SCHEDULE J SUBORDINATION AGREEMENT
SCHEDULE
J
This
Subordination Agreement made as of ·,
20· is made among The
Toronto Dominion Bank, a Canadian chartered bank with an office in Calgary,
Alberta in its capacities described in Section 7.14 hereof (the “Agent”), Valiant Trust
Company, a trust company incorporated under the laws of Alberta with an office
in Calgary, Alberta in its capacity as trustee (the “Trustee”) of Baytex Energy
Trust (the “Trust”), by
its manager Baytex Energy Ltd., Baytex Energy Ltd., a corporation under the laws
of Alberta and having its principal place of business in Calgary, Alberta (the
“Borrower”) and the
other Debtors and Subordinated Creditors party hereto from time to
time.
RECITALS:
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A.
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The
Lenders have made or agreed to make loans or advances and otherwise extend
credit to the Borrower pursuant to the terms of the Credit
Agreement.
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B.
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The
Debtors may from time to time make or be obligated to make Loan Payments,
NPI Payments or Capital Distributions to the Subordinated
Creditors.
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C.
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It
is a condition of the Lenders’ obligation to make loans and advances under
the Credit Agreement that the Subordinated Creditors subordinate their
rights against the Borrower and the other Debtors in accordance with the
terms of this Agreement.
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NOW
THEREFORE, the Parties agree as follows:
ARTICLE
1 - INTERPRETATION
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1.1
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Definitions
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In this
Agreement, terms and expressions defined in the Credit Agreement shall have
those meanings when used herein (unless otherwise defined herein), and in
addition:
“Capital Distribution”
means:
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(a)
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any
dividends, partnership or trust distributions or other capital
distributions made by any Debtor,
or
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(b)
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any
redemption, retraction, purchase or other acquisition of shares,
partnership interests or trust units, directly or indirectly, in the
capital of any Debtor;
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“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 the
Borrower, the lenders from time to time thereunder and The Toronto-Dominion
Bank, as agent;
“Debtors” means the Borrower
and its Subsidiaries;
“Default” means (i) any Default
or Event of Default or (ii) any Financial Instrument Demand for Payment,
Termination Event or other event or circumstance which constitutes a default or
event of default in respect of any Lender Financial Instrument;
“Indebtedness” means the Senior
Debt and the Subordinated Debt;
“Lenders” means the Lenders
under the Credit Agreement and any Hedging Affiliate;
“Loan Documents” means the
Documents under and as defined in the Credit Agreement and any Lender Financial
Instrument;
“Loan Payments” means any
payment by a Debtor of or on account of indebtedness for borrowed money owing to
the Trust or any Affiliate of the Borrower which is not a Subsidiary (whether
made, paid or satisfied in or for cash, property or both);
“NPI Payments” means any
payment by a Debtor of or in respect of any royalty or net profits interest in
favour of or held by any Subordinated Creditor and whether created in connection
with the Plan of Arrangement or otherwise (whether made, paid or satisfied in or
for cash, property or both);
“Parties” means the parties to
this Agreement;
“Senior Debt” means all present
and future obligations, indebtedness, liabilities, covenants, agreements and
undertakings of any Debtor to any Lenders pursuant to the Loan Documents,
whether direct or indirect, absolute or contingent, matured or not, extended or
renewed, wheresoever and howsoever incurred, and any ultimate unpaid balance
thereof, including all future advances and re advances, and whether the same is
from time to time reduced and thereafter increased or entirely extinguished and
thereafter incurred again and whether such Debtor be bound alone or with others
and whether as principal or surety, including all expenses paid or incurred by
the Agent or the Lenders in endeavouring to collect or realize upon the
foregoing;
“Subordinated Creditors” means
(i) the Trust, (ii) any Affiliate of the Borrower which is not a Subsidiary and
(iii) any assignee of or successor interest to the Trust or any such
Affiliate;
“Subordinated Debt” means all
present and future obligations, indebtedness, liabilities, covenants, agreements
and undertakings of any Debtor to any Subordinated Creditor howsoever arising,
whether direct or indirect, absolute or contingent, matured or not, extended or
renewed, wheresoever and howsoever incurred, and any ultimate unpaid balance
thereof, including all future advances and re advances, and whether the same is
from time to time reduced and thereafter increased or entirely extinguished and
thereafter incurred again and whether such Debtor be bound alone or with others
and whether as principal or surety, including all obligations, liabilities and
indebtedness to pay or effect a Loan Payment, an NPI Payment or a Capital
Distribution and all expenses paid or incurred by a Subordinated Creditor in
endeavouring to collect any Subordinated Debt; and
“Subordinated Rights” means all
rights, remedies and powers of the Subordinated Creditors pursuant to any
agreement evidencing any Subordinated Debt or otherwise available to any
Subordinated Creditor pursuant to Applicable Law to enforce payment and
performance of the Subordinated Debt.
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1.2
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References
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Unless
something in the subject matter or context is inconsistent herewith, all
references to Sections and Articles are to Sections and Articles of this
Agreement. The words “hereto”, “hereof”, “hereunder” and similar
expressions mean and refer to this Agreement. In this Agreement, the singular
includes the plural and vice versa; a reference to gender includes the
masculine, feminine and neuter; where a term or expression is defined,
derivations thereof have a corresponding meaning; and references to any
agreement, contract, document, licence or other instrument shall mean and refer
to such agreement, contract, document, licence or other instrument as amended,
modified, replaced, restated, extended, renewed or supplemented from time to
time.
ARTICLE
2
- SUBORDINATION,
POSTPONEMENT AND PRIORITY
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2.1
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General
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Notwithstanding
the terms of the agreements giving rise to the Indebtedness or Subordinated
Rights, the time of default under or the dates of any advances of the
Indebtedness, the Parties agree that all and any of their rights in respect of
the Indebtedness and the Subordinated Rights shall be governed by the terms of
this Agreement.
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2.2
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Subordination;
Standstill
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(1) So
long as any Senior Debt is outstanding and until the Senior Debt shall have been
paid, performed and indefeasibly satisfied in full:
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(a)
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the
payment of all Subordinated Debt is postponed and subordinated to the
indefeasible payment and performance in full and final satisfaction of all
Senior Debt and the Subordinated Creditors will not directly or
indirectly, accept from any Debtor, in any manner, directly or indirectly,
payment of, or consideration for the reduction of, the whole or any part
of the Subordinated Debt and if any such payment is received or made on
the Subordinated Debt, each of the Subordinated Creditors will hold such
payment in trust for the benefit of, and shall promptly pay over such
payment in the form received (duly endorsed, if necessary, to the Agent)
to the Agent for the benefit of the applicable Lenders subject always to
the rights of any other creditor of any Debtor under Applicable Law to
share in any such payment;
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(b)
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until
the Senior Debt shall have been paid, performed and indefeasibly satisfied
in full, the Subordinated Creditors shall not realize upon or otherwise
exercise any Subordinated Rights or commence, or join with any other
creditor in commencing, any enforcement, receivership, bankruptcy,
moratorium, reorganization, readjustment of debt, adjustment of debt,
reorganization, compromise, arrangement or any dissolution, receivership,
liquidation or insolvency proceedings with respect to any
Debtor;
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3
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(c)
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the
Subordinated Creditors shall not dispute or contest in any manner the
validity or enforceability or priority (in the circumstances herein
contemplated) of any of the Senior Debt over the Subordinated Debt and the
Subordinated Rights; and
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(d)
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the
Subordinated Creditors shall not take, hold or have any Security Interest
on, to or against any property, assets or undertaking of any Debtor or
take, hold or have any collateral security for any of the Subordinated
Debt.
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(2) Notwithstanding
Section 2.2(1)(a), prior to the occurrence of a Default which is continuing, the
Debtors shall be entitled to make, and Subordinated Creditors shall, subject to
Section 2.3, be entitled to receive and retain payments on account of any
Subordinated Debt in accordance with the terms of such Subordinated
Debt.
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2.3
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Distribution
to Creditors
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Upon any
distribution of assets of any Debtor to its creditors upon any dissolution,
winding up, total or partial liquidation, readjustment of debt, reorganization,
compromise, adjustment of debt, arrangement with creditors, or similar
proceedings of any Debtor or its property, or in any bankruptcy, insolvency,
receivership, assignment for the benefit of creditors, marshalling of assets and
liabilities of any Debtor, or other proceedings, or in the event of any bulk
sale of any of its assets within the bulk transfer provisions of any Applicable
Law, or proceedings in relation to any of the foregoing, whether any of the
foregoing is voluntary or involuntary, partial or complete:
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(a)
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all
of the Senior Debt shall first be indefeasibly paid and performed in full
and satisfied before any Subordinated Creditor shall be entitled to
receive or retain any payment or distribution of Subordinated Debt from
any Debtor or any receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution or in respect of
such proceedings or under or in respect of any of the Subordinated
Rights;
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(b)
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each
of the Subordinated Creditors irrevocably authorizes the Agent to file on
behalf of such Subordinated Creditor any and all claims, proofs of debt,
petitions, consents, and other documents in respect of such proceedings or
under or in respect of any of the Subordinated Debt and the Subordinated
Rights; and
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(c)
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any
payment or distribution of assets of any Debtor of any kind or character,
whether in cash, property or securities, to which the Subordinated
Creditors would be entitled in respect of the Subordinated Debt or the
Subordinated Rights, shall be paid by such Debtor or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making
such payment or distribution, directly to the Agent for the benefit of the
applicable Lenders to the extent necessary to satisfy and indefeasibly pay
in full all the Senior Debt before any payment or distribution is made to
the Subordinated Creditors or any representative thereof subject always to
the rights of any other creditor of any Debtor under Applicable Law to
share in any such payment or
distribution.
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2.4
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Trust
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Notwithstanding
Section 2.3, if upon any such dissolution, winding up, liquidation,
readjustment, reorganization, compromise, adjustment of debt, arrangement with
creditors or similar proceeding in respect of any Debtor (including any acts or
proceedings related to the Subordinated Rights), any payment or distribution of
assets of any Debtor of any kind or character, whether in cash, property or
securities, shall be received by the Subordinated Creditors or any
representative thereof before all the Senior Debt is indefeasibly paid and
performed in full and satisfied, the Subordinated Creditors will hold such
payment or distribution in trust for the benefit of, and shall promptly pay such
payment or distribution over in the form received (duly endorsed, if necessary,
to the Agent) to, the Agent for the benefit of the applicable Lenders subject
always to the rights of any other creditor of any Debtor under Applicable Law to
share in any such payment or distribution.
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2.5
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Marking
Books
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The
Subordinated Creditors and the Debtors will ▇▇▇▇ their books and records
relating to the Subordinated Debt and the agreements giving rise to the
Subordinated Rights so as to clearly indicate that the Subordinated Debt and
Subordinated Rights are subordinated in accordance with the terms of this
Agreement and will cause to be clearly inserted on any promissory note or other
instrument which at any time evidences or creates any of the Subordinated Debt
or Subordinated Rights a statement to the effect that the payment of the
Subordinated Debt and the Subordinated Rights are subordinated in accordance
with the terms of this Agreement.
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2.6
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Application
of Proceeds
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All
payments and distributions received by the Subordinated Creditors in respect of
the Subordinated Debt or Subordinated Rights, to the extent received in or
converted into cash and paid over to the Agent hereunder for the benefit of the
applicable Lenders, may be applied by the Agent first to the payment of any and
all expenses (including legal fees and expenses on the basis of a full
indemnity) paid or incurred by the Agent in enforcing the provisions hereof or
in endeavouring to collect or realize upon any of the Senior Debt, and any
balance thereof shall, solely as between the Subordinated Creditors and the
applicable Lenders, be applied by the applicable Lenders to the payment of the
Senior Debt until indefeasibly paid in full and satisfied in such order of
application as the applicable Lenders may from time to time select; and,
notwithstanding any such payments or distributions received by the applicable
Lenders in respect of the Subordinated Debt or Subordinated Rights and so
applied by the applicable Lenders toward the payment of the Senior Debt, the
Subordinated Creditors shall be subrogated, without recourse, representation and
warranty to the then existing rights of the applicable Lenders, if any, in
respect of the Senior Debt subject to the provisions of Section
2.7.
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2.7
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Restriction
on Subrogation
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No
Subordinated Creditor shall exercise any rights which it may acquire by way of
subrogation or contribution under this Agreement until this Agreement has ceased
to be effective in accordance with Section 5.1. If any amount is paid
to any Subordinated Creditor on account of such subrogation or contribution
rights at any time before this Agreement has ceased to be effective in
accordance with Section 5.1, such amount shall be held in trust by such
Subordinated Creditor for the benefit of the Lenders and shall be promptly paid
to the Agent for the benefit of the Lenders.
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ARTICLE
3
- ACKNOWLEDGEMENTS
OF SUBORDINATE CREDITORS
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3.1
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Absolute
Obligations
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This
Agreement shall remain in full force and effect and the obligations of the
Subordinated Creditors hereunder shall be absolute and unconditional
irrespective of:
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(a)
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any
change in the time, manner or place of payment of, or in any other term
of, any of the Senior Debt, the Loan Documents, or any other amendment or
waiver of or any consent to departure from any of the Senior Debt or the
Loan Documents;
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(b)
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any
release or amendment or waiver of or consent to departure from any
undertaking of any person respecting any of the Senior Debt or the Loan
Documents;
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(c)
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any
merger, consolidation or amalgamation of the Agent, any Lender or any
Subordinated Creditor into or with any other person or any other change of
its identity or capacity;
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(d)
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any
(i) liquidation, winding up, bankruptcy, dissolution, compromise,
proposal, arrangement, plan of reorganization or other event or proceeding
relating to, or which might affect the existence, obligations, creditors,
assets, business or affairs of, (ii) change or changes in the name of, or
(iii) amalgamation, consolidation, merger or reorganization of any kind
of, or with respect to, any Debtor;
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(e)
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any
change in Applicable Law or any defence, claim or right of any Party which
would effect a result contrary to the terms in this Agreement;
or
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(f)
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any
impossibility or impracticality of performance or force majeure, any act
of any Governmental Authority, or any other circumstance which might
constitute a defence available to, or a discharge of, the Borrower in
respect of the Senior Debt or the Loan
Documents.
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3.2
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Dealings
by Lenders
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Notwithstanding
anything in this Agreement, each of the Subordinated Creditors acknowledges that
the Lenders shall be entitled to:
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(a)
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lend
monies or otherwise extend credit or accommodations to any Debtor as part
of the Senior Debt;
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(b)
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agree
to any change in, amendment to, waiver of, or departure from, any term of
any Loan Document including, without limitation, any amendment, renewal,
restatement or extension of any such agreement, or increase in the payment
obligations of any Debtor under any such
documents;
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(c)
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take
any Security Interests from any
Debtor;
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(d)
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grant
time, renewals, extensions, releases, discharges or other indulgences or
forbearances to any Debtor in respect of Senior
Debt;
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(e)
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waive
timely and strict compliance with or refrain from exercising any rights
under or relating to any Senior
Debt;
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(f)
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accept
or make any compositions, arrangements, plans of reorganization or
compromises with any Debtor as the Lenders (or any of them) may deem
appropriate in connection with any Senior
Debt;
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(g)
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change,
whether by addition, substitution, removal, succession, assignment, grant
of participation, transfer or otherwise, any of the Lenders, including the
Agent;
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(h)
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acquire,
give up, vary, exchange, release, discharge or otherwise deal with or fail
to deal with any Security Interests relating to any Senior Debt, or allow
the Debtors or any other person to deal with any property which is subject
to such Security Interests, all as the Lenders may deem appropriate;
and/or
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(i)
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abstain
from taking, protecting, securing, registering, filing, recording,
renewing, perfecting, insuring or realizing upon any Security Interests
for any Senior Debt; and no loss in respect of any of the Security
Interests received or held for and on behalf of the Lenders, whether
occasioned by fault, omission or negligence of any kind, whether of the
Lenders or otherwise, shall in any way limit or impair the liability of
the Subordinated Creditors or the rights of the Lenders under this
Agreement;
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all of
which may be done without notice to or consent of the Subordinated Creditors and
without impairing, releasing or otherwise affecting any rights or obligations of
the Subordinated Creditors hereunder or any rights of the Lenders
hereunder.
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3.3
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Subordinated
Debt Default
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Each
Subordinated Creditor shall promptly give the Agent and all other Subordinated
Creditors notice of the occurrence of a default or event of default in respect
of the Subordinated Debt of which it is actually aware.
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3.4
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Agreement
Not to Challenge
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Each of
the Subordinated Creditors shall not at any time challenge, dispute or contest
the validity or enforceability of the Senior Debt or the Loan Documents, nor
shall such Subordinated Creditor at any time challenge, dispute or contest the
validity or enforceability of the subordination and postponement provided for
herein or take any action whereby the subordination and postponement
contemplated hereby may be prejudiced.
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3.5
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Representations
and Warranties
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Each of
the Subordinated Creditors hereby represents and warrants to the Agent and the
Lenders that:
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(a)
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it
has all necessary power and authority to enter into this Agreement;
and
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(b)
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this
Agreement constitutes a valid and legally binding obligation of it,
enforceable against it in accordance with its terms, subject however, to
limitations with respect to enforcement imposed by law in connection with
bankruptcy, insolvency, reorganization or other laws affecting creditors’
rights generally and to the qualification that equitable remedies such as
specific performance and injunction are only available in the discretion
of the court from which they are sought and general equitable
principles.
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ARTICLE
4
- ACKNOWLEDGEMENT
OF THE DEBTORS
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4.1
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Acknowledgement
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Each of
the Debtors hereby acknowledges and agrees that:
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(a)
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it
authorizes the Agent, the Lenders and the Subordinated Creditors to share
with each other any information possessed by them relating to the
Indebtedness and to payments received by the Agent, the Lenders and the
Subordinated Creditors in respect
thereof;
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(b)
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this
Agreement shall not modify, relieve or release it from any of its
Indebtedness or performance obligations under the agreements giving rise
to the Subordinated Rights;
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(c)
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it
is a party hereto solely for the purpose of providing the acknowledgements
and agreements set forth herein and does not, and is not intended to,
derive any benefits hereunder; and
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(d)
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it
consents to the terms of this Agreement and agrees to comply with, and to
not act contrary to, the terms of this
Agreement.
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ARTICLE
5
- TERMINATION
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5.1
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Termination
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The
provisions hereof shall in all respects be a continuing agreement and shall
remain in full force and effect until the final and indefeasible payment in cash
and performance in full and satisfaction of the Senior Debt and the termination
of the Credit Agreement and all Lender Financial Instruments.
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5.2
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Reinstatement
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This
Agreement shall continue to be effective or be reinstated, as the case may be,
if at any time any payment or performance of the Senior Debt is rescinded,
reversed, nullified, rendered void or voidable or must otherwise be restored,
refunded, returned or unwound for any reason, all as though such payment had not
been made or such performance had not occurred.
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ARTICLE
6
- CONTINUING
SUBORDINATION
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6.1
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Continuing
Subordination
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This
Agreement shall create a continuing subordination and shall:
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(a)
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be
binding upon each of the Subordinated Creditor and its successors and
assigns; and
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(b)
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enure,
together with the rights and remedies of the Lenders hereunder, to the
benefit of and be enforceable by the Lenders and their successors and
assigns for their benefit and for the benefit of any other person entitled
to the benefit of any Documents from time to time, including any permitted
assignee of some or all of the
Documents.
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6.2
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Other
Obligations not Affected
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The
subordination provided for herein is in addition to and not in substitution for
any other agreement or any other security by whomsoever given or at any time
held by the Lenders in respect of the Senior Debt, and the Lenders shall at all
times have the right to proceed against or realize upon all or any portion of
any other agreement or any security or any other monies or assets to which the
Lenders may become entitled or have a claim in such order and in such manner as
the Lenders in their sole discretion may deem appropriate.
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6.3
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Acknowledgment
of Documentation
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Each
Subordinated Creditor hereby acknowledges that it is familiar with and
understands the terms of the Credit Agreement and all other Loan
Documents. Each Subordinated Creditor shall ensure that the Debtors
provide such copies as the Subordinated Creditor wishes to receive of all
amendments, modifications or supplements to any of the aforementioned documents
and of any other documents, instruments or agreements which are executed in the
future pursuant to which Senior Debt may arise. None of the Lenders
shall in any manner have any obligation to ensure such receipt nor shall lack of
receipt in any way affect the absolute and unconditional nature of the
Subordinated Creditors’ obligations hereunder in respect of the Senior Debt
thereby created or arising.
ARTICLE
7
- MISCELLANEOUS
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7.1
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New
Debtors; New Subordinated Creditors
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Each of
the Borrower and the Trust hereby covenant with the Agent that it shall cause
each Debtor and Subordinated Creditor that is not already a party hereto to
become a party to and be bound by this Agreement promptly after, and in any
event within ten (10) Banking Days, of incurring any Subordinated Debt by
executing and delivering to the Agent an addition agreement substantially in the
form of Schedule A annexed hereto.
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7.2
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Assignments
and Participations by Lenders
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The
Lenders may, from time to time without notice to or consent of the Subordinated
Creditors, assign or transfer or grant participations in respect of any or all
of the Senior Debt or any interest therein; and, notwithstanding any such
assignment or transfer or grant of a participation or any subsequent assignment
or transfer thereof or grant of a participation therein, the Subordinated
Creditors acknowledge that such Senior Debt shall be and remain Senior Debt for
the purposes hereof, and every immediate and successive assignee or transferee
of, or participant in, any of the Senior Debt or of any interest therein shall,
to the extent of the interest of such assignee, transferee or participant in the
Senior Debt, be entitled to the full rights and benefits hereof.
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7.3
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Assignment
by Subordinated Creditors or
Debtors
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Except as
expressly permitted by the Loan Documents, none of the Debtors shall assign all
or any portion of its obligations under this Agreement or the Subordinated
Debt. None of the Subordinated Creditors shall assign all or any
portion of its Subordinated Debt, Subordinated Rights or obligations under this
Agreement without the prior written consent of the Agent on behalf of the
Lenders unless the assignee thereof is already a Subordinated Creditor which is
a Party.
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7.4
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Accounts
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The
accounts and records of the Agent and the Lenders shall constitute, in the
absence of manifest error, prima facie evidence of the
Senior Debt.
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7.5
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Further
Assurances
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Each
Party agrees to execute and deliver all deeds, documents, instruments and
assurances (including discharges) as may be reasonably required by another Party
from time to time (but at the expense of the Borrower) to reflect or confirm the
terms hereof and to provide such information regarding the Indebtedness and the
Subordinated Rights as may be reasonably requested from time to
time.
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7.6
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Severability
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Any
provision of this Agreement which is or becomes prohibited or unenforceable in
any jurisdiction does not invalidate, affect or impair the remaining provisions
hereof in such jurisdiction and any such prohibition or unenforceability in any
jurisdiction does not invalidate or render unenforceable such provision in any
other jurisdiction.
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7.7
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Amendments;
Waivers
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(a)
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No
provision of this Agreement may be amended, waived, discharged or
terminated orally nor may any breach of any of the provisions of this
Agreement be waived or discharged orally, and any such amendment, waiver,
discharge or termination may only be made in writing signed by the Agent
on behalf of the Lenders, or by the Lenders, and if such amendment is
intended to bind a Subordinated Creditor, by such Subordinated
Creditor.
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(b)
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No
failure on the part of the Agent or any Lender to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a
waiver thereof unless specifically waived in writing, nor shall any single
or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege.
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(c)
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Any
waiver of any provision of this Agreement or consent to any departure by
the Agent therefrom shall be effective only in the specific instance and
for the specific purpose for which given and shall not in any way be or be
construed as a waiver of any future
requirement.
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7.8
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Notice
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All
notices and other communications provided for hereunder shall be given in the
form and manner prescribed by Section 16.3 of the Credit
Agreement. All such notices to each Debtor and each Subordinated
Creditor may be given to the Borrower on behalf of the relevant Debtor or
Subordinated Creditor and shall be sufficiently delivered if so
given.
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7.9
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Governing
Law
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This
Agreement is conclusively deemed to be made under, and for all purposes to be
governed by and construed in accordance with, the laws of the Province of
Alberta and of Canada applicable therein. The Parties hereby
irrevocably submit and attorn to the jurisdiction of the courts of the Province
of Alberta for all matters arising out of or relating to this Agreement or any
of the transactions contemplated hereby.
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7.10
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Enurement
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This
Agreement shall be binding upon the Parties and their respective successors and
permitted assigns.
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7.11
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Headings
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The
headings and the Article and Section titles are inserted for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
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7.12
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Entire
Agreement
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This
Agreement contains the entire agreement between the Parties with respect to the
matters herein contained and there are no other representations, warranties,
covenants or collateral agreements between any of the Parties in connection
therewith other than as expressly herein provided.
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7.13
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Acknowledgement
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The
Parties hereto acknowledge that the Trustee or manager, as applicable, is
entering into this Agreement solely in its capacity as Trustee or as agent, as
the case may be, on behalf of the Trust and the obligations of the Trust
hereunder shall not be personally binding upon the Trustee, the manager or any
of the unitholders of the Trust and that any recourse against the Trust, the
Trustee or any unitholder in any manner in respect of any indebtedness,
obligation or liability of the Trust arising hereunder or arising in connection
herewith or from the matters to which this Agreement 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 property of the
Trust. For the purposes of this Section 7.13, 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 Trust
dated as of September 2, 2003, on the date hereof.
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7.14
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TD
Execution
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The
Toronto Dominion Bank is entering into this Agreement in its capacity as a
lender and agent under the Credit Agreement and as agent for and on behalf of
any Lender (including The Toronto Dominion Bank) or Hedging Affiliate which is a
counterparty to any Lender Financial Instrument with any Debtor.
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7.15
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Counterparts
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This
Agreement maybe executed in several counterparts (including by telefax), each of
which when so executed shall be deemed to be an original and all such
counterparts together shall constitute one and the same agreement.
[The
remainder of this page has been left intentionally blank]
IN
WITNESS WHEREOF each Party has duly executed this Agreement as of the date and
year first above written.
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THE
TORONTO-DOMINION BANK, as Agent
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Per:
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Name:
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Title:
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VALIANT
TRUST COMPANY, as Trustee of BAYTEX ENERGY TRUST
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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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||
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Name:
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||
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Title:
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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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Title
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||
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Per:
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||
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Name:
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||
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Title:
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