Exhibit 4.23


 


INTERCREDITOR AGREEMENT


 


THIS
INTERCREDITOR AGREEMENT, dated as of the 12th day of December, 2008 (this “Agreement”),
by and among Royal Bank of Canada, in its capacity as First Lien Bridge Agent
(as defined below) for and on behalf of itself and the First Lien Bridge
Secured Parties (as defined below) and as depositary for Business Interruption
Proceeds (as such term is defined below) as provided in Section 3.11 hereof; Royal
Bank of Canada, in its capacity as Second Lien Bridge Agent (as defined below)
for and on behalf of the Second Lien Bridge Secured Parties (as defined below);
Royal Bank of Canada in its capacity as collateral agent (together with its
successors in such capacity, the “Loan Agent”) for itself and the “Loan Lenders”
from time to time party to the “Loan Agreement” (as those terms are defined
below) and Gibson Acquisition ULC (f.k.a. 1413281 Alberta ULC) and its
permitted successors and assigns, including “Gibson Energy ULC” following
certain acquisitions and amalgamations (hereinafter referred to as the “Borrower”):


 


RECITALS


 


(A)          The Borrower
has entered into a Loan Agreement dated as of December 12, 2008 (as the
same may be amended, amended and restated, renewed, extended, restructured,
supplemented, replaced, novated or otherwise modified from time to time, the “Loan
Agreement”) with, inter alios, UBS Loan Finance LLC and RBC Capital Markets, as
Co-Lead Arrangers, Royal Bank of Canada, as collateral agent and administrative
agent (the “Administrative Agent “or “Agent”), UBS Securities LLC as
Documentation Agent, and Royal Bank of Canada and UBS Loan Finance LLC as
Lenders;


 


(B)           The obligations
of the Borrower under the Loan Agreement are secured by liens on and security
interests in the Liquidity Collateral (as hereinafter defined) and the Shared
Collateral (as hereinafter defined) as more specifically set forth in the Loan
Agreement and the other documents delivered in connection therewith;


 


(C)           The Borrower
has entered into a Interim Credit Agreement dated as of December 12, 2008
(as the same may be amended, amended and restated, renewed, extended,
restructured, replaced, refinanced, supplemented or otherwise modified from
time to time, the “First Lien Interim Loan Agreement”) with, inter alios, UBS
Securities LLC, as Arranger, Bookmanager, Documentation Agent and Syndication
Agent, UBS AG, Stamford Branch, as administrative agent, and Royal Bank of
Canada, as Canadian Administrative Agent and Collateral Agent and the lenders
party thereto from time to time;


 


(D)          The Borrower has
entered into a Second Lien Interim Credit Agreement dated as of December 12,
2008 (as the same may be amended, amended and restated, renewed, extended,
restructured, replaced, refinanced, supplemented or otherwise modified from
time to time, the “Second Lien Interim Loan Agreement” together with the First
Lien Interim Loan Agreement, the “Interim Loan Agreements”) with, inter alios,  UBS Securities
LLC, as Arranger,


 

















 


Bookmanager,
Documentation Agent and Syndication Agent, UBS AG, Stamford Branch, as administrative
agent and Royal Bank of Canada as collateral agent and the lenders party
thereto from time to time;


 


(E)           The First Lien
Bridge Agent and the Second Lien Bridge Agent entered into an Intercreditor
Agreement dated as of December 12, 2008 (as the same may be amended,
amended and restated, renewed, extended, restructured, supplemented or
otherwise modified from time to time, the “Bridge Intercreditor Agreement”);


 


(F)           The obligations
of the Borrower under the Interim Loan Agreements are secured by mortgages,
charges and liens on and security interests in the Bridge Collateral (as
hereinafter defined) and the Shared Collateral (as hereinafter defined) as more
specifically set forth in the Interim Loan Agreements and the other documents
delivered in connection therewith; and


 


(G)           The Borrower,
Loan Agent and the Bridge Agents wish to enter into this Agreement setting
forth their agreement (i) as to the relative priorities of the respective
mortgages, charges, liens and security interests in the assets of each Credit
Party securing the respective obligations of each Credit Party under the Loan
Agreement and the Interim Loan Agreements and (ii) as to certain related
matters.


 


AGREEMENT


 


In
consideration of the premises and the mutual covenants and conditions herein
contained, the Loan Agent, for itself and on behalf of the Loan Lenders, the
First Lien Bridge Agent, for itself and on behalf of the First Lien Bridge
Secured Parties and as depositary for Business Interruption Proceeds, and the
Second Lien Bridge Agent, for itself and on behalf of the Second Lien Bridge
Secured Parties, intending to be legally bound, agree as follows:


 


1.             Definitions.


 


(a) In
addition to those terms elsewhere expressly defined in this Agreement, as used
herein, the following terms shall be defined as set forth below:


 


“Access Period” means, in respect of any
Credit Party, each period which begins on the first day of an Enforcement
Period commenced by a Bridge Agent with respect to the Bridge Collateral or by
the Loan Agent with respect to the Liquidity Collateral and ends on the
earliest of (i) the 90th day after the Loan Agent has delivered an
Enforcement Notice with respect to the Liquidity Collateral plus such number of
days, if any, after delivery of such notice that the Loan Agent is stayed or
otherwise prohibited by law or court order from exercising remedies with
respect to the applicable Liquidity Collateral or during which any Insolvency
Proceedings are continuing in respect of such Credit Party; (ii) the 90th
day after a Bridge Agent has delivered an Enforcement Notice with respect to
the Bridge Collateral plus such number of days, if any, after delivery of such
notice that the Loan Agent is stayed or otherwise prohibited by law or court
order from exercising remedies with respect to the applicable Liquidity
Collateral or during which any Insolvency Proceedings are continuing in respect
of such Credit Party; (iii) the date on


 


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which
substantially all the Liquidity Collateral is sold to a third party, collected
or liquidated; and (iv) the termination of such Enforcement Period.


 


“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 Loan 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
Loan Agent, and/or any of the Loan Lenders and all claims of the Credit Parties
or any of them against any Loan Lender or agent under the Loan 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.


 


“Borrower” means Gibson Acquisition ULC
and its permitted successors and assigns, including “Gibson Energy ULC”
following certain acquisitions and amalgamations.


 


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“Borrower Property” means any and all Property
of the Credit Parties, or rights, title or interest of the Credit Parties in
Property, howsoever arising, acquired or obtained, whether now or hereafter
existing, whether tangible or intangible, whether real or personal, and
wherever located.


 


“Bridge Agents” means the First Lien Bridge
Agent and the Second Lien Bridge Agent.


 


“Bridge Collateral” means, collectively, (i) all
Equipment, Real Property, Intangibles, Capital Stock of the Borrower, the
Co-Issuer 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 Liquidity 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 Borrower Property which a
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
Loan Agent at the time of its opening or creation.


 


“Bridge Lien” means a Lien now or
hereafter granted to, or obtained by, the Bridge Secured Parties or the Bridge
Agent for the benefit of the Bridge Secured Parties, as security for the
payment and performance of any Bridge Obligations.


 


“Bridge Obligations” means, collectively, all
debts, liabilities, and obligations of the Credit Parties, whether now or
hereafter existing, arising pursuant to the terms of (1)(a) the Interim
Loan Agreements and the Bridge Security Documents and (b) after the
issuance thereof, the Exchange Notes (as defined in the First Lien Interim Loan
Agreement), the Second Lien Exchange Notes (as defined in the Second Lien
Interim Loan Agreement), other Permanent Securities (as defined in the Amended
and Restated Fee Letter dated on or about the date hereof among 1413281 Alberta
ULC, UBS Loan Finance LLC and UBS Securities LLC), or, in the case of any other
refinancing of the First Lien Interim Loan Agreement or the Second Lien Interim
Loan Agreement, the equivalent under the other refinancing or refinancings, as
applicable, and (2) any other document, agreement or instrument executed
or delivered in connection therewith to further evidence the debts, liabilities
and obligations of the Credit Parties under the Interim Loan Agreements, the
Exchange Notes, the Second Lien Exchange Notes, the Permanent Securities or the
equivalent under the other refinancing or refinancings of the indebtedness
under the Interim Loan Agreements or a portion thereof.


 


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“Bridge Proportionate Share of Business Interruption
Proceeds” means, as at the date of determination, the Bridge
Secured Parties’ 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 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 all Loan Commitments, and (ii) the Equivalent Amount
in Canadian dollars of the aggregate amount of outstanding Bridge Obligations
as at the date of determination.


 


“Bridge Secured Parties” means,
collectively, from time to time, the First Lien Bridge Secured Parties, the
Second Lien Bridge Secured Parties and any holder of Bridge Obligations.


 


“Bridge Security Documents” means,
collectively, (a) so long as the Interim Loan Agreements are outstanding
any and all documents executed in connection with the Interim Loan Agreements
or in furtherance thereof, pursuant to which any Credit Party grants to the
Bridge Secured Parties (whether through a Bridge Agent or otherwise) a Lien on
the Bridge Collateral and the Shared Collateral, or any part thereof as the
same may be amended, modified or supplemented from time to time and (b) thereafter
any agreement, document or instrument pursuant to which rights or remedies with
respect to such Liens are governed, which in each case may include
intercreditor and/or subordination agreements or arrangements among various
Bridge Secured Parties.


 


“Business Day” means any day that is not a
Saturday, Sunday, or day on which banks in Toronto, Ontario and/or Calgary,
Alberta are required or permitted to close.


 


“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” means, collectively, the
Liquidity Collateral and the Bridge Collateral.


 


“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 with any
Person as party or counterparty (and specifically 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 Loan Agent, any


 


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Loan Lender, any affiliate of any Loan Lender or any
entity that was a Loan Lender or an affiliate of a Loan Lender at the time of
entering into such transaction is party or counter-party);


 


(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 Liquidity Collateral;


 


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


 


provided that Contract Intangibles shall not include any Shared Collateral,
Proprietary Rights Collateral, Capital Stock of the Borrower, 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 (i) in
reference to the Bridge Obligations, the Borrower and Co-Issuer and each
guarantor of any Bridge Obligations and (ii) in reference to the Loan
Agreement Obligations, the Borrower and each subsidiary guarantor of (or any
other subsidiary providing collateral in support of) the Loan Agreement
Obligations 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 Bridge Obligations or Loan Agreement Obligations, the date of
(A) full payment in cash or defeasance of the Bridge Obligations or (B) full
payment in cash of the Loan Agreement Obligations and termination of all
commitments relating to the Loan Agreement Obligations, as the case may be.


 


“Disposition” means
the sale, assignment, transfer, conveyance or other substantially complete
disposition of any Borrower Property, including, without limitation any involuntary
disposition as a result of a casualty, expropriation or condemnation.


 


“Enforcement Action” means,
collectively or individually, any steps taken by a Bridge Agent or the Loan
Agent, as applicable, to foreclose or realize in any manner whatsoever its Lien
upon, sell, liquidate or otherwise dispose of, or exercise any remedies with
respect to, any amount of Collateral with a value in the aggregate in excess of
$10,000,000, whether by judicial enforcement of any of the rights and remedies
under the Loan Documents, the Bridge Security Documents and/or under any
applicable law, by self-help repossession, by non-judicial foreclosure sale,
lease, or other disposition, in connection with which the Loan Agent or a
Bridge Agent, as applicable, has agreed to release its Liens on the subject
property, or otherwise, but in all cases excluding (i) the establishment
of borrowing base reserves, collateral ineligibles, or


 


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other
conditions for advances, (ii) the changing of advance rates or advance
sublimits, (iii) the imposition of a default rate or late fee, (iv) the
amendment of any covenants or negative covenants or application or enforcement
of any terms or conditions of the Loan Documents or Bridge Security Documents
(including conducting collateral reviews, audits or valuations and applying,
amending or increasing any eligibility criteria or reserves), (v) any
amendments, supplements, modifications or restatements to the Loan Documents or
Bridge Security Documents, (vi) the collection and application of Accounts
or other monies deposited from time to time in accounts in each case, to the
extent constituting Liquidity Collateral, against the Loan Agreement
Obligations (including the notification of account debtors, depositary
institutions or any other Person to verify collateral or to deliver Collateral
or proceeds thereof to the Loan Agent), (vii) the payments (including any
prepayments) made with the proceeds of any Collateral pursuant to the terms of
the Loan Documents or the Bridge Security Documents, as applicable, (viii) the
collection and application of funds or other monies deposited from time to time
in accounts in the Bridge Collateral Account, in each case, to the extent
constituting Bridge Collateral, against the Bridge Obligations or (ix) the
issuance of a notice of demand, notice of acceleration or, notice terminating
any commitment, notice of default or a notice of intention to enforce pursuant
to section 244 of the Bankruptcy
and Insolvency Act (Canada).


 


“Enforcement Notice” means a
written notice delivered at a time when an “Event of Default” (as defined in
the Bridge Security Documents or the Loan Agreement, as applicable) has
occurred and is continuing, by either the Loan Agent or a Bridge Agent, as
applicable, to the other announcing that it has commenced an Enforcement
Action, specifying the relevant event of default, stating the current balance
of the Loan Agreement Obligations or the Bridge Obligations, as applicable, and
requesting the current balance of the Loan Agreement Obligations or Bridge
Obligations, as applicable, owing to the noticed party.


 


“Enforcement Period” means the
period of time following the receipt by either the Loan Agent or the Bridge
Agent of an Enforcement Notice from the other until the earliest of (a) in
the case of an Enforcement Period commenced by a Bridge Agent, the Discharge of
Bridge Obligations, (b) in the case of an Enforcement Period commenced by
the Loan Agent, the Discharge of Loan Agreement Obligations, (c) the Loan
Agent or a Bridge Agent (as applicable) agrees in writing to terminate the
Enforcement Period, or (d) the date on which the Event of Default that was
the subject of the Enforcement Notice relating to such Enforcement Period has
been cured in accordance with the relevant Loan Document or Bridge Security
Document, as applicable, or waived in writing.


 


“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


 


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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.


 


“Equivalent Amount” means, on any date, the
amount of Canadian dollars into which an amount of United States dollars may be
converted at the Loan Agent’s spot buying rate in Toronto as at approximately
12:00 noon Toronto time.


 


“First Lien Bridge Agent” means Royal
Bank of Canada, as Collateral Agent under the First Lien Interim Loan
Agreement, any successor collateral agent under the First Lien Interim Loan
Agreement, and any other collateral agent or trustee for the First Lien Bridge
Secured Parties serving in such capacity from time to time, and if there is no
such collateral agent, “First Lien Bridge Agent” means, collectively, the First
Lien Bridge Secured Parties.


 


“First Lien Bridge Secured Parties” means the
Lenders from time to time under the Interim Loan Agreement.


 


“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.


 


“Governmental Agency” means (a) any
international, foreign, federal, provincial or municipal government, or
political subdivision thereof, (b) any governmental agency, authority,
board, bureau, commission, department or instrumentality, (c) any court or
administrative tribunal, (d) any non-governmental agency or entity that is
vested by a governmental agency with applicable jurisdiction over a Person, or (e) any
arbitration tribunal or other nongovernmental authority to whose jurisdiction a
Person has given its general consent.


 


“Hedging Obligations” means, collectively, at any
time, all debts, liabilities and obligations of the Credit Parties, whether now
or hereafter existing, incurred in connection with any Swap entered into with
any of the Loan Lenders.


 


“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.


 


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“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 Borrower Property
constituting Liquidity Collateral (including any Contract Intangibles. Assigned
Claims, or, in each case, Proceeds relating thereto) or Shared Collateral.


 


“Interim Loan Agreements” has the
meaning set forth in the recitals to this Agreement.


 


“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.


 


“Law” means, when used in
connection with any Person, collectively, all international, foreign, federal,
provincial and local statutes, treaties, rules, regulations, standards,
guidelines, ordinances, codes, orders and judgments (or any official
interpretation of any of the foregoing) issued by any Governmental Agency
applicable to that Person.


 


“Lien” means any mortgage, deed of
trust, deed to secure debt, pledge, hypothecation, assignment for security,
security interest, encumbrance, lien or charge of any kind, whether voluntarily
incurred or arising by operation of Law, by statute, by contract, or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
any conditional sale or other title retention agreement and/or any lease in the
nature of a security interest.


 


“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


 


9

















 


received
by, or in transit to, the Loan Agent or any of the Loan 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 Loan Agent and/or any of the Loan
Lenders and all claims of any of the Credit Parties or any of them against any
Loan Lender at any time existing; (iii) the Liquidity 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 Borrower
Property which the Loan Agent has agreed will be excluded from Liquidity
Collateral.


 


“Liquidity Proportionate Share of
Business Interruption Proceeds” means, as at the date of
determination, the Loan 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 Loan Commitments by the sum of (i) the
aggregate amount of all Loan Commitments, and (ii) the Equivalent Amount
in Canadian dollars of the aggregate amount of outstanding Bridge Obligations
as at the date of determination.


 


“Liquidity Rights in Specified
Contracts” has the meaning specified in the definition of
Specified Contract Rights.


 


“Loan Agent” means Royal
Bank of Canada, in its capacity as Administrative Agent or Agent for the Loan
Lenders under the Loan Agreement and not in its individual capacity, any
successor administrative agent or agent under the Loan Agreement, and any other
agent, trustee or representative of the Loan Lenders serving in such capacity
from time to time and, if there is no such agent, trustee or representative, “Loan
Agent” means, collectively, the Loan Lenders.


 


“Loan Agreement” has the
meaning set forth in the recitals to this Agreement.


 


“Loan Agreement Obligations” means,
collectively, at any time, all debts, liabilities and obligations of the Credit
Parties, whether now or hereafter existing, arising pursuant to or incurred in
connection with the Loan Agreement, the Loan Agreement Security Documents, and
any other document, agreement or instrument executed or delivered in connection
therewith to further evidence the debts, liabilities and obligations of the
Credit Parties to the Loan Agent and the Loan Lenders and (b) all Hedging
Obligations, in each case, at such time.


 


“Loan Agreement Security Documents” means,
collectively, any and all documents executed in connection with the Loan
Agreement or in furtherance thereof, pursuant to which any Credit Party grants
to the Loan Lenders (whether through the Loan Agent or otherwise) a Lien on the
Liquidity Collateral and the Shared Collateral, or any part thereof as the same
may be amended, modified or supplemented from time to time.


 


“Loan Commitments” means the
aggregate amount of the Loan Lenders’ individual commitments as set out in the
Loan Agreement as at the date of determination provided,


 


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however, that if the
principal amount of the Loan Agreement Obligations is greater than such amount,
“Loan Commitments” means the principal amount of Loan Agreement Obligations
outstanding.


 


“Loan Lenders” means,
collectively, Royal Bank of Canada and UBS Loan Finance LLC as lenders under
the Loan Agreement and such other Persons who may from time to time become Loan
Lenders as provided in the Loan Agreement.


 


“Loan Lien” means a Lien
now or hereafter granted to, or obtained by, the Loan Lenders or the Loan Agent
for the benefit of the Loan Lenders as security for the payment and performance
of any Loan Agreement Obligations.


 


“Other Licensed Property” has the
meaning specified in Section 3.10(b) of this
Agreement.


 


“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.


 


“Person” means any
individual or entity, whether a corporation, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated organization,
business association, tribe, firm, joint venture, Governmental Agency, or
otherwise.


 


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


 


“Proceeds” means, in
respect of the Borrower Property, 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 Borrower Property 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 Borrower Property 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 Borrower Property, (b) any and all payments (in any form
whatsoever)


 


11

















 


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 Borrower Property 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 Borrower Property or Proceeds under or
in connection with any of the Borrower Property, provided, however, that notwithstanding any other term or condition
hereof, Proceeds of Bridge Collateral will not include any Accounts (other than
Accounts comprising part of the Specified Contract Rights), Assigned Claims
(other than Assigned Claims comprising part of the Specified Contract Rights),
cash, cash equivalents, currency and moneys (other than cash, cash equivalents,
currency or moneys directed to be and deposited in or credited to the Bridge
Collateral Account) unless same: (A) arise, become payable or, in the case
of payments and collections not resulting from any Account or Assigned Claims,
are paid or collected on or after the Proceeds Date or (B) arise, become
payable or are paid or collected prior to the Proceeds Date and either (x) the
Loan Agent had actual knowledge that same constituted Proceeds of Bridge
Collateral (I) at the time any such Accounts or Assigned Claims giving rise
to the payments, collections, cash, cash equivalents, currency or moneys were
created or, (II) in the case of payments or collections, not resulting
from any Account or Assigned Claim, at the time such payments, collections,
cash, cash equivalents, currency or moneys were paid or collected or (y) at
such Proceeds Date no Loan Agreement Obligations are outstanding or (z) the
Loan Agent in its sole discretion expressly agrees that any such proceeds
constitute Proceeds of Bridge Collateral, it being agreed that if a Bridge
Agent or any Credit Party, or any other Person on behalf of a Bridge Agent or
any Credit Party, has given a written notice to the Loan Agent at its address
herein specified on or prior to the date applicable for determining whether the
Loan Agent has actual knowledge as above-provided, with sufficient detail to
identify and keep separate such Proceeds (it being further agreed that any such
notice in the form of Exhibit C shall comply with the provisions of this
definition), the Loan Agent shall be deemed to have actual knowledge.


 


“Proceeds Date” means in
respect of any Credit Party the earliest of the following dates: (a) the
date upon which the Loan Agent and Loan 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 Loan Agent
or the Loan 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 Loan 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 Loan Agent and Loan 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 Loan Agent acting reasonably in
respect of the Liquidity Collateral or the Bridge Collateral; (f) the date
of receipt by the Loan Agent of a notice that a receiving order under the
Bankruptcy and Insolvency Act (Canada) 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


 


12

















 


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 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.


 


“Property” means any interest in any
kind of property or asset, whether real, personal or mixed, tangible or
intangible.


 


“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 immoveable 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.


 


“Receiver” means any agent,
representative, receiver or receiver and manager (whether appointed privately
or by order of any court) or like person.


 


“Rights of Use” means, collectively, the
license and rights referred to in Section 3.10(a) and (b) respectively,
of this Agreement.


 


“Second Lien Bridge Agent” means Royal
Bank of Canada as collateral agent under the Second Lien Interim Loan
Agreement, any successor collateral agent under the Second Lien Interim Loan
Agreement, and any other collateral agent or trustee for the First Lien Bridge
Secured Parties serving in such capacity from time to time, and if there is no
such collateral agent, “Second Lien Bridge Agent” means, collectively, the
Second Lien Bridge Secured Parties.


 


“Second Lien Bridge Secured Parties” means the
Lenders from time to time under the Second Lien Interim Loan Agreement.


 


13

















 


“Security Documents” means, collectively, the
Loan Agreement Security Documents and the Bridge Security Documents.


 


“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.


 


“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 Liquidity Collateral, but excluding cash, cash
equivalents, collections, currency, Payment Instruments and moneys paid,
collected or received prior to the Proceeds Date (collectively, the “Liquidity
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;


 


(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


 


14

















 


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 a 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 (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 Loan 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 a 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 Loan 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”.


 


15

















 


“Subsidiary” means any
Person of which more than fifty percent (50%) of the outstanding securities of
any class or classes, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions), is at the time, directly or indirectly
through one or more intermediaries, owned by the Borrower and/or one or more of
its Subsidiaries.


 


“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, 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.


 


“UCC” means the Uniform Commercial
Code as in effect from time to time in the State of New York, or, if another
jurisdiction is specified in this Agreement, the Uniform Commercial Code as in
effect from time to time in such jurisdiction.


 


(b)           All references
herein to “$” or otherwise to amounts of money means lawful currency of Canada
unless expressly stated otherwise and all references to “U.S. $” means lawful
currency of the United States of America.


 


2.             Consents. Subject to the
terms and conditions of this Agreement (including, without limitation, Section
4.2 hereof):


 


16

















 


(a)           The Loan Agent, for itself
and on behalf of the Loan Lenders, consents to (i) the execution and
delivery of the Interim Loan Agreements and any Bridge Security Documents and
any documents relating thereto; (ii) the incurrence of the Bridge
Obligations; and (iii) the granting of any Bridge Liens; and


 


(b)           The First Lien Bridge Agent,
for itself and on behalf of the First Lien Bridge Secured Parties, consents to (i) the
execution and delivery of the Loan Agreement and any Loan Agreement Security
Document and any documents relating thereto; (ii) the incurrence of the
Loan Agreement Obligations; and (iii) the granting of any Loan Liens.


 


(c)           The Second Lien Bridge
Agent, for itself and on behalf of the Second Lien Bridge Secured Parties,
consents to (i) the execution and delivery of the Loan Agreement and any
Loan Agreement Security Document and any documents relating thereto; (ii) the
incurrence of the Loan Agreement Obligations; and (iii) the granting of
any Loan Liens.


 


3.             Priority of
Liens; Enforcement Actions; Other Agreements.


 


3.1           Priority of Liens. Subject to the
other provisions of this Agreement, including, without limitation, Section 3.10, the Loan Liens
and the Bridge Liens shall, as between the Loan Lenders and the Bridge Secured
Parties, have the following priorities:


 


(a)           The Loan Liens in all
Liquidity Collateral shall be first priority Liens in such Property to the
extent contemplated in the Loan Agreement and the Bridge Agents and the Bridge
Secured Parties shall have no Liens on Liquidity Collateral it being understood
that the Bridge Liens shall upon any Proceeds Date be deemed to be released in,
upon or against any proceeds (as defined in accordance with the PPSA) of Bridge
Collateral that do not constitute “Proceeds” of Bridge Collateral in accordance
with the definition thereof.


 


(b)           The Bridge Liens in all
Bridge Collateral shall be first priority Liens in such Property to the extent
contemplated in the applicable Interim Loan Agreement and the Loan Agent and
the Loan Lenders shall have no Liens on Bridge Collateral.


 


(c)           Subject to Section 3.3,
the Loan Liens and the Bridge Liens in all Shared Collateral shall be pari
passu in priority and subject to the sharing arrangements contained herein.


 


As
between the Loan Agent and the Loan Lenders, on the one hand, and the Bridge
Agents and the Bridge Secured Parties, on the other hand, the foregoing
provisions shall be effective at all times during the term of this Agreement,
notwithstanding: (i) the initiation of any bankruptcy, moratorium,
reorganization or other insolvency proceeding with respect to the Credit
Parties; (ii) the priorities which would otherwise result from the order
of creation, attachment or perfection of any such Lien or any other priority
granted by principle of Law; (iii) the taking of possession


 


17

















 


of
any of the Borrower Property by the Loan Agent, a Bridge Agent, any Loan Lender
or any Bridge Secured Party; (iv) the filing of any financing statement or
the recording of any mortgage or other instrument in any recording office; (v) the
order in which any of the Loan Agreement Obligations or the Bridge Obligations
is created or the order of grant, execution, delivery, registration,
attachment, perfection, filing, default or crystallization of the Security
Documents or any Lien therein provided; (vi) whether any such Lien is now
perfected, hereafter ceases to be perfected, is avoidable by any bankruptcy
trustee or otherwise is set aside, invalidated or lapses; (vii) the date
of giving or failing to give notices to or make demand upon the Credit Parties
or any other Person, (viii) the date of any advances made to the Borrower
by the Loan Lenders or the Bridge Secured Parties or (ix) any other matter
whatsoever; and shall continue in full force and effect unless and until this
Agreement shall have terminated in accordance with Section 5  hereof.


 


3.2           Enforcement Actions. Unless and
until this Agreement shall have been terminated in accordance with Section 5 hereof, the
Loan Agent and each Bridge Agent shall have the right, as between themselves,
to take or fail to take Enforcement Actions with respect to any Collateral as
follows:


 


(a)           The Loan Agent shall have the sole and exclusive
right to take or fail to take any Enforcement Action with respect to the
Liquidity Collateral as provided in, and to the extent permitted by, the Loan
Agreement Security Documents or under applicable Law in any manner deemed
appropriate by the Loan Agent or the Loan Lenders in its or their sole
discretion.


 


(b)           Subject to Section 3.10, each Bridge Agent
shall have the sole and exclusive right to take or fail to take any Enforcement
Action with respect to the Bridge Collateral as provided in, and to the extent
permitted by, the Bridge Security Documents or under applicable Law in any
manner deemed appropriate by each Bridge Agent or the Bridge Secured Parties in
its or their sole discretion.


 


(c)           Each Bridge Agent and the Loan Agent shall both have
the right to take or fail to take any Enforcement Action with respect to the
Shared Collateral provided that any such Enforcement
Action is subject to Section 3.10 and the Loan Lien (in the
case of Enforcement Action by a Bridge Agent) and the Bridge Lien (in the case
of Enforcement Action by the Loan Agent) and further provided that the Loan
Agent shall not have the right to sell or otherwise dispose of the Shared
Collateral.


 


(d)           The Loan Agent shall have the sole and exclusive
right to adjust settlement of, and collect the Proceeds of, any and all
insurance insuring the Liquidity Collateral, in each case, in accordance with
the terms of the Loan Agreement and each Bridge Agent shall have the sole and
exclusive right to adjust settlement of, and collect the Proceeds of, any and
all insurance insuring the Bridge Collateral, in each case, in accordance with
the terms of the applicable Interim Loan Agreement.


 


18






 










 


(e)           Notwithstanding the foregoing provisions of this Section 3.2 and any other provision of this Agreement to
the contrary, the Loan Agent shall have no duty whatsoever to inquire as to the
origin of any Borrower Property, including any cash, cash equivalents,
collections, moneys or Payment Instruments held, received or in transit.


 


3.3           Priority
on Distribution of Proceeds of Collateral. In the event
of:


 


(a)           any distribution of any Borrower Property upon the
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding involving the readjustment of the obligations
and indebtedness of the Credit Parties, or the application of any Borrower
Property to the payment thereof;


 


(b)           any distribution of the Borrower Property upon the
liquidation or dissolution of the Borrower, or the winding up of the assets or
business of the Credit Parties;


 


(c)           any realization by any of the Loan Lenders, the
Bridge Secured Parties, the Loan Agent or a Bridge Agent with respect to the
Loan Lien or the Bridge Lien, respectively, whether through an Enforcement
Action; or


 


(d)           any Disposition of any Borrower Property, to the
extent that any part of the proceeds of such Disposition are required to be
applied to any of the Loan Agreement Obligations or the Bridge Obligations or
held by the Loan Agent or a Bridge Agent in accordance with the provisions of
the Interim Loan Agreements, the Loan Agreement or any of the Security
Documents, or the provisions of this Agreement, as applicable;


 


then,
in any such event, as between the Loan Lenders and the Bridge Secured Parties
all of such distributions, realizations, collections and proceeds thereof shall
be paid, applied and distributed in accordance with the priorities specified in
Section 3.1 provided that the
Shared Collateral and any Proceeds thereof so distributed, applied or realized
upon shall, provided that the event
giving rise to such Proceeds of Shared Collateral is in compliance with any
applicable provisions of Section 3.10(b) be distributed, first, to the Bridge Agents
for application to the Bridge Obligations then due and owing and, after payment
in full of all Bridge Obligations, the remaining amount of such Proceeds shall
be distributed to the Loan Agent for application to the Loan Agreement
Obligations.


 


3.4           Agency
for Perfection; Parties to Hold Proceeds in Trust. The Bridge Agents and the Loan Agent hereby appoint each other as
agent for the purposes of perfecting by possession their respective Liens in
the Shared Collateral described hereunder. In the event that:


 


(a)           either Bridge Agent or any Bridge Secured Party
obtains possession of any of the Liquidity Collateral or receives any Proceeds
from any Enforcement Action with respect to Liquidity Collateral or Disposition
of Liquidity Collateral described in


 


19

















 


Section 3.3 hereof at any time prior
to payment in full of all Loan Agreement Obligations;


 


(b)           the Loan
Agent or the Loan Lenders obtains possession of any of the Bridge Collateral or
receives any Proceeds from any Enforcement Action with respect to Bridge
Collateral, described in Section 3.3 hereof, at any time prior to the
payment in full of all Bridge Obligations; or


 


(c)           the Loan
Agent, any Loan Lender, any Bridge Agent or any Bridge Secured Party receives
any Proceeds from any Enforcement Action with respect to the Shared Collateral,
or any Disposition of the Shared Collateral at any time;


 


then, in such event, the party receiving such Proceeds
shall (unless otherwise provided by Law and subject to Section 3.2(e)) hold the same in trust for the party entitled to receive the same and
promptly notify and pay over the same to such party for application to the Loan
Agreement Obligations (in the case of the Loan Agent) and to the Bridge
Obligations (in the case of the Bridge Agents).


 


3.5           No Action:


 


Without limiting the generality of Section 3.2:


 


(a)           the
Bridge Agents shall not be entitled to take or attempt to take any Enforcement Action
with respect to the Liquidity Collateral (including instructing payments be
made to any Bridge Agent) and will not contest, protest or object to any
exercise of rights and remedies relating to the Liquidity Collateral under the
Loan Agreement Security Documents or otherwise, or object to any forbearance by
Loan Agent from commencing or pursuing any Enforcement Action. The Loan Agent
shall have the exclusive right to take Enforcement Actions or otherwise enforce
rights, exercise remedies (including set-off and the right to credit bid or compensate
their debt) and in connection therewith make determinations regarding the
release, disposition, or restrictions with respect to the Liquidity Collateral
without any consultation with or the consent of either Bridge Agent or any
Bridge Secured Parties; provided, that a Bridge Agent or any Bridge Secured
Party may (A) file any pleadings, objections, motions or agreements which
assert rights or interests available to unsecured creditors arising under
either any insolvency or liquidation proceeding or applicable non-bankruptcy
law, in each case not prohibited by the terms of the Agreement, (B) vote
on any plan or arrangement or reorganization, file any proof of claim, make
other filings and make any arguments and motions that are, in each case, not
prohibited by the terms of this Agreement with respect to the Bridge
Obligations, the Bridge Collateral or the Liquidity Collateral, (C) may
receive any payment or distribution under or pursuant to a plan of
reorganization or arrangement which has been confirmed pursuant to a final,
non-appealable order; provided that such payment or distribution is applied in
accordance with Section 3.3, (D) file any necessary


 


20

















 


responsive
or defensive pleadings in opposition to any motion, claim, adversary proceeding
or other pleading made by any Person objecting to or otherwise seeking the
disallowance of the claims of the Bridge Secured Parties, (E) make a cash
bid on all or any portion of the Liquidity Collateral in any foreclosure,
proceeding or action, or (F) take any action (not adverse to the priority
status of the Loan Liens on the Liquidity Collateral or the rights of the Loan
Agent to exercise any remedies in respect thereof) in order to create, perfect,
preserve or protect its Lien on any of the Bridge Collateral. In prosecuting
any Enforcement Action or in exercising any other rights and remedies with
respect to the Liquidity Collateral, the Loan Agent may enforce the provisions
of the Loan Agreement Security Documents and exercise remedies thereunder, all
in such order and in such manner as it may determine in the exercise of its
sole discretion, so long as the collection or disposition of any Liquidity
Collateral in connection with such exercise or enforcement is conducted in a
commercially reasonable manner and otherwise in accordance with applicable law;


 


(b)           The Bridge Agents, on behalf of themselves and the
Bridge Secured Parties agree that they will not knowingly take or, if received
unknowingly, continue to hold once known any Liquidity Collateral in
prosecuting any Enforcement Action or in connection with the exercise of any
other right or remedy (including set-off or rights of compensation) with
respect to any Liquidity Collateral in their capacity as a creditor, unless and
until the Discharge of the Loan Agreement Obligations has occurred;


 


(c)           Each Bridge Agent, for itself and on behalf of the
Bridge Secured Parties agrees that the Bridge Agents and the other Bridge
Secured Parties will not take any action with respect to the Liquidity
Collateral that would hinder any exercise of remedies under the Loan Security
Documents, including any collection, sale, lease, exchange, transfer or other
disposition of the Liquidity Collateral, whether by foreclosure or otherwise;


 


(d)           Each Bridge Agent hereby acknowledges and agrees
that no covenant, agreement or restriction contained in the Bridge Security
Documents or Interim Loan Agreements shall be deemed to restrict in any way the
rights and remedies of the Loan Agent with respect to the enforcement of the
Loan Liens on the Liquidity Collateral as set forth in this Agreement and the
Loan Agreement Security Documents;


 


(e)           Nothing in this Agreement shall prohibit the receipt
by any Bridge Agent or any Bridge Secured Party of the required payment of
interest, principal and other amounts owed in respect of its Bridge Obligations
so long as such receipt is not the direct or indirect result of the exercise by
such Bridge Agent or such Bridge Secured Party of rights or remedies as a
secured creditor in respect of the Liquidity Collateral or enforcement in
contravention of this Agreement of any Bridge Lien. Nothing in this Agreement
impairs or otherwise adversely affects


 


21

















 


any
rights or remedies the Bridge Agents or the Bridge Secured Parties may have
against the Credit Parties against Bridge Collateral under the Bridge Security
Documents;


 


(f)            The Bridge Agents and the
Bridge Secured Parties may exercise rights and remedies as unsecured creditors
against any Credit Party that has guaranteed or granted Bridge Liens to secure
the Bridge Obligations;


 


(g)           The Loan Agent shall not be entitled to take or
attempt to take any Enforcement Action with respect to the Bridge Collateral
(including instructing payments be made to any Loan Agent) and will not
contest, protest or object to any exercise of rights and remedies relating to
the Bridge Collateral under the Bridge Security Documents or otherwise, or
object to any forbearance by Bridge Agents from commencing or pursuing any
Enforcement Action. The Bridge Agents shall have the exclusive right to take
Enforcement Actions or otherwise enforce rights, exercise remedies (including
set-off and the right to credit bid or compensate their debt) and in connection
therewith make determinations regarding the release, disposition, or
restrictions with respect to the Bridge Collateral without any consultation
with or the consent of the either Loan Agent or any Loan Lenders provided, that
a Loan Agent or any Loan Lender (A) may file any pleadings, objections,
motions or agreements which assert rights or interests available to unsecured
creditors arising under either any insolvency or liquidation proceeding or
applicable non-bankruptcy law, in each case not prohibited by the terms of the
Agreement, (B) vote on any plan or arrangement or reorganization, file any
proof of claim, make other filings and make any arguments and motions that are,
in each case, not prohibited by the terms of this Agreement with respect to the
Loan Agreement Obligations, the Liquidity Collateral or the Bridge Collateral, (C) may
receive any payment or distribution under or pursuant to a plan of
reorganization or arrangement which has been confirmed pursuant to a final,
non-appealable order; provided that such payment or distribution is applied in
accordance with Section 3.3, (D) file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary proceeding or
other pleading made by any Person objecting to or otherwise seeking the
disallowance of the claims of the Loan Agent or Loan Lenders, (E) make a
cash bid on all or any portion of the Bridge Collateral in any foreclosure
proceeding or action, or (F) take any action (not adverse to the priority
status of the Bridge Liens on the Bridge Collateral or the rights of the Bridge
Agents to exercise any remedies in respect thereof) in order to create,
perfect, preserve or protect its Lien on any of the Liquidity Collateral. In
prosecuting any Enforcement Action or in exercising any other rights and
remedies with respect to the Bridge Collateral, the Bridge Agents may enforce
the provisions of the Bridge Security Documents and exercise remedies
thereunder, all in such order and in such manner as they may determine in the
exercise of their sole discretion, so long as the collection or disposition of
any Bridge Collateral in connection with such exercise or enforcement is
conducted in


 


22

















 


a
commercially reasonable manner and otherwise in accordance with applicable law;


 


(h)           The Loan Agent, on behalf of itself and the Loan
Lenders agrees that it will not knowingly take or, if received unknowingly,
continue to hold once known any Bridge Collateral in prosecuting any Enforcement
Action or in connection with the exercise of any other right or remedy
(including set-off or rights of compensation) with respect to any Bridge
Collateral in its capacity as a creditor unless and until the Discharge of the
Bridge Obligations has occurred;


 


(i)            The Loan Agent, for itself and on behalf of the Loan
Lenders agrees that the Loan Agent and the other Loan Lenders will not take any
action with respect to the Bridge Collateral that would hinder any exercise of
remedies under the Bridge Security Documents, including any collection, sale,
lease, exchange, transfer or other disposition of the Bridge Collateral,
whether by foreclosure or otherwise;


 


(j)            The Loan Agent hereby acknowledges and agrees that
no covenant, agreement or restriction contained in the Loan Agreement Security
Documents or Loan Agreement shall be deemed to restrict in any way the rights
and remedies of the Bridge Agents with respect to the enforcement of the Bridge
Liens on the Bridge Collateral as set forth in this Agreement and the Bridge
Security Documents;


 


(k)           Nothing in this Agreement shall prohibit the receipt
by any Loan Agent or any Loan Lender of the required payment of interest,
principal and other amounts owed in respect of its Loan Agreement Obligations
so long as such receipt is not the direct or indirect result of the exercise by
such Loan Agent or such Loan Lender of rights or remedies as a secured creditor
in respect of the Bridge Collateral or enforcement in contravention of this
Agreement of any Loan Lien. Nothing in this Agreement impairs or otherwise
adversely affects any rights or remedies the Loan Agent or Loan Lenders may
have against the Credit Parties against Liquidity Collateral under the Loan
Agreement Security Documents; and


 


(l)            The Loan Agent and the Loan Lenders may exercise
rights and remedies as unsecured creditors against any Credit Party that has
guaranteed or granted Loan Liens to secure the Loan Agreement Obligations.


 


3.6           Payment
Invalidated. In the event that any of
the Loan Agreement Obligations or Bridge Obligations shall be paid in full and
subsequently, for whatever reason, formerly paid or satisfied Loan Agreement
Obligations or Bridge Obligations become unpaid or unsatisfied, the terms and
conditions of this Agreement shall be reinstated, notwithstanding any prior
termination of this Agreement pursuant to Section 5, and all
provisions of this Agreement shall again be operative until all such
obligations are again paid in full.


 


3.7           Notice
of Acceleration, Etc. Each of the Loan Agent and each
Bridge Agent agrees to deliver to the other:


 


23

















 


(a)           In the
case of the Loan Agent, (i) prompt written notice of the acceleration of
the Loan Agreement Obligations pursuant to the Loan Agreement (such notice to
be provided in the same manner and substantially contemporaneously with any
notice provided to the Borrower), and (ii) prompt written notice of any
Enforcement Action with respect to Liquidity Collateral; and


 


(b)           In the
case of each Bridge Agent, (i) prompt written notice of the acceleration
of the applicable Bridge Obligations pursuant to the applicable Interim Loan
Agreement (such notice to be provided in the same manner and substantially
contemporaneously with any notice provided to the Borrower), and (ii) prompt
written notice of any Enforcement Action with respect to Bridge Collateral.


 


3.8           Contesting Liens.  Each of the Loan Agent, for itself and on
behalf of the Loan Lenders, and each Bridge Agent, for itself and on behalf of
the respective Bridge Secured Parties, agrees that it shall not contest or
bring into question the validity, perfection, priority or enforceability of any
Loan Lien in Liquidity Collateral, the Rights of Use, in the case of each
Bridge Agent and the respective Bridge Secured Parties, or any Bridge Lien in
Bridge Collateral, in the case of the Loan Agent and the Loan Lenders, so long
as such Lien or Rights of Use is permitted by this Agreement or continues as
contemplated by this Agreement.


 


3.9           Further Assurances and other Collateral.  From time to time during the term hereof:


 


(a)           Each of
the Loan Agent and the Bridge Agents, at the reasonable request of the other,
shall execute and deliver to the other such notices of the subordination and
other provisions of this Agreement, in recordable form, and shall execute and
deliver such other documents and instruments and take such other actions, as
shall reasonably be necessary to carry out the intentions or to facilitate the
performance of this Agreement including, without limitation, in connection with
any Enforcement Action of which such Person has received notice;


 


(b)           If, in
connection with any Enforcement Action permitted by Section 3.2(c) it
becomes necessary or advisable for a Bridge Agent to obtain a release or
discharge of any Loan Lien in the Shared Collateral in order to convey title
thereto unencumbered by such Lien, then so long as such Enforcement Action, and
the application of the Proceeds derived therefrom, has been or will
contemporaneously with such release or discharge be accomplished in conformity
with this Agreement, the Loan Agent shall, upon the request of a Bridge Agent,
execute such instruments of release or discharge of such Liens, in recordable
form, or undertaking to execute and deliver same as may be reasonable and
appropriate in the circumstances; provided, however, that any such release,
discharge or undertaking may be expressly conditioned upon the requirement that
any of the Rights of Use and the Loan Lien survive until the earlier of
termination as provided herein and completion of all Enforcement Action with
respect to the Liquidity Collateral; and


 


24

















 


(c)           In the
event any Lien on Shared Collateral is granted to or perfected by either the Loan
Agent and/or the Loan Lenders on the one hand and the Bridge Agents and/or the
Bridge Secured Parties on the other hand, the party to which such Lien is
granted or by which it is perfected shall cooperate in all reasonable respects
with the other to permit the other concurrently to be granted or to perfect a
Lien on such Shared Collateral, to the extent that the other is then entitled
to a Lien on such Shared Collateral under the terms of the Interim Loan
Agreements and the Bridge Security Documents, in the case of the Bridge Agents,
or under the terms of the Loan Agreement and the Loan Agreement Security
Documents, in the case of the Loan Agent, in each case as then in effect, and
subject to the terms and conditions of this Agreement.


 


3.10         Rights to Use.


 


(a)           Each
Bridge Agent consents to the granting by the Borrower to the Loan Agent of an
irrevocable, non-exclusive license to use all Trademark Collateral to enable
the Loan Agent and/or the Loan Lenders to manufacture, sell and/or realize
upon, collect and enforce the Liquidity Collateral, for such period as may
reasonably be required by the Loan Agent prior to the date on which
substantially all the Liquidity Collateral is sold to a third party, collected
or liquidated. Such right and license shall be world-wide and free of charge.
For greater certainty, the Bridge Agent acknowledges and agrees that the Loan
Agent and/or the Loan Lenders shall not be required to pay any costs or other
amounts in respect of its or their use of the Trademark Collateral, including on
account of: (i) royalty, rental or similar payments for use of the
Trademark Collateral, or (ii) costs associated with maintaining the
Trademark Collateral. The Loan Agent covenants and agrees that it will use
reasonable efforts after the acceleration of the Loan Agreement Obligations to
obtain possession of the Liquidity Collateral and to promptly terminate such
license and rights with respect to any Trademark Collateral by notice to the
Bridge Agent at the time any such Property (in the judgment of the Loan Agent)
is no longer necessary or desirable in connection with the manufacture, sale,
realization upon, collection or enforcement of the Liquidity Collateral. Each
Bridge Agent agrees that, notwithstanding anything to the contrary contained
herein, the Bridge Lien in all Trademark Collateral shall be subject to the
Loan Agent’s interest therein by virtue of such license and rights (that is,
foreclosure on such Lien will not terminate such Rights of Use). The right of
each Bridge Agent and the Bridge Secured Parties to take Enforcement Actions,
any action described in clauses (i) through (ix) of the definition of
Enforcement Action or any other action with respect to the Bridge Collateral or
Bridge Security Documents with respect to such Trademark Collateral shall not
be affected by the immediately preceding sentence or any provision set forth in
Section 3.10(f), but any conveyance by a Bridge Agent of such
Trademark Collateral shall be subject to the aforesaid Rights of Use granted in
favour of the Loan Agent and to the agreement of any buyer required as provided
in Section 3.10(d).


 


25

















 


(b)           Each Bridge Agent consents to the granting by the
Borrower to the Loan Agent of an irrevocable, exclusive (except for the rights
of each Bridge Agent and the Bridge Secured Parties as herein provided and
subject to the conditions herein provided) rights to use all Borrower Property
(other than the Trademark Collateral),(whether or not constituting Liquidity
Collateral) including the Shared Collateral (hereinafter referred to as the
“Other Licensed Property”) during the Access Period to enable the Loan Agent
and/or the Loan Lenders to remove, realize, collect, manufacture and/or sell
the Liquidity Collateral, which Rights of Use shall terminate on the last day
of the Access Period. Such Rights of Use shall be world-wide and, save and
except as herein provided, free of charge. For greater certainty, each Bridge
Agent acknowledges and agrees that the Loan Agent and/or the Loan Lenders shall
not be required to pay any costs or other amounts in respect of its or their
use of the Other Licensed Property save and except as expressly provided in Section 3.10(c).
The Loan Agent covenants and agrees that it will use reasonable efforts after
the acceleration of the Loan Agreement Obligations to obtain possession of the
Liquidity Collateral and to promptly terminate such Rights of Use with respect
to any Other Licensed Property (save and except for any Liquidity Collateral)
by notice to each Bridge Agent at the time any such Other Licensed Property (in
the judgment of the Loan Agent) is no longer necessary or desirable in
connection with the manufacture or sale of the Liquidity Collateral.
Notwithstanding anything to the contrary contained in this Section 3.10,
if at any time during the term of Rights of Use during which the Loan Agent or
the Loan Lenders are in peaceful possession of all or substantially all of the
Inventory constituting Liquidity Collateral (including finished goods, work-in-process
and raw materials) the Bridge Secured Parties or any Bridge Agent is selling
all or substantially all of the Bridge Collateral, and if the respective buyer
or buyers thereof agree to purchase all Inventory (including finished goods,
work-in-process and raw materials) then constituting Liquidity Collateral at
the cost thereof consistent with the basis used for determining the amount of
the eligible inventory for purposes of the borrowing base/availability under
the Loan Agreement (but without reduction for ineligible items, the discounting
for purposes of such borrowing base/availability or any sublimit thereunder),
then either (x) the Loan Agent shall sell all of such Inventory
constituting Liquidity Collateral to such buyer or buyers at such price and on
an “as is/where is” basis and without any representation or warranty as to
quality, merchantability, or fitness for purpose (and any representation or
warranties express or implied by law or statute are hereby expressly excluded)
or (y) if, and only if, such Inventory constituting Liquidity Collateral
is not sold to such buyer or buyers because the Loan Agent declines in its
discretion (and not because of any restraints, laws, statutes, court orders or
lack of court orders or similar reasons) to sell such Inventory constituting
Liquidity Collateral to such buyer or buyers at such price and on such terms,
then, at the time such buyer or buyers purchase all or substantially all of the
Bridge Collateral, the Access Period shall terminate. The Borrower hereby
acknowledges and agrees that any sale by the Loan Agent as above provided
constitutes a commercially reasonable sale. Each


 


26

















 


Bridge Agent agrees that, notwithstanding anything to the
contrary contained herein, the Bridge Lien in all Property shall be subject to
the Loan Agent’s interest therein by virtue of such Rights of Use (that is,
foreclosure on such Lien will not terminate such Rights of Use). The right of
each Bridge Agent and the Bridge Secured Parties to take Enforcement Actions,
any action described in clauses (i) through (ix) of the definition of
Enforcement Action or any other action with respect to the Bridge Collateral or
Bridge Security Documents with respect to such Property shall not be affected
by the immediately preceding sentence or any provision set forth in Section 3.10(f),
but any conveyance (including any Rights of Use) by any Bridge Agent of such
Property during the Access Period shall be subject to the aforesaid Rights of
Use (to the extent same has not expired or otherwise terminated in accordance
with the provisions of this Agreement) granted in favour of the Loan Agent and
to the agreement of any buyer or licensee required as provided in Section 3.10(d).


 


(c)           At any
time the Loan Agent is utilizing Bridge Collateral pursuant to the Rights of Use
described in Section 3.10(b) or the rights referenced in Section 3.10(f)(ii) the following shall apply:


 


(i)            in the
event such utilization of the Bridge Collateral is for the purpose of removing
and realizing on Liquidity Collateral, the Loan Lenders shall indemnify each
Bridge Agent from all damage to or deterioration of the Bridge Collateral
during such utilization, normal wear and tear excepted;


 


(ii)           in the
event such utilization of the Bridge Collateral is for the purpose of processing
and converting raw materials (including work-in-process) into finished goods,
the Loan Lenders shall, in addition to the indemnity referenced in paragraph (i) above,
pay to each Bridge Agent the incremental costs (i.e. those costs which are
directly attributable to the Loan Agent’s utilization of such Bridge Collateral
over and above any such costs such Bridge Agent would have incurred whether or
not the Loan Agent had so utilized the Bridge Collateral) incurred by such
Bridge Agent on account of utility rates and similar charges and any increased
insurance costs or any liens on the Bridge Collateral which such Bridge Agent
is required to pay or discharge as a result of such utilization;


 


In the event that the Loan Agent fails to comply with its
obligations under clauses (i) or (ii) above, and such non-compliance
is not cured within a reasonable period of time following receipt by the Loan
Agent of notice of such non-compliance, the Rights of Use shall terminate
unless the Loan Agent is reasonably disputing the claim by a Bridge Agent under
clauses (i) or (ii) to which such non-compliance relates.


 


(d)           During the Access Period, the Loan Agent’s use and
occupancy of the Equipment, Fixtures and Real Property included in the Bridge
Collateral shall not be exclusive


 


27

















 


of
the Bridge Agents or Bridge Secured Parties (including its prospective buyers
and licensees as permitted hereinbelow) and, provided that none of the
following interferes in any material respect with the exercise by the Loan
Agent of the rights afforded by this Section 3.10, including the
liquidation, sale or other disposition of the Liquidity Collateral by the Loan
Agent: (i) each Bridge Agent and its Receiver, if any, shall have access
to the Bridge Collateral to preserve, protect, appraise and evaluate the Bridge
Collateral, to show it to potential purchasers and to offer it for sale, and (ii) each
Bridge Agent or its Receiver, if any, may sell or license some or all of the
Bridge Collateral, provided that the purchasers or licensees of such Bridge
Collateral shall have expressly agreed in writing to be bound by the Bridge
Agents’ obligations under this Section 3.10 with respect
to the purchased Bridge Collateral until the expiration of the Access Period.


 


(e)           The Loan Agent shall not have any right to assign,
convey, transfer or grant licenses and sublicenses in the Proprietary Rights
Collateral and Other Licensed Property (save and except for any Liquidity
Collateral) to any other Person, provided that any agent, representative,
receiver or receiver and manager (whether appointed privately or by order of
any court) or like person for the purpose of realizing upon the Liquidity
Collateral may exercise all the rights of the Loan Agent (subject to the
limitations of this Section 3.10) under Sections 3.10(a) and (b) in
connection with the exercise by the Loan Agent of its rights as a secured
creditor of the Credit Parties with respect to such Inventory, and the Loan
Agent shall remain liable for compliance with the terms of the Rights of Use in
respect of the actions of such agent, representative, receiver or receiver and
manager (whether appointed privately or by order of any court) or like person.


 


(f)            In order to give effect to the provisions of this
Agreement and to ensure that the Rights of Use confer on the Loan Agent and the
Loan Lenders the rights and benefits contemplated thereby, each Bridge Agent
hereby:


 


(i)            grants to the Loan Agent and the Loan Lenders an
irrevocable right to use the Trademark Collateral on the terms and conditions
set out in Section 3.10(a) of this
Agreement; and


 


(ii)           grants to the Loan Agent and the Loan Lenders an
irrevocable, exclusive (subject to the qualifications in Section 3.10(b), 3.10(d) and 3.10(e)) right to use
the Other Licensed Property during the Access Period on the same terms and
conditions set out in Section 3.10(b) of this
Agreement.


 


3.11         Business Interruption
Proceeds.


 


(a)           The parties to this Agreement hereby agree that the
First Lien Bridge Agent (and any successor to the First Lien Bridge Agent in
such capacity under the First Lien Interim Loan Agreement or if there is no
First Lien Bridge Agent any successor appointed pursuant to the Bridge Intercreditor
Agreement) shall act as the


 


28

















 


depositary
for the purpose of receiving and distributing Business Interruption Proceeds on
the terms and conditions set forth in this Section 3.11 and further
agree that the First Lien Bridge Agent shall be authorized to exercise such
powers as are expressly delegated to the Loan Agent by the provisions of this Section 3.11, together with
such powers as are reasonably incidental thereto.


 


(b)           The Borrower, the First Lien Bridge Agent, the
Second Lien Bridge Agent and the Loan Agent agree to cause any Business
Interruption Proceeds to be made payable to the First Lien Bridge Agent or to
deal with the policies of insurance in a manner to enable Business Interruption
Proceeds to be collected by the First Lien Bridge Agent alone and from time to
time will do, assign, execute and endorse all transfers, assignments, cheques,
loss claims, receipts, writings and things necessary or desirable for that
purpose, and for that purpose irrevocably do appoint the First Lien Bridge
Agent their attorney to do, assign, execute and endorse all transfers,
assignments, cheques, loss claims, receipts, writings and things in their name
or in the name of any of them as appropriate and on their behalf as the First
Lien Bridge Agent may consider necessary or desirable.


 


(c)           In the event that any Business Interruption Proceeds
are paid to the First Lien Bridge Agent, such Business Interruption Proceeds
shall be disbursed as follows:


 


(i)            to the Loan Agent, the Liquidity Proportionate Share
of Business Interruption Proceeds in respect of such Business Interruption
Proceeds so received (for immediate delivery to the Borrower provided no Event
of Default under the Loan Agreement has occurred and is continuing), and


 


(ii)           to the First Lien Bridge Agent, the Bridge
Proportionate Share of Business Interruption Proceeds in respect of such
Business Interruption Proceeds so received for immediate delivery to the
Borrower provided no Event of Default as defined in the Interim Loan Agreements
has occurred and is continuing.


 


(d)           If, with respect to a proposed action to be taken by
it, the First Lien Bridge Agent shall determine in good faith that the
provisions of this Section 3.11  relating to the
functions or responsibilities of the First Lien Bridge Agent are or may be
ambiguous or inconsistent, the First Lien Bridge Agent shall notify the Loan
Agent, identifying the proposed action and the provisions that it considers are
or may be ambiguous or inconsistent, and may decline either to perform such
function or responsibility or to exercise such discretionary power unless it
has received the written confirmation of the Loan Agent that the Loan Agent
concurs in the circumstances that the action proposed to be taken by the First
Lien Bridge Agent is consistent with the terms of this Section 3.11 or is
otherwise appropriate. The First Lien Bridge Agent shall be fully protected in
acting or refraining from acting upon the confirmation of the Loan Agent in
this respect, and such confirmation shall be binding upon the Loan Agent and
the Loan Lenders.


 


29

















 


(e)           Notwithstanding any provision herein, the First Lien
Bridge Agent shall not be required to take any action that exposes or, in the
good faith judgment of the First Lien Bridge Agent may expose, the First Lien
Bridge Agent or its officers, directors, agents or employees to personal
liability unless the First Lien Bridge Agent shall be adequately indemnified as
provided herein or that is, or in the good faith judgment of the First Lien
Bridge Agent may be, contrary to applicable law.


 


(f)            Except for action expressly required of the First
Lien Bridge Agent hereunder, the First Lien Bridge Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it shall be
indemnified to its satisfaction by the Loan Agent in advance against the Loan
Lenders proportionate share of any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.


 


(g)           Neither the First Lien Bridge Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this Section 3.11 except for its
or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the First Lien Bridge Agent (i) may consult
with legal counsel, independent public accountants, appraisers, insurance
experts and other experts selected by the First Lien Bridge Agent and shall not
be liable for any action taken or omitted to be taken in good faith in
accordance with the advice of such counsel, accountants, appraisers or experts,
and (ii) shall incur no liability under or in respect of this Section 3.11
by acting upon any representation or warranty of the Credit Parties made in
connection therewith or by acting upon any notice, instruction, consent,
certificate or other instrument, writing or communication (which may be by telegram,
cable, telex or telephone) in good faith believed by it to be genuine and to
have been signed, sent or made by the proper party or parties.


 


(h)           The First Lien Bridge Agent shall have no duty with
respect to effecting or maintaining any business interruption insurance or
notifying the Bridge Secured Parties, the Loan Lenders or any other party to
this Agreement of any failure to insure, inadequacy of insurance or expiry of
insurance and the First Lien Bridge Agent shall not be responsible in any way
for any loss by reason of want or insufficiency of insurance or by reason of
the failure of any of the insurers in which business interruption insurance is
carried to pay the full amount of any loss in respect of which they may have
insured.


 


(i)            Notwithstanding anything to the contrary herein, the
reasonable costs, fees and expenses (including legal fees) of the First Lien
Bridge Agent in acting as aforesaid shall be paid from the proceeds of Business
Interruption Proceeds in priority to all other distributions and the Borrower
hereby indemnifies and saves harmless the First Lien Bridge Agent and its
officers, directors, employees and agents in respect thereof in accordance with
the terms set forth in the applicable Interim Loan Agreement.


 


30














 


4.             Reliance, Waivers, Etc.


 


4.1           Creation of Future
Obligations.


 


(a)           All of the Loan Agreement Obligations shall be
deemed to have been funded by the Loan Lenders and incurred by the Credit
Parties in reliance upon this Agreement, and each Bridge Agent and each Bridge
Secured Party expressly waives notice to any Bridge Agent or any Bridge Secured
Party of the acceptance of the subordination and other agreements set forth
herein, notice of reliance on such subordination and other agreements and
notice of the creation of any of the Loan Agreement Obligations after the date
hereof, and agree that the Loan Lenders shall be entitled to rely upon the
subordination and other agreements set forth herein at all times in creating
the Loan Agreement Obligations. Each Bridge Agent and each Bridge Secured Party
acknowledges and agrees that the Loan Agent and the Loan Lenders have not
inquired, and shall have no duty to inquire, into the terms of the Interim Loan
Agreements and any of the Bridge Security Documents, or any other terms of the
Bridge Obligations save and except as expressly set forth herein.


 


(b)           All of the Bridge Obligations shall be deemed to
have been funded by the Bridge Secured Parties and incurred by the Credit
Parties in reliance upon this Agreement, and the Loan Agent and each Loan
Lender expressly waives notice to the Loan Agent or any Loan Lender of the
acceptance of the subordination and other agreements set forth herein, notice
of reliance on such subordination and other agreements and notice of the
creation of any of the Bridge Obligations after the date hereof, and agree that
the Bridge Agents and Bridge Secured Parties shall be entitled to rely upon the
subordination and other agreements set forth herein at all times in creating
the Bridge Obligations. The Loan Agent and each of the Loan Lenders
acknowledges and agrees that the Bridge Agents and the Bridge Secured Parties
have not inquired, and shall have no duty to inquire, into the terms of the
Loan Agreement, the Loan Agreement Security Documents or any other terms of the
Loan Agreement Obligations save and except as expressly set forth herein.


 


4.2           Right to Amend, Etc.  As between the Loan Lenders and the Bridge
Secured Parties:


 


(a)           The Loan Agent and the Loan Lenders may at any time
and from time to time, in their sole discretion, and without any obligation to
give any notice or receive any consent from a Bridge Agent or any Bridge
Secured Party, change the manner, place or terms of payment, or change or
extend the time of payment of, or renew, alter, refinance, increase or add to
the Loan Agreement Obligations, or obtain, release, or dispose of any Liquidity
Collateral therefor, or amend or supplement in any manner that does not
conflict with this Agreement, the Loan Agreement, the Loan Agreement Security
Documents or any other agreements or instruments evidencing, securing or
relating to the Loan Agreement Obligations, and this


 


31

















 


Agreement
shall continue in full force and effect with respect to all such Loan Agreement
Obligations; provided, however, that the Loan
Agent shall comply with all applicable provisions of this Agreement in respect
of any of the foregoing.


 


(b)           The Bridge Agents and the Bridge Secured Parties may
at any time and from time to time, in their sole discretion, and without any
obligation to give any notice or receive any consent from the Loan Agent or any
Loan Lender, change the manner, place or terms of payment, or change or extend
the time of payment of, or renew, alter, refinance, increase or add to the
Bridge Obligations, or obtain, release or dispose of any Bridge Collateral
therefor, or amend or supplement in any manner that does not conflict with this
Agreement, the Interim Loan Agreements, the Bridge Security Documents or any
other agreements, instruments or documents from time to time evidencing,
securing or relating to the Bridge Obligations, provided, however, that each
Bridge Agent shall comply with all applicable provisions of this Agreement in
respect of any of the foregoing.


 


4.3           Responsibility For Credit
Decisions; No Duty to Inform Other Parties.


 


(a)           Each Bridge Agent has, independently and without
reliance on the Loan Agent, any Loan Lender or the directors, officers, agents,
employees or attorneys of any thereof, and instead in reliance upon information
supplied to it on behalf of Credit Parties and upon such other information as
it has deemed appropriate (including, without limitation, all such information
as it deemed advisable with respect to the Credit Parties’ compliance or
non-compliance with any environmental laws), made its own independent decision
to enter into the respective Interim Loan Agreements and to serve as the
respective Bridge Agent thereunder and under the respective Bridge Security Documents;
and each Bridge Agent shall, for itself and on behalf of the Bridge Secured
Parties, independently and without reliance upon the Loan Agent, any Loan
Lender or the directors, officers, agents, employees or attorneys of any
thereof, continue to make its own independent analysis and decisions in acting
or not acting under the Interim Loan Agreements and the Bridge Security
Documents.


 


(b)           The Loan Agent has, independently and without
reliance on any Bridge Agent, any Bridge Secured Party or the directors,
officers, agents, employees or attorneys of any thereof, and instead in
reliance upon information supplied to it on behalf of Credit Parties and upon
such other information as it has deemed appropriate (including, without
limitation, all such information as it deemed advisable with respect to Credit
Parties’ compliance or non-compliance with any environmental laws), made its
own independent decision to enter into the Loan Agreement and to serve as the
Loan Agent thereunder and under the Loan Agreement Security Documents; and the
Loan Agent shall, for itself and on behalf of the Loan Lenders, independently
and without reliance upon any Bridge Agent, any Bridge Secured Party or the
directors, officers, agents, employees or attorneys of any


 


32

















 


thereof,
continue to make its own independent analysis and decisions in acting or not
acting under the Loan Agreement and the Loan Agreement Security Documents.


 


(c)           Neither the Loan Agent nor any Loan Lender shall have
any present or future duty or responsibility to any Bridge Agent or any Bridge
Secured Party to advise it of information known to any of them regarding the
financial condition of the Credit Parties or of any circumstances bearing upon
the risk of nonpayment of the Loan Agreement Obligations or the Bridge
Obligations and each Bridge Agent and each Bridge Secured Party acknowledges
that neither the Loan Agent nor any Loan Lender has made any representations or
warranties to any Bridge Agent or any Bridge Secured Party with respect to the
due execution, delivery, validity or enforceability of the Loan Agreement
Obligations, the existence, condition or value of any of the Liquidity
Collateral or as to any other matter whatsoever. If, notwithstanding the foregoing,
any such information is conveyed by the Loan Agent or any Loan Lender to any
Bridge Agent or any Bridge Secured Party, neither the Loan Agent nor any Loan
Lender shall have any responsibility to any Bridge Agent or any Bridge Secured
Party for the accuracy or completeness of any information, nor any continuing
duty or responsibility to advise any Bridge Agent or any Bridge Secured Party
of any inaccuracy in such information that is subsequently discovered, or of
any updated or subsequent information, whether or not of like kind.


 


(d)           Neither any Bridge Agent nor any Bridge Secured
Party shall have any present or future duty or responsibility to the Loan Agent
or any Loan Lender to advise it of information known to any of them regarding
the financial condition of the Credit Parties or of any circumstances bearing
upon the risk of nonpayment of the Bridge Obligations or the Loan Agreement
Obligations and the Loan Agent on behalf of itself and each Loan Lender
acknowledges that neither any Bridge Agent nor any Bridge Secured Party has
made any representations or warranties to the Loan Agent or any Loan Lender
with respect to the due execution, delivery, validity or enforceability of the
Interim Loan Agreements or Bridge Security Documents, the validity or perfection
of Bridge Liens, the validity or enforceability of the Bridge Obligations, the
existence, condition or value of any of the Bridge Collateral or as to any
other matter whatsoever. If, notwithstanding the foregoing, any such
information is conveyed by any Bridge Agent or any Bridge Secured Party to the
Loan Agent or any Loan Lender, neither any Bridge Agent nor any Bridge Secured
Party shall have any responsibility to the Loan Agent or any Loan Lender for
the accuracy or completeness of any such information, nor any continuing duty
or responsibility to advise the Loan Agent or any Loan Lender of any inaccuracy
in such information that is subsequently discovered, or of any updated or
subsequent information, whether or not of like kind.


 


33

















 


4.4           Order of
Enforcement of Enforcement Actions.  Subject to all of the terms and conditions of
this Agreement:


 


(a)           The Loan
Agent and the Loan Lenders shall have the right at any and all times to
determine the order in which (i) any Enforcement Action or other recourse
is sought against the Credit Parties or any other obligor with respect to the
Loan Agreement Obligations in accordance with the Loan Agreement, and (ii) any
or all of the Loan Liens shall be enforced; and each Bridge Agent, on behalf of
itself and each Bridge Secured Party, hereby waives any and all rights to
require that the Loan Agent pursue or exhaust any rights or remedies with
respect to Credit Parties or any Borrower Property prior to exercising its
rights and remedies with respect to Liquidity Collateral or in any other manner
to require the marshalling of assets or security in connection with the
exercise by the Loan Agent or any Loan Lender of any Enforcement Action with
respect to Loan Agreement Obligations and Liquidity Collateral.


 


(b)           Each
Bridge Agent and the Bridge Secured Parties shall have the right at any and all
times to determine the order in which (i) any Enforcement Action or other
recourse is sought against the Credit Parties or any other obligor with respect
to the Bridge Obligations in accordance with the applicable Interim Loan
Agreement, and (ii) any or all of the Bridge Liens shall be enforced; and
the Loan Agent, on behalf of itself and the Loan Lenders, hereby waive any and
all rights to require that a Bridge Agent pursue or exhaust any rights or
remedies with respect to Bridge Collateral or in any other manner to require
the marshalling of assets or security in connection with the exercise by the
trustee or any Bridge Secured Party of any Enforcement Action with respect to
Bridge Obligations and Bridge Collateral.


 


5.             Term.  This Agreement shall be irrevocable and shall
remain in full force and effect until (i) all of the letters of credit
issued pursuant to the Loan Agreement have been terminated and the loans, notes
and unpaid letter of credit drawings, together with interest, fees and all
other Loan Agreement Obligations incurred thereunder are paid in full in cash,
all obligations to extend further advances pursuant to the Loan Agreement have
been terminated and all Hedging Obligations have been paid in full and the
related agreements terminated, or (ii) the payment in full in cash of all
Bridge Obligations when due and owing, whereupon, subject to Section 3.6
hereof, this Agreement shall automatically terminate.


 


6.             Representations and Warranties.  Each of the Loan Agent and each
Bridge Agent represents and warrants to the other that:


 


(a)           It is a
duly organized and validly existing chartered bank under the laws of Canada;
has all requisite power and authority to execute, deliver and perform under
this Agreement; and the execution, delivery and performance by it of this
Agreement have been duly authorized by all requisite corporate or other action;


 


34

















 


(b)           It has been authorized to execute this Agreement on
behalf of the Loan Lenders (in the case of the Loan Agent) and on behalf of the
Bridge Secured Parties (in the case of the Bridge Agent) and no further consent
or approval on the part of the Loan Lenders or any Bridge Secured Parties is or
will be required in connection with the execution, delivery and performance of
this Agreement; and


 


(c)           This Agreement constitutes its valid and legally
binding obligation, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other Laws
affecting creditors’ rights generally.


 


7.             Miscellaneous.


 


7.1           Notices.  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 either of the
parties by the other, or whenever either of the parties desires to give or
serve upon the other any such communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and either shall be delivered in person with
receipt acknowledged, delivered by reputable overnight courier or telecopied,
addressed as follows:


 


	
  If to the Loan Agent at:

  
	
   

  
	
  ROYAL BANK OF CANADA

  
	
  200 Bay Street

  
	
  Royal Bank Plaza

  
	
  30th Floor, South Tower

  
	
  Toronto, Ontario

  
	
  M5J 1J5

  
	
  Attention:

  	
  Manager

  
	
  Telecopier No.:

  	
  (416) 865-0779

  
	
   

  
	
  With a copy to:

  
	
   

  
	
  ROYAL BANK OF CANADA

  
	
  Agency Services Group

  
	
  P.O. Box 50, 200 Bay Street

  
	
  Royal Bank Plaza Per:

  
	
  Toronto, Ontario

  
	
  M5J 2W7

  
	
   

  
	
  Attention:

  	
  Manager,
  Agency

  
	
  Telecopier No.:

  	
  (416)
  842-4023

  
	
   

  	
   

  
	
  If to the First Lien Bridge Agent at:

  



 


35

















 


	
  ROYAL BANK OF CANADA

  
	
  Agency Services Group

  
	
  P.O. Box 50, 200 Bay Street

  
	
  Royal Bank Plaza Per:

  
	
  Toronto, Ontario

  
	
  M5J 2W7

  
	
   

  
	
  Attention:

  	
  Manager,
  Agency

  
	
  Telecopier No.:

  	
  (416)
  842-4023

  
	
   

  
	
  If to the Second Lien Bridge Agent at:

  
	
   

  
	
  ROYAL BANK OF CANADA

  
	
  Agency Services Group

  
	
  P.O. Box 50, 200 Bay Street

  
	
  Royal Bank Plaza Per:

  
	
  Toronto, Ontario

  
	
  M5J 2W7

  
	
   

  
	
  Attention:

  	
  Manager,
  Agency

  
	
  Telecopier No.:

  	
  (416)
  842-4023

  
	
   

  
	
  If to the Borrower or any other Credit Party at:

  
	
   

  
	
  GIBSON ACQUISITION ULC

  
	
  GIBSON ENERGY ULC

  
	
  Suite 1700

  
	
  440 – 2nd Avenue S.W.

  
	
  Calgary, Alberta T2P 5E9

  
	
  Attention:

  	
  Executive
  Vice President, Finance and Chief

  
	
   

  	
  Financial
  Officer

  
	
  Telecopier No.:

  	
  (403)
  206-4011

  



 


or
at such other address as may be substituted by notice given as herein provided.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Every notice, demand, request, consent,
approval, declaration or other communication hereunder shall be deemed to have
been duly given or served on the date on which personally delivered, with
receipt acknowledged, on the date of delivery by reputable overnight courier
service or on the Business Day immediately following the date of telecopier
transmission. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no


 


36

















 


way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.


 


7.2           Entire Agreement: Amendment.  This Agreement constitutes the entire
agreement between the Loan Agent, the Bridge Agents and the Credit Parties with
respect to the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between the Loan Agent, the Bridge Agents and the
Credit Parties in respect of such subject matter, whether written or oral. This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the Loan Agent, the Bridge Agents and no consent of the Credit
Parties shall be necessary to any amendment provided that any amendment, that
contradicts or is in conflict with any rights or benefits of such Credit Party
under the Loan Agreement or either of the Interim Loan Agreements shall require
the consent of the Borrower.


 


7.3           Severability.  Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this 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
Agreement.


 


7.4           Survival.  The representations and warranties of the
parties in this Agreement shall survive the execution, delivery and acceptance
hereof by the parties hereto until the termination of this Agreement pursuant
to Section 5 hereof.


 


7.5           Counterparts.  This Agreement may be executed in any number
of counterparts, all of which, taken together, shall constitute one and the
same instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.


 


7.6           GOVERNING LAW.  THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE PROVINCE OF ALBERTA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH PROVINCE.


 


7.7           Parties.  This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall enure to
the benefit of the Loan Agent, the Bridge Agents, the Loan Lenders and the
Bridge Secured Parties and their respective successors and assigns and (ii) in
the case of Section 3.11, Section 7.12 and the consent rights set
forth in Section 7.2, the Credit Parties and their respective successors
and assigns; provided, however, that any
successor to the Loan Agent or any Bridge Agent shall expressly assume the
obligations of such party hereunder, pursuant to the Joinder Agreement in the
form of Exhibit A.


 


7.8           No Third Party
Beneficiaries:  Nothing
contained in this Agreement shall be deemed to indicate that this Agreement has
been entered into for the benefit of the Borrower, any of the other Credit
Parties or any other Person except for the Loan Agent, the Bridge Agents, the
Loan Lenders, the Bridge Secured Parties and their respective successors and
assigns.


 


37

















 


7.9           Section Titles.  The Section titles contained in this
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.


 


7.10         Credit Parties’
Acknowledgment.  Each Credit
Party (a) acknowledges receipt of a copy of this Agreement; (b) acknowledges
that it has no rights hereunder (other than as set forth in Section 3.11, Section 7.12
and the consent rights set forth in Section 7.2); and (c) agrees not
to assert any provision hereof as a defense to any Enforcement Action (except
to the extent that the provisions of this Agreement are expressly referred to
in or incorporated in the Loan Agreement, any Interim Loan Agreement or any
Security Document as a limitation on its obligations thereunder or on the Loan
Agent’s, Loan Lenders’, the Bridge Agents’ or the Bridge Secured Parties’
rights thereunder) nor to assert any such provision as a counterclaim or basis
for set-off or recoupment against any party hereto. Such acknowledgments and
agreements by the Credit Parties do not, however, constitute any amendment,
modification, or waiver by it of any provision of the Loan Agreement, any
Interim Loan Agreement or any Security Document or any right available to it.


 


7.11         Further Assurances:  Each of the parties hereto agrees promptly to
execute and deliver all such amendments to the terms hereto and related
documents and instruments as shall be reasonably necessary to give effect to
the conversion or exchange of the Bridge Obligations (as referred to in the
definition thereof), including agreements to be bound by the terms hereof by
any successor Loan Agent or Bridge Agents following any such conversion or
exchange.


 


7.12         Registrations:  Each of the parties hereto acknowledges that
certain of the registrations made at various Personal Property Registries have
been made with collateral descriptions which are broader than the actual
collateral held by the First Lien Bridge Agent, the Second Lien Bridge Agent
and the Loan Agent under the Bridge Security Documents and the Loan Agreement
Security Documents. Each of the First Lien Bridge Agent, the Second Lien Bridge
Agent and the Loan Agent agree that upon the request of any of them or upon the
request of any of the Credit Parties, it will amend the collateral descriptions
in the registrations at the applicable Personal Property Registries in its
favor to exclude items or kinds of property that are not Collateral under the
Bridge Security Document or a Loan Agreement Security Document, as applicable,
between such party and one or more Credit Parties; provided, however, if the
request to any Bridge Agent or Loan Agent is made by any Credit Party, such
Credit Party will arrange at the time of the amended registration, for the
delivery to such Bridge Agent or Loan Agent, as the case may be, of a
favourable opinion of its legal counsel, in form and substance reasonably
satisfactory to such agent, as to the effectiveness of such amended
registration to protect or perfect security interests created under their
respective Security Documents.


 


[the remainder of this page is intentionally left blank]


[signature pages follow]


 


38

















 


IN
WITNESS WHEREOF, this Agreement has been signed and sealed by the undersigned
duly authorized signatories of the parties hereto as of the date and year first
above written.


 


 


	
   

  	
  ROYAL BANK OF CANADA (as Canadian

  
	
   

  	
  Administrative
  Agent and Collateral Agent),

  
	
   

  	
  as
  the First Lien Bridge Agent,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ann Hurley

  
	
   

  	
   

  	
  Name:

  	
  Ann
  Hurley

  
	
   

  	
   

  	
  Title:

  	
  Manager,
  Agency

  



 


 


	
   

  	
  ROYAL BANK OF CANADA (as Canadian

  
	
   

  	
  Administrative
  Agent and Collateral Agent),

  
	
   

  	
  as
  the Second Lien Bridge Agent,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ann Hurley

  
	
   

  	
   

  	
  Name:

  	
  Ann
  Hurley

  
	
   

  	
   

  	
  Title:

  	
  Manager,
  Agency

  



 


Intercreditor
Agreement


 

















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as
  the Loan Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ann Hurley

  
	
   

  	
   

  	
  Name:

  	
  Ann Hurley

  
	
   

  	
   

  	
  Title:

  	
  Manager, Agency

  



 


Intercreditor
Agreement


 

















 


	
   

  	
  GIBSON
  ACQUISITION ULC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert M. Tichio

  
	
   

  	
   

  	
  Name:

  	
  Robert M. Tichio

  
	
   

  	
   

  	
  Title:

  	
  President & Secretary

  



 


Intercreditor
Agreement


 














 


EXHIBIT A


 


[FORM OF JOINDER AGREEMENT]


 


Reference is made to the
Intercreditor Agreement (as amended, modified or supplemented from time to
time, the “Intercreditor Agreement”) dated as of
December ·, 2008 by and among UBS AG, Stamford Branch,
in its capacity as First Lien Bridge Agent for and on behalf of itself and the
First Lien Bridge Secured Parties; and as depositary for Business Interruption
Proceeds; UBS AG, Stamford Branch, in its capacity as Second Lien Bridge Agent
for and on behalf of itself and the Second Lien Bridge Secured Parties; Royal
Bank of Canada in its capacity as collateral agent for itself and the Loan
Lenders from time to time party to the Loan Agreement and Gibson Acquisition
ULC. Capitalized terms used herein and not otherwise defined have the same
meaning as in the Intercreditor Agreement.


 


The undersigned, by
execution of this Joinder Agreement on
[              ],
hereby acknowledges and agrees to be bound as a [replacement First Lien Bridge
Collateral Agent] [replacement Second Lien Bridge Collateral Agent]
[replacement Loan Agent] by the provisions of the Intercreditor Agreement. The
undersigned hereby represents that it is acting as [agent/trustee] for
[describe the type of holders of additional Loan Agreement/Bridge Obligations]
under
the                ,
and that it has been authorized by the [describe such holders] to become a
party to the Intercreditor Agreement on behalf of [such holders] and to act as
the [[First/Second] Lien Bridge Collateral Agent][Loan Agent] for [such
holders]. The undersigned represents and warranties that it has received a copy
of the Intercreditor Agreement.


 


This Joinder Agreement shall
be governed and construed in accordance with the laws of the Province of
Alberta. Notices delivered to the undersigned pursuant to this Joinder
Agreement shall be delivered in accordance with the notice provisions set forth
in the Intercreditor Agreement but to the address set forth below or such other
address provided in writing, to the other parties to the Intercreditor
Agreement.


 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  



 

















 


EXHIBIT B


 


[FORM OF BRIDGE COLLATERAL DISPOSITION NOTICE]


 


	
  TO:

  	
  ROYAL BANK OF CANADA, as
  Loan Agent 

  
	
   

  	
  200 Bay Street

  
	
   

  	
  Royal Bank Plaza

  
	
   

  	
  30th Floor, South Tower

  
	
   

  	
  Toronto, Ontario

  
	
   

  	
  M5J 1J5

  
	
   

  	
   

  
	
  Attention: 

  	
  Manager

  
	
  Telecopier :

  	
  416 865 0779

  
	
   

  	
   

  
	
  AND TO:

  	
  ·, as First
  Lien Bridge Agent

  
	
   

  	
   

  
	
  Attention: 

  	
   

  
	
  Telecopier:

  	
   

  
	
   

  	
   

  
	
  AND TO:

  	
  ·, as Second Lien Bridge
  Agent

  
	
   

  	
   

  
	
  Attention: 

  	
   

  
	
  Telecopier:

  	
   

  
	
   

  	
   

  
	
  Re:

  	
  ABL/Bridge
  Intercreditor Agreement — Gibson Energy ULC

  



 


Reference is made to the
intercreditor agreement (as amended, modified or supplemented from time to
time, the “Intercreditor Agreement”) dated as of
December ·, 2008 by and among UBS AG, Stamford Branch,
in its capacity as First Lien Bridge Agent for and on behalf of itself and the
First Lien Bridge Secured Parties; and as depositary for Business Interruption
Proceeds; UBS AG, Stamford Branch, in its capacity as Second Lien Bridge Agent
for and on behalf of itself and the Second Lien Bridge Secured Parties; Royal
Bank of Canada in its capacity as collateral agent for itself and the Loan
Lenders from time to time party to the Loan Agreement and Gibson Acquisition
ULC. Capitalized terms used herein and not otherwise defined have the same
meaning as in the Intercreditor Agreement.


 


The undersigned, a Credit
Party, hereby notifies the Loan Agent and Bridge Agents as follows:


 


1.                                       The Credit
Party is planning to sell [describe assets to be sold
or attach schedule with a description of assets to be sold] on or
about      , 20  
to          (the
“Purchaser”).


 


2.                                       The assets
described above will be sold for [$·/Identify amount and currency of purchase price and any non-cash proceeds payable in respect of the sale of assets].


 


3.                                       The proceeds of
sale due from the Purchaser referred to in the above paragraph will be Proceeds
of the Bridge Collateral for the purposes of the Intercreditor Agreement and
will be deposited or credited to the Bridge Collateral Account.


 

















 


Dated as
of             day
of                 ,
20  .


 


	
   

  	
  [IDENTIFY CREDIT PARTY] 

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: ·  

  
	
   

  	
   

  	
  Title: ·

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: ·  

  
	
   

  	
   

  	
  Title: ·

  



 


2

















 


EXHIBIT C


 


AGREEMENT REGARDING SECURITY INTERESTS


 


THIS AGREEMENT made as of
the        day
of         , 20   ,


 


AMONG:


 


·, a · existing under the laws of
Canada, as the first lien collateral agent (the “First Lien
Collateral Agent”)


 


-
and –


 


·, a · existing under the laws of
Canada, as the second lien collateral agent (the “Second
Lien Collateral Agent” and, together with the First Lien Collateral
Agent, the “Collateral Agents”)


 


-
and -


 


·, a corporation incorporated under the laws of · (the “Credit Party”)


 


-
and -


 


·, a corporation incorporated under the laws of · (the “Third Party”)


 


WHEREAS Gibson Energy
ULC (formerly know as Gibson Acquisition ULC) and its permitted successors and
assigns (the “Borrower”) has entered
into a First Lien Interim Credit Agreement dated as of December ·, 2008 (as the
same may be amended, amended and restated, renewed, extended, restructured,
supplemented or otherwise modified from time to time, the “First Lien Interim Loan Agreement”) with, inter
alios, UBS Securities LLC, as Arranger, Bookmanager, Documentation Agent and
Syndication Agent, UBS AG, Stamford Branch, as administrative agent and the
First Lien Collateral Agent and UBS Loan Finance LLC, [           ]
and [    ] as lenders;


 


AND WHEREAS the Borrower has entered
into a Second Lien Interim Credit Agreement dated as of December ·, 2008 (as the
same may be amended, amended and restated, renewed, extended, restructured,
supplemented or otherwise modified from time to time, the “Second Lien Interim Loan Agreement” together with the First Lien
Interim Loan Agreement, the “Interim
Loan Agreements”) with, inter
alios, UBS Securities LLC, as Arranger, Bookmanager, Documentation Agent and
Syndication Agent, UBS AG, Stamford Branch, as administrative agent and the
Second Lien Collateral Agent and UBS Loan Finance LLC, [ ] and [     ]
as lenders;


 

















 


AND WHEREAS the obligations
of the Borrower under the Interim Loan Agreements are secured by mortgages,
charges and liens on and security interests in the Bridge Collateral and the
Shared Collateral as more specifically set forth in the Interim Loan Agreements
and the other documents delivered in connection therewith;


 


AND WHEREAS the Credit
Party has provided the Collateral Agents with security pursuant to security
agreements listed in Schedule “A” attached hereto (the “Security Agreements”);


 


AND WHEREAS
the Credit Party entered into a [describe
Future Agreement] dated as of · between the Credit Party
and the Third Party (the “[Future Agreement]”);


 


AND WHEREAS
the Credit Party wants to give notice to the Third Party of the
security interests granted by the Credit Party in connection with the Interim
Loan Agreements pursuant to the Security Agreements, the Third Party wishes to
acknowledge to the Credit Party and the Collateral Agents that such security
interests have been granted by the Credit Party and to consent to the
assignment by the Collateral Agents of the Credit Party’s interests in the [Future Agreements] upon any realization of such
security interests, and the Collateral Agents are willing to give assurance to
the Third Party that the Third Party will have quite enjoyment under the [Future Agreement] of the · by the Third
Party from time to time under the [Future
Agreement], all on the terms and conditions contained herein;


 


NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants herein contained and for other good and valuable consideration
(the receipt and sufficiency of which is hereby acknowledged) the parties
hereto covenant and agree as follows:


 

















 


ARTICLE I


NOTICE OF SECURITY INTEREST


 


1.1          Notice


 


The Credit Party hereby
gives notice to the Third Party that pursuant to the Security Agreements the
Credit Party has granted to the Collateral Agents a security interest in all of
the Credit Party’s right, title and interest in, to and under the [Future Agreement] and granted mortgages, charges and liens on
and security interests (collectively, the “Security
Interests”) in, among other property, the following property [list any other relevant collateral] (collectively, “Collateral”).


 


1.2          Payment


 


From and after the date
hereof all monies payable by the Third Party under the [Future Agreement] shall continue to be paid in accordance with
the terms of the [Future Agreement], unless and
until either Collateral Agent otherwise directs, whereupon the Credit Party
authorizes and directs the Third Party to comply with the directions of the
Collateral Agent with respect to further payments by the Third Party under the [Future Agreement].


 


1.3          Information Requests


 


The Third Party is
authorized and directed by the Credit Party, and undertakes with each of the
Collateral Agents, to provide to each of the Collateral Agents all information
in relation to the [Future Agreement], that such
Collateral Agent reasonably requests; provided that: i) the Credit Party would
be entitled to receive such information; ii) the cost of all such information
that would not customarily be provided by the Third Party shall be borne by the
Credit Party; and iii) all such information shall be held in confidence by the
Collateral Agents to the same extent that the Credit Party is required to hold
such information in confidence under the [Future
Agreement] as if those confidentiality restrictions were set
out in full herein.


 


1.4          Irrevocable


 


The notice contained in
Section 1.1 hereof and the authorization and direction regarding payment
contained in Section 1.2 hereof are irrevocable.


 


1.5          No Prior
Notice


 


The Third Party confirms
that it has not received written notice of any other assignment, charge,
mortgage, pledge or grant of a security interest in the Collateral by the
Credit Party.


 


ARTICLE II


ACKNOWLEDGMENT OF SECURITY INTEREST


 


2.1          Acknowledgment


 


The Third Party hereby
acknowledges receipt of the notice of the Security Interests contained in
Section 1.1 hereof and the authorization and direction relating to
payments contained in Section 1.2 hereof and, to the extent required
hereby consents thereto.


 

















 


2.2          Instructions
from the Collateral Agents


 


The Third Party agrees that
if either Collateral Agent issues to the Third Party a notice (a “Credit Party Default Notice”) that the Collateral Agent’s
rights as a secured party under the Security Agreements have become exercisable
the Third Party agrees that it shall thereafter:


 


(a)                                  pay to the
Collateral Agent at such account as the Collateral Agent may nominate all
amounts from time to time payable by the Third Party under the [Future Agreement];


 


(b)                                 perform,
observe and comply with all of the Third Party’s other undertakings and
obligations under the [Future Agreement] in favour  of the Credit
Party for the Collateral Agent’s benefit as if the Collateral Agent was named
as · therein instead of the Credit Party;


 


(c)                                  if the
Collateral Agent so requests (subject to applicable law) enter into a · Agreement with
the Collateral Agents, or the Collateral Agents’ nominee, on the same terms mutatis
mutandis as the [Future
Agreement], provided that the Third Party shall have no
obligation or liabilities to the Collateral Agent or the Collateral Agent’s
nominee under such · Agreement which would not
have accrued to the Third Party if the Third Party had remained · under the [Future Agreement];


 


(d)                                 allow such
Collateral Agent, to the exclusion of the Credit Party, to exercise any and all
rights of the Credit Party under the [Future
Agreement], do or cause to be done any and all acts and things
thereunder, receive performance thereunder and adjust and settle all matters
relating to the performance thereof, all to the same extent and in the same
manner as the Credit Party could do if the rights of such Collateral Agent
under the Security Agreement had not become exercisable; and


 


(e)                                  allow such
Collateral Agent to sell, assign, transfer or dispose of the property described
in section 1.1 pursuant to the Security Agreements, at any time after the
security constituted by the applicable Security Agreement has become
enforceable, and the Third Party hereby consents to the assignment of the [Future Agreement] by such Collateral Agent in connection with
the disposition of the Collateral by it, provided that the purchaser assumes
all of the Credit Party’s obligations under the [Future
Agreement].


 


2.3          Further
Instructions from the Credit Party


 


The Third Party further
agrees that after issue by the Collateral Agents of any Credit Party Default
Notice, the Third Party shall not recognize the exercise by the Credit Party of
any of its rights and powers under the [Future
Agreement] unless and until requested to do so by the
Collateral Agents.


 


2.4          Modification
of [Future Agreement]


 


To the extent the
obligations of the Third Party hereunder are inconsistent or incompatible with
the obligations of the Third Party under the [Future
Agreement], the


 

















 


obligations of the Third
Party to the Credit Party under the [Future
Agreement] are modified accordingly.


 


2.5          [Amendments
to [Future Agreement]


 


The Credit
Party and the Third Party agree that they will not amend, modify or waive any
provision of the [Future Agreement] without the express written consent of the
Collateral Agents.]


 


2.6          Rights of
Collateral Agent


 


The Second Lien Collateral
Agent hereby agrees for the benefit of the First Lien Collateral Agent that it
shall not exercise any rights under this Agreement until the Discharge (as such
term is defined in the Intercreditor Agreement dated as of · among the
First Lien Collateral Agent, the Second Lien Collateral Agent and certain other
parties thereto (as the same may be amended, supplemented or otherwise modified
from time to time, (the “Intercreditor Agreement”) of First Lien
Obligations except in accordance with the Intercreditor Agreement.


 


ARTICLE III


COVENANTS


 


3.1          Covenants
in Respect of the [Future Agreement]


 


In respect of the [Future Agreement], each of the First Lien
Collateral Agent and the Second Lien Collateral Agent hereby covenants that in
the event that the First Lien Bridge Agent or the Second Lien Bridge Agent
enforces its security interest granted under the Security Agreements:


 


(a)                                  in the Credit
Party’s fee simple estate of the premises subject to the [Future Agreement] and if such Collateral Agent is the mortgagee
in possession of the Credit Party’s fee simple estate of the premises subject
to the [Future Agreement], such Collateral Agent will
assume all of the Credit Party’s rights and obligations under the [Future Agreement], so long as the Credit Party
(or such Collateral Agent, if such Collateral Agent issues a Credit Party
Default Notice to the Third Party) has not issued a termination notice in
respect of a default under the [Future
Agreement]); and [Note: This
clause only applies if the [Future Agreement] is a lease, easement or other
agreement creating an interest in real property owned by the Credit Party in
favour of the Third Party]


 


(b)                                 upon any
transfer of the [Future Agreement] in connection
with such enforcement of its rights under the Security Agreements, such Bridge
Agent will cause the transferee of the [Future
Agreement] to agree to be bound by the provisions of the [Future Agreement].


 














 


ARTICLE IV


DEFAULT


 


4.1          Default


 


The Third Party hereby
waives, and agrees to and in favour of the Collateral Agents that it shall not
exercise, any and all of its rights under [Section ·  of the Future Agreement] in the event that the Credit Party is in
default of the [Future Agreement] provided that
nothing herein shall be deemed to constitute a waiver of the Third Party’s
rights under Section 41(2) of the Personal Property Security
Act (Alberta).


 


4.2          No
Assumption of Obligations


 


Save as expressly provided
in this Agreement, neither of the Collateral Agents:


 


(a)                                  shall have any
obligations or liabilities to the Third Party; or


 


(b)                                 shall be under
any obligation whatsoever under the [Future
Agreement] in the event of a failure by the Credit Party to
perform its obligations thereunder, and no curing of any breaches under the [Future Agreement] by either of the Collateral Agents shall be
construed as an assumption by such Collateral Agent of any of the obligations,
covenants or agreements of the Credit Party under the [Future Agreement].


 


ARTICLE V


MISCELLANEOUS


 


5.1          Amendments


 


This Agreement may not be
amended except by an agreement in writing between the parties hereto.


 


5.2          Severability


 


Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


 


5.3          Time of the
Essence


 


Time is of the essence with
respect to the performance by the parties of their respective obligations
hereunder.


 


5.4          Notices


 


Every notice, request,
demand or other communication under this Agreement:


 


(a)                                  shall be in
writing in the English language and shall be sent by messenger or telefax, as
to each party hereto, to it at its address set forth below or at such other
address as shall have been or be designated by it in a written notice to the
other parties hereto. All such notices, requests, demands, and other
communications shall be deemed to have been given when delivered or sent, as
the case may be;


 

















 


(b)           shall be sent:


 


(i)            if to the First Lien
Collateral Agent, at:


 


·


 


·


 


·


 


·


 


	
  Attention: 

  	
  ·

  
	
   

  
	
  Telephone: 

  	
  ·

  
	
   

  
	
  Telefax:

  	
  ·

  



 

















 


(ii)           if to the second Lien
Collateral Agent, at:


 


·


 


·


 


·


 


·


 


	
  Attention: 

  	
  ·

  
	
   

  
	
  Telephone: 

  	
  ·

  
	
   

  
	
  Telefax:

  	
  ·

  



 


(iii)          if to the Credit Party, at:


 


·


 


·


 


·


 


·


 


	
  Attention: 

  	
  ·

  
	
   

  
	
  Telephone: 

  	
  ·

  
	
   

  
	
  Telefax:

  	
  ·

  



 

















 


(iv)          if to the Third Party, at:


 


·


 


·


 


·


 


·


 


	
  Attention: 

  	
  ·

  
	
   

  
	
  Telephone: 

  	
  ·

  
	
   

  
	
  Telefax:

  	
  ·

  



 


5.5          Successors
and Assigns


 


This Agreement shall be
binding upon and enure to the benefit of the parties hereto and their
respective successors and assigns. The Credit Parties may not assign, in whole
or in part, any of their rights or obligations hereunder. Neither the First
Lien Collateral Agent nor the Second Lien Collateral Agent may assign its
rights or obligations hereunder to any person other than a successor collateral
agent under the First Lien Interim Loan Agreement or Second Lien Interim Loan
Agreement, as the case may be, and then only if such successor collateral agent
agrees to be bound hereby as if it had been an initial party hereto.


 


5.6          Resignation


 


Each Collateral Agent shall
be entitled to resign as collateral agent for and on behalf of the ·, as the case may be, in
accordance with the First Lien Interim Loan Agreement or Second Lien Interim
Loan Agreement, as the case may be. In the event that either Collateral Agent
does so resign then any successor or other collateral agent appointed in its
place (the “New Collateral Agent”) shall
(upon giving notice to the Third Party and the other Collateral Agent) assume
all rights and obligations of the resigning Collateral Agent hereunder and the
resigning Collateral Agent shall no longer enjoy those rights and shall be
released from those obligations and the Third Party and the Credit Parties
shall no longer enjoy those rights and shall be released from those obligations
and the Third Party and the Credit Parties shall owe their obligations
hereunder to the New Collateral Agent. The New Collateral Agent shall be deemed
to be a party to this Agreement as if it had originally been named as a party hereto
in place of the resigning Collateral Agent. The resigning Collateral Agent
shall be discharged from any further obligation hereunder but the provisions of
this Agreement shall continue in effect for its benefit or (as the case may be)
the benefit of the other parties hereto in respect of any actions taken or
omitted by it while acting as Collateral Agent hereunder.


 

















 


5.7          Governing
Law and Jurisdiction


 


This Agreement shall be
governed by and construed in accordance with the laws of the Province of Alberta
and the federal laws of Canada applicable therein. The parties do hereby
irrevocably and unconditionally submit and attorn to the non-exclusive
jurisdiction of the courts of the Province of Alberta in connection with any
disputes or other matters arising out of or in connection with this Agreement.


 


5.8          Further
Assurances


 


Subject to the limitations
otherwise provided herein, the parties shall from time to time do and perform
such other and further acts and execute and deliver any and all further agreements
and instruments as may be required by law or reasonably requested by another
party hereto to carry out and effect the intent and purposes of this Agreement.


 


5.9          Counterparts
and Execution


 


This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
shall together constitute one and the same agreement. This Agreement may be
executed and delivered by facsimile in accordance herewith, which when so
executed and delivered shall constitute a binding agreement.


 

















 


IN WITNESS WHEREOF, the duly
authorized representatives of the parties hereto have executed this Agreement
as of the day and year first above written.


 


	
  [FIRST
  LIEN COLLATERAL AGENT]

  	
   

  	
  [SECOND LIEN COLLATERAL AGENT]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Per:

  	
   

  	
   

  	
  Per:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [CREDIT
  PARTY]

  	
   

  	
  [THIRD PARTY]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Per:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE
“A”


 


SECURITY
AGREEMENTS