,
      for any reason, a Second Creditor receives or recovers any money from any
      insurance policy or right of compensation of that kind , the Second
      Creditor must account for it in accordance with clause 3 as if it
      were a recovery of its Debt.

            


    

     

    
      	
              5.5

            	
              Acknowledgments
      of APG

            


    

     

    APG
consents to the provisions of this agreement and agrees that:

     

    
      	
              (a)

            	
              no
      benefit of any kind accrues to APG under this
  agreement;

            


    

     

    
      	
              (b)

            	
              the
      rights of a Creditor against APG, and the rights, obligations and
      liabilities of APG, in respect of any of the Debts or Securities are only
      affected by this agreement to the extent expressly provided in this
      agreement; and

            


    

     

    
      	
              (c)

            	
              it
      must not do any thing which causes a Creditor to be in breach of this
      agreement.

            


    

     

    
      	
              5.6

            	
              Default
      by a Creditor

            


    

     

    Any
breach of, or any default under, this agreement by a Creditor does
not:

     

    
      	
              (a)

            	
              affect
      any obligation of APG to that Creditor or any other Creditor under a
      Facility Agreement or any of the
Securities;

            


    

     

    
      	
              (b)

            	
              permit
      APG to exercise any right, power, authority, discretion or remedy against
      that Creditor or any other Creditor;
or

            


    

     

    
      	
              (c)

            	
              make
      either Creditor liable to APG as a result of the breach or
      default.

            


    

     

    
      	
              5.7

            	
              Further
      assurance

            


    

     

    Each
party must, upon request by a Creditor, but at the cost of APG, do or cause to
be done anything which more satisfactorily secures the rights of that Creditor
under this agreement in a manner not inconsistent with any provision of this
agreement including the execution of any document and the delivery of documents
of title.

    
       

      
        
          	
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                            6   Enforcement

                          


                  

                

              

            

          

        

      

    

     

    
      
        	
                6

              	
                Enforcement

              


      

    

     

    
      	
              6.1

            	
              Enforcement
      of Securities

            


    

     

    
      	
              (a)

            	
              The
      Second Creditors may not enforce, or exercise any Power (including the
      appointment of a Controller) in relation to the Second Securities without
      first giving the First Creditors 20 Business Days’ notice of their
      intention to enforce or exercise any
Power.

            


    

     

    
      	
              (b)

            	
              Upon
      receipt of notice under clause 6.1(a), the First Creditors, to the extent
      they are entitled to do so under the First Facility Agreement or the First
      Securities, may enforce or exercise any Power (including the appointment
      of a Controller) in relation to the First Securities, or elect not to
      enforce or exercise any Power.

            


    

     

    
      	
              (c)

            	
              If
      the Second Creditors enforce or exercise any Power (including the
      appointment of a Controller) or attempt to enforce or exercise any Power
      (including the appointment of a Controller) in relation to the Second
      Securities and the First Creditors then enforce or exercise any Power
      (including the appointment of a Controller) in relation to the First
      Securities in accordance with clause 6.1, then the First Creditor will
      have the conduct of those enforcement proceedings with respect to the
      property the subject of the First
Securities.

            


    

     

    
      	
              6.2

            	
              Manner
      of enforcement

            


    

     

    A
Creditor is free to determine in its absolute discretion the extent, if any, to
which it has recourse to any Security and the extent to which it has recourse to
any source other than a Security.

     

    
      	
              6.3

            	
              No
      obligation to marshal

            


    

     

    APG
waives any right it may have under the doctrine of marshalling and agrees that,
before a Creditor enforces a Security, the Creditor is not required to marshal,
or to enforce or apply under, or appropriate, recover or exercise:

     

    
      	
              (a)

            	
              any
      Encumbrance held at any time by the Creditor;
or

            


    

     

    
      	
              (b)

            	
              any
      money or asset which the Creditor at any time holds or is entitled to
      receive.

            


    

     

    
      
        	
                7

              	
                Tax,
      costs and expenses

              


      

    

     

    
      	
              7.1

            	
              Tax
      

            


    

     

    
      	
              (a)

            	
              APG
      must pay any fine, penalty or other cost in respect of a failure to pay
      any Tax described in clause 16.2(a) of the Facility Agreement and
      incurred in relation to this agreement, except to the extent that the
      fine, penalty or other cost is caused by a Creditor’s failure to lodge
      money received from APG within 5 Business Days before the due date for
      lodgement.

            


    

     

    
      	
              (b)

            	
              APG
      indemnifies each Creditor against any amount payable by APG under
      clause 7.1(a) or both which that Creditor
  paid.

            


    

    
       

      
        
          	
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                              8   Saving
      provisions

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              7.2

            	
              Costs
      and expenses

            


    

     

    APG must
pay all costs and expenses of each Creditor in relation to:

     

    
      	
              (a)

            	
              the
      negotiation, preparation, execution, delivery, stamping, registration,
      completion, variation and discharge of this agreement or any document
      contemplated by this agreement;

            


    

     

    
      	
              (b)

            	
              the
      enforcement, protection or waiver, or attempted enforcement or protection,
      of any rights under this agreement or any document contemplated by this
      agreement;

            


    

     

    
      	
              (c)

            	
              the
      consent or approval of the Creditor given under this agreement or any
      document contemplated by this agreement;
and

            


    

     

    
      	
              (d)

            	
              any
      enquiry by any Government Agency involving
APG,

            


    

     

    including:

     

    
      	
              (e)

            	
              any
      administration costs of the Creditor in relation to the matters referred
      to in clauses 7.2(b), (c) and (d);
and

            


    

     

    
      	
              (f)

            	
              any
      legal costs and expenses and any professional consultant’s fees for any of
      the above on a full indemnity
basis.

            


    

     

    
      
        	
                8

              	
                Saving
      provisions

              


      

    

     

    
      	
              8.1

            	
              Non-avoidance

            


    

     

    The Order
of Priority applies despite:

     

    
      	
              (a)

            	
              the
      respective times and dates upon which, or the order in which, any of the
      Securities are executed, delivered or
  registered;

            


    

     

    
      	
              (b)

            	
              the
      respective times and dates upon which, or the order in which, the debts
      and monetary liabilities comprising all or any part of any of the Debts
      are incurred or become due;

            


    

     

    
      	
              (c)

            	
              anything
      contained in any of the Securities;

            


    

     

    
      	
              (d)

            	
              the
      enforcement or attempted enforcement of, or the exercise or attempted
      exercise of any Power;

            


    

     

    
      	
              (e)

            	
              the
      repayment from time to time of all or any part of any of the
      Debts;

            


    

     

    
      	
              (f)

            	
              the
      fluctuation (including any reduction and subsequent increase) from time to
      time of all or any part of any Debt, whether by the advance or further
      advance of any moneys, the provision or further provision of financial
      accommodation, or otherwise;

            


    

     

    
      	
              (g)

            	
              a
      Creditor being, or not being, from time to time obliged
  to:

            


    

     

    
      	
               
      

            	
              (1)

            	
              make
      any advance or provide any other financial accommodation to, at the
      request of, or for the benefit of, APG or any other
  person;

            


    

     

    
      	
               
      

            	
              (2)

            	
              do
      anything which may cause moneys to become due by APG or any other person
      to that Creditor;

            


    

     

    
      	
              (h)

            	
              all
      or any part of any of the Debts being contingent or
      prospective;

            


    

     

    
      	
              (i)

            	
              the
      appointment of a liquidator, receiver, receiver and manager, official
      manager, administrator, other Controller or other similar officer to APG
      or any other person or to all or any part of the assets of
      APG;

            


    

     

    
      	
              (j)

            	
              the
      liquidation of APG or any other
person;

            


    

     

    
      	
              (k)

            	
              any
      provision of any statute or any rule of law or equity to the
      contrary;

            


    

     

    
      	
              (l)

            	
              any
      other thing whether or not of the same kind as
  above.

            


    

    
       

      
        
          	
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                              9   General

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              8.2

            	
              Exclusion
      of moratorium

            


    

     

    To the
extent not excluded by law, a provision of any legislation which at any time
directly or indirectly lessens, stays, postpones, prevents or otherwise
prejudicially affects any Power is negatived and excluded from this agreement,
and all relief and protection conferred by or under that legislation is also
negatived and excluded.

     

    
      	
              8.3

            	
              Continuing
      indemnities

            


    

     

    
      	
              (a)

            	
              Each
      indemnity of APG contained in this agreement is a continuing obligation of
      APG, despite:

            


    

     

    
      	
               
      

            	
              (1)

            	
              any
      settlement of account; or

            


    

     

    
      	
               
      

            	
              (2)

            	
              the
      occurrence of any other thing,

            


    

     

    and
remains in full force and effect until the Debts have been paid in
full

     

    
      	
              (b)

            	
              Each
      indemnity in this agreement is an additional, separate and independent
      obligation of APG and no one indemnity limits the generality of any other
      indemnity.

            


    

     

    
      
        	
                9

              	
                General

              


      

    

     

    
      	
              9.1

            	
              Confidential
      information

            


    

     

    Subject
to the confidentiality provisions in each Facility Agreement and each Security,
each Creditor may disclose to the other Creditor any documents or records of, or
information about, APG, the Debts, the Securities, the assets the subject of the
Securities or APG’s business or affairs.

     

    
      	
              9.2

            	
              Notices

            


    

     

    
      	
              (a)

            	
              Any
      notice or other communication including any request, demand, consent or
      approval, to or by a party to this agreement must be in legible writing
      and in English addressed as shown at the commencement of this agreement in
      Schedule 1 or as specified to the sender by any party by
      notice;

            


    

     

    
      	
              (b)

            	
              If
      the sender is a company, any such notice or communication must be signed
      by an Officer or under the common seal of the
  sender.

            


    

     

    
      	
              (c)

            	
              Any
      notice or other communication described in this clause 9.2 is regarded as
      being given by the sender and received by the
  addressee:

            


    

     

    
      	
               
      

            	
              (1)

            	
              if
      by delivery in person or by recognised overnight courier, when delivered
      to the addressee;

            


    

     

    
      	
               
      

            	
              (2)

            	
              if
      by post, on delivery to the addressee;
or

            


    

     

    
      	
               
      

            	
              (3)

            	
              if
      by facsimile transmission, when received by the addressee in legible
      form,

            


    

     

    but if
the delivery or receipt is on a day which is not a Business Day or is after
4.00pm (addressee’s time) it is regarded as received at 9.00am on the following
Business Day.

     

    
      	
              (d)

            	
              Any
      notice or other communication described in this clause 9.2 can be relied
      upon by the addressee and the addressee is not liable to any other person
      for any consequences of that reliance if the addressee believes it to be
      genuine, correct and authorised by the
sender.

            


    

    
       

      
        
          	
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                              9   General

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              (e)

            	
              A
      facsimile transmission is regarded as legible unless the addressee
      telephones the sender within 24 hours after the transmission is
      received or regarded as received under clause 9.2(c) and informs the
      sender that it is not legible.

            


    

     

    
      	
              9.3

            	
              Governing
      law and jurisdiction

            


    

     

    
      	
              (a)

            	
              This
      agreement is governed by the laws of the Province of Ontario and the laws
      of Canada which are applicable in the Province of Ontario, other than any
      laws which would result in the imposition of the laws of another
      jurisdiction.

            


    

     

    
      	
              (b)

            	
              Each
      party irrevocably submits to the non-exclusive jurisdiction of the federal
      courts of the Province of Ontario.

            


    

     

    
      	
              (c)

            	
              Each
      party irrevocably waives any objection to the venue of any legal process
      on the basis that the process has been brought in an inconvenient
      forum.

            


    

     

    
      	
              (d)

            	
              Each
      party irrevocably waives any immunity in respect of its obligations under
      this agreement that it may acquire from the jurisdiction of any court or
      any legal process for any reason including, but not limited to, the
      service of notice, attachment before judgment, attachment in aid of
      execution or execution.

            


    

     

    
      	
              9.4

            	
              Prohibition
      and enforceability

            


    

     

    
      	
              (a)

            	
              Any
      provision of, or the application of any provision of, this agreement which
      is prohibited in any jurisdiction is, in that jurisdiction, ineffective
      only to the extent of that
prohibition.

            


    

     

    
      	
              (b)

            	
              Any
      provision of, or the application of any provision of, this agreement which
      is void, illegal or unenforceable in any jurisdiction does not affect the
      validity, legality or enforceability of that provision in any other
      jurisdiction or of the remaining provisions in that or any other
      jurisdiction.

            


    

     

    
      	
              9.5

            	
              Waivers

            


    

     

    
      	
              (a)

            	
              Waiver
      of any right arising from a breach of this agreement or of any Power
      arising upon default under this agreement must be in writing and signed by
      the party granting the waiver.

            


    

     

    
      	
              (b)

            	
              A
      failure or delay in exercise, or partial exercise,
  of:

            


    

     

    
      	
               
      

            	
              (1)

            	
              a
      right arising from a breach of this agreement;
  or

            


    

     

    
      	
               
      

            	
              (2)

            	
              a
      Power created or arising upon default under this
  agreement,

            


    

     

    does not
result in a waiver of that right or Power.

     

    
      	
              (c)

            	
              A
      party is not entitled to rely on a delay in the exercise or non-exercise
      of a right or Power arising from a breach of this agreement or on a
      default under this agreement as constituting a waiver of that right or
      Power.

            


    

     

    
      	
              (d)

            	
              A
      party may not rely on any conduct of another party as a defence to
      exercise of a right or Power by that other
  party.

            


    

     

    
      	
              (e)

            	
              This
      clause may not itself be waived except by
  writing.

            


    

     

    
      	
              9.6

            	
              Variation

            


    

     

    A
variation of any term of this agreement must be in writing and signed by the
parties.

     

    
      	
              9.7

            	
              Cumulative
      rights

            


    

     

    The
Powers are cumulative and do not exclude any other rights, powers, authorities,
discretions or remedies of a Creditor.

    
       

      
        
          	
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                              9   General

                            


                    

                  

                

              

            

          

        

      

       

    

    
      	
              9.8

            	
              Assignment

            


    

     

    
      	
              (a)

            	
              A
      Creditor may assign or novate any of its rights and obligations under this
      agreement to any person without the consent of the other Creditors or APG
      if:

            


    

     

    
      	
               
      

            	
              (1)

            	
              any
      necessary prior Authorisation is
obtained;

            


    

     

    
      	
               
      

            	
              (2)

            	
              the
      assignment or novation is to a person in the RMB group of companies or the
      Macquarie group of companies (as applicable) (which term includes any
      person, partnership or corporate entity in that group); and

            


    

     

    
      	
               
      

            	
              (3)

            	
              it
      notifies the  Borrower and each other
  Creditor.

            


    

     

    
      	
              (b)

            	
              APG
      may not assign any of its rights under this agreement without the prior
      written consent of each of the
Creditors.

            


    

     

    
      	
              9.9

            	
              Attorneys

            


    

     

    Any
Attorney executing this agreement states that the Attorney has no knowledge of
the revocation of the power of attorney appointing that Attorney.

     

    
      	
              9.10

            	
              Security
      Agent’s limitation of liability
protection

            


    

     

    
      	
              (a)

            	
              Limitation of
      liability

            


    

     

    
      	
               
      

            	
              (1)

            	
              The
      Security Agent enters into this agreement only in its capacity as security
      agent under the Security Agent Agreement and in no other
      capacity.

            


    

     

    
      	
               
      

            	
              (2)

            	
              A
      liability arising under or in connection with this agreement (whether that
      liability arises under a specific provision of this agreement, for breach
      of contract or otherwise) can be enforced against the Security Agent only
      to the extent to which it can be satisfied out of property of the Fund out
      of which the Security Agent is actually indemnified for the
      liability.

            


    

     

    
      	
               
      

            	
              (3)

            	
              The
      limitation of the Security Agent’s liability under this clause 9.10
      applies despite any other provision of this agreement (other than
      clause 9.10(c)) and extends to all liabilities and obligations of the
      Security Agent in relation to any representation, warranty, conduct,
      omission, agreement or transaction related to this
    agreement.

            


    

     

    
      	
              (b)

            	
              No action against the Security
      Agent personally

            


    

     

    The
parties may not:

     

    
      	
               
      

            	
              (1)

            	
              sue
      the Security Agent personally;

            


    

     

    
      	
               
      

            	
              (2)

            	
              seek
      the appointment of a liquidator, administrator, receiver or similar person
      to the Security Agent; or

            


    

     

    
      	
               
      

            	
              (3)

            	
              prove
      in any liquidation, administration or arrangement of or affecting the
      Security Agent.

            


    

     

    
      	
              (c)

            	
              Exception

            


    

     

    The
provisions of this clause 9.10 will not apply to any obligation or
liability of the Security Agent to the extent that it is not satisfied because
there is a reduction in the extent, or an extinguishment, of the Security
Agent’s indemnification out of the assets of the Fund, as a result of the
Security Agent’s fraud, gross negligence or breach of trust.

    
       

      
        
          	
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    Signing
page

     

    Executed
as an agreement

     

    
      

    

     

    
      
        
          
            
              
                
                  
                    	 
      	
                            First
      Creditor

                             

                          
	 
      	
                            Signed
      for

                            RMB
      Resources Inc.

                            By
      its authorised officer

                          
	 	 
	
                            By:

                          	
                            /s/ Richard A Winters

                          
	 
      	
                            Authorised
      Officer

                          
	 	 
	
                            print name

                          	
                            Richard A Winters

                          
	
                             

                            title

                          	
                             

                            President

                          


                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 
      	
                                  First
      Creditor

                                
	 	 
	 
      	
                                  Signed
      by

                                  RMB
      Australia Holdings Limited

                                  by

                                
	 	 
	
                                  By:

                                	
                                  /s/ Michael P.C. Brogan

                                
	 
      	
                                  Company
      Secretary/Director

                                
	 	 
	
                                  print
      name

                                	
                                  Michael P.C.
      Brogan

                                
	
                                   

                                  sign
      here

                                	
                                   

                                  /s/ Gregory Gay

                                
	 
      	
                                  Director

                                
	
                                   

                                  print
      name

                                	
                                   

                                  Gregory
Gay

                                


                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
                  Priority
      agreement    Page
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                  Signing
page

                


        

      

    

     

    
      
        
          
            
              
                
                  
                    	 
      	
                            First
      Creditor

                          
	 	 
	 
      	
                            Signed
      for

                            Macquarie
      Bank Limited

                            by
      its attorneys

                          
	 	 
	
                            sign
      here

                          	
                            /s/ Katie Chol

                          	 
      	
                            /s/ Julia Mathison

                          
	 
      	
                            Attorney

                          	 
      	
                            Attorney

                          
	 	 	 	 
	
                            print
      name

                          	
                            Katie Chol, Division
    Director

                          	 
      	
                            Julia Mathison, Senior
    Lawyer

                          
	 	 
	 
      	
                            in
      the presence of

                          
	 	 
	
                            sign
      here

                          	
                            /s/ Neshaat Mirzaie

                          	 
      	
                            /s/ Neshaat Mirzaie

                          
	 
      	
                            Witness

                          	 
      	
                            Witness

                          
	 	 	 	 
	
                            print
      name

                          	
                            Neshaat Mirzaie, Lawyer

                          	 
      	
                            Neshaat Mirzaie,
  Lawyer

                          


                  

                

              

            

          

        

      

    

    
       

      
        
          	
                  Priority
      agreement    Page
      18

                


        

      

    


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    
       

      
        
          
            	
                    

                  	
                    Signing
page

                  


          

        

      

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 
      	
                                  Second
      Creditor

                                
	 	 
	 
      	
                                  Signed
      for

                                  RMB
      Resources Inc.

                                  By
      its authorised officer

                                
	 	 
	
                                  By:

                                	
                                  /s/ Richard A Winters

                                
	 
      	
                                  Authorised
      Officer

                                
	 	 
	
                                  print
      name

                                	
                                  Richard A Winters

                                
	 	 
	
                                  title

                                	
                                  President

                                


                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                	 
      	
                                        Second
      Creditor

                                      
	 	 
	 
      	
                                        Signed
      by

                                        RMB
      Australia Holdings Limited

                                        by

                                      
	 	 
	
                                        sign here 

                                      	
                                        /s/ Michael P.C.
      Brogan

                                      
	 
      	
                                        Company
      Secretary/Director

                                      
	 	 
	
                                        print
      name

                                      	
                                        Michael P.C.
      Brogan

                                      
	 	 
	
                                        sign here 

                                      	
                                        /s/ Gregory Gay

                                      
	 
      	
                                        Director

                                      
	 	 
	
                                        print
      name

                                      	
                                        Gregory
Gay

                                      


                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
                  Priority
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                  Signing
page

                


        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 
      	
                                  APG

                                
	 	 
	 
      	
                                  Signed
      for

                                  Apollo
      Gold Corporation

                                  By
      its authorised signatory

                                
	 	 
	
                                  By:

                                	
                                  /s/ R D Russell

                                
	 
      	
                                  Authorised
      Signatory

                                
	 	 
	
                                  print
      name

                                	
                                  R David Russell

                                
	 	 
	
                                  title

                                	
                                  President and
CEO

                                


                        

                      

                    

                  

                

              

            

          

        

      

    

    
       

      
        
          	
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