SCHEDULE I BAYTEX ENERGY TRUST
SCHEDULE
I
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GUARANTEE
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MADE
AS OF ·, 200·
TABLE
OF CONTENTS
GUARANTEE
THIS GUARANTEE is made as of
·,
20·
WHEREAS the Borrower is a
Subsidiary of the Guarantor;
AND WHEREAS the Guarantor has
agreed to provide a guarantee with respect to the Credit Facilities provided by
the Lenders pursuant to the Credit Agreement and with respect to the Lender
Financial Instruments;
NOW THEREFORE, in
consideration of the covenants and agreements herein contained, the sum of Cdn.
$10.00 now paid by the Beneficiaries to the Guarantor and other good and
valuable consideration (the receipt and sufficiency of which are hereby
conclusively acknowledged), the Guarantor hereby covenants and agrees with the
Beneficiaries as follows:
ARTICLE
1
INTERPRETATION
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1.1
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Definitions
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(a)
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In
this Guarantee and the recitals hereto, unless something in the subject
matter or context is inconsistent
therewith:
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“Beneficiaries” means,
collectively, the Lenders, the Hedging Affiliates and the Agent, and “Beneficiary” means any of the
Lenders, the Hedging Affiliates or the Agent.
“Beneficiaries’ Counsel” means
XxXxxxxx Xxxxxxxx LLP or such other firm of lawyers as may be selected by the
Beneficiaries from time to time.
“Borrower” means Baytex Energy
Ltd. and its successors.
“Credit Agreement” means 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 September ·, 2007 between Xxxxxxxx, as
borrower, The Toronto-Dominion Bank and such other financial institutions as
become parties thereto, as lenders, and The Toronto-Dominion Bank, as agent of
such lenders, as the same may be amended, modified, supplemented or restated
from time to time in accordance with the provisions thereof.
“Default Rate” means a rate per
annum that is equal to (i) in respect of amounts due in Canadian Dollars,
the rate of interest then payable under the Credit Agreement on Canadian Prime
Rate Loans plus 2.0% per annum or (ii) in respect of amounts due in United
States Dollars, the rate of interest then payable under the Credit Agreement on
U.S. Base Rate Loans plus 2.0% per annum.
“Documents” means,
collectively, the Documents as defined in the Credit Agreement together with any
and all Lender Financial Instruments.
“Guarantee” means this
guarantee, as amended, modified, supplemented or restated from time to time in
accordance with the provisions hereof.
“Guarantor” means Baytex Energy
Trust and its successors.
“Obligations” means,
collectively and at any time and from time to time, (i) all of the
obligations, indebtedness and liabilities (present or future, absolute or
contingent, matured or not) of the Borrower to the Agent and the Lenders under,
pursuant or relating to the Credit Agreement and other Documents and including
all Outstanding Principal and all interest, commissions, legal and other costs,
charges and expenses payable by the Borrower under the Credit Agreement and
other Documents and (ii) all Lender Financial Instrument Obligations of or
owing by the Borrower to any and all Lenders and Hedging Affiliates, whether the
same are from time to time reduced and thereafter increased or entirely
extinguished and thereafter incurred again.
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(b)
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Capitalized
words and phrases used in this Guarantee and the recitals hereto without
express definition herein shall, unless something in the subject matter or
context is inconsistent therewith, have the same defined meanings as are
ascribed to such words and phrases in the Credit Agreement. For
certainty, if the Credit Agreement ceases to be in force for any reason
whatsoever, then for all purposes hereof the aforementioned capitalized
words and phrases shall continue to have the same defined meanings set
forth in the Credit Agreement as if such agreement remained in force in
the form immediately prior to its ceasing to be in
force.
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1.2
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Headings
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The
division of this Guarantee into Articles and Sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Guarantee. The terms “this
Guarantee”, “hereof”, “hereunder” and similar expressions refer to this
Guarantee and not to any particular Article, Section or other portion hereof and
include any agreement supplemental hereto. Unless something in the
subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this
Guarantee.
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1.3
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Number; persons;
including
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Words
importing the singular number only shall include the plural and vice versa,
words importing the masculine gender shall include the feminine and neuter
genders and vice versa and words importing persons shall include individuals,
partnerships, associations, trusts, unincorporated organizations and
corporations and vice versa and 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.
2
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1.4
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Interest Act
(Canada)
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Whenever
a rate of interest hereunder is calculated on the basis of a year (the “deemed year”) which contains
fewer days than the actual number of days in the calendar year of calculation,
such rate of interest shall be expressed as a yearly rate for the purposes of
the Interest Act
(Canada) by multiplying such rate of interest by the actual number of days in
the calendar year of calculation and dividing it by the number of days in the
deemed year.
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1.5
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Nominal
Rates
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The
principle of deemed reinvestment of interest shall not apply to any interest
calculation under this Guarantee; all interest payments to be made hereunder
shall be paid without allowance or deduction for deemed reinvestment or
otherwise, before and after demand, default and judgment. The rates
of interest specified in this Guarantee are intended to be nominal rates and not
effective rates and any interest calculated hereunder shall be calculated using
the nominal rate method and not the effective rate method of
calculation.
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1.6
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References to
Guarantor
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All
references in this Guarantee to representations and warranties by, covenants of,
actions and steps by, or the performance of the terms and conditions hereof by
the “Guarantor” shall, as the context requires, be and shall be construed as
being by the trustee of Baytex Energy Trust on behalf of and in respect of such
trust.
ARTICLE
2
GUARANTEE
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2.1
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Guarantee of
Obligations
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The
Guarantor hereby unconditionally and irrevocably guarantees to the Beneficiaries
the payment and performance of all of the Obligations, together with interest
thereon as provided in Section 5.4.
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2.2
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Indemnity
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If any or
all of the Obligations are not duly paid or performed by the Borrower and are
not recoverable under Section 2.1 for any reason whatsoever, the Guarantor
will, as a separate and distinct obligation, indemnify and save harmless the
Beneficiaries from and against all losses resulting from the failure of the
Borrower to pay and perform such Obligations.
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2.3
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Guarantor as Principal
Obligor
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If any or
all of the Obligations are not duly paid or performed by the Borrower and are
not recoverable under Section 2.1 or the Beneficiaries are not indemnified
under Section 2.2, in each case, for any reason whatsoever, such
Obligations shall, as a separate and distinct obligation, be recoverable by the
Beneficiaries from the Guarantor as the primary obligor and principal debtor in
respect thereof and shall be paid to the Beneficiaries forthwith after demand
therefore as provided herein.
3
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2.4
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Guarantee Absolute and
Unconditional
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The
liability and obligations of the Guarantor hereunder shall be continuing,
unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged, limited or otherwise affected
by:
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(a)
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any
extension, other indulgence, renewal, settlement, discharge, compromise,
waiver, subordination or release in respect of any Obligation, security,
person or otherwise, including any extension, other indulgence, renewal,
settlement, discharge, compromise, waiver, subordination or release of any
of the Obligations, covenants or undertakings of the Borrower under the
Documents;
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(b)
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any
modification or amendment of or supplement to the
Obligations;
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(c)
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any
loss of or in respect of any security held by the Beneficiaries, whether
occasioned by the fault of the Beneficiaries or otherwise, including any
release, non-perfection or invalidity of any such
security;
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(d)
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any
change in the existence, structure, constitution, name, control or
ownership of the Borrower or any other person, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower or any other person or their respective
assets;
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(e)
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the
existence of any set-off, counterclaim, claim or other right which the
Guarantor or the Borrower may have at any time against the Beneficiaries
or any other person, whether in connection with, the Credit Agreement,
this Guarantee or any unrelated
transaction;
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(f)
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any
provision of applicable law purporting to prohibit or limit the payment by
the Borrower of any Obligation, and the foregoing is hereby waived by the
Guarantor to the extent permitted under applicable
law;
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(g)
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any
limitation, postponement, prohibition, subordination or other restriction
on the right of a Beneficiary to payment of the
Obligations;
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(h)
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any
release, substitution or addition of any other guarantor of the
Obligations;
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(i)
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any
defence arising by reason of any failure of any Beneficiary to make any
presentment, demand, or protest or to give any other notice, including
notice of all of the following: acceptance of this Guarantee,
partial payment or non-payment of all or any part of the Obligations and
the existence, creation, or incurring of new or additional
Obligations;
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(j)
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any
defence arising by reason of any failure of a Beneficiary to proceed
against the Borrower or any other person, or to apply or exhaust any
security held from the Borrower or any other person for the Obligations,
to proceed against, apply or exhaust any security held from the Guarantor
or any other person, or to pursue any other remedy available to the
Beneficiaries;
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4
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(k)
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any
defence arising by reason of the invalidity, illegality or lack of
enforceability of the Obligations or any part thereof or of any security
or guarantee in support thereof, or by reason of any incapacity, lack of
authority, or other defence of the Borrower or any other person, or by
reason of any limitation, postponement or prohibition on a Beneficiary’s
rights to payment, or the cessation from any cause whatsoever of the
liability of the Borrower or any other person with respect to all or any
part of the Obligations (other than irrevocable payment to the
Beneficiaries in full, in cash, of the Obligations), or by reason of any
act or omission of the Beneficiaries or others which directly or
indirectly results in the discharge or release of the Borrower or any
other person or of all or any part of the Obligations or any security or
guarantee therefor, whether by contract, operation of law or
otherwise;
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(l)
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any
defence arising by reason of the failure by a Beneficiary to obtain,
register, perfect or maintain a Security Interest in or upon any property
of the Borrower or any other person, or by reason of any interest of the
Beneficiaries in any property, whether as owner thereof or as holder of a
Security Interest therein or thereon, being invalidated, voided, declared
fraudulent or preferential or otherwise set aside, or by reason of any
impairment of any right or recourse to
collateral;
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(m)
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any
defence arising by reason of the failure of the Beneficiaries to marshal
assets;
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(n)
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to
the extent permitted under applicable law, any defence based upon any
failure of the Beneficiaries to give to the Borrower or the Guarantor
notice of any sale or other disposition of any property securing any or
all of the Obligations or any other guarantee thereof, or any notice that
may be given in connection with any sale or other disposition of any such
property;
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(o)
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any
defence based upon or arising out of any bankruptcy, insolvency,
reorganization, moratorium, arrangement, readjustment of debt, liquidation
or dissolution proceeding commenced by or against the Borrower
or any other person, including any discharge or bar against collection of
any of the Obligations; or
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(p)
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any
other law, event or circumstance or any other act or failure to act or
delay of any kind by the Borrower, the Beneficiaries or any
other person, which might, but for the provisions of this Section,
constitute a legal or equitable defence to or discharge, limitation or
reduction of the Guarantor’s obligations hereunder, other than as a result
of the payment or extinguishment in full of the
Obligations.
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The
foregoing provisions apply and the foregoing waivers, to the extent permitted
under applicable law, shall be effective even if the effect of any action or
failure to take action by the Beneficiaries is to destroy or diminish the
Guarantor’s subrogation rights, the Guarantor’s right to proceed against the
Borrower for reimbursement, the Guarantor’s right to recover contribution from
any other guarantor or any other right or remedy of the Guarantor.
5
ARTICLE
3
DEALINGS WITH THE BORROWER
AND OTHERS
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3.1
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No
Release
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The
Beneficiaries, without releasing, discharging, limiting or otherwise affecting
in whole or in part the Guarantor’s liability and obligations hereunder,
may:
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(a)
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grant
time, renewals, extensions, indulgences, releases and discharges to the
Borrower or any other guarantor or
endorser;
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(b)
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take
or abstain from taking security or collateral from the Borrower or any
other guarantor or endorser or from perfecting security or collateral of
the Borrower or any other guarantor or
endorser;
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(c)
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accept
compromises from the Borrower or any other guarantor or
endorser;
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(d)
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subject
to the Documents, apply all money at any time received from the Borrower
or from security upon such part of the Obligations as the Beneficiaries
may see fit or change any such application in whole or in part from time
to time as the Beneficiaries may see fit;
or
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(e)
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otherwise
deal with the Borrower and all other persons and security as the
Beneficiaries may see fit.
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3.2
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No Exhaustion of
Remedies
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The
Beneficiaries shall not be bound or obligated to exhaust their recourse against
the Borrower or other persons or any securities or collateral it may hold or
take any other action (other than to make demand pursuant to Article 5)
before the Beneficiaries shall be entitled to demand, enforce and collect
payment from the Guarantor hereunder.
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3.3
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Evidence of
Obligations
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Any
account settled or stated in writing by or between a Beneficiary or the
Beneficiaries, as the case may be, and the Borrower shall be prima facie
evidence that the balance or amount thereof appearing due to the same is so
due.
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3.4
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No
Set-off
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In any
claim by the Beneficiaries against the Guarantor hereunder, the Guarantor shall
not claim or assert any set-off, counterclaim, claim or other right that either
the Borrower or the Guarantor may have against one or more of the
Beneficiaries.
6
ARTICLE
4
CONTINUING
GUARANTEE
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4.1
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Continuing
Guarantee
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This
Guarantee shall be a continuing guarantee and shall continue to be effective
even if at any time any payment of any of the Obligations is rendered
unenforceable or is rescinded or must otherwise be returned by any Beneficiary
for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of the Borrower), all as though such payment had not been
made.
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4.2
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Revival of
Indebtedness
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If at any
time, all or any part of any payment previously received by a Beneficiary and
applied to any Obligation must be rescinded or returned by the Beneficiary for
any reason whatsoever (including the insolvency, bankruptcy or reorganization of
the Borrower), such Obligation shall, for the purpose of this Guarantee, to the
extent that such payment must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by the Beneficiary, and
this Guarantee shall continue to be effective or be reinstated, as the case may
be, as to such Obligation as though such application by the Beneficiary had not
been made.
ARTICLE
5
DEMAND FOR PAYMENT, EXPENSES
AND INTEREST
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5.1
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Demand for
Payment
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The
Beneficiaries shall be entitled to make demand upon the Guarantor at any time
(a) during the continuance of a Event of Default and (b) except for those Events
of Default set forth in Sections 12.1(e), (f) or (g) of the Credit Agreement,
after a Demand for Payment, and upon any such demand the Beneficiaries may treat
all Obligations as due and payable and may forthwith collect from the Guarantor
all Obligations. The Guarantor shall make payment to or performance
in favour of the Beneficiaries of all Obligations forthwith after demand
therefor is made upon the Guarantor by the Beneficiaries as
aforesaid.
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5.2
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Stay of
Acceleration
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If
acceleration of the time for payment of any amount payable by the Borrower in
respect of the Obligations is stayed upon the insolvency, bankruptcy,
arrangement or reorganization of the Borrower or any moratorium
affecting the payment of the Obligations, all such amounts that would otherwise
be subject to acceleration shall nonetheless be payable by the Guarantor
hereunder forthwith on demand by the Beneficiaries.
7
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5.3
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Expenses
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The
Guarantor shall pay to the Beneficiaries all reasonable out-of-pocket costs and
expenses, including all reasonable legal fees (on a solicitor and his own client
basis) and other expenses incurred by the Beneficiaries from time to time in the
enforcement, realization and collection of or in respect of this
Guarantee. All such amounts shall be payable by the Guarantor on
demand by the Beneficiaries.
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5.4
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Interest
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Any
payment obligation comprised in the Obligations guaranteed hereunder which is
not paid when due hereunder shall bear interest, to the extent not already
included in the Obligations, both before and after default or judgment, from the
date of demand pursuant to Section 5.1 to the date of payment at the rate
or rates provided in the relevant Document for such Obligations or, in the event
no such rate is provided for therein, at a rate per annum that is equal to the
Default Rate. Any other amounts payable pursuant hereto, including
pursuant to Section 5.3, which are not paid when due hereunder shall bear
interest, both before and after default or judgment, from the date of demand
pursuant to Section 5.1 to the date of payment or reimbursement thereof by
the Guarantor at a rate per annum that is equal to the Default
Rate. All such interest shall accrue daily and shall be payable by
the Guarantor on demand by the Beneficiaries.
ARTICLE
6
SUBROGATION
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6.1
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Subrogation
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(a)
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Until
all the Obligations have been irrevocably paid in full in cash, the
Guarantor shall have no right of subrogation to, and waives to the fullest
extent permitted by applicable law, any right to enforce any remedy which
the Beneficiaries now have or may hereafter have against the Borrower in
respect of the Obligations, and until such time the Guarantor waives any
benefit of, and any right to participate in, any security, now or
hereafter held by the Beneficiaries for the
Obligations.
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(b)
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If
(i) the Guarantor performs or makes payment to the Beneficiaries of
all amounts owing by the Guarantor under this Guarantee, and (ii) the
Obligations are performed and irrevocably paid in full then the
Beneficiaries will, at the Guarantor’s request, execute and deliver to the
Guarantor appropriate documents, without recourse and without
representation and warranty, necessary to evidence the transfer by
subrogation to the Guarantor of the Beneficiaries’ interest in the
Obligations and any security held therefor resulting from such performance
or payment by the Guarantor.
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8
ARTICLE
7
REPRESENTATIONS AND
WARRANTIES; COVENANTS
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7.1
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Representations and
Warranties
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The
Guarantor represents and warrants as follows to each of the Beneficiaries and
acknowledges and confirms that each of the Beneficiaries is relying upon such
representations and warranties:
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(a)
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Status and
Authority
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It is a
trust existing under the laws of the Province of Alberta and has all authority,
capacity and powers and all material Governmental Authorizations required to
carry on its business as now conducted.
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(b)
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Valid
Authorization
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The
execution, delivery and performance by the Guarantor of this Guarantee and each
of the Documents to which it is a party (i) is within the Guarantor’s
authority, capacity and power, (ii) has been duly authorized by all
necessary trust, trustee and other action, (iii) requires no Governmental
Authorization or action by or in respect of, or filing with, any Governmental
Authority, and (iv) does not contravene or constitute a default under any
provision of applicable law, or any agreement or any judgment, injunction,
order, decree or other instrument binding upon the Guarantor or result in the
creation or imposition of any Security Interest on any asset of the Guarantor or
any of its Subsidiaries (other than pursuant to the Security).
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(c)
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Enforceability of
Documents
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This
Guarantee and each of the other Documents to which the Guarantor is a party
constitute valid and legally binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their respective terms subject to
applicable bankruptcy, insolvency and other laws of general application limiting
the enforceability of creditors’ rights and to the fact that equitable remedies
are only available in the discretion of the court.
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7.2
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Effective Time of
Repetition
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All
representations and warranties, when repeated or deemed to be repeated
hereunder, shall be construed with reference to the facts and circumstances
existing at the time of repetition, unless they are stated herein to be made as
at the date hereof.
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7.3
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Nature of
Representations and
Warranties
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The
representations and warranties set out in this Guarantee or deemed to be made
pursuant hereto shall survive the execution and delivery of this Guarantee
notwithstanding any investigations or examinations which may be made by the
Beneficiaries or Beneficiaries’ Counsel. Such representations and
warranties shall survive until this Guarantee has been terminated.
9
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7.4
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Covenants Contained in
the Credit Agreement and Other
Documents
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The
Guarantor hereby covenants and agrees with the Beneficiaries that the Guarantor
shall observe, perform and comply with any and all of the covenants of the
Borrower contained in the Credit Agreement or other Documents that the Borrower
agrees that the Guarantor shall observe, perform and comply with or that the
Borrower shall cause the Guarantor to observe, perform and comply
with. In addition to and without limiting the foregoing, the
Guarantor hereby covenants and agrees with the Beneficiaries that the Guarantor
shall at all times retain 100% ownership of all the issued and outstanding
shares in the capital of the Borrower (other than the Exchangeable Borrower
Shares) and retain 100% of all net profits interests granted by the Borrower in
connection with the Plan of Arrangement.
ARTICLE
8
POSTPONEMENT
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8.1
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Postponement
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Upon the
occurrence and during the continuance of a Default or Event of Default, all
debts, liabilities and obligations, present and future of the Borrower to or in
favour of the Guarantor shall be and are hereby postponed and subordinated to
the prior payment and performance in full of the Obligations. All
money received by the Guarantor in respect of such debts, liabilities and
obligations during the continuance of a Default or Event of Default shall be
received and held in trust for the benefit of the Beneficiaries and upon demand
hereunder shall be forthwith paid over to the Agent, the whole without in any
way lessening or limiting the liability and obligations of the Guarantor
hereunder and this postponement is independent of the Guarantee and shall remain
in full force and effect until payment and performance in full of the
Obligations and all obligations of the Guarantor under this
Guarantee.
ARTICLE
9
GENERAL
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9.1
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Waiver of
Notices
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The
Guarantor hereby waives promptness, diligence, presentment, demand of payment,
notice of acceptance and any other notice with respect to this Guarantee and the
obligations guaranteed hereunder, except for the demand pursuant to
Section 5.1.
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9.2
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Benefit of the
Guarantee
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This
Guarantee shall enure to the benefit of the respective successors and permitted
assigns of the Beneficiaries and be binding upon the successors of the
Guarantor.
10
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9.3
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Foreign Currency
Obligations
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The
Guarantor shall make payment relative to each Obligation in the currency (the
“original currency”) in which the Borrower is required to pay such
Obligation. If the Guarantor makes payment relative to any Obligation
to the Beneficiaries in a currency (the “other currency”) other than the
original currency (whether voluntarily or pursuant to an order or judgment of a
court or tribunal of any jurisdiction), such payment shall constitute a
discharge of the liability of the Guarantor hereunder in respect of such
Obligation only to the extent of the amount of the original currency which the
Beneficiaries are able to purchase with the amount of other currency they
receive on the date of receipt in accordance with normal practice. If
the amount of the original currency which the Beneficiaries are able to purchase
is less than the amount of such currency originally due in respect of the
relevant Obligation, the Guarantor shall indemnify and save the Beneficiaries
harmless from and against any loss or damage arising as a result of such
deficiency. This indemnity shall constitute an obligation separate
and independent from the other obligations contained in this Guarantee, shall
give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Beneficiaries and shall continue
in full force and effect notwithstanding any judgment or order in respect of any
amount due hereunder or under any judgment or order. A certificate of
a Beneficiary as to any such loss or damage shall constitute prima facie evidence thereof,
in the absence of manifest error.
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9.4
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Taxes and Set-off by
Guarantor
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All
payments by the Guarantor under this Guarantee, whether in respect of principal,
interest, interest on overdue and unpaid interest, fees or any other
Obligations, shall be made in full without any deduction or withholding (whether
in respect of set-off, counterclaim, duties, Taxes, charges or otherwise
whatsoever, but other than withholding tax pursuant to Part XIII of the Income Tax Act (Canada))
unless the Guarantor is prohibited by applicable laws from doing so, in which
event the Guarantor shall:
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(a)
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ensure
that the deduction or withholding does not exceed the minimum amount
legally required;
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(b)
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forthwith
pay to the Beneficiaries such additional amount so that the net amount
received by the Beneficiaries will equal the full amount which would have
been received by it had no such deduction or withholding been
made;
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(c)
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pay
to the relevant taxation or other authorities, within the period for
payment required by applicable laws, the full amount of the deduction or
withholding (including the full amount of any deduction or withholding
from any additional amount paid pursuant to this Section);
and
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(d)
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furnish
to the Beneficiaries promptly, as soon as available, an official receipt
of the relevant taxation or other authorities involved for all amounts
deducted or withheld as aforesaid.
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11
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9.5
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No Waiver;
Remedies
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No
failure on the part of the Beneficiaries to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude the other or further
exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
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9.6
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Severability
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If any
provision of this Guarantee is determined to be invalid or unenforceable in
whole or in part, such invalidity or unenforceability shall attach only to such
provision or part thereof and the remaining part of such provision and all other
provisions hereof shall continue in full force and effect.
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9.7
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Amendments and
Waivers
|
Any
provision of this Guarantee may be amended, waived or a consent given in respect
thereof with the concurrence of the Guarantor and all of the
Beneficiaries. Any waiver and any consent by the Beneficiaries under
any provision of this Guarantee must be in writing signed by the Agent and may
be given subject to any conditions thought fit by the Beneficiaries, as the case
may be. Any waiver or consent shall be effective only in the instance
and for the purpose for which it is given.
|
9.8
|
Additional
Security
|
This
Guarantee is in addition and without prejudice to any security of any kind
(including, without limitation, other guarantees) now or hereafter held by the
Beneficiaries and any other rights or remedies they might have.
|
9.9
|
Notices
|
Any
demand, notice or other communication (hereinafter in this Section referred to
as a “Communication”) to be given in connection with this Guarantee shall be
given in writing and may be given by personal delivery, telecopier or by
registered mail addressed to the recipient as follows:
|
To
the Agent on behalf of the Beneficiaries as follows:
|
|
|
The
Toronto-Dominion Bank
|
|
|
00
Xxxx Xxxxxx Xxxx
|
|
|
18th
Floor, Royal Trust Tower
|
|
|
Toronto,
Ontario M5K 1A2
|
|
|
Attention:
|
Vice
President, Loan Syndications – Agency
|
|
Facsimile:
|
(000)
000-0000
|
|
To
the Guarantor:
|
|
|
c/o
Baytex Energy Ltd.
|
|
|
Suite
0000, Xxx Xxxxxx Xxxxxx II
|
|
|
000
– 0xx
Xxxxxx X.X.
|
|
|
Calgary,
Alberta T2P 2V7
|
|
|
Attention:
|
Chief
Executive Officer
|
|
Facsimile:
|
(000)
000-0000
|
or such
other address or telecopy number as may be designated by notice by any party to
the other. Any Communication given by personal delivery or telecopier
shall be conclusively deemed to have been given on the day of actual delivery or
transmittal thereof and, if given by registered mail, on the third day following
the deposit thereof in the mail. If the party giving any
Communication knows or ought reasonably to know of any difficulties with the
postal system which might affect the delivery of mail, any such Communication
shall not be mailed but shall be given by personal delivery or
telecopier.
12
|
9.10
|
Assignment
|
The
rights of the Beneficiaries under this Guarantee may be assigned by the
Beneficiaries in accordance with the provisions of the Credit Agreement and
without the consent of the Borrower or the Guarantor during the continuance of
an Event of Default and, at all other times, with the prior written consent of
the Guarantor (such consent not to be unreasonably withheld). The
Guarantor may not assign its obligations under this Guarantee.
|
9.11
|
Time of
Essence
|
Time is
of the essence with respect to this Guarantee and the time for performance of
the obligations of the Guarantor under this Guarantee may be strictly enforced
by the Beneficiaries.
|
9.12
|
Financial Condition of
the Borrower
|
The
Guarantor is fully aware of the financial condition of the Borrower and
acknowledges that it shall receive a benefit from the Beneficiaries entering
into the Documents to which the Beneficiaries are a party. The
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of non-payment or non-performance of the Obligations and
the nature, scope and extent of the risks which Guarantor assumes and incurs
hereunder, and agrees that the Beneficiaries shall not have a duty to advise
Guarantor of information known to any of them regarding such circumstances or
risks.
|
9.13
|
Acknowledgement of
Documentation
|
The
Guarantor hereby acknowledges receipt of a true and complete copy of the other
Documents and all of the terms and conditions thereof.
|
9.14
|
Entire
Agreement
|
This
Guarantee and the other Documents constitute the entire agreement between the
Beneficiaries and the Guarantor with respect to the subject matter hereof and
cancel and supersede any prior understandings and agreements between such
parties with respect thereto. There are no representations,
warranties, terms, conditions, undertakings or collateral agreements, expressed,
implied or statutory, between such parties other than as expressly set forth
herein or therein.
13
|
9.15
|
Governing
Law
|
This
Guarantee shall be governed by and construed in accordance with the laws of the
Province of Alberta and the federal laws of Canada applicable
therein.
|
9.16
|
Attornment
|
The
Guarantor and each of the Beneficiaries hereby attorn and submit to the
jurisdiction of the courts of the Province of Alberta in regard to legal
proceedings relating to this Guarantee. For the purpose of all such
legal proceedings, the courts of the Province of Alberta shall have jurisdiction
to entertain any action arising under this Guarantee. Notwithstanding
the foregoing, nothing in this Section shall be construed nor operate to limit
the right of the Guarantor or the Beneficiaries to commence any action relating
hereto in any other jurisdiction, nor to limit the right of the courts of any
other jurisdiction to take jurisdiction over any action or matter relating
hereto.
|
9.17
|
Acknowledgement
|
The
Beneficiaries acknowledge that the trustee or manager of the Guarantor, as
applicable, is entering into this Guarantee solely in its capacity as trustee or
as agent, as the case may be, on behalf of the Guarantor and the obligations of
the Guarantor hereunder shall not be personally binding upon the trustee, the
manager or any of the Unitholders of the Guarantor and that any recourse against
the Guarantor, the trustee or any Unitholder in any manner in respect of any
indebtedness, obligation or liability of the Guarantor arising hereunder or
arising in connection herewith or from the matters to which this Guarantee
relates, if any, including without limitation claims based on negligence or
otherwise tortious behaviour, shall be limited to, and satisfied only out of the
Trust Fund. For the purposes of this Section 9.17, capitalized terms
used previously in this Section and not otherwise expressly defined herein shall
have the meanings set forth in the amended and restated trust indenture of the
Guarantor dated as of September 2, 2003 on the date hereof.
14
IN WITNESS WHEREOF the
Guarantor has executed this Guarantee.
|
BAYTEX
ENERGY LTD., as Administrator of BAYTEX ENERGY TRUST
|
||
|
Per:
|
||
|
Name:
|
||
|
Title:
|
||
|
Per:
|
||
|
Name:
|
||
|
Title:
|
||
15
