SCHEDULE B LENDER ASSIGNMENT AGREEMENT
SCHEDULE
B
THIS
LENDER ASSIGNMENT AGREEMENT is made as of the [·] day of [·],[·]
BETWEEN:
[·]
(hereinafter
referred to as the “Assignor”),
OF THE FIRST
PART,
- and
-
[·]
(hereinafter
referred to as the “Assignee”),
OF THE SECOND PART,
- and
-
BAYTEX ENERGY LTD., a
corporation amalgamated under the laws of the Province of Alberta (hereinafter
sometimes referred to as the “Borrower”),
OF THE THIRD PART,
- and
-
THE TORONTO-DOMINION BANK, a
Canadian chartered bank, as agent of the Lenders (hereinafter referred to as the
“Agent”),
OF THE FOURTH PART,
- and
-
THE TORONTO-DOMINION BANK, a
Canadian chartered bank, as Fronting Lender (hereinafter referred to as the
“Fronting
Lender”),
OF THE FIFTH PART.
WHEREAS
the Assignor is a Lender under the Amended and Restated Credit Agreement made as
of July 9, 2003, as amended and restated as of September 3, 2003, as further
amended and restated as of June 9, 2006 and as further amended and restated as
of November 29, 2007 between
the
Borrower, the Lenders and the Agent, (as further amended, modified, supplemented
or restated from time to time, the “Credit
Agreement”);
AND
WHEREAS the Assignor has agreed to assign and transfer to the Assignee certain
rights under the Credit Agreement in compliance with the Credit Agreement, and
the Assignee has agreed to accept such rights and assume certain obligations of
the Assignor under the Credit
Agreement;
AND
WHEREAS this Agreement is delivered to the Assignee pursuant to Section 16.6 of
the Credit Agreement.
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration (the receipt and sufficiency of which are hereby conclusively
acknowledged), the parties hereby agree as follows:
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1.
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INTERPRETATION
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(a)
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In
this Agreement, including the recitals, capitalized terms used herein, and
not otherwise defined herein, shall have the same meanings attributed
thereto as set forth in the Credit Agreement. In addition, the
following terms shall have the following
meanings:
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(i)
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“Assigned
Commitment” has the meaning set forth in Section 2
hereof;
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(ii)
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“Assigned
Interests” has the meaning set forth in Section 2 hereof;
and
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(iii)
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“Assumed
Obligations” has the meaning set forth in Section 4
hereof.
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(b)
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The
division of this Agreement into Articles, Sections, paragraphs and other
subdivisions and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation
hereof.
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(c)
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In
this Agreement:
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(i)
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the
terms “this Agreement”, “hereof”, “herein”, “hereunder” and similar
expressions refer, unless otherwise specified, to this Lender Assignment
Agreement taken as a whole and not to any particular section, subsection
or paragraph;
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(ii)
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words
importing the singular number or masculine gender shall include the plural
number or the feminine or neuter genders, and vice versa;
and
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(iii)
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words
and terms denoting inclusiveness (such as “include” or “includes” or
“including”), whether or not so stated, are not limited by their context
or by the words or phrases which precede or succeed
them.
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(d)
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This
Agreement shall be governed by and interpreted in accordance with the laws
of the Province of Alberta and the federal laws of Canada applicable
therein. The parties hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of the Province of Alberta,
without prejudice to the rights of the parties to take proceedings in any
other jurisdictions.
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(e)
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If
any provision of this Agreement shall be invalid, illegal or unenforceable
in any respect in any jurisdiction, it shall not affect the validity,
legality or enforceability of any such provision in any other jurisdiction
or the validity, legality or enforceability of any other provision of this
Agreement.
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2
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2.
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ASSIGNMENT
OF RIGHTS BY ASSIGNOR
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Effective
as of the date hereof, the Assignor hereby absolutely assigns and transfers to
the Assignee:
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(a)
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subject
as provided in Section 3(a) hereof, [all OR [·]% of all] of the
Assignor’s right, title and interest in, to and under each of the
outstanding Loans and other Obligations owing by the Borrower to the
Assignor under the · Facility, as more
particularly described in Exhibit A attached hereto;
and
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(b)
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[all OR [·]%] of the Assignor’s
[·] Facility Commitment,
being Cdn. $[·] of such Commitment
(the “Assigned
Commitment”),
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together
with all of the Assignor’s other rights under the Credit Agreement and the other
Documents but only insofar as such other rights relate to (a) and (b) above
(collectively, the “Assigned
Interests”).
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3.
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OUTSTANDING
LIBOR LOANS AND ASSIGNOR BAs
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(a)
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The
parties hereby acknowledge that, on the date hereof, Libor Loans and
Bankers’ Acceptances accepted by the Assignor and each having terms to
maturity ending on or after the date hereof may be outstanding
(collectively, the “Outstanding Libor Loans and
Assignor BAs”). Notwithstanding any provision of the
Credit Agreement or this Agreement, the Assignee shall have no right,
title, benefit or interest in or to any Outstanding Libor Loans and
Assignor BAs. The Assignee shall assume no liability or
obligation to the Assignor in respect of such Outstanding Assignor BAs,
including in respect of the failure of the Borrower to reimburse the
Assignor for any Bankers’ Acceptances accepted by the Assignor on the
maturity thereof or any fees or other amounts due in respect
thereof.
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(b)
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From
time to time, as the Outstanding Libor Loans and Assignor BAs mature and
Rollovers and Conversions are made by the Borrower in respect thereof, the
Assignee shall participate in the Loans effecting such Rollovers and
Conversions to the full extent of its Assigned Commitment in its capacity
as a Lender.
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3
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4.
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ASSUMPTION
OF OBLIGATIONS BY ASSIGNEE
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The
Assignee assumes and covenants and agrees to be responsible for all obligations
relating to the Assigned Interests to the extent such obligations arise or
accrue on or after the date hereof (collectively, the “Assumed Obligations”) and
agrees that it will be bound by the Credit Agreement and the other Documents to
the extent of the Assumed Obligations as fully as if it had been an original
party to the Credit Agreement.
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5.
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CREDIT
AGREEMENT REFERENCES; NOTICES
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Effective
as of the date hereof:
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(a)
|
the
Assignee shall be a Lender for all purposes of the Credit Agreement and
the other Documents and all references therein to “Lenders” or “a Lender”
shall be deemed to include the
Assignee;
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(b)
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the
[·] Facility Commitment of
the Assignee shall be the Assigned Commitment and all references in the
Credit Agreement to “[·] Facility Commitment”
of the Assignee shall be deemed to be to the Assigned
Commitment;
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(c)
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any
demand, notice or communication to be given to the Assignee in accordance
with section 16.3 of the Credit Agreement shall be made or given to the
following address or telecopy number (until the Assignee otherwise gives
notice in accordance with such section 16.3): [·];
and
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(d)
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Schedule
A to the Credit Agreement shall be deemed to be and is hereby amended to
the extent necessary to give effect to the assignment of the Assigned
Commitment contemplated hereby and to give effect to Sections 5(a), 5(b)
and 5(c) hereof.
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6.
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THE
AGENT
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Without
in any way limiting the provisions of Section 4 hereof, the Assignee irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement and the other Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, all in accordance with the provisions of the
Credit Agreement.
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7.
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NO
ENTITLEMENT TO PRIOR INTEREST OR OTHER
FEES
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Except as
otherwise agreed in writing between the Assignor and the Assignee,
notwithstanding any provision of the Credit Agreement or other Documents or any
other provision of this Agreement, the Assignee shall have no right, title or
interest in or to any interest or fees paid or to be paid to the Assignor under,
pursuant to or in respect of:
4
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(a)
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the
fees paid to the Assignor in respect of the establishment of the Credit
Facilities;
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(b)
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[the fees payable to the
Agent pursuant to section 5.7 of the Credit Agreement; or] [Note: Section
7(b) to be inserted for any assignment by the
Agent.]
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(c)
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the
Loans, the Credit Facilities or the Credit Agreement for any period of
time or in respect of any event or circumstance prior to the date hereof,
including, without limitation, any standby fees pursuant to section 5.6 of
the Credit Agreement. For certainty, with respect to the
Assigned Interests, the Assignor shall be solely entitled to the interest
payable in respect of that portion of the Interest Period of an unmatured
Libor Loan occurring prior to the date
hereof.
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8.
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CONSENT
OF BORROWER, FRONTING LENDER AND
AGENT
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The
Borrower, the Fronting Lender and the Agent hereby consent to the assignment of
the Assigned Interests to the Assignee and the assumption of the Assumed
Obligations by the Assignee and agree to recognize the Assignee as a Lender
under the Credit Agreement as fully as if the Assignee had been an original
party to the Credit Agreement. [The Borrower, the Fronting Lender
and the Agent agree that the Assignor shall have no further liability or
obligation in respect of the Assumed Obligations.]
[NOTE:
Delete the square-bracketed second sentence of Section 8 hereof in the case of
an assignment to an affiliate of the Assignor, as provided in the Credit
Agreement.]
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9.
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REPRESENTATIONS
AND WARRANTIES
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Each of
the parties, other than the Borrower, hereby represents and warrants to the
other parties, other than the Borrower, as follows:
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(a)
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it
is duly incorporated and validly subsisting under the laws of its
governing jurisdiction;
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(b)
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it
has all necessary corporate power and authority to enter into this
Agreement and to perform its obligations hereunder and under the Credit
Agreement and the other Documents;
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(c)
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the
execution, delivery, observance and performance on its part of this
Agreement has been duly authorized by all necessary corporate and other
action and this Agreement constitutes a legal, valid and binding
obligation of such party enforceable against it in accordance with its
terms; and
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(d)
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all
Governmental Authorizations, if any, required for the execution, delivery,
observance and performance by it of this Agreement, the Credit Agreement
and the other Documents have been obtained and remain in full force and
effect, all conditions have been duly complied with and no action by, and
no notice to or other filing or registration with any Governmental
Authority is required for such execution, delivery, observance or
performance.
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5
The
Assignor represents and warrants to the Assignee that it has the right to sell
to the Assignee the Assigned Interests and that the same are free and clear of
all Security Interests. The Assignor also represents and warrants to
the Assignee that it has not received written notice of any Default or Event of
Default having occurred under the Credit Agreement which is
continuing.
The
representations and warranties set out in this Agreement shall survive the
execution and delivery of this Agreement and notwithstanding any examinations or
investigations which may be made by the parties or their respective legal
counsel.
Except as
expressly provided herein, the Assignee confirms that this Agreement is entered
into by the Assignee without any representations or warranties by the Assignor,
the Fronting Lender or the Agent on any matter whatsoever, including, without
limitation, on the effectiveness, validity, legality, enforceability, adequacy
or completeness of the Credit Agreement or any Document delivered pursuant
thereto or in connection therewith or any of the terms, covenants and conditions
therein or on the financial condition, creditworthiness, condition, affairs,
status or nature of the Borrower.
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10.
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ASSIGNEE
CREDIT DECISION
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The
Assignee acknowledges to the Assignor, the Fronting Lender and the Agent that
the Assignee has itself been, and will continue to be, solely responsible for
making its own independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature of Baytex
Trust and its Subsidiaries, all of the matters and transactions contemplated
herein and in the Credit Agreement and other Documents and all other matters
incidental to the Credit Agreement and the other Documents. The
Assignee confirms with the Assignor, the Fronting Lender and the Agent that it
does not rely, and it will not hereafter rely, on the Agent, the Fronting Lender
or the Assignor:
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(a)
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to
check or inquire on its behalf into the adequacy, accuracy or completeness
of any information provided by Baytex Trust, any Subsidiary of Baytex
Trust or any other person under or in connection with the Credit Agreement
and other Documents or the transactions therein contemplated (whether or
not such information has been or is hereafter distributed to the Assignee
by the Agent); or
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(b)
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to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of Baytex Trust and
its Subsidiaries.
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The
Assignee acknowledges that a copy of the Credit Agreement (including a copy of
the Schedules) has been made available to it for review and further acknowledges
and agrees that it has received copies of such other Documents and such other
information that it has requested for the purposes of its investigation and
analysis of all matters related to this Agreement, the Credit Agreement, the
other Documents and the transactions contemplated hereby and
thereby. The Assignee acknowledges that it is satisfied with the form
and substance of the Credit Agreement and the other Documents.
6
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11.
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PAYMENTS
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The
Assignor and the Assignee acknowledge and agree that all payments under the
Credit Agreement in respect of the Assigned Interests from and after the date
hereof received by the Agent on or after the date hereof shall be the property
of the Assignee and the Agent shall be entitled to treat the Assignee as solely
entitled thereto.
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12.
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AMENDMENTS
AND WAIVERS
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Any
amendment or modification or waiver of any right under any provision of this
Agreement shall be in writing (in the case of an amendment or modification,
signed by the parties) and any such waiver shall be effective only for the
specific purpose for which given and for the specific time period, if any,
contemplated therein. No failure or delay by any party in exercising
any right, power or privilege under this Agreement shall operate as a waiver
thereof and any waiver of any breach of the provisions of this Agreement shall
be without prejudice to any rights with respect to any other or further
breach.
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13.
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GENERAL
PROVISIONS
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(a)
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The
parties hereto shall from time to time and at all times do all such
further acts and things and execute and deliver all such documents as are
reasonably required in order to fully perform and carry out the terms of
this Agreement.
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(b)
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The
provisions of this Agreement shall enure to the benefit of and shall be
binding upon the parties hereto and their respective successors and
permitted assigns.
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(c)
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This
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one full set
of counterparts.
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IN WITNESS WHEREOF the parties
hereto have caused this Agreement to be executed by its duly authorized
representative(s) as of the date first above written.
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[·], as
Assignor
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Per:
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[·]
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Per:
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[·]
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[·], as
Assignee
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Per:
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[·]
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Per:
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[·]
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BAYTEX
ENERGY LTD.
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Per:
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[·]
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Per:
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[·]
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THE TORONTO-DOMINION
BANK, in its capacity as Agent
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Per:
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[·]
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Per:
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[·]
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THE TORONTO-DOMINION
BANK, in its capacity as Fronting Lender
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Per:
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[·]
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Per:
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[·]
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7
SCHEDULE
C
COMPLIANCE
CERTIFICATE
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TO:
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The
Toronto-Dominion Bank, in its capacity as agent of the Lenders (the “Agent”)
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AND
TO:
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Each
of the Lenders
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1.
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Reference
is made to the Amended and Restated Credit Agreement made as of July 9,
2003, as amended and restated as of September 3, 2003, as further amended
and restated as of June 9, 2006 and as further amended and restated as of
November 29, 2007 between Baytex Energy Ltd., as Borrower, The
Toronto-Dominion Bank and the other financial institutions party thereto
in their capacity as Lenders and the Agent and relating to the
establishment of certain credit facilities in favour of the Borrower (as
further amended, modified, supplemented or restated, the “Credit
Agreement”). Capitalized terms used herein, and not
otherwise defined herein, shall have the meanings attributed to such terms
in the Credit Agreement.
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2.
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This
Compliance Certificate is delivered to the Lender pursuant to Section
10.1(e)(iv) of the Credit
Agreement.
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3.
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The
undersigned,
[name], [title] of the Borrower, hereby certifies that, as of the
date of this Compliance Certificate, I have made or caused to be made such
investigations as are necessary or appropriate for the purposes of this
Compliance Certificate and:
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(a)
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the
consolidated financial statements for the [fiscal quarter OR fiscal year]
ending [·],[·] provided to the Lender
pursuant to Section 10.1(e) of the Credit Agreement were prepared in
accordance with generally accepted accounting principles and present
fairly, in all material respects, the consolidated financial position of
Baytex Trust as at the date
thereof;
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(b)
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the
representations and warranties made by the Borrower in Section 9.1 of the
Credit Agreement are true and accurate in all respects as at the date
hereof, except as has heretofore been notified to the Agent by the
Borrower in writing [or except as described in Schedule ____
hereto];
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(c)
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no
event has occurred or is continuing which would constitute a Default or
Event of Default, except as has heretofore been notified to the Agent by
the Borrower in writing [or except as described in Schedule ______
hereto]; and
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(d)
|
as
at the end of the aforementioned [fiscal quarter OR fiscal year], the Debt
to EBITDA Ratio was [·]:1.0; attached hereto
as Exhibit A is a determination of such financial ratio as at the end of
the aforementioned [fiscal quarter OR fiscal year], together with
particulars of each of the definitions and elements included in the
determination of such financial
ratio.
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I give
this Compliance Certificate on behalf of the Borrower and in my capacity as the
[title] of the
Borrower, and no personal liability is created against or assumed by me in the
giving of this Certificate.
Dated at
[·], this [·] day of [·],[·].
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Name:
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Title:
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SCHEDULE
D
CONVERSION
NOTICE
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TO:
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The
Toronto-Dominion Bank, in its capacity as agent of the Lenders (the “Agent”)
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DATE:
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This
Conversion Notice is delivered to you pursuant to the terms and conditions of
the Amended and Restated Credit Agreement made as of July 9, 2003, as amended
and restated as of September 3, 2003, as further amended and restated as of June
9, 2006 and as further amended and restated as of November 29, 2007 between
Baytex Energy Ltd., as Borrower, The Toronto-Dominion Bank and the other
financial institutions party thereto in their capacity as Lenders and the Agent
and relating to the establishment of certain credit facilities in favour of the
Borrower (as further amended, modified, supplemented or restated, the “Credit
Agreement”). Unless otherwise expressly defined herein,
capitalized terms set forth in this Conversion Notice shall have the respective
meanings set forth in the Credit Agreement.
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1.
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The
Borrower hereby requests a Conversion as
follows:
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(a) Conversion
Date:
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(b) Conversion
of the following Loans under the referenced Credit
Facility:
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(i) Type
of Loan and Credit Facility:
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(ii) Amount
being converted:
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(iii) Interest
Period maturity (for Libor Loans and Bankers’
Acceptances):
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INTO
the following Loan under the same Credit Facility:
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||||||||||||||||||
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(iv) Type
of Loan:
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(v) Interest
Period (specify term of Libor Loans or Bankers’
Acceptances):
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(vi) Marketed
by Borrower (for Bankers’ Acceptances):
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yes no
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(c) Payment,
delivery or issuance instructions (if any):
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||||||||||||||||||
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Yours
very truly,
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||||||||||||||||||
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BAYTEX
ENERGY LTD.
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||||||||||||||||||
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Per:
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Name:
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||||||||||||||||||
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Title:
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||||||||||||||||||
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Per:
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Name:
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Title:
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SCHEDULE
E
DRAWDOWN
NOTICE
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TO:
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The
Toronto-Dominion Bank, in its capacity as agent of the Lenders (the “Agent”)
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DATE:
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This
Drawdown Notice is delivered to you pursuant to the terms and conditions of the
Amended and Restated Credit Agreement made as of July 9, 2003, as amended and
restated as of September 3, 2003, as further amended and restated as of June 9,
2006 and as further amended and restated as of November 29, 2007 between Baytex
Energy Ltd., as Borrower, The Toronto-Dominion Bank and the other financial
institutions party thereto in their capacity as Lenders and the Agent and
relating to the establishment of certain credit facilities in favour of the
Borrower (as further amended, modified, supplemented or restated, the “Credit
Agreement”). Unless otherwise expressly defined herein,
capitalized terms set forth in this Drawdown Notice shall have the respective
meanings set forth in the Credit Agreement.
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1.
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The
Borrower hereby requests a Drawdown as
follows:
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(a) Drawdown
Date:
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(b) Amount
of Drawdown:
|
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(c) Type
of Loan and Credit Facility:
|
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(d) Interest
Period (specify term for Libor Loans, Bankers’ Acceptances and Letters of
Credit):
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(e) Marketed
by Borrower (for Bankers’ Acceptances):
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yes no
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(f) Payment,
delivery or issuance instructions (if any):
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||||||||||||
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Yours
very truly,
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||||||||||||
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BAYTEX
ENERGY LTD.
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||||||||||||
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Per:
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Name:
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||||||||||||
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Title:
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||||||||||||
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Per:
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Name:
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||||||||||||
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Title:
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||||||||||||
SCHEDULE
F
REPAYMENT
NOTICE
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TO:
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The
Toronto-Dominion Bank, in its capacity as agent of the Lenders (the
“Agent”)
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DATE:
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1.
|
This
Repayment Notice is delivered to you pursuant to the terms and conditions
of the Amended and Restated Credit Agreement made as of July 9, 2003, as
amended and restated as of September 3, 2003, as further amended and
restated as of June 9, 2006 and as further amended and restated as of
November 29, 2007 between Baytex Energy Ltd., as Borrower, The
Toronto-Dominion Bank and the other financial institutions party thereto
in their capacity as Lenders and the Agent and relating to the
establishment of certain credit facilities in favour of the Borrower (as
further amended, modified, supplemented or restated, the “Credit
Agreement”). Unless otherwise expressly defined herein,
capitalized terms set forth in this Repayment Notice shall have the
respective meanings set forth in the Credit
Agreement.
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2.
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The
Borrower hereby gives notice of a repayment as
follows:
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(a) Date
of repayment:
|
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(b) Loan(s)
and Credit Facility:
|
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(c)Interest
Period maturity (specify for Libor Loans, Bankers’ Acceptances
and
|
|||||||||||
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Letters
of Credit):
|
|||||||||||
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(d) Amount
being repaid:
|
|||||||||||
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Yours
very truly,
|
|||||||||||
|
BAYTEX
ENERGY LTD.
|
|||||||||||
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Per:
|
|||||||||||
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Name:
|
|||||||||||
|
Title:
|
|||||||||||
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Per:
|
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Name:
|
|||||||||||
|
Title:
|
|||||||||||
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089340-327241
|
||
|
CAL_DOCS
#1596983 v. 3
|
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SCHEDULE
G
ROLLOVER
NOTICE
|
TO:
|
The
Toronto-Dominion Bank, in its capacity as agent of the Lenders (the
“Agent”)
|
|
|
DATE:
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1.
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This
Rollover Notice is delivered to you pursuant to the terms and conditions
of the Amended and Restated Credit Agreement made as of July 9, 2003, as
amended and restated as of September 3, 2003, as further amended and
restated as of June 9, 2006 and as further amended and restated as of
November 29, 2007 between Baytex Energy Ltd., as Borrower, The
Toronto-Dominion Bank and the other financial institutions party thereto
in their capacity as Lenders and the Agent and relating to the
establishment of certain credit facilities in favour of the Borrower (as
further amended, modified, supplemented or restated, the “Credit
Agreement”). Unless otherwise expressly defined herein,
capitalized terms set forth in this Rollover Notice shall have the
respective meanings set forth in the Credit
Agreement.
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2.
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The
Borrower hereby requests a Rollover as
follows:
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(a) Rollover
Date:
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(b) Amount
of Rollover:
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(c) Type
of Loan and Credit Facility:
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(d) New
Interest Period (specify term of Libor Loans, Bankers’ Acceptances and
Letters
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of
Credit):
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(e) Marketed
by Borrower (for Bankers’ Acceptances):
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yes no
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(f) Payment,
delivery or issuance instructions (if any):
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Yours
very truly,
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BAYTEX
ENERGY LTD.
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Per:
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Name:
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Title:
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Per:
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Name:
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Title:
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