EX-4.2






Exhibit 4.2




AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

OF

SERIES B CUMULATIVE PREFERRED STOCK

OF

TRIDENT RESOURCES CORP.




     Trident Resources Corp., a Delaware corporation (the “Company"), hereby certifies that the
following resolution was adopted by the Board of Directors of the Company, as required by Section
151 of the Delaware General Corporation law pursuant to a unanimous written consent in lieu of a
meeting of the Board of Directors:



     RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of
Directors of the Company (the “Board of Directors”) by the provisions of the Fourth Amended and
Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”), there is
hereby created, out of the ten million (10,000,000) shares of preferred stock, par value $0.0001
per share, of the Company authorized in Article Fourth of the Certificate of Incorporation (the
“Preferred Stock”), a series of the Preferred Stock consisting of two million (2,000,000) shares,
which series shall have the following powers, designations, preferences and relative,
participating, optional or other rights, and the following qualifications, limitations and
restrictions (in addition to any powers, designations, preferences and relative, participating,
optional or other rights, and any qualifications, limitations and restrictions, set forth in the
Certificate of Incorporation which are applicable to the Preferred Stock).



Section 1. Designation of Series B Cumulative Preferred Stock.





     (a) The series of shares of Preferred Stock created hereby shall be designated the
“Series B Cumulative Preferred Stock” and the authorized number of shares constituting such
series shall be two million (2,000,000). The Series B Cumulative Preferred Stock shall rank
senior to the Company’s common stock, par value $0.0001 per share (“Common Stock”), as to
dividends and distributions and as to distributions of assets upon the liquidation,
dissolution, or winding up of the Company, whether voluntary or involuntary and rank pari
passu with the Company’s Series A Cumulative Preferred Stock, par value $0.0001 per share
(“Series A Preferred Stock”), as to dividends and distributions and as to distributions of
assets upon the liquidation, dissolution, or winding up of the Company, whether voluntary or
involuntary. All dollar amounts set forth herein are in U.S. dollars unless otherwise
specified.



Section 2. Dividends.





     (a) Regular Dividends. Each holder of a share of Series B Cumulative Preferred
Stock will be entitled to receive dividends on the Face Amount (as defined in Section 3(a))
at the rates specified in Section 2(b) (and on accrued but unpaid Regular Dividends at the
rates set forth in Section 2(c)) from the Original Issuance Date (as defined in Section
2(d)) to and including the earlier of (i) the date upon which the applicable share is
redeemed and (ii) the date of a Liquidation (as defined in Section 3(a)) of the Company
(such dividends, together with any dividends that accrue on such



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dividends pursuant to Section 2(c) below, shall be collectively referred to as the
“Regular Dividends”). The Regular Dividends shall be cumulative and shall accrue on a daily
basis whether or not declared by the Board of Directors and whether or not there are
Profits, surplus or other funds legally available for the payment of the Regular Dividends.
The Company shall have the option but not the obligation to pay the Regular Dividends
quarterly in cash on or before the thirtieth day after the last day of the quarter in which
they accrued to the holder of record of each share of Series B Cumulative Preferred Stock as
of the close of business on the tenth business day prior to the date of payment. Regular
Dividends that arc not paid in accordance with the previous sentence shall accrue and
compound as set forth in Section 2(c) below.




     (b) Rate of Accrual. The Regular Dividends shall accrue on each share of the
Series B Cumulative Preferred Stock at the annual rate of 7.0% of the Face Amount.




     (c) Accrual on Accrued but Unpaid Dividends. Any accrued Regular Dividends
that are not paid in cash on or before the thirtieth day after the last day of the quarter
in which they accrued shall, beginning on the first day of the quarter commencing
immediately after the quarter in which such Regular Dividends accrued and for so long as
such Regular Dividends are unpaid, (i) accrue dividends at an annual rate of 7.0% of the
aggregate amount of the accrued and unpaid Regular Dividends and the accrued and compounded
dividends on such Regular Dividends and compounded dividends on such Regular Dividends, and
(u) compound monthly.




     (d) Certain Definitions. The term “Original Issuance Date” means, as to each
share of Series B Cumulative Preferred Stock, the date such share is issued.




     (e) Additional Dividends. In addition to Regular Dividends, in the event any
dividends are declared or paid or any other distribution is made on or with respect to the
Company’s Common Stock or any Preferred Stock ranking junior to the Series B Cumulative
Preferred Stock as to dividend rights (the “Junior Preferred”), the holders of the Series B
Cumulative Preferred Stock as of the close of business of the record date established by the
Board of Directors for such dividend or distribution on the Common Stock shall be entitled
to receive as additional dividends (the “Additional Dividends”) an amount (whether in the
form of cash, securities or other property) per share of Series B Cumulative Preferred Stock
equal to the amount (and in the form) of the dividends or distribution payable per share to
the holders of Common Stock, such Additional Dividends to be payable on the same payment
date as the payment date of the dividend on the Common Stock provided, however, that no
dividend or distribution payable in Common Stock shall be payable in respect of the Series B
Cumulative Preferred Stock.




     (f) Priority of Dividends. No dividend shall be paid or declared on any share
of Common Stock, unless (i) all accrued Regular Dividends on the Series B Cumulative
Preferred Stock have been paid in full in compliance with the provisions hereof and (ii)
such dividends on the Common Stock are paid or declared in full compliance with the
provisions of Section 2(e) above. The payment of Regular Dividends on the Series B
Cumulative Preferred Stock shall be (i) junior to the payment of dividends on any class or



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series of Preferred Stock or other class or series of the Company’s capital stock ranking
senior as to dividend rights, (ii) payable on a pari passu basis with any payment of
dividends on any class or series of Preferred Stock or any other class or series of the
Company’s capital stock ranking pari passu as to dividend rights to the Series B Cumulative
Preferred Stock including the Series A Cumulative Preferred Stock, and (iii) payable prior
to any payment of dividends to the holders of the Common Stock or any class or series of
Preferred Stock or other class or series of the Company’s capital stock ranking junior as to
dividend rights to the Series B Cumulative Preferred Stock.




     (g) Upon and immediately prior to the redemption of any share of Series B Cumulative
Preferred Stock, all accrued and unpaid Regular Dividends and Additional Dividends on such
share shall be paid in accordance with Section 5(d)(iv) below.




     (h) Notwithstanding the foregoing or any other provision of this Certificate of
Designation, the declaration and payment of all dividends in cash or in shares of Common
Stock (as provided by Section 5(d)(iv)) shall be subject to the provisions of Delaware
General Corporation Law governing distributions on equity securities.



Section 3. Liquidation Preference.





     (a) Liquidation. In the event of a liquidation, dissolution, liquidating
bankruptcy, or winding-up of the Company or other distribution of the assets of the Company
among its stockholders for the purpose of winding up the Company’s affairs, whether
voluntary or involuntary (a “Liquidation”), each holder of the Series B Cumulative Preferred
Stock shall be entitled to receive, per share of such Series B Cumulative Preferred Stock so
held, out of the available assets of the Company, an amount equal to (A) $ (the “Face
Amount”), plus (B) the amount of any accrued and unpaid Regular Dividends as of such date,
plus (C) any declared but unpaid Additional Dividends as of such date (the sum of such
amounts for all Series B Cumulative Preferred Stock then outstanding collectively being the
“Series B Liquidation Preference”).




     (b) Priority. The payment of the amount specified in Section 3(a) shall be
made (i) after any payment shall be made or any assets distributed to the holders of any
class or series of Preferred Stock or other class or series of the Company’s capital stock
ranking senior as to liquidation rights to the Series B Cumulative Preferred Stock, (ii)
simultaneously with any payment that shall be made or any assets distributed to the holders
of any class or series of Preferred Stock or any other class or series of the Company’s
capital stock ranking pari passu as to liquidation rights to the Series B Cumulative
Preferred Stock (including the Series A Cumulative Preferred Stock) (“Pari Passu Stock”),
and (iii) before any payment shall be made or any assets distributed to the holders of the
Common Stock or any class or series of Preferred Stock or other class or series of the
Company’s capital stock ranking junior as to liquidation rights to the Series B Cumulative
Preferred Stock. After payment in full of the amount specified in Section 3(a), the holders
of Series B Cumulative Preferred Stock shall not be entitled to any further payment or
distribution of assets of the Company. If, upon any Liquidation, after payment shall be
made or assets distributed to the holders of any class or series of



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Preferred Stock or other
class or series of the Company’s capital stock ranking senior as
to liquidation rights to the Series B Cumulative Preferred Stock, the remaining assets
available for payment of the Series B Liquidation Preference and any liquidation preference
associated with any outstanding Pari Passu Stock (the “Pari Passu Liquidation Preference”)
are insufficient to permit the payment to the holders of the Series B Cumulative Preferred
Stock and such Pan Passu Stock of the full Series B Liquidation Preference and the Pari
Passu Liquidation Preference, as applicable, then all the remaining available assets shall
be distributed ratably among the holders of the then outstanding Series B Cumulative
Preferred Stock and Pari Passu Stock in proportion to the Series B Liquidation Preference
and Pari Passu Liquidation Preference of each such holder.




     (c) Valuation. Whenever any distribution provided for hereunder shall be
payable in securities or property other than cash, the value of such distribution shall be
the fair market value of such securities or property as determined in good faith by a
majority of the Board of Directors of the Company.



Section 4. Voting Rights.





     (a) General. The holders of outstanding shares of the Series B Cumulative
Preferred Stock:




	 	(i)	 	shall be entitled to vote together with the
holders of the Common Stock and the Series A Cumulative Preferred Stock
as a single class on all matters submitted for a vote of holders of
Common Stock;
	 
	 	(ii)	 	shall have such other voting rights as are
specified in the Certificate of Incorporation or as otherwise provided
by the Delaware General Corporation Law; and
	 
	 	(iii)	 	shall be entitled to receive notice of any
stockholders’ meeting in accordance with the Certificate of
Incorporation and bylaws of the Company.






     For purposes of the voting rights set forth in this Section 4(a), each holder of Series
B Cumulative Preferred Stock shall be entitled to cast one vote for each share of Series B
Cumulative Preferred Stock then held.




     (b) Separate Series Vote. So long as any shares of Series B Cumulative
Preferred Stock remain outstanding, the Company shall not take any of the following actions
without the consent of the holders of at least a majority of the then outstanding shares of
Series B Cumulative Preferred Stock:




	 	(i)	 	amend this Certificate of Designation or the
Amended and Restated Certificate Of Designation of Series A Cumulative
Preferred Stock of the Company (the “Series A Certificate of
Designation”);




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	 	(ii)	 	amend or waive any provision of the Company’s
Certificate of Incorporation or the Company’s bylaws if such amendment
or waiver would adversely affect the rights of the holders of the
Series B Cumulative Preferred Stock;
	 
	 	(iii)	 	other than pursuant to contractual obligations
of the Company or TEC in existence on March 10, 2005, and other than to
former, current or future employees, officers, directors and
consultants of the Company or TEC, cause TEC to issue shares of capital
stock, or securities convertible into, or exercisable or exchangeable
for, shares of the capital stock of TEC, to any patty other than the
Company or any entity directly or indirectly wholly owned by the
Company;
	 
	 	(iv)	 	cause TEC to pay or declare dividends in
respect of any class of its capital stock, other than dividends 100% of
which are payable to the Company or any entity directly or indirectly
wholly owned by the Company, dividends in respect of TEC’s outstanding
preferred stock as of March 10, 2005, and dividends declared or paid in
respect of TEC’s outstanding common stock as of March 10, 2005 issued
in connection with a transaction that involves the redemption,
repurchase, cancellation, exchange or conversion of any such shares;
	 
	 	(v)	 	purchase or redeem any shares of the Common
Stock of the Company, or any shares of Preferred Stock of the Company
the rights, priorities or preferences of which are junior to those of
the Series B Cumulative Preferred Stock with respect to dividend rights
or liquidation rights (provided, that consent by holders of the Series
B Cumulative Preferred Stock to such purchases and redemptions shall
not be unreasonably withheld), other than (i) the repurchase or
redemption, from any former, current or figure employees, officers,
directors and consultants of the Company or TEC, of Common Stock of the
Company, or options to purchase Common Stock of the Company and (ii)
repurchases of Common Stock of the Company pursuant to the satisfaction
of exercised put rights of all Warrants (as set forth in Section 7 of
each Warrant) associated with the shares of Series B Cumulative
Preferred Stock, the Series A Cumulative Preferred Stock or any series
of Preferred Stock which may from time to time come into existence;
	 
	 	(vi)	 	cause TEC to purchase or redeem any shares of
capital stock of TEC, or securities convertible into, or exercisable or
as changeable for, shares of capital stock of TEC, other than (a) any
purchase, redemption, cancellation, exchange or conversion of the
shares of TEC’s outstanding preferred stock as of March 10, 2005, (b)
any purchase or redemption pursuant to any contractual obligation of




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	 	 	 	the Company or TEC in existence on March 10, 2005 (c) any purchase or
redemption of shares of capital stock of TEC owned by the Company or
entity directly or indirectly wholly owned by the Company, (d) any
purchase or redemption from current, former or future employees,
officers, directors and consultants of the Company or TEC, and (e)
any purchase, redemption, cancellation, exchange or conversion of
TEC’s outstanding common stock as of March 10, 2005;
	 
	 	(vii)	 	after March 10, 2009, enter (or cause or
permit TEC to enter) into any credit, debt or other agreement, facility
or instrument of the Company or TEC that matures or terminates after
March 10, 2013 and which contains a Put Restriction (as defined in
Section 4(c) below) that applies on March 10, 2013;
	 
	 	(viii)	 	after March 10, 2009, amend (or cause or permit TEC to amend) any
then existing credit, debt or other agreement, facility or instrument
of the Company or TEC that matures or terminates after March 10, 2013
(or which by such amendment would mature on or after March 10, 2013) in
a manner that adds to such credit, debt or other agreement, facility or
instrument a Put Restriction that applies on March 10, 2013;
	 
	 	(ix)	 	after March 10, 2009, amend (or cause or permit
TEC to amend) any then existing credit, debt or other agreement,
facility or instrument of the Company or TEC that contains a Put
Restriction to extend the date of maturity or termination to a date
that is on or after March 10, 2013 if and only if, under such credit,
debt or other agreement, facility or instrument as amended, the Put
Restriction is also extended to apply on March 10, 2013; or
	 
	 	(x)	 	after March 10, 2009, amend (or cause or permit
TEC to amend) any then existing credit agreement or facility of the
Company or TEC that matures or terminates after March 10, 2013 and
which contains a Put Restriction that applies on March 10, 2013 in a
manner that increases the stated dollar maximum borrowing amount under
such agreement, facility or instrument.






     (c) Preferred Class Vote. So long as any shares of Series A Cumulative
Preferred Stock remain outstanding, the Company shall not, and shall not permit any of its
Subsidiaries to, take any of the following actions without the consent of the holders of at
least a majority of the then outstanding shares of Series A Cumulative Preferred Stock and
Series B Cumulative Preferred Stock, voting together as single class with each holder of
Series A Cumulative Preferred Stock and Series B Cumulative Preferred Stock being entitled
to cast one vote for each share of Series A Cumulative Preferred Stock and Series B
Cumulative Preferred Stock then held (with terms used in this paragraph (c) and not
otherwise defined herein having the meanings set forth in Appendix A hereto):



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	 	(i)	 	other than the Series B Cumulative Preferred
Stock outstanding as of August 17, 2007, authorize for issuance or
issue any class or series of Preferred Stock or other class or series
of the Company’s capital stock with rights, priorities or preferences
senior to or on parity with those of the Series A Cumulative Preferred
Stock (any such class or series being “Senior Stock”), including
without limitation (i) in respect of the right to receive dividends,
(ii) in respect of the right to receive assets upon the liquidation,
dissolution or winding up of the affairs of the Company, or (iii) in
respect of redemption or repurchase rights (it being understood and
agreed that any class or series of Preferred Stock or other class or
series of the Company’s capital stock which are permitted to be
redeemed or repurchased by the Company or any of its direct or indirect
subsidiaries, or which the Company of any of its direct or indirect
subsidiaries could be obligated to redeem or repurchase, at any time
the Series A Cumulative Preferred Stock remains outstanding shall
constitute Senior Stock for all purposes hereof);
	 
	 	(ii)	 	create, incur or suffer to exist any Debt,
except for Permitted Debt;
	 
	 	(iii)	 	except in respect of transactions between or
among the Company and/or one or more of its Wholly-Owned Subsidiaries,
enter into any contract, agreement or transaction whatsoever, including
for the sale, purchase, lease or other dealing in any property or the
provision of any services (other than (i) office and administration
services provided in the ordinary course of business or (ii) acting as
a director of the Company or one or more of its Subsidiaries), with any
Related Party; and
	 
	 	(iv)	 	sell, lease, transfer or otherwise dispose of
any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets, except for Permitted Dispositions.






     (d) For purposes of the foregoing, “Put Restriction” shall mean a provision in any
credit, debt or other agreement, facility or instrument of the Company or any of its
subsidiaries or affiliates that prevents, restricts, limits or otherwise would prevent (i)
the Company from, on March 10, 2013, satisfying in full in cash all put rights (as set forth
in Section 7 of each Warrant) of all Warrants associated with all then outstanding shares of
Series A Cumulative Preferred Stock or (ii) TRC from, on March 10, 2013, making cash
payments to the Company in an amount sufficient for the Company to satisfy such put rights
in full in cash.



Section 5. Redemption.



Each share of Series B Cumulative Preferred Stock shall be redeemable at the Redemption Price (as
determined pursuant to Section 5(d)(iii)) and on the Redemption Date (as determined


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pursuant to Section 5(d)(ii)), and in accordance with the other provisions of this Section 5 as set
forth below.





	 	(a)	 	Mandatory Redemption. Upon the earlier of






	 	(i)	 	a Qualified Public Offering (as defined below);
or
	 
	 	(ii)	 	(subject to the qualification in this Section
5(a) below) March 10, 2013,






each of the then issued and outstanding shares of Series B Cumulative Preferred
Stock shall be redeemed by the Company on the Redemption Date (as determined in
Section 5(d)(ii)(a) or (b), as applicable) for an amount per share equal to the
Redemption Price. Notwithstanding the foregoing, if on March 10, 2013, due to (i) a
Debt Restriction, or (ii) applicable provisions of Delaware law regarding repurchase
of shares of capital stock for cash (each a “Redemption Restriction”), the Company
is unable to satisfy in cash all exercised put rights of all outstanding Warrants
(as set forth in Section 7 of each Warrant) associated with all of the then
outstanding shares of Series B Cumulative Preferred Stock, then the mandatory
redemption pursuant to Section 5(a)(ii) shall be delayed until the date upon which
all Redemption Restrictions no longer exist. The term “Debt Restriction” means (A)
any provision of a Debt Instrument (as defined below) restricts the right or power
of the Company to pay cash dividends, or (B) any provision of a Debt Instrument or
the terms of any outstanding preferred capital stock of TEC restricts the right or
power of TEC to pay cash dividends, make any return of capital in cash, lend money
or repay indebtedness to the Company. The term “Debt Instrument” means any
instrument, agreement, security or facility pursuant to which the Company or TEC is
a primary or secondary obligor, including as a borrower or guarantor, whether
absolute or contingent, for obligations characterized as indebtedness under
accounting principles generally accepted in the United States, whether or not there
are any amounts outstanding under such instrument, agreement, security or facility
and whether or not such instrument, agreement, security or facility is then
terminable by the Company or TEC.




	 	(b)	 	Redemption at the Company’s Option.






	 	(i)	 	At any time after March 10, 2008, subject to
the limitations set forth in Section 7.1 of the associated Warrant, the
Company may redeem on the Redemption Date (as determined in Section
5(d)(ii)(c)) any or all of the then outstanding shares of Series B
Cumulative Preferred Stock for an amount per share equal to the
Redemption Price; provided that, if the Company elects to redeem less
than all of the then outstanding shares of Series B Cumulative
Preferred Stock, then such shares shall be redeemed ratably among the
holders of the then outstanding shares of Series B Cumulative Preferred
Stock




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	 	(ii)	 	In connection with a Change of Control (as
defined in Section 5(e)(iii)), subject to the limitations set forth in
Section 7.1 of the associated Warrant, the Company may on the
Redemption Date (as determined in Section 5(d)(ii)(d)) redeem any or
all of the then outstanding shares of Series B Cumulative Preferred
Stock for an amount per share equal to the Redemption Price; provided
that, if the Company elects to redeem less than all of the then
outstanding shares of Series B Cumulative Preferred Stock, then such
shares shall be redeemed ratably among the holders of the then
outstanding shares of Series B Cumulative Preferred Stock.






	 	(c)	 	Redemption at the Holder’s Option.






	 	(i)	 	At any time after March 10, 2008, any holder of
shares of Series B Cumulative Preferred Stock may require the Company
to redeem on the Redemption Date (as determined in Section 5(d)(ii)(e))
all, but not less than all, of the shares of Series B Cumulative
Preferred Stock held by such bolder for an amount per share equal to
the Redemption Price.
	 
	 	(ii)	 	In connection with a Change of Control, each
holder of shares of Series B Cumulative Preferred Stock may require the
Company to redeem on the Redemption Date (as determined in Section
S(d)(ii)(f)) any or all of such holder’s shares of Series B Cumulative
Preferred Stock, for an amount per share equal to the Redemption Price.
	 
	 	(iii)	 	At any time after February 17, 2010, the
holders of a majority of the then outstanding shares of Series A
Cumulative Preferred Stock and Series B Cumulative Preferred Stock,
taken together as single class with each share of Series A Cumulative
Preferred Stock and Series B Cumulative Preferred Stock being treated
as a single share for purposes of determining such majority, may
require the Company to redeem on the Redemption Date (as determined in
Section 5(1)(ii)(g)) all, but not less than all, of the then
outstanding shares of Series A Cumulative Preferred Stock and Series B
Cumulative Preferred Stock for an amount per share equal to the
Redemption Price.






	 	(d)	 	Redemption Procedures. The Company and the holders of the outstanding
shares of Series B Cumulative Preferred Stock shall effect the redemption of any shares of
Series B Cumulative Preferred Stock according to the following redemption procedures:









	 	(i)	 	Notice of the redemption shall be provided as
follows:




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	 	a)	 	Within ten business days after an
initial filing by the Company of a registration statement on
Form S-1, which registration statement relates to an anticipated
Qualified Public Offering, the Company shall provide written
notice of such filing to each holder of shares of Series B
Cumulative Preferred Stock. However, the Company is not
required to provide the holders, of the shares of Series B
Cumulative Preferred Stock with any advance notice of the.
Redemption Date in connection with the redemption of any shares
of Series B Cumulative Preferred Stock pursuant to Section
5(a)(i).
	 
	 	b)	 	In connection with the redemption
of any shares of Series B Cumulative Preferred Stock pursuant to
Section 5(a)(ii), at least 120 days prior to the Redemption
Date, the Company shall provide written notice of such
Redemption Date to each holder of Series B Cumulative Preferred
Stock provided, that if a Redemption Restriction exists on March
10, 2013, the Company shall not be required to provide
subsequent notice of the cessation of any Redemption
Restriction.
	 
	 	c)	 	In connection with the redemption
of any shares of Series B Cumulative Preferred Stock pursuant to
Section 5(b)(i), the Company shall provide to each holder of
shares of Series B Cumulative Preferred Stock written notice of
the Redemption Date and the number of shares to be redeemed at
least 30 days in advance of the Redemption Date.
	 
	 	d)	 	In connection with any Change of
Control (whether or not the Company intends to effect the
redemption of any shares of Series B Cumulative Preferred Stock
pursuant to Section 5(b)(ii)), the Company shall provide to each
holder of shares of Series B Cumulative Preferred Stock written
notice of the anticipated date of the closing of the transaction
or transactions by which the Change of Control occurs either (i)
at least 30 days in advance of the Change of Control or (ii)
fewer than 30 days prior to the Change of Control; provided
that, if the Company provides such notice fewer than 30 days
prior to the Change of Control, the Company shall (i) set aside
and make available for payment an amount of cash (or, to the
extent payable in accordance with Section 5(d)(iv), a number of
shares of Common Stock (or if as a result of such Change of
Control the Company merges with another entity and is not the
survivor or the Common Stock otherwise would no longer exist,
the amount of cash, securities or other property that




10









 






	 	 	 	would be received by a holder of that number of shares of the
Company’s Common Stock)), sufficient to pay the aggregate
accrued and unpaid Regular Dividends and Additional Dividends
as of the later of the date of the Change of Control, or, if
applicable, the Redemption Date and (ii) make similar
provisions for the Warrant associated with each then
outstanding share of Series B Cumulative Preferred Stock (in
lieu of setting aside an amount equal to the Redemption Price
of the outstanding shares of Series B Cumulative Preferred
Stock). If the Company elects to redeem any shares of Series
B Cumulative Preferred Stock pursuant to Section 5(b)(ii), it
shall include in each such written notice of the Change of
Control notice of the anticipated Redemption Date and the
number of shares to be redeemed. If the Change of Control
does not occur, then the shares of Series B Cumulative
Preferred Stock shall not be redeemed, all notices given
pursuant to this Section 5(d)(i)(d) shall be deemed revoked,
and the Company shall deliver notice to the holders of the
Series B Cumulative Preferred Stock that the Change of
Control will not be consummated.
	 
	 	e)	 	In connection with the redemption
of any shares of Series B Cumulative Preferred Stock pursuant to
Section 5(c)(i), the holder thereof shall deliver to the Company
written notice of such holder’s election to redeem and the
Redemption Date at least 90 days in advance of such Redemption
Date.
	 
	 	f)	 	In connection with any Change of
Control, the Company shall provide to each holder of shares of
Series B Cumulative Preferred Stock written notice of the
anticipated date of the Change of Control (i) at least 30 days
in advance of the Change of Control or (ii) fewer than 30 days
prior to the Change of Control (provided that the Company in
such a circumstance comply with the procedures set forth in
Section 5(d)(i)(d) above). Any holder of Series B Cumulative
Preferred Stock that elects to redeem any or all of his or her
shares pursuant to Section 5(c)(ii) shall deliver notice of such
election and the number of the shares to be redeemed to the
Company within 10 days of the date the Company provides the
notice of the Change of Control. If the Change of Control does
not occur, then no shares of Series B Cumulative Preferred Stock
shall be redeemed pursuant to Section 5(c)(ii), the Redemption
Date shall not occur, all notices given pursuant to this Section
5(d)(i)(f) shall be deemed revoked, and the Company shall
deliver notice to the holders of the Series B




11









 






	 	 	 	Cumulative Preferred Stock that the Change of Control will
not be consummated.
	 
	 	g)	 	In connection with the redemption
of the shares of Series A Cumulative Preferred Stock and Series
B Cumulative Preferred Stock pursuant to Section 5(e)(iii), such
majority shall deliver to . the Company written notice of the
election to redeem and the Redemption Date, which must be at
least 30 days in advance of such Redemption Date.
	 
	 	h)	 	All notices to be provided
pursuant to this Section 5 by the Company to any holder of the
Series B Cumulative Preferred Stock shall be sent by the Company
via registered mail service to the holders of record. All
notices to be provided pursuant to this Section 5 by any holder
of the Series B Cumulative Preferred Stock to the Company shall
be sent by such holder to the Company via registered mail
service. Absent evidence of prior actual receipt, all notices
to be provided pursuant to this Section 5 by the Company to any
holder of Series B Cumulative Preferred Stock or by any such
holder to the Company shall be deemed to be “provided” on the
next calendar day after being registered in the possession of a
registered mail service.






	 	(ii)	 	With respect to the redemption of any share of
the Series B Cumulative Preferred Stock, the “Redemption Date” shall be
determined as follows:






	 	a)	 	With respect to a redemption
pursuant to Section 5(a)(i), the date of the closing of a
Qualified Public Offering.
	 
	 	b)	 	With respect to a redemption
pursuant to Section 5(a)(ii), the later of March 10, 2013 or the
first date after March 10, 2013 upon which no Redemption
Restriction exists; provided that if prior to such date an
initial public offering of the Company’s Common Stock which is
not a Qualified Public Offering (a “Non Qualified IPO”) shall
have been consummated and such Redemption Date would fall on a
date not later than the twenty fifth trading day after such Non
Qualified IPO, such Redemption Date shall be delayed until the
twenty fifth trading day after the closing of such Non Qualified
IPO.
	 
	 	c)	 	With respect to a redemption
pursuant to Section 5(b)(i), the date specified as the
Redemption Date in the notice mailed by the Company pursuant to
Section 5(d)(i)(c); provided that if prior to such date a Non
Qualified IPO




12









 






	 	 	 	shall have been consummated and such Redemption Date would
fall on a date not later than the twenty fifth trading day
after such Non Qualified IPO, such Redemption Date shall be
delayed until the twenty fifth trading day after the closing
of such Non Qualified IPO.
	 
	 	d)	 	With respect to a redemption
pursuant to Section 5(b)(ii), the date that is the later of (i)
the date of the consummation of the transaction or transactions
constituting the Change of Control and (ii) the thirtieth (30th)
day after the date the Company provides written notice of the
potential Change of Control pursuant to Section 5(d)(i)(d).
	 
	 	e)	 	With respect to a redemption
pursuant to Section 5(c)(1), the date set forth in the written
notice provided by the holder pursuant to Section 5(d)(i)(e);
provided that such date may not be any earlier than the
ninetieth (90th) calendar day after the date the holder provides
such written notice to the Company, and further provided that if
prior to such date a Non Qualified IPO shall have been
consummated and such Redemption Date would fall on a date not
later than the twenty fifth trading day after such Non Qualified
WO, such Redemption Date shall be delayed until the twenty fifth
trading day after the closing of such Non Qualified IPO.
	 
	 	f)	 	With respect to a redemption
pursuant to Section 5(c)(ii), the date that is the later of (i)
the date of the consummation of the transaction or transactions
constituting the Change of Control and (ii) the thirtieth (30th)
day after the date the Company provides written notice of the
potential Change of Control pursuant to Section 5(d)(i)(f).
	 
	 	g)	 	With respect to a redemption
pursuant to Section 5(c)(iii), the date set forth in the written
notice provided by the holders pursuant to Section 5(d)(i)(g)
(which date shall be at least ten (10) business days after the
final determination of the valuation of Common Stock issued in
connection with such redemption, as determined pursuant to
Section 5(f)(v)); provided that such date may not be any earlier
than the ninetieth (90th) calendar day after the date the
holders provide such written notice to the Company.






	 	(iii)	 	The “Redemption Price” per share of Series B
Cumulative Preferred Stock shall be equal to $40, subject to adjustment
as set forth below. Such Redemption Price shall be paid to the holder
of record as of the close of business the business day prior to the




13









 






	 	 	 	Redemption Date of the share of Series B Cumulative Preferred Stock
that is to be redeemed. If the funds of the Company legally
available for redemption of shares of Series B Cumulative Preferred
Stock on any Redemption Date are insufficient to pay the Redemption
Price of the total number of shares to be redeemed on such date,
those funds which are legally available shall be used to first pay
the Redemption Price applicable to the maximum possible number of
shares of Series B Cumulative Preferred Stock redeemable on such
Redemption Date ratably among the holders of the then outstanding
shares of Series B Cumulative Preferred Stock to be redeemed. At any
time thereafter when additional funds of the Company are legally
available for the redemption of shares of Series B Cumulative
Preferred Stock, such funds shall immediately be used to pay the
Redemption Price of the balance of the shares which the Company has
become obligated to redeem on any Redemption Date but which it has
not redeemed.
	 
	 	 	 	Each share of Series B Cumulative Preferred Stock shall be issued in
conjunction with the sale of an associated warrant to purchase the
Company’s Common Stock (a “Warrant,” and together with the associated
share of Series B Cumulative Preferred Stock, a “Unit”) with an
exercise price equal to the Redemption Price. For Canadian tax
purposes the total purchase price paid by the initial purchasers for
each Unit must be allocated between the share of Series B Cumulative
Preferred Stock and the associated Warrant on a reasonable basis.
The Redemption Price is equal to the amount of the initial purchase
price for each Unit allocated to each share of Series B Cumulative
Preferred Stock included in such Unit based on a financial value
allocation calculation for allocating value among the share of Series
B Cumulative Preferred Stock and its associated Warrant (the
“Allocation”). If a Canadian federal tax authority having
jurisdiction in the matter should at any time issue or propose to
issue an assessment or reassessment which imposes or would impose
liability for Canadian tax on the basis that the Allocation is
unreasonable and if the Company agrees with such assessment or
reassessment, or a Court or tribunal having jurisdiction in the
matter agrees with such assessment or reassessment and all appeal
rights have been exhausted or if all times for appeals have expired
without appeals having been taken, then the Allocation shall be
adjusted retroactively to reflect an appropriate re-allocation and
the Redemption Price of the Series B Cumulative Preferred Stock shall
be adjusted retroactively to the date of issuance of the shares of
Series B Cumulative Preferred Stock, to equal the amount of the
initial purchase price for the Unit allocated under such
re-allocation to each share of Series B Cumulative Preferred Stock.
In these circumstances, the exercise price of each associated Warrant
will also be retroactively adjusted




14









 






	 	 	 	to equal the Redemption Price as adjusted hereunder pursuant to the
terms of the Warrant.
	 
	 	(iv)	 	On any Redemption Date, all accrued and unpaid
Regular Dividends and any declared and unpaid Additional Dividends on
such shares as are to be redeemed on such Redemption Date shall, with
respect to the Regular Dividends, be declared, and with respect to both
the Regular Dividends and the Additional Dividends, be paid as
dividends immediately prior to redemption. If on such Redemption Date
there is no then effective Debt Restriction, the Company shall pay all
such accrued and unpaid Regular Dividends and any unpaid Additional
Dividends to the holder of record as of the close of business on the
business day prior to such Redemption Date in full and in cash. If on
such Redemption Date a Debt Restriction exists, the Company shall pay
to such holder all accrued and unpaid Regular Dividends and Additional
Dividends, to the extent permitted by the Debt Restriction, in cash,
and shall pay the remaining accrued but unpaid Regular Dividends and
any unpaid Additional Dividends in shares of Common Stock (which shall
be valued pursuant to Section 5(f) below). Notwithstanding the
foregoing or any other provision of this Certificate of Designation,
the declaration and payment of all dividends in cash or in shares of
Common Stock shall be subject to the provisions of Delaware General
Corporation Law governing dividends in respect of capital stock.
	 
	 	(v)	 	On any Redemption Date, the Company shall pay
the Redemption Price for each share of Series B Cumulative Preferred
Stock being redeemed and immediately after the Redemption Price is paid
in full and all Regular Dividends and Additional Dividends have been
paid in full pursuant to Section 5(d)(iv) all rights of the holder of
each such share shall cease, and each such share shall no longer be
outstanding. Any shares of Series B Cumulative Preferred Stock which
are redeemed or otherwise acquired by the Company shall be canceled and
shall not be reissued, sold or transferred.
	 
	 	(vi)	 	In the event fewer than all of the shares of
Series B Cumulative Preferred Stock represented by an issued share
certificate are redeemed upon a Redemption Date, and assuming proper
delivery of such share certificate to the Company, the Company shall in
a reasonably prompt manner issue a new certificate: to such holder
evidencing the remaining number of shares of Series B Cumulative
Preferred Stock that were not redeemed on such Redemption Date.






	 	(e)	 	Certain Definitions.




15









 












	 	(i)	 	An “Affiliate” means any Person which, directly
or indirectly, controls, is controlled by or is under common control
with another Person; and, for the purposes of this definition,
“control” (including, with correlative meanings, the terms “controlled
by” or “under common control with”) means the power to direct or cause
the direction of the management and policies of any Person, whether
through the ownership of shares or other economic interests, the
holding of voting rights or contractual rights or otherwise.
	 
	 	(ii)	 	A “Qualified Public Offering” shall mean the
consummation of a public offering of the Company’s Common Stock with
gross proceeds of at least $100 million in the aggregate.
	 
	 	(iii)	 	A “Change of Control” shall mean any sale of
the Company or a transaction or series of related transactions
(including but not limited to a merger or reorganization) which results
in holders of the Company’s capital stock outstanding immediately prior
to such transaction or series of related transactions owning less than
50% of the securities of the surviving entity having the power to elect
directors in the ordinary course of business, or a sale of all or
substantially all the assets of the Company.






(f)      Any share of Common Stock issuable in payment of Regular Dividends or Additional
Dividends on a share of Series B Cumulative Preferred Stock pursuant to Section 5(d)(iv) or
upon exercise of a Wanting associated with any share of Series B Cumulative Preferred Stock
shall be valued as follows:




	 	(i)	 	If issued in connection with a redemption
pursuant to Section 5(a)(i), at the gross price per share of Common
Stock of the Company sold in such Qualified Public Offering (without
deduction for underwriting or other discounts or expenses).
	 
	 	(ii)	 	If issued in connection with a redemption
pursuant to Section 5(b)(ii) or Section 5(c)(ii), at the price per
share of Common Stock of the Company that is stated or implicit (as
determined in good faith by a majority of the Board of Directors of the
Company) in the transaction or transactions resulting in such Change of
Contra
	 
	 	(iii)	 	If issued in connection with a redemption
pursuant to Section 5(a)(ii), Section 5(b)(i) or Section 5(c)(i) and if
the Redemption Date of such redemption is after a Non Qualified IPO, at
the price equal to the average closing price of the shares of the
Common Stock during the period of twenty trading days ending five days
prior to the Redemption Date of such redemption; provided, that with
respect to a redemption pursuant to Section 5(a)(ii), the Company shall
obtain and deliver to each holder of shares of




16









 






	 	 	 	Series B Cumulative Preferred Stock within 90 days prior to the
Redemption Date a fair market valuation of the shares of the
Company’s Common Stock then outstanding from a non-Affiliate third
party investment bank (a “Common Stock Valuation”). The
non-Affiliate third party investment bank shall be chosen by the
Company but shall be subject to the approval of holders of a majority
of the then outstanding shares of Series B Cumulative Preferred
Stock, such approval not to be unreasonably withheld. Each holder of
shares of Series B Cumulative Preferred Stock shall have the choice
of whether to direct the Company to use the Common Stock Valuation or
the valuation determined according to the mechanics before the
proviso above in valuing the Common Stock issuable as dividends in
respect of that holder’s shares of Series B Cumulative Preferred
Stock and issuable upon exercise of the associated Warrants for the
purposes set forth above.
	 
	 	(iv)	 	If issued in connection with a redemption
pursuant to Section 5(a)(ii), Section 5(b)(i) or Section 5(c)(i) and if
the Redemption Date of such redemption is prior to the completion of a
Non Qualified IPO, at the price established in the last private
placement of shares of Common Stock completed by the Company prior to
the date of such redemption and exercise, so long as such private
placement generated aggregate gross proceeds of $5,000,000 or more from
one or more purchasers that were not Affiliates (as defined in Section
5(c)(i)) of the Company immediately prior to such private placement;
provided, that with respect to a redemption pursuant to Section
5(a)(ii), the Company shall obtain and deliver to each holder of shares
of Series B Cumulative Preferred Stock within 90 days prior to the
Redemption Date a Common Stock Valuation. The non-Affiliate third
party investment bank shall be chosen by the Company but shall be
subject to the approval by holders of a majority of the then
outstanding shares of Series B Cumulative Preferred Stock, such
approval not to be unreasonably withheld. Each holder of shares of
Series B Cumulative Preferred Stock shall have the choice of whether to
direct the Company to use the Common Stock Valuation or the valuation
determined according to the-mechanics before the proviso above in
valuing the Common Stock issuable as dividends in respect of that
holder’s shares of Series B Cumulative Preferred Stock and issuable
upon exercise of the associated Warrants for the purposes set forth
above.
	 
	 	(v)	 	If issued in connection with a redemption
pursuant to Section 5(c)(iii), at the fair market value per share of
Common Stock of the Company as of the Redemption Date, as determined by
an Independent Appraiser selected by a special committee of the Board
of Directors (“Special Committee”) consisting of two




17









 






	 	 	 	directors appointed by the Required Backstop Parties (as defined in
Appendix A hereto) and two directors appointed by the
Majority Preferred Holders (as defined in Appendix A hereto).
The determination of such Independent Appraiser shall be final for
all purposes of such redemption pursuant to Section 5(c)(iii);
provided, however, that if the Special Committee is unable to agree
on an Independent Appraiser within 30 days, the fair market value per
share of Common Stock of the Company as of the Redemption Date shall
be the average of the fair market value, as determined by (i) an
Independent Appraiser selected by the Special Committee directors
appointed by the Backstop Parties Group (as defined in Appendix
A hereto) on the one hand (the “Backstop Appraiser”) and (ii) an
Independent Appraiser selected by the Special Committee directors
appointed by the Majority Preferred Holders on the other hand (the
“Preferred Appraiser”), unless the appraisals conducted by the
Backstop Appraiser and the Preferred Appraiser differ by more than
15%, in which case, the fair market value shall be determined by a
third Independent Appraiser selected by agreement of Backstop
Appraiser and the Preferred Appraiser. The expenses of the foregoing
Independent Appraisers shall be paid by the Company. “Independent
Appraiser” means a nationally recognized investment banking firm or
other nationally recognized firm that is regularly engaged in the
business of appraising Equity Interests (as defined in Appendix
A hereto) or assets of entities as going concern; and which is
not affiliated with the Company, any of its subsidiaries, or any
Related Party.






(g)      Prohibition on Redemptions; Partial Redemptions. Notwithstanding anything
to the contrary in this Certificate of Designation or the Series A Certificate of
Designation, if, and only if, following the redemption of all shares of Series A Cumulative
Preferred Stock and Series B Cumulative Preferred stock (A) the number of shares of the
Company’s authorized but unissued Common Stock which have not been reserved for issuance
upon exercise of the Sub Debt Warrants and 2007 TRC Lender Warrants (as defined in
Appendix A hereto) and that are otherwise available to be issued upon exercise of
(I) all of the Warrants (as defined above) and (II) all, of the warrants (the “Series A
Warrants”) to purchase the Company’s Common Stock issued in conjunction with the sale of the
Company’s Series A Cumulative Preferred Stock (such number of shares of the Company’s Common
Stock, the “Available Shares”), would be less than (B) the sum of (I) the number of shares
of the Company’s Common Stock issuable upon exercise in full of the Warrants (such number of
shares of the Company’s Common Stock, the “Total Series B Shares”) and (II) the number of
shares of the Company’s Common Stock issuable upon exercise in full of the Series A Warrants
(such number of shares of the Company’s Common Stock, the “Total Series A Shares” and,
together with the Total Series B Shares, the “Total Necessary Shares”) (such shortfall, a
“Common Stock Shortfall”), then:



18









 






	 	(i)	 	the Company shall provide written notice of
such Common Stock Shortfall to each holder of Series A Cumulative
Preferred Stock and each holder of Series B Cumulative Preferred Stock,
which notice shall set forth a calculation of (x) the number of Total
Series A Shares, (y) the number of Total Series B Shares, and (z) the
number of Available Shares; and
	 
	 	(ii)	 	none of the outstanding shares of Series A
Cumulative Preferred Stock or Series B Cumulative Preferred Stock shall
be redeemed during the continuance of a Common Stock Shortfall;
provided, however, that if holders of a majority of the then
outstanding shares of Series A Cumulative Preferred Stock and Series B
Cumulative Preferred Stock, voting together as a single class, consent
in writing to a partial redemption, then the Company shall effect a
partial redemption of the outstanding shares of Series A Cumulative
Preferred Stock and Series B Cumulative Preferred Stock in accordance
with the applicable provisions of this Section 5, Section 5 of the
Series A Certificate of Designation and the following:






	 	(A)	 	the aggregate number of shares of
Series A Cumulative Preferred Stock that shall be redeemed
pursuant to this proviso shall be calculated as follows: (1)
first, the “Series A Portion” shall equal (x) a fraction, the
numerator of which is the Total Series A Shares and the
denominator of which is the Total Necessary Shares
multiplied by (y) the number of Available Shares; and
(2) second, the number of shares of Series A Cumulative
Preferred Stock to be redeemed shall equal the number of shares
of Series A Cumulative Preferred Stock which, if redeemed and
the associated Warrants were exercised in full (taking account
of all shares of the Company’s Common Stock issuable pursuant to
Section 5(d)(iv)), would result in the issuance of a number of
shares of the Company’s Common Stock equal to the Series A
Portion;
	 
	 	(B)	 	the aggregate number of shares of
Series B Cumulative Preferred Stock that shall be redeemed
pursuant to this proviso shall be calculated as follows: (1)
first, the “Series B Portion” shall equal (x) a fraction, the
numerator of which is the Total Series B Shares and the
denominator of which is the Total Necessary Shares
multiplied by (y) the number of Available Shares; and
(2) second, the number of shares of Series B Cumulative
Preferred Stock to be redeemed shall equal the number of shares
of Series B Cumulative Preferred Stock which, if redeemed and
the associated Series B Warrants were exercised in full (taking




19









 






	 	 	 	account of all shares of the Company’s Common Stock issuable
pursuant to Section 5(d)(iv) of the Series B Certificate of
Designation), would result in the issuance of a number of
shares of the Company’s Common Stock equal to the Series B
Portion;
	 
	 	(C)	 	redemptions of Series A
Cumulative Preferred Stock shall be made on a pro rata basis
among all holders thereof in proportion to the number of shares
of Series A Cumulative Preferred Stock held by each such holder;
and
	 
	 	(D)	 	redemptions of Series B
Cumulative Preferred Stock shall be made on a pro rata basis
among all holders thereof in proportion to the number-of shares
of Series B Cumulative Preferred Stock held by each such holder.





20









 





Appendix A 




     “2006 TRC Credit Agreement” means that certain Credit Agreement, dated as of November
24, 2006, by and among the Company, the subsidiary guarantors named therein, the lenders party
thereto and Credit Suisse, Toronto Branch as Agent, as amended by that certain Amendment and Waiver
No. 1 on the date hereof (as may be further amended, modified, supplemented, restated, refinanced,
restructured or replaced, including a replacement with a new agent and new lenders, from time to
time).



     “2006 TRC Facility” means the senior credit facility incurred by the Company pursuant
to the 2006 TRC Credit Agreement or any refinancing or replacement thereof established from time to
time.



     “2007 TRC Lender Warrants” means the warrants issued in connection with Amendment and
Waiver No. 1 to the 2006 TRC Credit Agreement



     “Amended and Restated Subordination Agreement (Intercompany)” means that certain
Amended and Restated Subordination Agreement dated as of the date hereof among Credit Suisse,
Toronto Branch, as agent under the Second Lien Credit Agreement, Credit Suisse, Toronto Branch as
agent under the 2006 TRC Credit Agreement, Wells Fargo Bank, N.A., as agent under the TRC
Subordinated Loan Agreement, the Company and TEC, as amended, modified or replaced.



     “Attributable Debt” means, in respect of any lease (whether characterized as an
operating lease under GAAP or not) entered into by a Person or a Subsidiary thereof as lessee, the
present value (discounted at the rate of interest implicit in such transaction, determined in
accordance with GAAP) of the lease payments of the lessee, including all rent and payments to be
made by the lessee in connection with the return of the leased property, during the remaining term
of the lease (including any period for which such lease has been extended or may, at the option of
the lessor, be extended) but excluding for certainty, (a) amounts required to be paid on account of
insurance, taxes, assessments, utility, operating and labor costs and similar charges and (b)
amounts payable by the lessee in connection with the exercise of any end-of-term purchase option,
early buyout option, voluntary termination option or any similar amounts payable at the election of
the lessee.



     “Backstop Parties Group” has the meaning set forth in the Stockholders Agreement.



     “Commodity Agreement” means any agreement for the making or taking of delivery of any
commodity (including, without limitation, Petroleum Substances), any commodity swap agreement,
floor, cap or collar agreement or commodity future or option or other similar agreements or
arrangements, or any combination thereof, entered into by the Company or a Subsidiary where the
subject matter of the same is any commodity or the price, value or amount payable thereunder is
dependent or based upon the price of any commodity or fluctuations in the price of any commodity,
but shall not include any agreement for the physical sale of Petroleum Substances by the Company or
a Subsidiary entered into in the ordinary course of business unless either (i) such agreement is
with a bank, investment bank, securities dealer, insurance company, trust company, pension fund,
institutional investor or any other financial institution or



1









 







any affiliate of any of the foregoing, or (ii) such agreement is entered into for hedging
purposes or otherwise for the purpose of eliminating or reducing the financial risk or exposure of
the Company or a Subsidiary to fluctuations in the prices of Petroleum Substances (and, for
certainty, any such agreement referred to in (i) or (ii) of this definition shall constitute a
“Commodity Agreement” for all purposes hereof).



     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.



     “Currency Hedging Agreement” means any currency swap agreement, cross currency
agreement, forward agreement, floor, cap or collar agreement, futures or options, insurance or
other similar agreement or arrangement, or any combination thereof; entered into by the Company or
a Subsidiary where the subject matter of the same is currency exchange rates or the price, value or
amount payable thereunder is dependent or based upon the currency exchange rates or fluctuations in
currency exchange sates as in effect from time to time.



     “Debt” means, with respect to the Company, all obligations, liabilities and
indebtedness of the Company and its Subsidiaries which would, in accordance with generally accepted
accounting principles, be classified upon a consolidated balance sheet of the Company as
liabilities of the Company and its Subsidiaries and, whether or not so classified, shall include
(without duplication):




     (a) indebtedness of the Company and its Subsidiaries for borrowed money;




     (b) obligations of the Company and its Subsidiaries arising pursuant or in relation to:
(i) bankers’ acceptances (including payment and reimbursement obligations in respect
thereof), or (ii) letters of credit and letters or guarantee supporting obligations which
would otherwise constitute Debt within the meaning of this definition or indemnities issued
in connection therewith;




     (c) obligations of the Company and its Subsidiaries with respect to drawings under all
other letters of credit and letters of guarantee;




     (d) obligations of the Company and its Subsidiaries under guarantees, indemnities,
assurances, legally binding comfort letters or other contingent obligations relating to the
indebtedness or other obligations of any other Person which would otherwise constitute Debt
within the meaning of this definition and all Financial Assistance including endorsements of
bills of exchange (other than for collection or deposit in the ordinary course of business);




     (e) (i) all indebtedness of the Company and its Subsidiaries representing the deferred
purchase price of any property to the extent that such indebtedness is or remains unpaid
after the expiry of the customary time period for payment, provided, however, that such time
period shall in no event exceed 90 days, and (ii) all obligations of the Company and its
Subsidiaries created or arising under any: (A) conditional sales agreement or other title
retention agreement or (B) capital lease;



2









 






     (f) all Attributable Debt of the Company and its Subsidiaries other than in respect of
(i) leases of office space or (ii) operating leases, in each case entered into in the
ordinary course of business;




     (g) Prepaid Obligations of the Company and its Subsidiaries;




     (h) all other long-term obligations (including the current portion thereof) upon which
interest charges are customarily paid prior to default by the Company;




     (i) all indebtedness of other Persons secured by a security interest on any asset of
the Company and its Subsidiaries, whether or not such indebtedness is assumed thereby;
provided that the amount of such indebtedness shall be the lesser of (i) the fair
market value of such asset at such-date of determination, and (ii) the amount of such
indebtedness, and such indebtedness shall only be Debt to the extent recorded as a liability
in accordance with GAAP; and




     (j) Financial Instrument Obligations;




but shall exclude each of the following, determined (as required) in accordance with GAAP:




     (a) accounts payable to trade creditors and accrued liabilities incurred in the
ordinary course of business;




     (b) taxes payable and future taxes;.




     (c) dividends or other equity distributions payable;




     (d) accrued interest not yet due and payable;




     (e) liabilities in respect of deferred reclamation costs, allowances for dismantlement
and site restoration and other deferred credits and liabilities;




     (f) TRC Subordinated Loans;




     (g) preferred equity in the capital of the Company, whether existing as of the date
hereof or thereafter issued (including accrued but unpaid dividends or other forms of
return) which in accordance with GAAP would be classified as debt; and




     (h) obligations that arise in connection with employee incentive programs in an
aggregate amount not to exceed $5,000,000 at any one time.



     “Equity Interests” means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other interests), and
other



3









 







ownership or profit interests in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any date of
determination.



     “Financial Assistance” means, with respect to any Person and without duplication, any
loan, guarantee, indemnity, assurance, acceptance, extension of credit, loan purchase, share
purchase, equity or capital contribution, investment or other form of direct or indirect financial
assistance or support of any other Person or any obligation (contingent or otherwise) intended to
enable another Person to incur or pay any Debt or to comply with agreements relating thereto or
otherwise to assure or protect creditors of the other Person against loss in respect of Debt of the
other Person and includes any guarantee of or indemnity in respect of the Debt of the other Person
and any absolute or contingent obligation to (directly or indirectly):




     (a) advance or supply funds for the payment or purchase of any Debt of any other
Person;




     (b) guarantee, indemnify, hold harmless or otherwise become liable to any creditor of
any other Person from or against any losses, liabilities or damages in respect of Debt; and




     (c) make an advance, loan or other extension of credit to or to make any subscription
for equity, equity or capital contribution, or investment in for the purpose of maintaining
the capital, working capital, solvency or general financial condition of another Person.




     The amount of any Financial Assistance is the amount of any loan or direct or indirect
financial assistance or support, without duplication, given, or all Debt of the obligor to
which the Financial Assistance relates, unless the Financial Assistance is limited to a
determinable amount; in which case the amount of the Financial Assistance is the
determinable amount



     “Financial Instrument” means any Interest Hedging Agreement, Currency Hedging
Agreement or Commodity Agreement.



     “Financial Instrument Obligation” means any obligations arising under Financial
Instruments entered into by the Company or a Subsidiary, to the extent of the net amount due or
accruing, due by the Company or Subsidiary thereunder (determined by marking to market the same in
accordance with their terms).



     “First Lien Cap Amount” means (i) the greater of US$40,000,000 and C$50,000,000 or
(ii) if the 2006 TRC Credit Agreement is then in effect, such lesser amount as shall equal the
“First Lien Cap Amount” as defined in the 2006 TRC Credit Agreement



     “First Lien Credit Agreement” means that certain Credit Agreement dated as of July 8,
2004 with The Toronto-Dominion Bank as agent of the lenders, the lenders party thereto and TD
Securities (USA) LLC as lead arranger and book manager, as amended and restated by that Credit
Agreement dated as of December 16, 2005, as amended by the Amending Agreement



4









 







dated as of April 13, 2006, as amended by the Second Amending Agreement dated as of April 26, 2006,
as amended by the Third Amending Agreement dated as of October 17, 2006, as amended by the Fourth
Amending Agreement dated as of November 9, 2006, as amended by the Fifth Amending Agreement dated
as of November 23, 2006, as amended by the Sixth Amending Agreement dated as of April 25, 2007, and
as amended by the First Lien Amendment dated as of the date hereof (as may be further amended,
modified, supplemented, restated, refinanced, restructured or replaced, including a replacement
with a new agent and new lenders, from time to time).



     “First Lien Facility” means the senior secured first lien revolving credit facility
incurred by TEC pursuant to the First Lien Credit Agreement or any refinancing or replacement
thereof established from time to time in accordance with the provisions of the Intercreditor
Agreement, including a “Refinancing”, as defined in the Intercreditor Agreement.



     “GAAP” means generally accepted accounting principles.



     “Intercreditor Agreement” means the Intercreditor Agreement dated as of April 26, 2005
by and between the agent under the First Lien Credit Agreement, the agent under the Second Lien
Credit Agreement and the Company, as amended by First Amendment dated as of December 16, 2005,
Second Amendment dated as of April 25, 2006, Third Amendment dated as of October 12, 2006, and
Fourth Amendment dated as of the date hereof; and as further amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with its terms.



     “Interest Hedging Agreement” means any interest swap agreement, forward rate
agreement, floor, cap or collar agreement, futures or options, insurance or other similar agreement
or arrangement, or any combination thereof, entered into by the Company or a Subsidiary where the,
subject matter of the same is interest rates or the price, value or amount payable thereunder is
dependent or based upon the interest rates or fluctuations in interest rates in effect from time to
time (but, for certainty, shall exclude conventional floating rate debt).



     “Majority Preferred Holders” has the meaning set forth in the Stockholders Agreement.



     “Material Subsidiary” means any Subsidiary of the Company which:




     (a) has Consolidated assets equal to or greater than 5.0% of the consolidated assets of
the Company;




     (b) has consolidated net income equal to or greater than 5.0% of the net income of the
Company determined on a consolidated basis;




     (c) owns or holds, directly or indirectly (whether through the ownership of or
investments in other Subsidiaries or otherwise) any ownership interest in any proved
reserves of Petroleum Substances which are included for purposes of the determination of the
Borrowing Base (as defined in the First Lien Credit Agreement in effect as the date hereof);
or



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     (d) is designated as a Designated Material Subsidiary, as such term is defined under
Section 6.01 of the TRC Subordinated Credit Agreement.



     “P&NG Rights” means all of the right, title, estate and interest, whether contingent
or absolute, legal or beneficial, present or future, vested or not, and whether or not an “interest
in land”, of the Company and its Subsidiaries in and to any of the following, by whatever name the
same are known:




     (a) rights to explore for, drill for and produce, take, save or market Petroleum
Substances;




     (b) rights to a share of the production of Petroleum Substances;




     (c) rights to a share of the proceeds of, or to receive payments calculated by
reference to the quantity or value of, the production of Petroleum Substances;




     (d) rights to acquire any of the rights described in subparagraphs (a) through (c) of
this definition;




     (e) interests in any rights described in subparagraphs (a) through (d) of this
definition; and




     (f) an extensions, renewals, replacements or amendments of or to the foregoing items
described in subparagraphs (a) through (e) of this definition;


and including, without limitation, interests and rights known as working interests, royalty
interests, overriding royalty interests, gross overriding royalty interests, production payments,
profits interests, net profits interests, revenue interests, net revenue interests, economic
interests and other interests and fractional or undivided interests in any of, the foregoing and
freehold, leasehold or other interests.




     “Permitted Debt” means:




     (a) obligations relating to the TRC Subordinated Credit Facility, the associated
aggregate principal amount of which shall not exceed C $120,000,000, plus the amount of
interest paid in kind on such obligations less any principal amount thereof prepaid with net
cash proceeds from any sale, transfer or other disposition of assets;




     (b) obligations relating to the 2006 TRC Credit Facility, the associated aggregate
principal amount of which shall not exceed the sum of $270,000,000 plus the amount of
interest paid in kind on such obligations, less any principal amount thereof prepaid;




     (c) obligations relating to the First Lien Facility, the associated aggregate principal
amount of which shall not exceed the First Lien Cap Amount; provided that any obligations
under the First Lien Facility in excess of C $10,000,000 may only be incurred in connection
with and for the sole purpose of providing support for Permitted Hedging and shall require
the approval of the Preferred Directors;



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     (d) obligations relating to the Second Lien Facility, the associated aggregate
principal amount of which shall not exceed the Second Lien Cap Amount, less any principal
amount thereof prepaid with net cash proceeds from any sale, transfer or other disposition
of assets;




     (e) TRC Subordinated Loans, provided that such Debt remains subordinated to the
obligations pursuant to the Amended and Restated Subordination Agreement (Intercompany) and
remains subject to the Amended and Restated Subordination Agreement (Intercompany);




     (f) Financial Instrument Obligations under and pursuant to Permitted Hedging;




     (g) any Debt or obligations associated therewith owing by a Subsidiary to another
Subsidiary or to the Company, by a Subsidiary to a Material Subsidiary which is a
Wholly-Owned Subsidiary and by the Company or TEC to a Material Subsidiary which is a
Wholly-Owned Subsidiary;




     (h) Attributable Debt of the Company or any Subsidiary arising in connection with
capital leases, provided that the aggregate outstanding principal amount of such
Attributable Debt shall not exceed C$10,000,000 at any one time; and (ii) Attributable
Debt of the Company or any Subsidiary arising in connection with operating leases entered
into in the ordinary course of business;




     (i) Purchase Money Obligations of the Company or any Subsidiary, provided that the
aggregate outstanding principal amount of such Purchase Money Obligations of the Company or
any Subsidiary shall not exceed C$5,000,000 at any one time;




     (j) Debt incurred by the Company or any Subsidiary arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations, or from guaranties
or letters of credit, surety bonds or performance bonds securing the performance of the
Company or a Subsidiary pursuant to such agreements, in connection with acquisitions,
investments or dispositions permitted hereunder;




     (k) Debt consisting of Financial Assistance, which underlying debt is permitted under
the definition of Permitted Debt; and




     (1) Debt of the Company and its Subsidiaries which is not otherwise Permitted Debt;
provided that the principal amount of such Debt does not, in the aggregate at any time,
exceed C$10,000,000.



     “Permitted Dispositions” means:




     (a) sales, leases, transfers and other dispositions of assets (including, without
limitation, any volume metric production payment, farm out or sale lease back) where the
aggregate net proceeds received by the Company and its Subsidiaries do not exceed, in the
aggregate, C$100,000,000 in any consecutive eighteen (18) month period;



7









 






     (b) a sale or disposition of P&NG Rights (and related tangibles) resulting from any
pooling or unitization entered into in the ordinary course of business and in accordance
with sound industry practice when, in the reasonable judgment of the Company, it is
necessary to do so in order to facilitate the orderly exploration, development or operation
of such P&NG Rights;




     (c) a sale or disposition by the Company or any of its Subsidiaries in the ordinary
course of business and in accordance with sound industry practice of tangible Personal
property that is obsolete, no longer useful for its intended purpose or being replaced in
the ordinary course of business;




     (d) a sale or disposition of assets (including shares or ownership interests) by a
Subsidiary to the Company or any other Material Subsidiary which is a Wholly-Owned
Subsidiary and by the Company to a Material Subsidiary which is a Wholly-Owned Subsidiary;




     (e) any transfers of assets upon a dissolution of a Subsidiary into the Company or a
Wholly-Owned Subsidiary of the Company; and




     (f) any sale or disposition of Petroleum Substances in the ordinary course of business.



     “Permitted Hedging” means Financial Instruments which are entered into in the ordinary
course of business and for hedging purposes and not for speculative purposes (determined, where
relevant, by reference to GAAP); provided that at all times: (a) no such contract requires the
Company or its Subsidiaries to put up money, assets or other security (excluding unsecured letters
of credit and, to the extent expressly permitted under the Second Lien Credit Agreement, Collateral
(as defined in the Second Lien Credit Agreement) under the Collateral Documents (as defined in the
Second Lien Credit Agreement) or collateral under the First Lien Credit Agreement) against the
event of its nonperformance prior to actual default by the Company or its Subsidiaries in
performing its obligations thereunder and (b) each such contract is with a counterparty or has a
guarantor of the obligation of the counterparty who at the time the contract is made is rated at
least A- by Standard and Poor’s Rating Group or A3 by Moody’s Investor Services, Inc.



     “Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof



     “Petroleum Substances” means any one or more of crude oil, crude bitumen, synthetic
crude oil, petroleum, natural gas, natural gas liquids, related hydrocarbons and any and all other
substances, whether liquid, solid or gaseous, whether hydrocarbons or not, produced or producible
in association with any of the foregoing, including hydrogen sulphide and sulphur.



     “Preferred Directors” has the meaning set forth in the Stockholders Agreement.



     “Prepaid Obligations” means “take-or-pay”, forward sale, prepaid or similar
liabilities of a Person whereby such Person is obligated to settle, at some future date, an
obligation in respect



8









 







of Petroleum Substances, whether by deliveries (accelerated or otherwise) of Petroleum
Substances, the payment of money or otherwise however, including the transfer of any Petroleum
Substances, whether in place or when produced, for a period of time until, or of an amount such
that, the lender or purchaser will realize therefrom a specified amount of money (however
determined, including by reference to interest rates or other factors which may not be fixed) or a
specified amount of such products or any interest in property of the character commonly referred to
as a “production payment” and all such obligations for which such Person is liable without having
received and retained a payment therefor or having assumed such obligation.



     “Purchase Money Obligation” means any monetary obligation created or assumed as part
of the purchase price of real or tangible personal property, whether or not secured, any
extensions, renewals or refundings of any such obligation, provided that the principal amount of
such obligation outstanding on the date of such extension, renewal or refunding is not increased
and further provided that any security given in respect of such obligation shall not extend to any
property other than the property acquired in connection with which such obligation was created or
assumed and fixed improvements, if any, erected or constructed thereon and the proceeds thereof.



     “Related Party” means any Person which is any one or more of the following: (a) an
Affiliate of the Company or any Subsidiary thereof; (b) a shareholder or partner of the Company,
TEC or any Subsidiary which, together with all Affiliates of such Person, owns or controls,
directly or indirectly, more than 10% of the shares, capital or other ownership interests (however
designated) of any of the foregoing, or an Affiliate of any such shareholder or partner; (c) a
member of the Backstop Parties Group or an Affiliate of any such member; and (d) an officer or
director of the Company, TEC or any Subsidiary which, together with all Affiliates of such Person,
has the power to vote, directly or indirectly more than 10% of the Voting Interests of any of the
foregoing.



     “Required Backstop Parties” has the meaning set forth in the Stockholders Agreement.



     “Second Lien Cap Amount” means $500,000,000; provided, that if the Company delivers a
Second Lien Incremental Borrowing Notice (as such term is defined in the 2006 TRC Credit Agreement)
in accordance with the TRC Subordinated Loan Agreement, the Second Lien Cap Amount will increase
dollar for dollar up to $550,000,000 by the principal amount of incremental obligations incurred
under the Second Lien Facility during the Second Lien Special Interest Period (as such term is
defined in the TRC Subordinated Loan Agreement), plus the incremental principal amounts arising
from payment-in-kind of interest on each such incremental obligation under the Second Lien Facility
(including the incremental principal amounts arising out of such payment-in-kind) accrued during
the period of twelve months from the date each such incremental obligation under the Second Lien
Facility is incurred.



     “Second Lien Credit Agreement” mean that Amended and Restated Credit Agreement dated
as of April 25, 2006 among TEC, the guarantors party thereto, the lenders defined therein and
Credit Suisse, Toronto Branch as administrative agent and collateral agent, as amended by Amendment
No. 1 dated as of October 12, 2006, as further amended by Amendment No. 2 dated as of April 12,
2007 and as amended by Amendment No. 3 (as may be further amended,



9









 







modified, supplemented, restated, refinanced, restructured or replaced, including a
replacement with a new agent and new lenders, from time to time).



     “Second Lien Facility” means the senior secured second lien credit facility incurred
by TEC pursuant to the Second Lien Credit Agreement or any refinancing or replacement thereof
established from time to time, which for greater certainty will include any other facility created
under the Second Lien Credit Agreement to provide the Second Lien Additional Financial Support (as
such term is defined in the TRC Subordinated Loan Agreement) consistent with the definition of
Second Lien Cap Amount herein.



     “Series B Cumulative Preferred Stock” means the Series B Cumulative Preferred Stock of
the Company, par value $0.0001 per share.



     “Stockholders Agreement” means the Fourth Amended and Restated Stockholders Agreement,
effective as of August 17, 2007, by and among the Company, the stockholders of the Company, TEC,
the shareholders of TEC and the members of the Backstop Parties Group, as such agreement may be
amended or modified from time to time.



     “Sub Debt Warrants” means the warrants issued to the Backstop Parities Group in
connection with the TRC Subordinated Loan Agreement and the warrants issued the lenders party to
the 2006 TRC Credit Agreement in connection with Amendment and Waiver No. 1 thereto.



     “Subsidiary” means, with respect to any Person:




     (a) any corporation of which at least a majority of the outstanding shares having by
the terms thereof ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time shares of any other class or classes
of such corporation might have voting power by reason of the happening of any contingency,
unless the contingency has occurred and then only for as long as it continues) is at the
time directly, indirectly or beneficially owned or controlled by such Person or one or more
of its Subsidiaries, or such Person and one or more of its Subsidiaries;




     (b) any partnership of which, at the time, such Person, or one or more of its
Subsidiaries, or such Person and one or more of its Subsidiaries: (i) directly, indirectly
or beneficially own or control more than 50% of the income, capital, beneficial or ownership
interests (however designated) thereof; and (ii) is a general partner, in the case of
limited partnerships, or is a partner or has authority to bind the partnership, in all other
cases, other than a partnership created solely to hold Equity Interests in the Company or
its Subsidiaries and that is not involved in the business of the Company or its
Subsidiaries; or




     (c) any other Person of which at least a majority of the income, capital, beneficial or
ownership interests (however designated) are at the time directly, indirectly or
beneficially owned or controlled by such Person, or one or more of its Subsidiaries, or such
Person and one or more of its Subsidiaries,



10









 






provided that, unless otherwise expressly provided or the context otherwise requires,
references herein to “Subsidiary” or “Subsidiaries” shall be and shall be deemed to be
references to Subsidiaries of the Company.



     “TEC” means Trident Exploration Corp., a Nova Scotia unlimited liability company.



     “TRC Subordinated Credit Facility” means the subordinated unsecured credit facility
incurred by the Company pursuant to the TRC Subordinated Loan Agreement or any refinancing or
replacement thereof established from time to time.



     “TRC Subordinated Lender” means the Company or any Subsidiary of the Company.



     “TRC Subordinated Loan Agreement” means that certain TRC Subordinated Loan Agreement
dated as of the date hereof among the. Company, the subsidiary guarantors named therein, the
Lenders party thereto and Wells Fargo Bank, N.A., as Administrative Agent for the Lenders party
thereto, as may be as amended, modified or replaced.



     “TRC Subordinated Loans” means one or more unsecured loans made by a TRC Subordinated
Lender to TEC that is subject at all times to the Amended and Restated Subordination Agreement
(Intercompany).



     “Voting Interests” means shares of capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or Persons performing
similar functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.



     “Wholly Owned Subsidiary” means a Subsidiary which is also:




     (a) a corporation, all of the issued and outstanding shares in the capital of which are
beneficially held by:




     (i) the Company;




     (ii) TEC;




     (iii)
the Company, TEC and one or more corporations, all of the issued and
outstanding shares in the capital of which are held by the Company or TEC; or




     (iv) two or more corporations, all of the issued and outstanding shares in the
capital of which are held by the Company or TEC;




     (b) a corporation which is a Wholly-Owned Subsidiary of a corporation that is a
Wholly-Owned Subsidiary of the Company or TEC;




     (c) a partnership, all of the partners of which are the Company, TEC and/or
Wholly-Owned Subsidiaries of the Company or TEC.



11









 






provided, that notwithstanding the foregoing TEC shall be deemed to be a Wholly-Owned
Subsidiary of the Company.




12