SCHEDULE H-7 GENERAL SECURITY AGREEMENT (· [INSERT NAME OF RELEVANT MATERIAL SUBSIDIARY OR BAYTEX ENERGY TRUST])
SCHEDULE
H-7
(· [INSERT NAME OF RELEVANT
MATERIAL SUBSIDIARY OR BAYTEX ENERGY TRUST])
THIS
AGREEMENT made as of ·, 20·
B E T W E E N :
· [INSERT NAME OF RELEVANT MATERIAL
SUBSIDIARY OR BAYTEX ENERGY TRUST], a · existing under the laws of
· (hereinafter
referred to as the “Debtor”)
- and
-
THE TORONTO-DOMINION BANK, a
Canadian chartered bank, in its capacity as Agent (hereinafter referred to as
the “Secured Party”).
WHEREAS
the Debtor has agreed to grant, as general and continuing security for the
payment and performance of the Obligations (as hereinafter defined), the
security interest and assignment, mortgage and charge granted
herein;
AND
WHEREAS the Lenders and Hedging Affiliates have appointed and authorized the
Secured Party to act as their agent and attorney for the purpose of holding
security granted by the Debtor;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and the
covenants and agreements herein contained 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, including the recitals hereto, this Section and any schedules or
attachments hereto, unless something in the subject matter or context is
inconsistent therewith:
“Agreement” means this
agreement, as amended, modified, supplemented or restated from time to time in
accordance with the provisions hereof.
“Beneficiaries” means,
collectively, the Lenders, the Hedging Affiliates and the Agent, and
“Beneficiary” means any of the Lenders, the Hedging Affiliates or the
Agent.
“Charge” means the security
interests, assignments, mortgages and charges created hereunder.
“Collateral” has the meaning
set out in Section 2.1.
“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 November 29, 2007 between Baytex
Energy Ltd., the Secured Party and the Lenders relating to the establishment of
certain credit facilities in favour of Baytex Energy Ltd., as the same may be
further amended, modified, supplemented or restated from time to time in
accordance with the provisions thereof.
“Guarantee” means the
guarantee made as of even date herewith by the Debtor in favour of the
Beneficiaries, as the same may be amended, modified, supplemented or restated
from time to time in accordance with the provisions thereof.
“Obligations” means,
collectively and at any time and from time to time, all present and future
obligations, liabilities and indebtedness (absolute or contingent, matured or
otherwise) of the Debtor to the Beneficiaries under, pursuant or relating to the
Guarantee and other Documents, in each case whether the same are from time to
time reduced and thereafter increased or entirely extinguished and thereafter
incurred again.
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1.2
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Definitions used in
the Credit Agreement
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Capitalized
terms used herein without express definition shall, unless something in the
subject matter or context is inconsistent therewith, have the same meanings as
are ascribed to such terms in the Credit Agreement.
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1.3
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Personal Property
Security Act Definitions
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The terms
“accessions”, “accounts”, “chattel paper”, “documents of title”, “goods”,
“instruments”, “intangibles”, “inventory”, “money”, “proceeds” and “investment
property” whenever used herein shall have the meanings given to those terms in
the Personal Property Security
Act (Alberta) (the “PPSA”), as now enacted or as the same may from time
to time be amended, re-enacted or replaced.
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1.4
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Headings and
References
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The
division of this Agreement 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 Agreement. The terms “this
Agreement”, “hereof”, “hereunder” and similar expressions refer to this
Agreement 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, reference herein to
Articles and Sections are to Articles and Sections of this
Agreement.
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1.5
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Included
Words
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In this
Agreement words importing the singular number only shall include the plural and
vice versa, words importing any gender shall include all genders, words
importing persons shall include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations 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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1.6
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Calculation of
Interest
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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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1.7
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Schedules
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Any
schedule to this Agreement is incorporated by reference and shall be deemed to
be part of this Agreement.
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1.8
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[References to
Debtor]
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[All
references in this Agreement to representations and warranties by, covenants of,
actions and steps by, or the performance of the terms and conditions hereof by
the “Debtor” shall, as the context requires, be and shall be construed as being
by the partners of ·
Partnership on behalf of and in respect of such
partnership.] [Note: Insert Section 1.8, with appropriate
conforming changes, for an Agreement by a general partnership; insert similar
provisions, with additional conforming changes, for an Agreement by a limited
partnership, trust or other unincorporated entity.]
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1.9
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[Acknowledgement]
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[The
Beneficiaries acknowledge that the trustee or manager of the Debtor, 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 Debtor and the obligations of the
Debtor hereunder shall not be personally binding upon the trustee, the manager
or any of the Unitholders of the Debtor and that any recourse against the
Debtor, the trustee or any Unitholder in any manner in respect of any
indebtedness, obligation or liability of the Debtor 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
Fund. For the purposes of this Section 1.9, 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 Debtor
dated as of September 2, 2003 on the date hereof.][ [Note: Insert
Section 1.9, with appropriate conforming changes, for a general security
agreement from Baytex Energy Trust.]
3
ARTICLE
2
GRANT OF
SECURITY
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2.1
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Security
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As
general and continuing security for the payment and performance of the
Obligations, the Debtor hereby grants to the Secured Party a security interest
in all of the present and future undertaking, assets and property, both real and
personal, of the Debtor (collectively, the “Collateral”), and as further general
and continuing security for the payment and performance of the Obligations, the
Debtor hereby assigns the Collateral to the Secured Party and mortgages and
charges the Collateral to the Secured Party (with respect to real property, as
and by way of a floating charge). Without limiting the generality of
the foregoing, the Collateral shall include all right, title and interest that
the Debtor now has, may be possessed of, entitled to, or acquire, by way of
amalgamation or otherwise, now or hereafter or may hereafter have in all
property of the following kinds:
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(a)
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Accounts
Receivable: all debts, accounts, accounts receivables,
claims and choses in action which are now or which may hereafter become
due, owing or accruing due to the Debtor (collectively, the
“Receivables”);
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(b)
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Inventory: all
inventory of whatever kind and wherever situated including, without
limiting the generality of the foregoing, all goods held for sale or
lease, or furnished or to be furnished under contracts for service, or
that are work in progress, or that are raw materials used or consumed in
the business of the Debtor (collectively, the
“Inventory”);
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(c)
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Equipment: all
goods, machinery, equipment, fixtures, furniture, plant, vehicles and
other tangible personal property which are not Inventory, including,
without limiting the generality of the foregoing, the tangible personal
property described in any schedule hereto executed by both the Debtor and
the Secured Party;
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(d)
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Chattel
Paper: all chattel
paper;
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(e)
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Documents of
Title: all warehouse receipts, bills of lading and other
documents of title, whether negotiable or
not;
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(f)
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Investment Property
and Instruments: all shares, stock, warrants, bonds,
debentures, debenture stock and other investment property and all
instruments (collectively, the
“Securities”);
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(g)
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Intangibles: all
intangibles not described in Section 2.1(a) including, without
limiting the generality of the foregoing, all goodwill, patents,
trademarks, copyrights and other industrial
property;
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(h)
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Money: all
coins or bills or other medium of exchange adopted for use as part of the
currency of Canada or of any foreign
government;
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4
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(i)
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Books, Records,
Etc.: all books, papers, accounts, invoices, documents
and other records in any form evidencing or relating to any of the
property described in Sections 2.1(a) to (h) inclusive, and all
contracts, securities, instruments and other rights and benefits in
respect thereof;
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(j)
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Substitutions,
Etc.: all replacements of, substitutions for and
increases, additions and accessions to any of the property described in
Sections 2.1(a) to (i) inclusive;
and
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(k)
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Proceeds: all
proceeds of the property described in Sections 2.1(a) to (j)
inclusive including, without limiting the generality of the foregoing, all
personal property in any form or fixtures derived directly or indirectly
from any dealing with such property or that indemnifies or compensates for
the loss of or damage to such
property;
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provided
that the Charge shall not: (i) extend, include or apply to the
last day of the term of any other lease now held or hereafter acquired by the
Debtor, but should the Secured Party enforce the said Charge, the Debtor shall
thereafter stand possessed of such last day and shall hold it in trust to assign
the same to any person acquiring such term in the course of the enforcement of
the said Charge, or (ii) render the Secured Party liable to observe or
perform any term, covenant or condition of any agreement, document or instrument
to which the Debtor is a party or by which it is bound.
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2.2
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Attachment of Security
Interest
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The
Debtor acknowledges that value has been given and agrees that the security
interest granted hereby shall attach when the Debtor signs this Agreement and
the Debtor has any rights in the Collateral.
ARTICLE
3
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE DEBTOR
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3.1
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Representations and
Warranties
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The
Debtor hereby represents and warrants to the Secured Party and the Beneficiaries
that (and acknowledges that the Secured Party and the Beneficiaries are relying
on the same):
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(a)
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the
address of the Debtor’s chief executive office (as such term is utilized
in the PPSA) is that given at the end of this
Agreement;
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(b)
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the
address of the office where the Debtor keeps its records respecting the
Receivables is that given at the end of this
Agreement;
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(c)
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all
of the tangible property and assets of the Debtor, real or personal, are
located in the Provinces of ·, · and · [and the state of
Colorado]; and
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5
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(d)
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it
has not granted control (within the meaning of such term under Section
1(1.1) of the PPSA) over any investment property to any person other than
the Secured Party.
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3.2
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Survival of
Representations and
Warranties
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The
representations and warranties set out in this Agreement shall survive the
execution and delivery of this Agreement notwithstanding any investigations or
examinations which may be made by any of the Beneficiaries or their legal
counsel. Such representations and warranties shall survive until this
Agreement has been terminated and discharged in accordance with Section 6.8
hereof.
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3.3
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Covenants
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The
Debtor covenants with the Secured Party that the Debtor shall:
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(a)
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not
change its name or its chief executive office or the location of the
office where it keeps its records respecting the Receivables without
giving 15 days’ prior written notice thereof to the Secured
Party;
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(b)
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from
time to time forthwith at the request of the Secured Party execute and
deliver all such financing statements, schedules, assignments and
documents, and do all such further acts and things as may be reasonably
required by the Secured Party to effectively carry out the full intent and
meaning of this Agreement, including, without limitation, to enforce the
Charge and remedies provided hereunder, or to better evidence and perfect
the Charge, and, upon the occurrence of an Event of Default, the Debtor
hereby irrevocably constitutes and appoints the Secured Party, or any
Receiver appointed by the court or the Secured Party, the true and lawful
attorney of the Debtor, with full power of substitution, to do any of the
foregoing in the name of the Debtor whenever and wherever the Secured
Party or any such Receiver may consider it to be necessary or
expedient;
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(c)
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pay
to the Secured Party forthwith upon demand all reasonable costs and
expenses (including, without limiting the generality of the foregoing, all
reasonable legal, Receiver’s and accounting fees and expenses) incurred by
or on behalf of the Secured Party in connection with the preparation,
execution and perfection of this Agreement and the carrying out of any of
the provisions of this Agreement including, without limiting the
generality of the foregoing, protecting and preserving the Charge and
enforcing by legal process or otherwise the remedies provided herein; and
all such costs and expenses shall be added to and form part of the
Obligations secured hereunder; and
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(d)
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not
grant “control” (within the meaning of such term under Section 1(1.1) of
the PPSA) over any investment property to any person other than the
Secured Party.
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6
ARTICLE
4
SECURITIES; ACCOUNT
DEBTORS
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4.1
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Registration of
Securities
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The
Secured Party may require that the Debtor have any Securities registered in the
name of the Secured Party or in the name of its nominee and shall be entitled
but not bound or required to exercise any of the rights that any holder of such
Securities may at any time have, provided that, until an Event of Default has
occurred and is continuing, the Debtor shall be entitled to exercise all voting
power from time to time exercisable in respect of the Securities. The
Beneficiaries shall not be responsible for any loss occasioned by the exercise
of any of such rights or by failure to exercise the same within the time limited
for the exercise thereof. The Debtor shall from time to time
forthwith upon the request of the Secured Party deliver to the Secured Party
those Securities requested by the Secured Party duly endorsed for transfer to
the Secured Party or its nominee to be held by the Secured Party subject to the
terms of this Agreement.
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4.2
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Notification of
Account Debtors
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Before an
Event of Default occurs, the Secured Party may, to the extent necessary under
applicable law to preserve or perfect the Charge granted hereby, give notice of
this Agreement and the Charge granted hereby to any account debtors of the
Debtor or to any other person liable to the Debtor and, after the occurrence and
during the continuance of an Event of Default, may give notice to any such
account debtors or other person to make all further payments to the Secured
Party, and, after the occurrence and during the continuance of an Event of
Default, any payment or other proceeds of Collateral received by the Debtor from
account debtors or from any other person liable to the Debtor whether before or
after any notice is given by the Secured Party shall be held by the Debtor in
trust for the Secured Party and forthwith paid over to the Secured Party on
request.
ARTICLE
5
REMEDIES
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5.1
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Remedies
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(a)
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Upon
the occurrence and during the continuance of any Event of Default any or
all security granted hereby shall, at the option of the Secured Party,
become immediately enforceable and, in addition to any right or remedy
provided by law, the Secured Party will have the rights and remedies set
out below, all of which rights and remedies will be enforceable
successively, concurrently, or both, and are in addition to and not in
substitution for any other rights or remedies the Secured Party may
have:
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(i)
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the
Secured Party may by appointment in writing appoint a receiver or receiver
and manager (each herein referred to as the “Receiver”) of the Collateral
(which term when used in this Section 5.1 shall include the whole or
any part of the Collateral) and may remove or replace such Receiver from
time to time or may institute proceedings in any court of competent
jurisdiction for the appointment of a Receiver of the Collateral; and the
term “Secured Party” when used in this Section 5.1 shall include any
Receiver so appointed and the agents, officers and employees of such
Receiver; and the Secured Party shall not be in any way responsible for
any misconduct or negligence of any such
Receiver;
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7
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(ii)
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the
Secured Party may take possession of the Collateral and require the Debtor
to assemble the Collateral and deliver or make the Collateral available to
the Secured Party at such place or places as may be specified by the
Secured Party;
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(iii)
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the
Secured Party may take such steps as it considers desirable to maintain,
preserve or protect the Collateral;
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(iv)
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the
Secured Party may carry on or concur in the carrying on of all or any part
of the business of the Debtor;
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(v)
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the
Secured Party may enforce any rights of the Debtor in respect of the
Collateral by any manner permitted by
law;
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(vi)
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the
Secured Party may sell, lease or otherwise dispose of the Collateral at
public auction, by private tender, by private sale or otherwise either for
cash or upon credit upon such terms and conditions as the Secured Party
may determine and without notice to the Debtor unless required by law and
may execute and deliver to the purchaser or purchasers of the Collateral
or any part thereof a good and sufficient deed or conveyance or deeds or
conveyances for the same, any officer or duly authorized representative of
the Secured Party being hereby constituted the irrevocable attorney of the
Debtor for the purpose of making such sale and executing such deeds or
conveyances, and any such sale made as aforesaid shall be a perpetual bar
both in law and in equity against the Debtor and all other persons
claiming all or any part of the Collateral by, from, through or under the
Debtor;
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(vii)
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the
Secured Party may accept the Collateral in satisfaction or partial
satisfaction of the Obligations upon notice to the Debtor of its intention
to do so in the manner required by
law;
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(viii)
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the
Secured Party may borrow money on the security of the Collateral for the
purpose of the carrying on of the business of the Debtor or for the
maintenance, preservation, protection or realization of the Collateral in
priority to the Charge;
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(ix)
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the
Secured Party may enter upon, occupy and use all or any of the Collateral
occupied by the Debtor and use all or any of the Collateral for such time
as the Secured Party requires to facilitate the realization of the
Collateral, free of charge, and the Secured Party and the Beneficiaries
will not be liable to the Debtor for any neglect in so doing (other than
gross negligence or wilful misconduct on the part thereof) or in respect
of any rent, charges, depreciation or damages in connection with such
actions;
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8
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(x)
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the
Secured Party may charge on its own behalf and pay to others all amounts
for expenses incurred and for services rendered in connection with the
exercise of the rights and remedies of the Beneficiaries hereunder,
including, without limiting the generality of the foregoing, reasonable
legal, Receiver and accounting fees and expenses, and in every such case
the amounts so paid together with all costs, charges and expenses incurred
in connection therewith, including interest thereon at a rate per annum
equal to the rate of interest per annum then payable on Canadian Prime
Rate Loans plus 2.0% per annum, shall be added to and form part of the
Obligations hereby secured; and
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(xi)
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the
Secured Party may discharge any claim, Security Interest, encumbrance or
any rights of others that may exist or be threatened against the
Collateral, and in every such case the amounts so paid together with all
reasonable costs, charges and expenses incurred in connection therewith
shall be added to the Obligations hereby
secured.
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(b)
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The
Secured Party and the Beneficiaries
may:
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(i)
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grant
extensions of time,
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(ii)
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take
and perfect or abstain from taking and perfecting
security,
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(iii)
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give
up securities,
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(iv)
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accept
compositions or compromises,
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(v)
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grant
releases and discharges, and
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(vi)
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release
any part of the Collateral or otherwise deal with the Debtor, debtors and
creditors of the Debtor, sureties and others and with the Collateral and
other security as the Secured Party sees
fit,
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without
prejudice to the liability of the Debtor to the Secured Party and the
Beneficiaries or the Beneficiaries’ rights hereunder.
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(c)
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The
Beneficiaries shall not be liable or responsible for any failure to seize,
collect, realize, or obtain payment with respect to the Collateral and
shall not be bound to institute proceedings or to take other steps for the
purpose of seizing, collecting, realizing or obtaining possession or
payment with respect to the Collateral or for the purpose of preserving
any rights of the Secured Party, the Debtor or any other person, in
respect of the Collateral.
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(d)
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The
Secured Party shall apply any proceeds of realization of the Collateral to
payment of reasonable expenses in connection with the preservation and
realization of the Collateral as above described and the Secured Party
shall apply any balance of such proceeds to payment of the Obligations in
accordance with the Credit Agreement. If the disposition of the
Collateral fails to satisfy the Obligations secured by this Agreement and
the aforesaid expenses, the Debtor will be liable to pay any deficiency to
the Secured Party and the Beneficiaries forthwith on
demand. Subject to the requirements of applicable law, any
surplus realized in excess of the Obligation shall be paid over to the
Debtor.
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9
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(e)
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Any
Receiver shall be entitled to exercise all rights and powers of the
Secured Party hereunder. To the extent permitted by law, any
Receiver shall for all purposes be deemed to be the agent of the Debtor
and not of the Secured Party and the Debtor shall be solely responsible
for the Receiver’s acts or defaults and
remuneration.
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ARTICLE
6
GENERAL
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6.1
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Benefit of the
Agreement
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This
Agreement shall be binding upon the successors and permitted assigns of the
Debtor and shall benefit the successors and permitted assigns of the Secured
Party and other Beneficiaries.
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6.2
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Conflict of Terms;
Entire Agreement
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This
Agreement has been entered into as collateral security for the Obligations and
is subject to all the terms and conditions of the Guarantee, Credit Agreement
and Lender Financial Instruments and, if there is any conflict or inconsistency
between the provisions of this Agreement and the provisions of the Guarantee,
Credit Agreement or Lender Financial Instruments, the rights and obligations of
the Debtor, Secured Party and Beneficiaries shall be governed by the provisions
of the Guarantee, the Credit Agreement and the Lender Financial
Instruments. This Agreement together with the Guarantee, Credit
Agreement, Lender Financial Instruments and all other Documents constitute the
entire agreement between the Debtor and the Secured Party with respect to the
subject matter hereof. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, express, implied or
statutory, between the Beneficiaries and the Debtor except as expressly set
forth therein and herein.
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6.3
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No
Waiver
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No delay
or failure by the Beneficiaries in the exercise of 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.
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6.4
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Severability
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If any
provision of this Agreement 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. To the
extent permitted by applicable law the parties hereby waive any provision of law
that renders any provision hereof prohibited or unenforceable in any
respect.
10
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6.5
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Notices
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Any
demand, notice or other communication to be given in connection with this
Agreement shall be given in writing and may be given by personal delivery,
facsimile or other electronic means, addressed to the recipient as
follows:
To the
Debtor:
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· [INSERT NAME OF RELEVANT
MATERIAL SUBSIDIARY OR BAYTEX ENERGY TRUST]
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||
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c/o Baytex
Energy Ltd.
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||
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Suite
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ II
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||
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▇▇▇
– ▇▇▇
▇▇▇▇▇▇ ▇.▇.
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||
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▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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||
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Attention:
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Chief
Executive Officer
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Facsimile:
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(▇▇▇)
▇▇▇-▇▇▇▇
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To the
Secured Party:
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The
Toronto-Dominion Bank
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||
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▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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||
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▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ Trust Tower
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||
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Toronto,
Ontario M5K 1A2
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||
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Attention:
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Vice
President, Loan Syndications – Agency
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Facsimile:
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(▇▇▇)
▇▇▇-▇▇▇▇
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or such
other address, electronic communication number, or to the attention of such
other individual as may be designated by notice by any party to the
other. Any demand, notice or communication made or given by personal
delivery or by facsimile or other electronic means of communication during
normal business hours at the place of receipt on a Banking Day shall be
conclusively deemed to have been made or given at the time of actual delivery or
transmittal, as the case may be, on such Banking Day. Any demand,
notice or communication made or given by personal delivery or by facsimile or
other electronic means of communication after normal business hours at the place
of receipt or otherwise than on a Banking Day shall be conclusively deemed to
have been made or given at 9:00 a.m. (Calgary time) on the first Banking
Day following actual delivery or transmittal, as the case may be.
11
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6.6
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Modification; Waivers;
Assignment
|
This
Agreement may not be amended or modified in any respect except by written
instrument signed by the Debtor and the Secured Party. No waiver of
any provision of this Agreement by the Secured Party shall be effective unless
the same is in writing and signed by the Secured Party, and then such waiver
shall be effective only in the specific instance and for the specific purpose
for which it is given. The rights of the Secured Party (including
those of any Beneficiary) under this Agreement may only be assigned in
accordance with the requirements of the Credit Agreement or applicable Lender
Financial Instrument (as the case may be). The Debtor may not assign
its obligations under this Agreement. Any assignee of a Beneficiary
shall be bound hereby, mutatis
mutandis.
|
6.7
|
Additional Continuing
Security
|
This
Agreement and the Charge granted hereby are in addition to and not in
substitution for any other security now or hereafter held by the Secured Party
or the Beneficiaries and this Agreement is a continuing agreement and security
that shall remain in full force and effect until discharged by the Secured
Party.
|
6.8
|
Discharge
|
The
Debtor and the Collateral shall not be discharged from the Charge or from this
Agreement except by a release or discharge in writing signed by the Secured
Party.
|
6.9
|
No
Release
|
The loss,
injury or destruction of the Collateral shall not operate in any manner to
release or discharge the Debtor from any of its liabilities to the
Beneficiaries.
|
6.10
|
No Obligation to
Act
|
Notwithstanding
any provision of this Agreement or any other Document or the operation,
application or effect hereof, the Secured Party, the other Beneficiaries or any
Receiver, or any representative or agent acting for or on behalf of the
foregoing, shall not have any obligation whatsoever to exercise or refrain from
exercising any right, power, privilege or interest hereunder or to receive or
claim any benefit hereunder.
|
6.11
|
Admit to
Benefit
|
Subject
to Section 6.6, no person other than the Debtor and the Beneficiaries shall
have any rights or benefits under this Agreement, nor is it intended that any
such person gain any benefit or advantage as a result of this Agreement nor
shall this Agreement constitute a subordination of any security in favour of
such person.
|
6.12
|
Time of the
Essence
|
Time
shall be of the essence with regard to this Agreement.
12
|
6.13
|
Waiver of Financing
Statement, etc.
|
The
Debtor hereby waives the right to receive from the Secured Party or the other
Beneficiaries a copy of any financing statement, financing change statement or
other statement or document filed or registered at any time in respect of this
Agreement or any verification statement or other statement or document issued by
any registry that confirms or evidences registration of or relates to this
Agreement.
|
6.14
|
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Alberta and the laws of Canada applicable therein.
|
6.15
|
Attornment
|
The
Debtor and each of the Beneficiaries each hereby attorn and submit to the
jurisdiction of the courts of the Province of Alberta. For the
purpose of all legal proceedings, this Agreement shall be deemed to have been
performed in the Province of Alberta and the courts of the Province of Alberta
shall have jurisdiction to entertain any action or proceeding arising under this
Agreement. Notwithstanding the foregoing, nothing herein shall be
construed nor operate to limit the right of the Debtor or any Beneficiary to
commence any action or proceeding relating hereto in any other jurisdiction, nor
to limit the right of the courts of any other jurisdiction to take jurisdiction
over any action, proceeding or matter relating hereto.
|
6.16
|
Executed
Copy
|
The
Debtor hereby acknowledges receipt of a fully executed copy of this
Agreement.
13
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|
6.17
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which taken together shall be deemed to
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
IN
WITNESS WHEREOF the parties hereto have executed this Agreement.
|
· [INSERT NAME OF
RELEVANT MATERIAL SUBSIDIARY OR BAYTEX ENERGY LTD., as Administrator of
BAYTEX ENERGY TRUST]
|
||
|
Per:
|
||
|
Name:
|
||
|
Title:
|
||
|
Per:
|
||
|
Name:
|
||
|
Title:
|
||
|
THE
TORONTO-DOMINION BANK,
as
Agent and Secured Party
|
||
|
Per:
|
||
|
Name:
|
||
|
Title:
|
||
|
chief
executive office of the Debtor and
|
[Suite
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ II
|
|
|
office
where the Debtor keeps its records
|
205
– ▇▇▇
▇▇▇▇▇▇ ▇.▇.
|
|
|
concerning
the Receivables:
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇]
|
14