Exhibit
10.2


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


AMONG:              GIBSON
ENERGY ULC, as borrower (the “Borrower”)


 


AND:                      MOOSE JAW REFINERY ULC, CANWEST PROPANE ULC, MP ENERGY ULC, GEP ULC,
GIBSON ENERGY ULC, 1370307 ALBERTA LTD., GIBSON GCC INC., MOOSE JAW REFINERY
PARTNERSHIP, CANWEST PROPANE PARTNERSHIP, MP ENERGY PARTNERSHIP, GIBSON ENERGY
PARTNERSHIP, CHIEF HAULING CONTRACTORS ULC, LINK PETROLEUM SERVICES LTD., LINK
PETROLEUM, INC., GIBSON ENERGY (U.S.) INC., GEP MIDSTREAM FINANCE CORP., BATTLE
RIVER TERMINAL LP and BATTLE RIVER TERMINAL GP, INC. as guarantors (the
“Guarantors”)


 


AND:                      ROYAL BANK OF CANADA, as administrative agent (the “Agent”)


 


AND:                      ROYAL BANK OF CANADA and UBS LOAN FINANCE LLC, as lenders  (the “Lenders”)


 


WHEREAS the Borrower, the
Guarantors, the Agent, the Lenders, Royal Bank of Canada, as collateral agent,
Royal Bank of Canada, as syndication agent, UBS Securities LLC, as
documentation agent, and RBC Capital Markets and UBS Securities LLC, as lead
arrangers, are party to a credit agreement dated as of December 12, 2008,
as the same may be amended, restated, supplemented, revised or replaced from
time to time (the “Credit Agreement”);


 


AND WHEREAS the Lenders have agreed to
amend certain provisions of the Credit Agreement, but only to the extent and
subject to the limitations set forth herein (the “Agreement”);


 


NOW THEREFORE for good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereby agree as follows:


 


ARTICLE I — INTERPRETATION


 


1.1           All capitalized terms used herein and not otherwise
defined herein shall have the  meanings ascribed to such
terms in the Credit Agreement.


 


ARTICLE II — AMENDMENTS


 


2.1           Section 1.4 of the
Credit Agreement is hereby deleted and the following substituted  therefor:


 


“1.4        Bank Products and Hedge Agreements.


 


Borrower
may request and the Agent may, in its sole and absolute discretion, arrange for
Borrower and other Loan Parties (for the account of the Borrower) to obtain
Bank Products, including Overadvances (which shall be for the Borrower only),
from the BP Provider (for as long as Agent is the BP Provider, and at all times
when the BP Provider is not the Agent, such successor Agent) (the “BP


 

















 


Provider”)
or the BP Provider’s Affiliates and/or to obtain Hedge Agreements from Lenders
or their Affiliates although the Borrower or Loan Parties are not required to
do so. If Bank Products are provided by the BP Provider or an Affiliate of the
BP Provider and/or Hedge Agreements are provided by Lenders or their Affiliates
to Borrower or any Loan Party, Borrower and the other Loan Parties agree to
indemnify and hold the Agent, the BP Provider and the other Lenders harmless
from any and all costs and obligations now or hereafter incurred by the Agent,
the BP Provider or any other Lender which arise from any indemnity given by the
Agent, the BP Provider or such other Lender, as the case may be, to its
Affiliates related to such Bank Products; provided, however, (i) the
foregoing indemnity shall not extend to any costs or obligations with respect
to a Bank Product or Hedge Agreement provided by an Affiliate of the BP
Provider or an Affiliate of such Lender for which Borrower or any other Loan
Party would not be liable (without giving effect to the benefit of any setoff,
defence or counterclaim available to Borrower or any other Loan Party) and (ii) nothing
contained herein is intended to limit Borrower’s or any other Loan Party’s
rights, with respect to the BP Provider, Lenders or their Affiliates or their
respective Affiliates, if any, which arise as a result of the execution of
documents by and between Borrower or any other Loan Party and the BP Provider,
Lenders or their Affiliates, as applicable, which relate to Bank Products. The
agreements contained in this Section shall survive termination of this
Agreement as to Bank Products and other Hedge Agreements by Lenders outstanding
on the date of such termination; provided, however, that it is the intention of
the BP Provider and the Lenders that unless otherwise agreed by the Agent in
its sole discretion, no Bank Product or other Hedge Agreements may have a term
that exceeds the Stated Termination Date. Borrower and the other Loan Parties
acknowledge and agree that the obtaining of Bank Products from the BP Provider,
or any of its Affiliates, or Hedge Agreements from the Lenders, or any of their
respective Affiliates (a) is in the sole and absolute discretion of the BP
Provider, the Lenders or the applicable Affiliate of the BP Provider or the
Lenders, as the case may be, (b) is subject to all rules and
regulations of the BP Provider, the Lenders or the applicable Affiliate of the
BP Provider or the Lenders, as the case may be, and (c) shall be for the
account of the Borrower and any other Loan Party for whom such Bank Product may
be provided (it being agreed that the Borrower and such other Loan Party shall
be jointly and severally liable for same).”.


 


2.2           Section 3.7 of the
Credit Agreement is hereby amended as follows:


 


(a)           By inserting “or any other
Loan Party” immediately after the reference to “Borrower” in the tenth line
thereof;


 


(b)           By inserting “or any other
Loan Party” immediately after the reference to “Borrower” in the seventh line
of subsection (i) and subsection (ii) thereof; and


 


(c)           By inserting “or any other
Loan Party” immediately after the reference to “Borrower” in the penultimate
line of subsection (i) and subsection (ii) thereof.


 


2.3           Section 7.15(g) of the Credit Agreement is
hereby amended by deleting the phrase “in the  original principal amount of
US$570,000,000” and substituting “in an aggregate maximum principal amount not
to exceed US$660,000,000 at any time outstanding” therefor.


 


2

















 


2.4           Section 8.4 of the Credit Agreement is hereby
amended by inserting “or any other Loan  Party” immediately after the
reference to “Borrower” in the fifth line
thereof.


 


2.5           Section 12.17 of the Credit Agreement is hereby
amended by inserting “or any other  Loan Party” immediately
after the reference to “Borrower” in the ninth line thereof.


 


2.6           The definition of “Bank Products” in Annex A to the
Credit Agreement is hereby  amended as follows:


 


(a)           By inserting “or any other
Loan Party (for the account of the Borrower, it being agreed that the Borrower
shall be jointly and severally liable with such Loan Party in respect of such
Bank Products)” immediately after the reference to “Borrower” in the second
line thereof;


 


(b)           By inserting “(which shall
be for the Borrower only)” immediately after the reference to “Overadvances” in
the third line thereof; and


 


(c)           By inserting “or any other
Loan Party” immediately after the reference to “Borrower” in the ninth line
thereof.


 


2.7           The definition of “Bridge Facility” in Annex A to
the Credit Agreement is hereby deleted  and the following substituted
therefor:


 


““Bridge Facility” means
collectively, the Senior First Lien Bridge Facility and the Senior Second Lien
Bridge Facility and any conversion, replacement, takeout financing, exchange or
refinancing of such facilities or any other debt or other offering (by issuance
of notes or otherwise) in exchange, replacement or conversion thereof (in whole
or in part) and any additional debt permitted thereunder, or in connection
therewith, all as permitted under this Agreement.”


 


ARTICLE III — CONDITIONS TO EFFECTIVENESS


 


3.1           This Agreement shall become effective upon:


 


(a)           Agent receiving three (3) fully
executed original copies of this Agreement; and


 


(b)           Agent receiving certified
copy of resolutions, in form and substance satisfactory to the Agent, of the
board of directors of each of the Loan Parties authorizing the execution,
delivery and performance of this Agreement.


 


ARTICLE IV — REPRESENTATIONS AND WARRANTIES


 


4.1           In order to induce the Agent and the Lenders to
enter into this Agreement in the manner  provided herein, the Loan
Parties represent and warrant to the Agent and the Lenders, that the following
statements are true and correct:


 


(a)           Authorization, Validity, and
Enforceability of this Agreement.  Each of the Loan Parties have the corporate
power and authority to execute and deliver this


 


3

















 


Agreement
and to perform the Credit Agreement. Each of the Loan Parties have taken all
necessary corporate action or any other organizational action (including,
without limitation, obtaining approval of their shareholders or other
equityholders if necessary) to authorize their execution and delivery of this
Agreement and the performance of the Credit Agreement. This Agreement has been
duly executed and delivered by the each of the Loan Parties and this Agreement
and the Credit Agreement constitute the legal, valid and binding obligations of
each of the Loan Parties, enforceable against them in accordance with their
respective terms (except as such enforceability may be subject to bankruptcy,
insolvency, moratorium, reorganization, arrangement, voidable preference,
fraudulent conveyance and other similar laws relating to or affecting the
rights of creditors generally and except as the same may be subject to the
effect of general principles of equity). The Loan Parties’ execution and
delivery of this Agreement and the performance by each of the Loan Parties of
the Credit Agreement do not and will not conflict with, or constitute a
violation or breach of, or result in the creation or imposition of any Lien
upon the property of each of the Loan Parties (other than Liens granted by such
Loan Party under any of the Loan Documents and the Transaction Documents (as
permitted under the Credit Agreement and under the Intercreditor Agreement)) by
reason of the terms of (a) any contract, mortgage, lease, agreement,
indenture or instrument to which such Loan Party is a party or which is binding
upon it to the extent such breach or violation would not have a Material Adverse
Effect, (b) any Requirement of Law applicable to such Loan Party (other
than those which are customarily satisfied after closing by filings or
registrations made in connection with the Gibson Acquisition) or (c) the
certificate or articles of incorporation, by laws or the limited liability
company or limited partnership agreement or partnership agreement or other
organizational documents of such Loan Party, except, in the case of the
foregoing clause (a), to the extent such breach or violation would not have a
Material Adverse Effect.


 


(b)           Governmental Authorization. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any governmental authority or other person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against each of the Loan Parties or any Subsidiaries of this Agreement or the
Credit Agreement except those the failure of which to obtain or take would not
have a Material Adverse Effect.


 


(c)           Incorporation of
Representations and Warranties From Credit Agreement. The
representations and warranties contained in Article 6 of the Credit
Agreement are true and correct in all material respects on and as of the date
of this Agreement to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.


 


(d)           Absence of Default. No event has
occurred and is continuing or will result from the execution of this Agreement
that would constitute a Default or an Event of Default.


 


4

















 


ARTICLE V — GUARANTOR ACKNOWLEDGMENT


 


5.1           Each Guarantor (i) consents to and approves the
execution and delivery of this  Agreement by the parties
hereto, (ii) agrees that this Agreement does not and shall not limit or
diminish in any manner the obligations of such Guarantors under its guarantee
delivered in favour of the Agent and the Lenders under the Credit Agreement
(the “Guarantee”) and that such obligations would not be limited or diminished
in any manner even if the undersigned had not executed this Agreement, (iii) agrees
that this Agreement shall not be construed as requiring the consent of such
Guarantors in any other circumstance, (iv) reaffirms its obligations under
the Guarantee, and (v) agrees that the Guarantee remains in full force and
effect and is hereby ratified and confirmed.


 


ARTICLE VI — MISCELLANEOUS


 


6.1           The execution, delivery and performance of this
Agreement shall not, except as expressly  provided for herein,
constitute a waiver of any provision of, or operate as a waiver of any right,
power or remedy of the Agent and/or the Lenders under the Credit Agreement or
any other document.


 


6.2           This Agreement shall be interpreted and the rights
and liabilities of the parties hereto  shall be determined in
accordance with the laws of the Province of Alberta and the federal laws of
Canada applicable therein.


 


6.3           Save as expressly amended by this Agreement, all
other terms and conditions of the  Credit Agreement remain in
full force and effect. All other documents remain in full force and effect.


 


6.4           This Agreement may be executed in any number of
counterparts (and by different parties  hereto in different
counterparts), each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopier or other electronic means shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


5






 










 


DATED as of the 26th day of MAY,
2009


 


	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GIBSON ENERGY ULC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Don A. Fowlis

  
	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  “GUARANTORS”

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  



 

















 


	
   

  	
  GEP ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1370307 ALBERTA LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/ Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  



 

















 


	
   

  	
  CANWEST PROPANE PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Don A. Fowlis

  
	
   

  	
   

  	
  Name:

  	
  DON A. FOWLIS

  
	
   

  	
   

  	
  Title:

  	
  SENIOR
  VICE PRESIDENT FINANCE

  



 

















 


	
   

  	
  LINK PETROLEUM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY (U.S.) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GEP MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Robert M. Tichio

  
	
   

  	
   

  	
  Name:

  	
  Robert
  M. Tichio

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL GP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Murray Carey

  
	
   

  	
   

  	
  Name:

  	
  T. Murray Carey

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  



 

















 


	
   

  	
  “AGENT”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Ann Hurley

  
	
   

  	
   

  	
  Name:

  	
  Ann
  Hurley

  
	
   

  	
   

  	
  Title:

  	
  Manager,
  Agency

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  “LENDERS”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Robert S. Kizell

  
	
   

  	
   

  	
  Name:

  	
  Robert
  S. Kizell

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Irja R. Otsa

  
	
   

  	
   

  	
  Name:

  	
  Irja
  R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director Banking Products Services, US

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Per:

  	
  /s/
  Marie A. Haddad

  
	
   

  	
   

  	
  Name:

  	
  Marie
  A. Haddad

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director Banking Products Services, US