Exhibit 4.20


 


Execution Copy


 


GIBSON ENERGY ULC,




GEP MIDSTREAM FINANCE CORP.


 


and


 


THE BANK OF NEW YORK MELLON


as Trustee


 






 


BNY TRUST COMPANY OF CANADA

as Collateral Agent


 






 


11.75% FIRST LIEN SENIOR SECURED NOTES DUE 2014


 






 


FIRST SUPPLEMENTAL INDENTURE


 






 


Dated as of January 11, 2010


 

















 


FIRST SUPPLEMENTAL INDENTURE, dated as of January 11,
2010 (the “First Supplemental Indenture”), among GIBSON ENERGY ULC, an
Alberta unlimited liability corporation (the “Company”), GEP MIDSTREAM
FINANCE CORP., an Alberta corporation (“Finance Corp.” and, together
with the Company, the “Issuers”), each of the Guarantors party hereto,
THE BANK OF NEW YORK MELLON, a New York banking corporation, as Trustee (the “Trustee”)
and BNY TRUST COMPANY OF CANADA, a trust company organized under the laws of
Canada, as collateral agent (the “Collateral Agent”).


 


WHEREAS, the Company has duly issued its 11.75%
First Lien Senior Secured Notes due 2014 (the “Notes”), in the aggregate
principal amount of $560,000,000 pursuant to an Indenture dated as of May 27,
2009, among the Issuers, the Guarantors named therein, the Trustee and the
Collateral Agent (the “Indenture”); and


 


WHEREAS, Section 9.02 of the Indenture provides
that the Issuers, the Trustee and the Collateral Agent may amend any provision
of the Indenture (other than certain provisions enumerated in Section 9.02
of the Indenture, none of which provisions are implicated hereby) with the
written consent of the Holders (as defined in the Indenture) of at least a
majority in aggregate principal amount of the then outstanding Notes and
execute a supplemental indenture; and


 


WHEREAS, the Company solicited, and has received,
consents upon the terms and subject to the conditions set forth in the Consent
Solicitation Statement dated January 4, 2010, from Holders representing at
least a majority in aggregate principal amount of its outstanding Notes to
certain amendments described therein to the Indenture; and


 


WHEREAS, it is provided in Section 9.04 of the
Indenture that a supplemental indenture becomes effective in accordance with
its terms and thereafter binds every Holder;


 


NOW, THEREFORE, the parties hereto agree as follows:


 


I.                                         DEFINITIONS.


 


A.            Capitalized
terms not defined herein shall have the meaning given to such terms in the Indenture.


 


B.            The
following definitions are hereby added to Section 1.01 (Definitions) of the Indenture:


 


“Bridge Loans” means the indebtedness of
the Company outstanding under that certain $230.0 million first lien senior
secured interim credit agreement and $315.0 million second lien senior secured
interim credit agreement outstanding prior to the Issue Date and refinanced
with the proceeds of the offering of the Notes on the Issue Date.


 


“Refinancing” means the repayment by the
Company on the Issue Date of the Bridge Loans.


 


C.            The following
provisions set forth in Section 1.01 (Definitions) of
the Indenture are hereby amended as follows:


 

















 


Subsection (11) of the definition of “Consolidated
Net Income” is deleted in its entirety and replaced with the following:


 


(11)         other
than for purposes of calculating the Restricted Payments Basket, any
extraordinary or nonrecurring gain or loss (including the foreign exchange gain
resulting from the Refinancing), together with any related provision for taxes
on any such extraordinary or nonrecurring gain or loss, realized by the Company
or any Restricted Subsidiary during such period; and


 


II.                                     ADDITIONAL NOTES.


 


A.            Section 4.09
of the Indenture is hereby amended and restated in its entirety as follows:


 


Section 4.09.          Limitations on Additional
Indebtedness.


 


(a)           The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, incur any
Indebtedness; provided that an Issuer or any
Subsidiary Guarantor may incur additional Indebtedness and any Restricted
Subsidiary may incur Acquired Indebtedness, in each case, if, after giving
effect thereto, the Consolidated Interest Coverage Ratio would be at least 2.00
to 1.00 (the “Coverage Ratio Exception”).


 


(b)           Notwithstanding the provisions of Section 4.09(a),
each of the following shall be permitted (the “Permitted
Indebtedness”):


 


(1)           Indebtedness and
other Obligations, including Hedging Obligations, of a Securitization
Subsidiary, the Company and/or any Subsidiary Guarantor under any Liquidity
Facility in an aggregate amount outstanding at the time of such incurrence not
in excess of the Borrowing Base;


 


(2)           the Notes issued on
the Issue Date and the Note Guarantees and the Exchange Notes and the Note
Guarantees in respect thereof to be issued pursuant to the Registration Rights
Agreements;


 


(3)           Indebtedness of the
Company and the Restricted Subsidiaries to the extent outstanding on the Issue
Date after giving effect to the intended use of proceeds of the Note (other
than Indebtedness referred to in Section 4.09(b)(1), (2) or (5));


 


(4)           Indebtedness under
Hedging Obligations entered into for bona fide hedging purposes of the Company
or any Restricted Subsidiary not for the purpose of speculation (including
those that are designed to protect against fluctuations in interest rates, foreign
currency exchange rates and commodity prices); provided
that in the case of Hedging Obligations relating to interest rates, (a) such
Hedging Obligations relate to payment obligations on Indebtedness otherwise
permitted to be incurred by this Section 4.09, and (b) the notional
principal amount of such Hedging Obligations at the time incurred does not
exceed the principal amount of the Indebtedness to which such Hedging
Obligations relate;


 


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(5)           Indebtedness of the
Company owed to a Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary owed to the Company or any other Restricted Subsidiary; provided, however, that
upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
such Indebtedness being owed to any Person other than the Company or a
Restricted Subsidiary, the Company or such Restricted Subsidiary, as applicable,
shall be deemed to have incurred Indebtedness not permitted by this clause (5);


 


(6)           Indebtedness in
respect of bid, performance or surety bonds or obligations of a similar nature
issued for the account of the Company or any Restricted Subsidiary in the
ordinary course of business, including guarantees or obligations of the Company
or any Restricted Subsidiary with respect to letters of credit supporting such
bid, performance or surety obligations (in each case other than for an
obligation for money borrowed);


 


(7)           Purchase Money
Indebtedness incurred by the Company or any Restricted Subsidiary, and
Refinancing Indebtedness thereof, in an aggregate amount not to exceed at any
time outstanding the greater of (a) $15.0 million and (b) 2.0% of
Consolidated Net Tangible Assets at that time;


 


(8)           Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within fifteen Business Days of incurrence;


 


(9)           Indebtedness arising
in connection with endorsement of instruments for deposit in the ordinary
course of business;


 


(10)         Refinancing
Indebtedness with respect to Indebtedness incurred pursuant to the Coverage
Ratio Exception or Section 4.09(b)(2), (3), (7) or (15) or this
clause (10);


 


(11)         Indebtedness arising
from indemnification, adjustment of purchase price, earn-out or similar
obligations, in each case, incurred or assumed in connection with the
acquisition or disposition of any business or assets of the Company or any
Restricted Subsidiary or Equity Interests of a Restricted Subsidiary, other
than guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Equity Interests for the purpose of
financing or in contemplation of any such acquisition; provided
that (a) any amount of such obligations included on the face of the
balance sheet of the Company or any Restricted Subsidiary shall not be permitted
under this clause (11) and (b) in the case of a disposition, the maximum
aggregate liability in respect of all such obligations outstanding under this
clause (11) shall at no time exceed the gross proceeds actually received by the
Company and the Restricted Subsidiaries in connection with such disposition;


 


(12)         Indebtedness
consisting of Indebtedness issued by the Company or any Restricted Subsidiary
to future, current or former officers, directors, consultants and employees
thereof, their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Company or any direct or
indirect parent company of the Company to the extent permitted by Section 4.07(b)(4);


 


3

















 


(13)         any guarantee by the
Company or any of the Guarantors of Indebtedness of the Company or a Restricted
Subsidiary that was permitted to be incurred by another provision of this Section 4.09;
provided that if the Indebtedness being guaranteed
is subordinated to or pari passu with
the Notes, then the guarantee must be subordinated or pari passu
to the same extent as the Indebtedness guaranteed;


 


(14)         Indebtedness of the
Company or any Restricted Subsidiary in an aggregate amount not to exceed the
greater of (a) $30.0 million and (b) 2% of Consolidated Net Tangible
Assets at any time outstanding; and


 


(15)         Indebtedness of the
Company or any Restricted Subsidiary in an aggregate amount not to exceed $200
million at any time outstanding; provided that such Indebtedness (i) is
incurred within 180 days of the date of this First Supplemental Indenture; (ii) bears
interest at a rate no greater than 12% per annum; (iii) may not be
secured; (iv) has a final maturity date that is no earlier than 91 days
after the final maturity date of the Notes; and (v) may not by its terms
be redeemable at the Company’s option prior to the date on which the aggregate
principal amount of Notes outstanding is less than $100 million other than (a) with
the net cash proceeds of one or more Qualified Equity Offerings or, (b) in
the event that the issuer of such Indebtedness has become, or has reasonably
determined that it would become, obligated to pay on the next date on which any
amount would be payable with respect to such Indebtedness, any Additional
Amounts as a result of a Change in Tax Law, if such Change in Tax Law is
announced and becomes effective on or after the issue date of such Indebtedness
and the issuer of such Indebtedness reasonably determines that such obligation
cannot be avoided by the use of reasonable measures available to them (not
including a substitution of the issuer); provided that
any optional redemption pursuant to this clause (b) may be made only with
the cash proceeds of a Qualified Equity Offering or the incurrence of
Refinancing Indebtedness.


 


For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one
of the categories of Permitted Indebtedness described in clauses (1) through
(15) above or is entitled to be incurred pursuant to the Coverage Ratio
Exception, the Company shall, in its sole discretion, classify such item of
Indebtedness and may divide and classify such Indebtedness in more than one of
the types of Indebtedness described, except that Indebtedness outstanding under
the Liquidity Facilities on the Issue Date shall be deemed to have been
incurred under clause (1) above, and may later reclassify any item of
Indebtedness described in clauses (1) through (15) above (provided that at the time of reclassification it meets the
criteria in such category or categories). 
In addition, for purposes of determining any particular amount of
Indebtedness under this Section 4.09, guarantees, Liens or letter of credit
obligations supporting Indebtedness otherwise included in the determination of
such particular amount shall not be included so long as incurred by a Person
that could have incurred such Indebtedness.


 


The accrual of interest or preferred stock dividends
and the accretion or amortization of original issue discount will not be deemed
to be an incurrence of Indebtedness or an issuance of Disqualified Equity
Interests for purposes of this Section 4.09; provided,
in each such case, that the amount of any such accrual or accretion is included
in Consolidated Interest Expense of the Company as accrued.  For purposes of determining compliance with
any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the
Dollar Equivalent principal 


 


4

















 


amount of Indebtedness denominated
in a foreign currency shall be utilized, calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was
incurred.  Notwithstanding any other
provision of this Section 4.09, the maximum amount of Indebtedness that
the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09
shall not be deemed to be exceeded solely as a result of fluctuations in
exchange rates or currency values.


 


III.                                 EFFECTIVE DATE.


 


This First Supplemental
Indenture shall become effective on the date hereof.


 


IV.                                MISCELLANEOUS.


 


A.                   Governing Law.


 


THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED, INTERPRETED AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.  THE COMPANY AND EACH
GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.  THE COMPANY AND EACH GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  THE COMPANY AND EACH GUARANTOR IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH IN THE
INDENTURE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN
ANY OTHER JURISDICTION.


 


5














 


B.                     Continuing
Agreement.


 


Except as herein amended, all terms, provisions and
conditions of the Indenture, all Exhibits thereto and all documents executed in
connection therewith shall continue in full force and effect and shall remain
enforceable and binding in accordance with their terms.


 


C.                                     Waiver.


 


The execution, delivery and effectiveness of this
First Supplemental Indenture shall not operate or be construed as a waiver or
forbearance with respect to Defaults or Events of Default under the Indenture or
the Notes, if any, which may now or hereafter exist or the waiver of any right,
power or remedy which the Holders or the Trustee may have with respect thereto
under the Indenture, the Notes or applicable law.  Any and all rights which may now or hereafter
exist in favor of Holders or the Trustee under the Indenture, the Notes or
applicable law are reserved for the Holders and the Trustee, respectively.


 


D.                    Conflicts.


 


In the event of a conflict between the terms and
conditions of the Indenture and the terms and conditions of this First
Supplemental Indenture, then the terms and conditions of this First
Supplemental Indenture shall prevail.


 


E.                      Counterpart
Originals.


 


The parties may sign any number of copies of this
First Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.


 


F.                      Headings, Etc.


 


The headings of the Sections of this First
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof and shall in no way modify or restrict
any of the terms or provisions hereof.


 


G.                     Trustee’s
Disclaimer.


 


The recitals contained herein shall be taken as the
statements of the Issuers and the Guarantors and the Trustee assumes no
responsibility for their correctness. 
The Trustee makes no representation as to the validity or sufficiency of
this First Supplemental Indenture.


 


[SIGNATURES
ON FOLLOWING PAGES]


 


6

















 


SIGNATURES


 


IN WITNESS WHEREOF, the parties hereto have executed
and delivered this First Supplemental Indenture as of the date first written
above.


 


	
   

  	
  GIBSON
  ENERGY ULC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  GEP
  MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert M. Tichio

  
	
   

  	
   

  	
  Name:
  Robert M. Tichio

  
	
   

  	
   

  	
  Title:
  President and Secretary

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  GIBSON
  ENERGY (U.S.) INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:
  President

  
	
   

  	
  LINK
  PETROLEUM, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GIBSON ENERGY HOLDING ULC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY PARTNERSHIP

  
	
   

  	
  by its managing partner, 

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 

















 


	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CANWEST PROPANE PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GIBSON ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 

















 


	
   

  	
  GEP ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC.

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL LP

  
	
   

  	
  by its general partner,

  
	
   

  	
  Battle River Terminal GP
  Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL GP
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 

















 


	
   

  	
  BRIDGE CREEK TRUCKING LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 

















 


	
   

  	
  THE
  BANK OF NEW YORK MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lici Zhu

  
	
   

  	
   

  	
  Name:

  	
  Lici
  Zhu

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY
  TRUST COMPANY OF CANADA,

  
	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Farhan Mir

  
	
   

  	
   

  	
  Name:
  Farhan Mir

  
	
   

  	
   

  	
  Title:
  Authorized Signatory