Exhibit 4.13


 


Execution Version


 


SECURITY AGREEMENT


 


SECURITY
AGREEMENT, dated as of the 12th day of December, 2008 (as
amended, modified or supplemented from time to time, this “Security
Agreement”), granted by Gibson Energy Holdings Inc., Moose Jaw
Refinery ULC, Canwest Propane ULC, MP Energy ULC, GEP ULC, Gibson Energy Ltd.,
1370307 Alberta Ltd., Gibson GCC Inc., Moose Jaw Refinery Partnership, Canwest
Propane Partnership, MP Energy Partnership, Gibson Energy Partnership, Chief
Hauling Contractors Inc., Link Petroleum Services Ltd., Link Petroleum, Inc.,
Gibson Energy (U.S.) Inc., GEP Midstream Finance Corp. (each a “Grantor” and
collectively the “Grantors”) in favour of ROYAL BANK OF
CANADA, in its capacity as collateral agent and administrative agent (in such
capacity, together with any successor agent or permitted assign, the “Agent”) for the
Secured Parties (as such term is defined below).


 


WITNESSETH:


 


WHEREAS,
pursuant to that certain Credit Agreement dated as of the date hereof (as from
time to time amended, restated, supplemented or otherwise modified, the “Credit
Agreement”) by and among, Gibson Acquisition ULC, as Borrower,
the Guarantors, the Lenders (as such term is defined in the Credit Agreement),
the Agent, Royal Bank of Canada, as Syndication Agent, UBS Loan Finance LLC as
Documentation Agent, UBS Securities LLC as Co-Lead Arranger, and RBC Capital
Markets as Co-Lead Arranger, the Lenders have agreed to make Revolving Loans
and issue or cause the issuance of Letters of Credit on behalf of the Borrower;


 


WHEREAS,
in order to induce the Agent and the Lenders to enter into the Credit Agreement
and the other Loan Documents and to induce the Lenders to make Revolving Loans
and issue or cause the issuance of Letters of Credit, Credit Support and Bank
Products as provided for in the Credit Agreement, each Grantor has agreed to
grant a continuing Lien on the Collateral (as herein defined) in favour of the
Agent, for the benefit of the Secured Parties, to secure the Obligations of
each Grantor (collectively, the “Grantor Obligations”);


 


NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


1.             DEFINED TERMS.


 


All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Credit Agreement. All other undefined terms contained in this
Security Agreement, unless the context indicates otherwise, have the meanings
provided for by the PPSA to the extent the same are used or defined therein.


 


2.             GRANT OF LIEN.


 


(a)           As security for the
Grantor Obligations, each Grantor hereby grants to the Agent, for the benefit
of the Secured Parties, a continuing security interest in and lien on all of
the following property and assets such Grantor, whether now owned or existing
or hereafter acquired or arising, regardless of where located, :


 


(i)            all Liquidity
Collateral and Shared Collateral, owned, either directly or indirectly by such
Grantor.


 

















 


All
of the foregoing, and all other property of such Grantor in which the Agent,
for the benefit of the Secured Parties, or any Secured Party may at any time be
granted a Lien as collateral for the Grantor Obligations, is herein
collectively referred to herein as the “Collateral”.


 


(b)           The Grantor
Obligations of each Grantor shall be secured by all of the Collateral of such Grantor.


 


Notwithstanding
anything to the contrary contained in clauses (a) and (b) above, the
security interest created by this Agreement shall not extend to any interest
in, or assets of, a joint venture created after the Closing Date in accordance
with the terms of the Credit Agreement, to the extent that the grant of a
security interest therein is prohibited by, or constitutes a breach or default
under any organizational, joint venture or similar agreements.


 


3.             PERFECTION
AND PROTECTION OF SECURITY INTEREST.


 


(a)           Each Grantor shall,
at its expense, perform all steps requested by the Agent at any time and
reasonably deemed necessary by the Agent to perfect, maintain, protect and
enforce the Agent’s Liens on the Collateral, including: (i) executing,
delivering and/or filing and recording of any Security Documents required to be
delivered in accordance with the Credit Agreement and filing or authorizing the
Agent to file financing or financing change statements, and amendments thereof,
in form and substance reasonably satisfactory to the Agent; (ii) delivering
to the Agent the originals of all Instruments that are Collateral from any
single obligor having a value in excess of $250,000 and, upon the written
request of the Agent, documents and chattel paper that is, or represents
Collateral of any Grantor from any single obligor having a value in excess of $250,000,
and all other Collateral of which the Agent reasonably determines it should
have physical possession in order to perfect and protect the Agent’s security
interest therein, duly pledged, endorsed or assigned to the Agent without
restriction; (iii) delivering to the Agent upon the Agent’s written
request made after the occurrence and during the continuance of an Event of
Default, warehouse receipts, pipeline operator receipts or receipts relating to
any facility where any Collateral is located, and
for which receipts are issued and certificates of title covering any portion of
the Collateral for which certificates of title
have been issued; (iv) when an Event of Default has occurred and is
continuing, transferring its Inventory to warehouses, pipelines, storage
facilities or other locations designated by the Agent; (v) upon the Agent’s
written request made after the occurrence and during the continuance of an
Event of Default, placing notations on any Grantor’s books of account to
disclose the Agent’s security interest; (vi) obtaining control agreements
from securities intermediaries with respect to financial assets in the
possession of securities intermediaries that have a value of greater than
$1,000,000 or where such financial assets are to be included in the Borrowing
Base (vii) assigning and delivering to the Agent, upon the request of the
Agent made after the occurrence and during the continuance of an Event of
Default, means all supporting obligations including letters of credit and
guarantees issued in support of any Accounts that are Collateral, including
letters of credit on which one or more Grantors is named beneficiary with the
written consent of the issuer thereof and (viii) taking such other steps
as are deemed necessary by the Agent to maintain and protect the Agent’s Liens
on the Collateral. To the extent permitted by applicable law, the Agent may
(and each Grantor hereby authorizes the Agent to) file, without any Grantor’s
signature, one or more financing statements continuation statements or other
documents and amendments thereto for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Agent’s Liens on the Collateral. Each
Grantor hereby authorizes the Agent to file financing or continuation
statements, and amendments thereto, in any jurisdictions and with any filing
offices as the Agent may determine (and signed only by the Agent (if
necessary)), in its sole reasonable discretion, are necessary or advisable to
perfect the security interest granted to the Agent herein. Such financing
statements may describe the Collateral in the same manner as described herein
or may contain an indication or description of collateral that describes such
property in any other manner as the Agent may determine, in its sole discretion,
is necessary, advisable or prudent to ensure the perfection of the security
interest in the Collateral granted to the Agent herein. Each Grantor agrees
that a carbon,


 

















 


photographic,
photostatic or other reproduction of this Security Agreement or of a financing
statement is sufficient as a financing statement.


 


(b)           From time to time,
each Grantor shall, upon the written request of the Agent, execute and deliver
confirmatory written Instruments pledging to the Agent, for the ratable benefit
of the Secured Parties, the Collateral in which such Grantor has an interest,
but such Grantor’s failure to do so shall not affect or limit any security
interest or any other rights of the Agent or any Secured Party in and to the
Collateral with respect to any Grantor. So long as the Credit Agreement is in
effect and until all Grantor Obligations have been fully satisfied (other than
indemnification and contingent obligations not then due), the Agent’s Liens
shall continue in full force and effect in all Collateral (whether or not
deemed eligible for the purpose of calculating the Availability of a Borrower
or as the basis for any advance, loan, extension of credit or other financial
accommodation), except as any such Collateral may be released from the Liens
created hereby in accordance with the terms hereof or the Credit Agreement.


 


4.             Intentionally
Deleted.


 


5.             Intentionally
Deleted.


 


6.             Intentionally
Deleted.


 


7.             Intentionally
Deleted.


 


8.             Intentionally
Deleted.


 


9.             Intentionally
Deleted.


 


10.           Intentionally
Deleted.


 


11.           Intentionally
Deleted.


 


12.           THE AGENT’S
AND SECURED PARTIES’ RIGHTS, DUTIES AND LIABILITIES.


 


(a)           Each Grantor assumes
all responsibility and liability arising from or relating to the use, sale or
other disposition of the Collateral. The Grantor Obligations shall not be
affected by any failure of the Agent or any Secured Party to take any steps to
perfect the Agent’s Liens or to collect or realize upon any of the Collateral,
nor shall loss of or damage to any of the Collateral release any Grantor from
any of the Grantor Obligations. Following the occurrence and during the
continuation of an Event of Default, the Agent may (but shall not be required
to), and at the direction of the Required Lenders shall, without notice to or
consent from any Grantor, sue upon or otherwise collect, extend the time for
payment of, modify or amend the terms of, compromise or settle for cash,
credit, or otherwise upon any terms, grant other indulgences, extensions,
renewals, compositions or releases, and take or omit to take any other action
with respect to any or all of the Collateral, any security therefor, any
agreement relating thereto, any insurance applicable thereto, or any Person
liable directly or indirectly in connection with any of the foregoing, without
discharging or otherwise affecting the liability of any Grantor for the Grantor
Obligations or under the Credit Agreement or any other agreement now or
hereafter existing between the Agent and/or any Secured Party and any Grantor.


 


(b)           It is expressly
agreed by each Grantor that, anything herein to the contrary notwithstanding,
each Grantor shall remain liable under each of its leases, agreements,
contracts and licenses (each a “Contract” and
collectively, the “Contracts”) to observe and perform all
the conditions and obligations to be observed and performed by it thereunder.
None of the Agent nor any Secured Party shall have any obligation or liability
under any Contract by reason of or arising out of this Security


 

















 


Agreement
or the granting herein of a Lien thereon or the receipt by Agent or any Secured
Party of any payment relating to any Contract pursuant hereto, except for
liabilities for any acts or omissions taken pursuant to such Contracts with
willful misconduct, bad faith or gross negligence and except as otherwise
imposed by applicable law. None of the Agent nor any Secured Party shall be
required or obligated in any manner to perform or fulfill any of the
obligations of any Grantor under or pursuant to any Contract, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract, or to present or file any claims, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.


 


(c)           The Agent may at any
time after an Event of Default shall have occurred and be continuing, without
prior notice to any Grantor, notify Account Debtors, parties to the Contracts
of any Grantor and obligors, in respect of Instruments and Chattel Paper that
is, or represents Collateral of the any Grantor, that the Accounts of any
Grantor and the right, title and interest of any Grantor in and under such
Contracts, Instruments and Chattel Paper that, in each case, is, or represents
Collateral have been assigned to the Agent, and that payments shall be made
directly to the Agent, for the benefit of the Secured Parties. Upon the written
request of the Agent at any time after an Event of Default has occurred and is
continuing, each Grantor shall so notify Account Debtors, parties to Contracts
of such Grantor and obligors in respect of Instruments and Chattel Paper that
is, or represents Collateral of such Grantor.


 


13.           INDEMNIFICATION.
In any suit, proceeding or action brought by the Agent or any Secured Party
relating to any Account, document, or Chattel Paper that is, or represents
Collateral, a Contract, or an Instrument of any Grantor for any sum owing
thereunder or to enforce any provision of any Account, Chattel Paper, or
document that is, or represents Collateral, a Contract, or an Instrument of a
Grantor, such Grantor, to the extent required pursuant to Section 14.11 of
the Credit Agreement, will save, indemnify and keep the Agent and the Secured
Parties harmless from and against all expense (including reasonable attorneys’
fees and expenses), loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the obligor
thereunder, arising out of a breach by such Grantor of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to, or in favour of, such obligor or its successors from such
Grantor, except in the case of the Agent or any Secured Party, to the extent
such expense, loss or damage is attributable to the gross negligence or willful
misconduct of the Agent or such Secured Party as finally determined by a court
of competent jurisdiction. All such obligations of such Grantor shall be and
remain enforceable against and only against such Grantor and shall not be
enforceable against the Agent or any Secured Party. Each Grantor assumes all
responsibility and liability arising from the use of the Collateral in which
such Grantor granted a security interest hereunder in favour of the Agent, and
each Grantor hereby agrees, to the extent required pursuant to Section 14.11
of the Credit Agreement, to indemnify and hold the Agent and the Secured
Parties harmless from and against any claim, suit, loss, damage or reasonable
expense (including reasonable attorneys’ fees) arising out of any alleged
defect in any product manufactured, promoted or sold by such Grantor (or any
Affiliate or Subsidiary thereof) in connection with any Collateral of such
Grantor or out of the manufacture, promotion, labelling, sale or advertisement
of any such product by such Grantor (or any Affiliate or Subsidiary thereof),
except in the case of the Agent or any Secured Party, to the extent such defect
is attributable to the gross negligence, wilful misconduct or material breach
of this Agreement by the Agent or such Secured Party, as finally determined by
a court of competent jurisdiction. Each Grantor agrees that the Agent and the
Secured Parties do not assume, and shall have no responsibility for, the
payment of any sums due or to become due under any agreement or contract
included in the Collateral in which any Grantor has granted a security interest
hereunder in favour of the Agent or the performance of any obligations to be
performed under or with respect to any such agreement or contract by any
Grantor, and each Grantor hereby agrees to indemnify and hold the Agent and
each Secured Party harmless with respect to any and all claims by any Person
relating thereto all to the extent required pursuant to Section 14.11 of
the Credit Agreement.


 

















 


14.           LIMITATION
ON LIENS ON COLLATERAL. Each Grantor will not
create, permit or suffer to exist, and will take such other action as is
reasonably necessary to remove, any Lien on such Collateral except Permitted
Liens.


 


15.         REMEDIES; RIGHTS UPON DEFAULT.


 


(a)           In
addition to all other rights and remedies granted to it under this Security
Agreement, the Credit Agreement, the other Loan Documents and under any other
instrument or agreement securing, evidencing or relating to any of the Grantor
Obligations, if any Event of Default shall have occurred and be continuing, the
Agent may exercise all rights and remedies of a secured party under the PPSA. Without
limiting the generality of the foregoing, each Grantor expressly agrees that if
any Event of Default have occurred and be continuing, the Agent, without demand
of performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
any Grantor or any other Person (all and each of which demands, advertisements
and notices are hereby expressly waived to the maximum extent permitted by the
PPSA and other applicable law), may forthwith enter upon the premises of any
Grantor where any Collateral is located through self help, without judicial
process, without first obtaining a final judgment or giving any Grantor or any
other Person notice and opportunity for a hearing on the Agent’s claim or
action and may collect, receive, assemble, process, appropriate and realize
upon the Collateral, or any part thereof, and may forthwith sell, lease,
assign, give an option or options to purchase, or sell or otherwise dispose of
and deliver said Collateral (or contract to do so), or any part thereof, in one
or more parcels at a public or private sale or sales, at any exchange at such
prices as it may deem acceptable, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Secured Party shall
have the right upon any such public sale or sales and, to the extent permitted
by law, upon any such private sale or sales, to purchase for the benefit of the
Secured Parties, the whole or any part of said Collateral so sold, free of any
right or equity of redemption, which equity of redemption each Grantor hereby
releases. Such sales may be adjourned and continued from time to time with or
without notice. Subject to the terms of the Intercreditor Agreement, the Agent
shall have the right to conduct such sales on such Grantor’s premises or
elsewhere and, in connection with such sales, shall have the right to any
Grantor’s premises without charge for such time or times as the Agent deems
necessary or advisable.


 


(b)           Each
Grantor further agrees, at the Agent’s request only after an Event of Default
has occurred and is continuing, to assemble, or to direct the Collateral in
which it has granted a security interest hereunder to the Agent and make it
available to the Agent at places which the Agent shall select, whether at such
Grantor’s premises or elsewhere. Until the Agent is able to effect a sale,
lease or other disposition of the Collateral, the Agent shall have the right to
hold or use the Collateral, or any part thereof, to the extent that it deems
appropriate for the purpose of preserving the Collateral or its value or for
any other purpose deemed appropriate by the Agent. The Agent shall have no
obligation to any Grantor to maintain or preserve the rights of any Grantor as
against third parties with respect to the Collateral in which it granted a
security interest hereunder to the Agent while such Collateral is in the
possession of the Agent. The Agent may, if the Agent so elects, appoint a
receiver or a receiver and manager (both of which are herein called a “Receiver”)
to take possession of any of the Collateral and to enforce any of the Agent’s
remedies (for the benefit of the Secured Parties), with respect to such
appointment without prior notice or hearing as to such appointment. Any such
Receiver is hereby given and shall have the same powers and rights and
exclusions and limitations of liability as the Agent has under this Security
Agreement, at law or in equity. In exercising any such powers, any such Receiver
shall, to the extent permitted by law, act as and for all purposes shall be
deemed to be the agent of any Grantor and the Agent shall not be responsible
for any act or default of any such Receiver. The Agent may appoint one or more
Receivers hereunder and may remove any such Receiver or Receivers and appoint
another or others in his or their stead from time to time. Any Receiver so
appointed may be an officer or employee of the Agent. A court need not appoint,
ratify the appointment by the Agent of or otherwise supervise in any manner the
actions of any Receiver.  After an Event
of Default has occurred


 

















 


and is continuing, and upon a Grantor receiving
notice from the Agent of the taking of possession of the Collateral or the
appointment of a Receiver, all powers, functions, rights and privileges of each
of the directors and officers of the Agent with respect to the Collateral shall
cease, unless specifically continued by the written consent of the Agent. After
an Event of Default has occurred and is continuing and upon the exercise of
remedies pursuant hereto, the Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale to the
Grantor Obligations as provided in the Credit Agreement, and only after so
paying over such net proceeds, and after the payment by the Agent of any other
amount required by any provision of law, shall the Agent be required to account
for the surplus, if any, to such Grantor or Grantors. After an Event of Default
has occurred and is continuing, to the maximum extent permitted by applicable
law, each Grantor waives all claims, damages and demands against the Agent or
any Secured Party arising out of the repossession, retention or sale of any of
the Collateral in accordance with the terms hereof except such as arise solely
out of the gross negligence, bad faith or willful misconduct of the Agent or
such Secured Party as determined by a final decision of a court of competent
jurisdiction. Each Grantor agrees that fifteen (15) days prior notice by the
Agent of the time and place of any public sale or of the time after which a
private sale may take place is reasonable notification of such matters. Each
Grantor shall remain liable for any deficiency if the proceeds of any sale or disposition
of the Collateral are insufficient to pay all of such Grantor Obligations,
including any reasonable legal fees or other expenses incurred by the Agent or
any Secured Party to collect such deficiency, in each case, to the extent
required by the Credit Agreement.


 


(c)           Except as otherwise specifically provided herein, each
Grantor hereby waives presentment, demand, protest or any notice (to the
maximum extent permitted by applicable law and except as otherwise required by
the Credit Agreement or this Agreement) of any kind in connection with this
Security Agreement or any Collateral. Without limiting any of the foregoing,
each Grantor, to the maximum extent not prohibited by applicable law, hereby
(i) agrees that it will not invoke, claim or assert the benefit of any
rule of law or statute now or hereafter in effect (including, without
limitation, any right to prior notice or judicial hearing in connection with
the Agent’s possession, custody or disposition of any Collateral or any
appraisal, valuation, stay, extension, moratorium or redemption law), or take
or omit to take any other action, that would or could reasonably be expected to
have the effect of delaying, impeding or preventing the exercise of any rights
and remedies in respect of the Collateral, the absolute sale of any of the
Collateral or the possession thereof by any purchaser at any sale thereof, and
waives the benefit of all such laws and further agrees that it will not hinder,
delay or impede the execution of any power granted hereunder to the Agent, but
that it will permit the execution of every such power as though no such laws
were in effect, except that notwithstanding anything to the contrary in this
paragraph “(i)” the parties hereto agree that prior to an Event of Default that
is continuing, each Grantor is permitted to deal with the Collateral in the
ordinary course of business of such Grantor, (ii) waives all rights that
it has or may have under any rule of law or statute now existing or
hereafter adopted to require the Agent to marshal any Collateral or other
assets in favour of any Grantor or any other party or against or in payment of
any or all of the Grantor Obligations, and (iii) waives all rights that it
has or may have under any rule of law or statute now existing or hereafter
adopted to require the Agent to pursue any third party for any of the Grantor
Obligations.


 


(d)           Without limiting the foregoing, each Grantor further
agrees, upon the occurrence and during the continuance of an Event of Default,
the Agent may (without assuming any obligations or liability thereunder), at
any time, enforce (and shall have the exclusive right to enforce) against any
licensee or sublicensee all rights and remedies of any Grantor in, to and under
any one or more licence agreements with respect to the Collateral in which any
Grantor has granted a security interest hereunder in favour of the Agent, and
take or refrain from taking any action under any thereof, and each Grantor
hereby releases the Agent and each Secured Party from, and agrees to hold the
Agent and each Secured Party free and harmless from and against any claims
arising out of, any action taken or omitted to be taken with respect to any
such licence agreement.


 

















 


(e)           In the event of any licence, assignment, sale or other
disposition of the Collateral, or any of it, after the occurrence and during
the continuance of an Event of Default, each Grantor shall supply (without
payment of royalty or other compensation to any Grantor) its know-how and
expertise relating to the manufacture and sale of the products bearing or in
connection with the Proprietary Rights of any Grantor, and its customer lists
and other records relating to the Proprietary Rights of any Grantor and to the
distribution of said products, to the Agent or its designee in each case,
unless directed to do otherwise pursuant to the terms of the Intercreditor
Agreement.


 


16.           GRANT OF LICENCE TO
USE PROPRIETARY RIGHTS. Unless directed to do otherwise pursuant
to the terms of the Intercreditor Agreement, solely for the purpose of enabling
the Agent to exercise rights and remedies under Section 16 hereof
(including, without limiting the terms of Section 16 hereof, in
order to take possession of, hold, preserve, process, assemble, prepare for
sale, market for sale, sell or otherwise dispose of Collateral) at such time as
the Agent shall be lawfully entitled to exercise such rights and remedies after
an Event of Default has occurred and is continuing, but without limiting the
provisions of Section 15 hereof, each Grantor hereby grants to the Agent,
for the benefit of the Secured Parties, an irrevocable, nonexclusive licence
(exercisable without payment of royalty or other compensation to any Grantor)
to use any Proprietary Rights now owned or hereafter acquired by any Grantor,
and wherever the same may be located, and including in such licence reasonable
access to all media in which any of the Proprietary Rights may be recorded or
stored and to all computer software and programs used for the compilation or
printout of such Proprietary Rights, subject to any rights of third parties in
such Proprietary Rights and, subject, in the case of trademarks and any
property of similar nature, to sufficient rights to quality control and
inspection in favour of such Grantor required under applicable law to avoid
risk of invalidation of said trademarks and property of similar nature.


 


17.           LIMITATION ON AGENT’S
AND SECURED PARTIES’ DUTY IN RESPECT OF COLLATERAL. The Agent
and Secured Parties shall act in good faith and in a commercially reasonable
manner with respect to the care of the Collateral in its possession or under
its control. Neither the Agent nor any Secured Party shall have any other duty
as to any Collateral in its possession or control or in the possession or
control of any agent or nominee of the Agent or such Secured Party, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.


 


18.           MISCELLANEOUS.


 


(a)           Reinstatement.
This Security Agreement shall remain in full force and effect until
terminated pursuant to Section 18(f) hereof, and shall be reinstated
and continue to be effective should any petition be filed by or against a
Grantor for liquidation or reorganization, should such Grantor become insolvent
or make an assignment for the benefit of any creditor or creditors or should a
receiver or trustee be appointed for all or any significant part of such
Grantor’s assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Grantor Obligations
of such Grantor, or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
of such Grantor Obligations, whether as a “voidable preference,” “fraudulent
conveyance,” or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, such Grantor Obligations shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.


 


(b)           Notices. Except as otherwise provided
herein, whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communication shall or may be given to
or served upon any of the parties by any other party, or whenever any of the
parties desires to give and serve upon any other party any communication with
respect to this Security Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall be
given in the manner, and deemed received, as provided for in the Credit
Agreement.


 

















 


(c)           Severability. Whenever possible, each
provision of this Security Agreement shall be interpreted in a manner as to be
effective and valid under applicable law, but if any provision of this Security
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining
provisions of this Security Agreement. This Security Agreement is to be read,
construed and applied together with the Credit Agreement and the other Loan
Documents which, taken together, set forth the complete understanding and
agreement of the Agent, the Secured Parties and each Grantor with respect to
the matters referred to herein and therein.


 


(d)           No Waiver; Cumulative Remedies. None of
the Agent nor any Secured Party shall by any act, delay, omission or otherwise
be deemed to have waived any of its rights or remedies hereunder, and no waiver
shall be valid unless in writing, signed by the Agent and then only to the
extent therein set forth. A waiver by the Agent of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Agent would otherwise have had on any future occasion. No
failure to exercise nor any delay in exercising on the part of the Agent or any
Secured Party, any right, power or privilege hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. No notice to or demand upon
any Grantor in any case shall entitle a Grantor to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the right
of the Agent to exercise any right or remedy or take any other or further
action in any circumstances without notice or demand. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Security Agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by the Agent and
each Grantor.


 


(e)           Limitation by Law. All rights, remedies
and powers provided in this Security Agreement may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
law, and all the provisions of this Security Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling and
to be limited to the extent necessary so that they shall not render this
Security Agreement invalid, unenforceable, in whole or in part, or not entitled
to be recorded, registered or filed under the provisions of any applicable law.


 


(f)            Termination of this Security Agreement. Subject
to Section 18(a) hereof, this Security Agreement shall
terminate (and the security interest created by this Security Agreement in and
upon the Collateral shall be automatically released) upon the payment and
performance in full in cash (where it is possible for such obligations to be
satisfied in cash) of all Grantor Obligations and the cancellation and return
of all Letters of Credit (or, to the extent not so cancelled and returned, the
deposit with the Agent of the Supporting Letters of Credit for, or cash
collateralization (in an amount required by the Credit Agreement) of, such
outstanding Letters of Credit (or related Credit Support) in accordance with
and as required by Section 1.3(g) of the Credit Agreement), and
termination of the Commitments and in connection with such termination, the
Agent, at the request and expense of a Grantor, will promptly authorize,
execute and deliver to such Grantor such documents and instruments evidencing
such termination as such Grantor may reasonably request and will assign,
transfer and deliver to such Grantor, without recourse and without
representation or warranty, such of the Collateral as may then be in the
possession of the Agent; provided, however, that in connection with the termination
of this Security Agreement and the release and termination of the security
interests in the Collateral, the Agent may require such indemnities as it shall
reasonably deem necessary or appropriate to protect the Agent and the Secured
Parties against loss on account of credits previously applied to the Grantor
Obligations that may subsequently be reversed or revoked. Notwithstanding
anything in this Security Agreement to the contrary, upon any sale, transfer
(including without limitation, by merger or consolidation) or other disposition
by any Grantor of any Collateral in a transaction expressly permitted under the
Credit Agreement and the receipt by the Agent of the Net Proceeds of such sale
or other disposition as required


 

















 


by the Credit Agreement, the Lien and security
interest created by this Security Agreement in and upon such Collateral shall
be automatically released, and in connection with any such release, the Agent,
at the request and expense of a Grantor, will promptly authorize, execute and
deliver to such Grantor such documents and instruments evidencing such release
or termination as such Grantor may reasonably request and will assign, transfer
and deliver to such Grantor, without recourse and without representation or
warranty, such of the Collateral so being released as may then be in the
possession of the Agent.


 


(g)          Successors and Assigns. This Security Agreement and all obligations of each Grantor
hereunder shall be binding upon the successors and assigns of each Grantor
(including any debtor-in-possession on behalf of such Grantor) and shall,
together with the rights and remedies of the Agent, for the benefit of the
Secured Parties, hereunder, inure to the benefit of the Secured Parties, all
future holders of any instrument evidencing any of the Grantor Obligations and
their respective successors and permitted assigns. No sales of participations,
other sales, assignments, transfers or other dispositions of any agreement
governing or instrument evidencing the Grantor Obligations or any portion
thereof or interest therein shall in any manner affect the Lien granted to the
Agent, for the benefit of the Secured Parties, hereunder. No Grantor may
assign, sell, hypothecate or otherwise transfer any interest in or obligation
under this Security Agreement except as permitted pursuant to the terms of the
Credit Agreement.


 


(h)          Counterparts.
This Security Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
and the same agreement.


 


(i)            Governing Law.
(x) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS SECURITY AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
PROVINCE ALBERTA; PROVIDED, THAT IF THE LAWS OF ANY JURISDICTION OTHER
THAN ALBERTA SHALL GOVERN IN REGARD TO THE VALIDITY, PERFECTION OR EFFECT OF
PERFECTION OF ANY LIEN OR IN REGARD TO PROCEDURAL MATTERS AFFECTING ENFORCEMENT
OF ANY LIENS IN COLLATERAL, SUCH LAWS OF SUCH OTHER JURISDICTIONS SHALL
CONTINUE TO APPLY TO THAT EXTENT; PROVIDED, FURTHER, THAT THE AGENTS AND THE
SECURED PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER THE FEDERAL LAWS OF
CANADA.


 


(y)          ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER
LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE PROVINCE OF ALBERTA, AND
BY EXECUTION AND DELIVERY OF THIS SECURITY AGREEMENT, EACH GRANTOR, THE AGENT
AND THE SECURED PARTIES CONSENT, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH GRANTOR, THE AGENT AND THE
SECURED PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF THIS SECURITY AGREEMENT OR ANY DOCUMENT RELATED
HERETO. NOTWITHSTANDING THE FOREGOING: (1) THE AGENTS AND THE LENDERS
SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY LOAN PARTY
OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE AGENTS OR THE
LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR
OTHER SECURITY FOR THE OBLIGATIONS AND (2) EACH GRANTOR AND THE SECURED
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE THOSE JURISDICTIONS.


 

















 


(j)            Waiver
of Jury Trial. EACH OF EACH OF THE
GRANTORS, THE LENDERS AND THE AGENT IRREVOCABLY WAIVES ITS RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS SECURITY AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT
RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS OR OTHERWISE. EACH OF THE LOAN PARTIES, THE LENDERS AND THE AGENTS
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS SECURITY
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS.


 


(k)           Section Titles.
The Section titles contained in this Security Agreement are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.


 


(l)            No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favouring or disfavouring any party
by virtue of the authorship of any provisions of this Security Agreement.


 


(m)          Benefit of Secured
Parties. All Liens granted to the Agent or contemplated hereby
shall be for the benefit of the Secured Parties, and all proceeds or payments
realized from Collateral in accordance herewith shall be applied to the Grantor
Obligations in accordance with the terms of the Credit Agreement.


 


(n)           Security in Addition.
The security interest hereby constituted is not in substitution for any
other security interests securing the Grantor Obligations or for any other
agreement between the parties creating a security interest in all or part of
the Collateral, whether heretofore or hereafter made, and such security and
such agreements shall be deemed to be continued and not affected hereby.


 


(o)           Security Interest
Effective Immediately. The parties intend the security interest
created hereby to attach and take effect forthwith upon execution of this
Security Agreement by each Grantor and each Grantor acknowledges that value has
been given and that each Grantor has rights in the Collateral.


 


(p)           Receipt of Copy.    Each Grantor acknowledges receipt of an
executed copy of this Security Agreement.


 


19.           JUDGMENT CURRENCY.  If for the purpose
of obtaining judgment in any court it is necessary to convert an amount due
hereunder in the currency in which it is due (the “Original Currency”)
into another currency (the “Second Currency”‘), the rate of exchange
applied shall be that at which, in accordance with normal banking procedures,
the Agent could purchase in the Toronto, Ontario foreign exchange market, the
Original Currency with the Second Currency on the date two (2) Business
Days preceding that on which judgment is given. Each Grantor agrees that its
obligation in respect of any Original Currency due from it hereunder shall,
notwithstanding any judgment or payment in such other currency, be discharged
only to the extent that, on the Business Day following the date the Agent
receives


 














 


payment
of any sum so adjudged to be due hereunder in the Second Currency, the Agent
may, in accordance with normal banking procedures, purchase, in the Toronto,
Ontario foreign exchange market, the Original Currency with the amount of the
Second Currency so paid; and if the amount of the Original Currency so
purchased or could have been so purchased is less than the amount originally
due in the Original Currency, each Grantor agrees as a separate obligation and
notwithstanding any such payment or judgment to indemnify the Agent against
such loss. The term “rate of exchange” in this Section 19 means the spot
rate at which the Agent, in accordance with normal practices, is able on the
relevant date to purchase the Original Currency with the Second Currency, and
includes any premium and costs of exchange payable in connection with such
purchase.


 


20.           PRECEDENCE.
In the event that any provisions of this Security Agreement contradict and
are otherwise incapable of being construed in conjunction with the provisions
of the Credit Agreement, the provisions of the Credit Agreement shall take
precedence over those contained in this Security Agreement.


 


21.           INTERCREDITOR
AGREEMENT. Notwithstanding the fact that the exercise of certain
of the Agent’s rights under the Loan Documents may be subject to the
Intercreditor Agreement, no action taken or not taken by the Agent or any
Secured Party in accordance with the terms of the Intercreditor Agreement shall
constitute, or be deemed to constitute, a waiver by the Agent or any Secured
Party of any rights they have with respect to any Grantor under any Loan
Document and except as specified herein, nothing contained in the Intercreditor
Agreement shall be deemed to modify any of the provisions of this Security
Agreement and the other Loan Documents, which, as among the Grantors, the Agent
and the Secured Parties shall remain in full force and effect.


 


[Remainder
of page intentionally left blank]


 


[signature
page follows]


 

















 


IN WITNESS
WHEREOF, the Grantors have caused this Security Agreement to be executed and delivered
by their duly authorized officers as of the date first set forth above.


 


	
   

  	
  GRANTORS:

  
	
   

  	
   

  
	
   

  	
  1370307
  ALBERTA LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE PARTNERSHIP 

  BY ITS MANAGING PARTNER, 

  GIBSON ENERGY LTD

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS INC.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
					



 


Security Agreement -
Guarantors


 

















 


	
   

  	
  GEP ULC

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Richard G. Taylor

  
	
   

  	
   

  	
  Name:

  	
  RICHARD G. TAYLOR

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE VICE
  PRESIDENT, FINANCE 

  & C.F.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GEP MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Robert M. Tichio

  
	
   

  	
   

  	
  Name:

  	
  Robert M. Tichio

  
	
   

  	
   

  	
  Title:

  	
  President &
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY (U.S.) INC.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Richard G. Taylor

  
	
   

  	
   

  	
  Name:

  	
  RICHARD G. TAYLOR

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE VICE PRESIDENT,
  FINANCE 

  & C.F.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Richard G. Taylor

  
	
   

  	
   

  	
  Name:

  	
  RICHARD G. TAYLOR

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE VICE PRESIDENT,
  FINANCE 

  & C.F.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Richard G. Taylor

  
	
   

  	
   

  	
  Name:

  	
  RICHARD G. TAYLOR

  
	
   

  	
   

  	
  Title:

  	
  EXECUTIVE VICE PRESIDENT,
  FINANCE 

  & C.F.O.

  



 


Security Agreement -
Guarantors


 

















 


	
   

  	
  GIBSON ENERGY PARTNERSHIP

  BY ITS MANAGING PARTNER, 

  GIBSON ENERGY LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC. 

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM, INC.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY PARTNERSHIP 

  BY ITS MANAGING PARTNER, 

  GIBSON ENERGY LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T.W. Gomke

  
	
   

  	
   

  	
  Name:

  	
  T.W. GOMKE

  
	
   

  	
   

  	
  Title:

  	
  PRESIDENT &
  C.E.O.

  



 


Security Agreement - Guarantors


 

















 


	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T. Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP 

  BY ITS MANAGING PARTNER, 

  GIBSON ENERGY LTD.

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T. Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ T. Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  



 


Security Agreement -
Guarantors


 

















 


EXHIBIT “A”

DESCRIPTION OF LIQUIDITY COLLATERAL


 


“Liquidity
Collateral” means, collectively, any and all (i) Inventory, Accounts,
Assigned Claims and Contract Intangibles together with any and all Proceeds
thereof; (ii) cash, cash equivalents, collections, currency, Payment
Instruments and moneys whether or not held or received by, or in transit to,
the Agent or any of the Lenders from or for and of the Credit Parties, whether
for safekeeping, pledge, custody, transmission, collection or otherwise,
including all of the Credit Parties’ deposit and other bank accounts, credits,
and balances with the Agent and/or any of the Lenders and all claims of any of
the Credit Parties or any of them against any Lender at any time existing; (iii) the
Lenders’ Proportionate Share of Business Interruption Proceeds; and (iv) all
Proceeds on or in respect of items (i), (ii) and (iii) above now
existing or hereafter arising provided, however, that Liquidity Collateral
shall not include any Bridge Collateral Account, Specified Contract Rights, any
equity interests in any of the Credit Parties or any other property which the
Agent has agreed will be excluded from Liquidity Collateral.


 


“Shared
Collateral” means all books, records, ledger cards, data processing records
and cards, proprietary and non-public business information, all proprietary
rights in computer software and programs and all documentation and other
materials related to computer software and programs and all other rights under
any of the foregoing, business records data, databases, customer lists, papers
and writings, computer software and related systems.


 


Ancillary Definitions:


 


“Accounts”
means any and all “accounts” as such term is defined in Section 1 of the
PPSA, together with all accounts, accounts receivable, book debts and other
forms of obligations now owned or hereafter received or acquired by or
belonging or owing to the Credit Parties or any of them, in each case to the
extent such account arises out of a sale or lease of Inventory or rendition of
services by the Credit Parties or any of them, whether or not the same have
been earned, together with any interest, late charges, penalties, collection
costs and other sums due or payable in respect thereof.


 


“Assigned
Claims” means, collectively, whether or not constituting Accounts, all of
the Credit Parties’ (a) “instruments”, “chattel paper” and “documents of
title” (as each term is defined in Section 1 of the PPSA), cheques,
collections, letters of credit, bills, notes, acceptances, drafts, instruments,
certificates of deposit, treasury bills, investment certificates, commercial
paper, other cash equivalents (including those forming part of the Lenders’
borrowing base) and any other security or securities except Capital Stock (the “Payment
Instruments”); (b) all of such Person’s moneys and claims for money due or
to become due to any of the Credit Parties under any contracts, agreements or
arrangements relating to the sale or lease of Inventory or rendition of
services by the Credit Parties or Payment Instruments, and any and all
amendments, supplements, extensions, and renewals thereof, including all of the
Credit Parties’ deposit and other bank accounts, credits and balances with the
Agent, and/or any of the Lenders and all claims of the Credit Parties or any of
them against any Lender or agent under the Credit Agreement at any time
existing; (c) all rights and claims of the Credit Parties now or hereafter
existing: (i) under any insurance, indemnities, warranties, and guarantees
provided for or arising out of or in connection with any contracts, agreements,
arrangements relating to the sale or lease of Inventory or rendition of
services by the Credit Parties or any Accounts or Payment Instruments; or (ii) for
any damages arising out of or for breach or default under or in connection with
any contracts, agreements or arrangements relating to the sale or lease of
Inventory or rendition of services by the Credit Parties or Payment
Instruments; or (iii) to exercise or enforce any and all covenants,
remedies, powers and privileges under any contracts, agreements, or
arrangements relating to the sale or lease of Inventory or renditions of
services by the Credit Parties or Payment Instruments; (d) all forms of
obligations owing to the Credit Parties or any of them (including in respect of
loans, advances and extensions of credit by the Credit Parties or any of them
to any other Credit


 

















 


Parties);
and (e) tax refunds and credits (including, in respect of goods and
service tax and provincial sales taxes) and duty drawbacks, provided however
that Assigned Claims shall not include Proprietary Rights Collateral, Specified
Contract Rights, Capital Stock of the Borrower, the Co-Issuer or the Borrower’s
restricted subsidiaries, Bridge Collateral Account and property described in
clause (iv) of the definition of Bridge Collateral contained herein.


 


“Bridge
Agent” means collectively Royal Bank of Canada, as First Lien Bridge Agent
and Royal Bank of Canada as Second Lien Bridge Agent, each as defined in the
Intercreditor Agreement.


 


“Bridge
Collateral” means, collectively, (i) all Equipment, Real Property,
Intangibles, Capital Stock of the Borrower and the Borrower’s restricted
subsidiaries (other than excluded subsidiaries and certain other subsidiaries
the Capital Stock of which is not required to be pledged pursuant to the terms
of the Bridge Security Documents), Proprietary Rights Collateral, Specified
Contract Rights, and Bridge Collateral Account, (ii) except to the extent
included in the Collateral or Shared Collateral, all other goods and personal
property of the Credit Parties, whether tangible or intangible, now owned or
hereafter acquired by the Credit Parties or in which any Credit Party now has
or hereafter acquires any rights and wherever located, (iii) the Bridge
Proportionate Share of Business Interruption Proceeds and (iv) all
Proceeds on or in respect of items (i), (ii) and (iii) above now
existing or hereafter arising provided, however, that Bridge Collateral shall
not include any property which the Bridge Agent has agreed will be excluded
from Bridge Collateral.


 


“Bridge
Collateral Account” means any account maintained by the Borrower or any
other Credit Party with a financial institution pursuant to the provisions of
the Bridge Security Documents and specifically designated by such Credit Party
for deposit solely of proceeds of Bridge Collateral, the details of which account
shall have been provided to the Agent at the time of its opening or creation.


 


“Bridge
Obligations” has the meaning set forth in the Intercreditor Agreement.


 


“Bridge
Proportionate Share of Business Interruption Proceeds” means, as at the
date of determination, the proportionate share of any Business Interruption
Proceeds determined by multiplying (A) the total amount of such Business
Interruption Proceeds, by (B) the quotient obtained by dividing the
Equivalent Amount (as such term is defined in the Intercreditor Agreement) in
Canadian dollars of the aggregate amount of outstanding Bridge Obligations as
at the date of determination by the sum of (i) the aggregate amount of
Lenders’ Commitments, and (ii) the Equivalent Amount (as such term is
defined in the Intercreditor Agreement) in Canadian dollars of the aggregate
amount of outstanding Bridge Obligations as at the date of determination.


 


“Bridge
Security Documents” has the meaning set forth in the Intercreditor
Agreement.


 


“Business
Interruption Proceeds” means any proceeds of any business interruption
insurance maintained by the Credit Parties.


 


“Capital
Stock” means all shares, stock and other equity interests in the capital of
the Credit Parties, now existing or hereafter arising.


 


“Co-Issuer”
means GEP Midstream Finance Corp., as a co-issuer of first lien and second lien
notes that may be issued by the Borrower to replace or refinance all or a
portion of the Bridge Obligations with the Borrower and the guarantors of the
Bridge Obligations, and their successors and assigns.


 


“Collateral”
shall have the meaning set forth in Section 2.


 


2

















 


“Contract
Intangibles” means the following intangibles (as such term is defined in Section 1
of the PPSA), now owned or hereafter acquired by any Credit Party or in which a
Credit Party now has or hereafter acquires any rights:


 


(a)           all
right, title and interest in, to or under any agreement relating to any Swap,
including any swap, cap, floor, collateral option, forward, cross right or
obligation, or combination thereof or similar transaction, or otherwise
relating to any commodity, pricing or currency risk, to which the Agent, any
Lender, any affiliate of any Lender or any entity that was a Lender or an
Affiliate of a Lender at the time of entering into such transaction is party or
counter-party or otherwise relating to any commodity risk;


 


(b)           Assigned
Claims and all other right, title and interest in, to or under any contract,
agreement or arrangement relating to the creation, collection, enforcement or
payment of any Accounts, Inventory, or other Collateral;


 


(c)           all
other intangibles (including, choses in action and causes of action)
specifically relating to any of the Collateral;


 


(d)           all
rights, claims, causes of action, proceedings, damages, indemnities or
compensation relating to any of the foregoing; and


 


(e)           all
guarantees and other security to the extent such items evidence or secure or
otherwise relate to Accounts, Inventory or Contract Intangibles described above.


 


(f)            provided
that Contract Intangibles shall not include any Shared Collateral, Proprietary
Rights Collateral, Capital Stock of the Borrower, or the Co-Issuer, or the
Borrower’s restricted subsidiaries, the Bridge Collateral Account or the
Specified Contract Rights or any Bridge Collateral described in clause (iv) of
the definition of Bridge Collateral.


 


“Credit
Parties” means the Borrower and each subsidiary guarantor of (or any other
subsidiary providing collateral in support of) the Obligations pursuant to the
Credit Agreement, and, in each case, references to “Credit Parties” means and
includes a reference to all of them and to each or any of them, jointly or
severally.


 


“Discharge”
means in respect of the Grantor Obligations, the date of full payment of the
Grantor Obligations and termination of all commitments relating to the Grantor
Obligations, as the case may be.


 


“Equipment”
means any “equipment,” as such term is defined in Section 1 of the PPSA,
now owned or hereafter acquired by any of the Credit Parties or in which any of
the Credit Parties now has or hereafter acquires any rights and wherever
located, and, in any event, shall include all machinery, equipment, including
processing equipment, conveyors, machine tools, pipe, molds, dies, stamps,
furnishings, Fixtures, automotive equipment, vehicles, trailers, trucks,
forklifts, rolling stock, computers and other electronic data-processing
including embedded software not constituting Shared Collateral and peripheral
equipment and other office equipment, all engineering, processing and
manufacturing equipment, materials, handling equipment, tools and all other
equipment of every kind and nature now owned or hereafter acquired by any of
the Credit Parties or in which any of the Credit Parties now has or hereafter
acquires any rights and wherever located, and any and all additions,
substitutions and replacements of any of the foregoing, wherever located,
together with all attachments, components, parts, equipment and accessories
therefor, installed thereon or affixed thereto and all manuals, drawings,
records, files, charts, plans, specifications, documents, instructions,
warranties and rights with respect thereto.


 


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“Fixtures”
means all fixtures (including trade fixtures), facilities and equipment,
howsoever affixed or attached to real property or buildings or other structures
on real property, now owned or hereafter acquired by any Credit Party.


 


“includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.


 


“Insolvency
Law” shall mean any of the Bankruptcy and Insolvency Act (Canada), the
Companies’ Creditors Arrangement Act (Canada), and the Winding-Up and
Restructuring Act (Canada), each as now and hereafter in effect, any successors
to such statutes and any other applicable insolvency, winding-up, dissolution,
restructuring, reorganization, liquidation or other similar law of any
jurisdiction or any law of any jurisdiction (including any corporate law
relating to arrangements, reorganizations or restructurings) permitting a
debtor to obtain a stay or a compromise of the claims of its creditors against
it.


 


“Insolvency
Proceedings” shall mean any arrangement, reorganization, restructuring,
bankruptcy, receivership or other similar proceedings in respect of the Credit
Parties (whether voluntary or involuntary), or any proposal or other proceeding
seeking, reorganization or compromise of the claims of creditors, made or
commenced by the Credit Parties or others under any Insolvency Law in respect
of the Credit Parties.


 


“Intangibles”
means any “intangibles,” as such term is defined in Section 1 of the PPSA,
now owned or hereafter acquired by the Credit Parties or in which the Credit
Parties now have or hereafter acquire any rights, and, in any event, shall
include all right, title and interest which the Credit Parties may now or
hereafter have under any contract, causes of action, franchises, customer
lists, materials and records, goodwill, and all other intangible property of
any kind and nature provided, however, that Intangibles shall not include any
property constituting Liquidity Collateral (including any Contract Intangibles,
Assigned Claims, or, in each case, Proceeds relating thereto) or Shared
Collateral.


 


“Intercreditor Agreement” means the
Intercreditor Agreement by and among Royal Bank of Canada in its capacity as
First Lien Bridge Agent, Royal Bank of Canada in its capacity as Second Lien
Bridge Agent, Royal Bank of Canada in its capacity as collateral agent and
Gibson Acquisition ULC and its permitted successors and assigns, including
Gibson Energy ULC, dated as of       December
2008.


 


“Inventory”
means any “inventory,” as such term is defined in Section 1 of the PPSA,
now owned or hereafter acquired by any of the Credit Parties or in which any of
the Credit Parties now has or hereafter acquires any rights and wherever
located, and, in any event, shall include all inventory, merchandise, goods,
repossessed or returned goods and other personal property, now owned or
hereafter acquired by any of the Credit Parties or in which any of the Credit
Parties now has or hereafter acquires any rights and wherever located, which
are held for sale or lease or are furnished or are to be furnished under a
contract of service or which constitute raw materials, work in process or
materials used or consumed or to be used or consumed in any of the Credit
Parties’ business, or the manufacture, processing, packaging, delivery,
shipping, advertising, selling or finishing of the same, all finished goods and
all bills of lading, documents of title, instruments, warehouse receipts or
other documents representing or evidencing the same and includes all rights of
stoppage in transit, replevin and reclamation, and other rights of an
unpaid vendor, lienor or secured party.


 


“Lenders’
Proportionate Share of Business Interruption Proceeds” means, as at the
date of determination, the Lenders’ proportionate share of any Business
Interruption Proceeds determined by multiplying (A) the total amount of
such Business Interruption Proceeds, by (B) the quotient obtained by
dividing the aggregate amount of all Lenders’ Commitments by the sum of (i) the
aggregate amount of all Lenders’ Commitments, and (ii) the Equivalent
Amount in Canadian dollars of the aggregate amount outstanding under the Bridge
Obligations as at the date of determination.


 


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“Lender’s
Rights in Specified Contracts” has the meaning specified in the definition
of Specified Contract Rights.


 


“Patent”
or “Patents” means one or all of the following now owned or hereafter
acquired by the Credit Parties or in which the Credit Parties now has or
hereafter acquires any rights, including pursuant to any Patent License, and
wherever located: (a) all letters patent of Canada, the United States or
any other country and all applications for letters patent of Canada, the United
States or any other country, and (b) all reissues, reexaminations,
continuations, renewals, continuations-in-part, divisions, and extensions of
any of the foregoing.


 


“Patent
License” means any written agreement granting any right to make, use,
sell/or practice any invention or discovery that is the subject matter of a
Patent now owned or hereafter acquired by the Credit Parties or in which the
Credit Parties now have or hereafter acquire any rights.


 


“Payment
Instruments” has the meaning specified in the definition of Assigned
Claims.


 


“PPSA”
means the Personal Property Security Act of Alberta as in effect from time to
time.


 


“Proceeds”
means, in respect of the Collateral, identifiable or traceable Property
(including, for greater certainty, cash, cash equivalents, collections,
currency, Payment Instruments and moneys to the extent applicable) in any form
derived directly or indirectly from any dealing with Collateral or the proceeds
therefrom (but for greater certainty not including rents, transportation,
processing and servicing revenues and other fees and incomes and profits from
the operation of the business other than Specified Contract Rights) and
includes any payment representing indemnity or compensation for loss of or
damage to the Collateral or Proceeds therefrom and, in any event, shall include
(a) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Credit Parties from time to time with respect to any of the
Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to the Credit Parties from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Agency (or any Person acting under
colour of governmental authority), and (c) any and all other amounts from
time to time paid or payable for the loss, damage, destruction, sale, lease or
other disposition of the Collateral or Proceeds under or in connection with any
of the Collateral.


 


“Proceeds
Date” means in respect of any Credit Party the earliest of the following
dates: (a) the date upon which the Credit Agent and Lenders have no
further commitment or obligation to, and actually cease to, make or extend any
further loans and advances under the Loan Agreement; (b) the date upon
which the Credit Agent or the Lenders foreclose, sell, liquidate or dispose of
Liquidity Collateral having an aggregate realized value in excess of
$10,000,000 in respect of any Credit Party, in each case, pursuant to an
Enforcement Action; (c) the date upon which any initial order or
subsequent order in any Insolvency Proceeding in respect of such Credit Party
is made on notice to the Credit Agent; (d) the date upon which any initial
order or subsequent order in any Insolvency Proceeding in respect of any Credit
Party is made which determines that the Credit Agent and Lenders have no
further obligation to fund or that their funding will continue to occur upon
terms specified in such order; (e) the date upon which any initial order
or subsequent order in any Insolvency Proceeding in respect of such Credit
Party is made which contains appropriate ring-fencing provisions satisfactory
to the Credit Agent acting reasonably in respect of the Liquidity Collateral or
the Bridge Collateral; (f) the date of receipt by the Credit Agent of a
notice that a receiving order under the Bankruptcy and Insolvency Act has been
issued in respect of such Credit Party or that an assignment has been filed
with the Official Receiver under such Act in respect of such Credit Party; (g) the
date which is five business days following the making of any initial order or
subsequent order in any Insolvency Proceeding in respect of such Credit Party
pursuant to which a monitor, receiver or similar official is appointed in
respect of such Credit Party; and (h) the date upon


 


5

















 


which
any bankruptcy filing under the US Bankruptcy Code is made in respect of any
such Credit Party organized under the law of any state of the United States or
the District of Columbia.


 


“Proprietary
Rights Collateral” means all of the Credit Parties’ now owned and hereafter
arising or acquired intellectual property, including all Trademarks, Trademark
Licences, Patents, Patent Licenses, copyrights, permits, trade secrets and
discoveries (whether or not patentable), technical information, procedures,
designs, know-how, processes, models, drawings and proprietary confidential
information, inventions (whether patentable or not), invention disclosures,
improvements, methods, technology, schematics and formulae, mask works,
integrated circuit topographies, computer software and programs (both source
code and object code form) and all other rights under any of the foregoing, all
extensions, renewals, reissues, divisions, registrations, applications
continuations, and continuations-in-part of any of the foregoing, and all rights
to sue for past, present, and future infringement of any of the foregoing.


 


“Real
Property” means (i) all freehold real and immoveable property now
owned or hereafter acquired by any of the Credit Parties, together with all
rights, leases, licenses, easements, rights-of-way, profits a-prendre,
interests in real property, structures, underground facilities, power, fuel and
water supply, storage, waste disposal, roads and other transportation
facilities and fixed plant, milling, processing, service and other related
infrastructures, buildings, erections, improvements and Fixtures now or
hereafter constructed or placed thereon or used in connection therewith, and (ii) all
leasehold real and immovable property now or hereafter leased by any of the
Credit Parties, together with all buildings, erections, improvements and
fixtures now or hereafter constructed or placed thereon or used in connection
therewith.


 


“Specified
Contract Rights” means all rights, title and benefits of the Credit Parties
under, and all rights, claims, choses in action, income, rents, fees, profits
and other benefits arising from the Specified Contracts, including any item
that would have constituted “Accounts”, “Assigned Claims” or “Contract
Intangibles” except for the fact that such agreements are excluded from
Collateral, but excluding cash, cash equivalents, collections, currency,
Payment Instruments and moneys paid, collected or received prior to the
Proceeds Date (collectively, the “Lender’s Rights in Specified Contracts”).


 


“Specified
Contracts” means:


 


(a)           the
ground lease dated June 18,2008 between Battle River Terminal ULC (“BRT”)
and Gibson Energy Ltd. pursuant to which BRT leases lands at the Hardisty
Terminal, as the same may be assigned, amended, supplemented, revised or replaced;


 


(b)           the
infrastructure usage agreement dated June 18, 2008 between BRT and Gibson
Energy Ltd. and Gibson Energy Partnership pursuant to which, inter alia, BRT
has rights to use certain infrastructure at the Hardisty Terminal as the same
may be assigned, amended, supplemented, revised or replaced;


 


(c)           the
operating agreement dated June 18, 2008 between Gibson Energy Partnership,
Gibson Energy Ltd. and BRT as the same may be assigned, amended, supplemented,
revised and replaced;


 


(d)           the
access and infrastructure easement agreement dated June 18, 2008 between
BRT and Gibson Energy Ltd. as the same may be assigned, amended, supplemented,
revised and replaced;


 


(e)           the
pipe rack easement agreement dated as of June 18, 2008 between BRT and
Gibson Energy Ltd. as the same may be assigned, amended, supplemented, revised
and replaced;


 


(f)            the
interconnection and terminalling services agreement dated June 18, 2008
between BRT, Gibson Energy Partnership (in its capacity as user) and Gibson
Energy Partnership (in its capacity as operator) as the same may be assigned,
amended, supplemented, revised and replaced;


 


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(g)           the interconnection
and terminalling services agreement dated June 18, 2008, 2008 between BRT,
Gibson Energy Partnership (in its capacity as operator) and Merrill Lynch
Canada, Inc. (in its capacity as user) as the same may be assigned,
amended, supplemented, revised and replaced;


 


(h)           the shareholders
agreement among Merrill Lynch Commodities Luxembourg S.A.R.L., 1370307 Alberta
Ltd. and BRT as the same may be assigned, amended, supplemented, revised and
replaced, and the grid promissory note dated June 18, 2008 made by BRT to
1370307 Alberta Ltd. (as the same may be assigned, amended, supplemented, revised
and replaced) evidencing loans advanced from time to time under such
shareholders’ agreement;


 


(i)             any
Lender Consents (as such term is defined in certain of the above agreements)
issued in connection with the foregoing;


 


(j)            other similar
agreements related to any joint venture and/or project financing which any
Credit Party may enter into prior to the Discharge of the Bridge Obligations (“Future
Agreements”) which (i) are directly related to the Bridge Collateral
(other than the Future Agreement(s)) and (ii) which would require any
transferee, assignee or pledgee to assume Credit Party obligations under such
Future Agreement (such as quiet enjoyment and/or access to the Bridge
Collateral) in order for the Bridge Agent to transfer, pledge or assign such
Future Agreement to such transferee or to have a security interest in such
Future Agreement, or which would otherwise make the Bridge Agent’s Lien in
Bridge Collateral subordinate to such Future Agreement, and provided in all
cases: (i) the Bridge Agent has provided an agreement substantially in the form
of the Agreement Regarding Security Interests attached as Exhibit C to the
Intercreditor Agreement (or such other form mutually acceptable to the parties
thereto) to the other party to such Future Agreement to the extent the other
party (other than any Credit Party) has requested such an agreement, and (ii) provided
however, that, to the extent either (A) such Future Agreement gives rise
to annual income in excess of $5,000,000 individually, (B) the aggregate
annual income of all Future Agreements and Leases under clauses (j) and (k) herein
is in excess of $10,000,000 as a result of entering into such Future Agreement
or (C) the aggregate annual income of all Future Agreements and Leases
under clauses (j) and (k) herein is in excess of $10,000,000 prior to
entering into such Future Agreement, the Agent has, in its sole discretion,
given its prior written consent to the entering into of such Future Agreement
and acknowledgement that such Future Agreement will be a “Specified Contract”;
and


 


(k)           leases or other
dispositions of interests in real property which any Credit Party may enter
into prior to the Discharge of the Bridge Obligations (“Leases”) which would
make the Bridge Agent’s Lien in Bridge Collateral subordinate to such Lease,
and provided however, that, to the extent either (A) such Lease gives rise
to annual income in excess of $5,000,000 individually, (B) the aggregate
annual income of all Future Agreements and Leases under clauses (j) and (k) herein
is in excess of $10,000,000 as a result of entering into such Lease or (C) the
aggregate annual income of all Future Agreements and Leases under clauses (j) and
(k) herein is in excess of $10,000,000 prior to entering into such Lease,
the Agent has, in its sole discretion, given its prior written consent to the
entering into of such Lease and acknowledgement that such Lease will be a “Specified
Contract”.


 


“Swap”
means any rate swap transaction; basis swap; forward rate transaction;
commodity swap; interest rate option; forward foreign exchange transaction; cap
transaction; floor transaction; collar transaction; currency swap transaction;
cross-currency rate swap transaction; swaption; currency option; or any similar
transaction (including any option to enter into any of the foregoing), or any
combination(s) thereof, whether or not intended or designed to hedge or
protect against any pricing, interest rate or currency risk.


 


“Trademark”
or “Trademarks” means one or all of the following now owned or hereafter
acquired by any of the Credit Parties or in which any of the Credit Parties now
has or hereafter acquired any rights (including pursuant to any Trademark
License): (a) all trademarks, trade names, corporate names,


 


7

















 


business
names, trade styles, service marks, logos, domain names, website names, world
wide web addresses, common-law trademarks, trade dress, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles or like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, an all applications in connection therewith, including registrations,
recordings and applications in the Canadian or United States Patent and
Trademark Office or in any similar office or agency of any Province of Canada
or State of the United States or any other country or any political subdivision
thereof, (b) all extensions or renewals thereof and (c) the goodwill
of the Credit Parties’ business and other Intangibles connected with the use
of, and symbolized by, any of the foregoing.


 


“Trademark
Collateral” means all of the Credit Parties’ now owned and hereafter
arising Trademarks and Trademark Licenses.


 


“Trademark
License” means any written agreement granting any right to use any
Trademark or Trademark registration now owned or hereafter acquired by the
Borrower or in which the Borrower now has or hereafter acquires any rights.


 


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