EX-5.4 13 a2197699zex-5_4.htm EXHIBIT 5.4

Exhibit 5.4

 

April 26, 2010

 

Gibson (U.S.) Acquisitionco Corp.

Gibson Energy Holding ULC

Gibson Energy ULC

GEP Midstream Finance Corp.

Moose Jaw Refinery ULC

Canwest Propane ULC

MP Energy ULC

GEP ULC

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.

Battle River Terminal GP Inc.

Battle River Terminal Limited Partnership

Bridge Creek Trucking Ltd.

Johnstone Tank Trucking Ltd.

AARCAM Propane & Construction Heat Ltd.

 

Dear Sirs/Mesdames:

 

Re:          Gibson Energy ULC (the “Company”) and GEP Midstream Finance Corp. (the “Co-issuer”) exchange offer respecting US $560,000,000 aggregate principal amount 11.75% First Lien Secured Notes due May 27, 2014 (the “Senior Secured Notes”) and US $200,000,000 aggregate principal amount 10% Senior Notes due January 15, 2018 (the “Senior Notes”).

 

Introduction

 

We have acted as Saskatchewan counsel to the Company, the Co-issuer, Gibson Energy Holding ULC (the “Parent”), and to Moose Jaw Refinery ULC (“MJR ULC”), Canwest Propane ULC (“CW ULC”), MP Energy ULC (“MP ULC”), GEP ULC, Gibson GCC Inc. (“Gibson GCC”), Moose Jaw Refinery Partnership (“MJR Partnership”), Canwest Propane Partnership (“CW Partnership”), MP Energy Partnership (“MP Partnership”), Gibson Energy Partnership (“GE Partnership”), Chief Hauling Contractors ULC (“Chief”), Link Petroleum Services Ltd. (“Link Petroleum Services”), Link Petroleum, Inc., Gibson Energy (U.S.) Inc., Battle River Terminal GP Inc. (“BRGP”), Battle River Terminal Limited Partnership (“BR Partnership”), Bridge Creek Trucking Ltd. (“Bridge Creek”), Johnstone Tank Trucking Ltd. (“Johnstone”), AARCAM

 


 

Propane & Construction Heat Ltd. and Gibson (U.S.) Acquisitionco Corp. (each a “Guarantor”, and collectively the “Guarantors”) in connection with the offering and issue by the Company and the Co-issuer, pursuant to registration rights agreements dated May 27, 2009 in respect of the Senior Secured Notes (the “2009 Registration Rights Agreement”) and dated January 19, 2010 in respect of the Senior Notes (the “2010 Registration Rights Agreement” and together with the 2009 Registration Rights Agreement the “Registration Rights Agreements”), each of the Registration Rights Agreements being made by and among the Company, the Co-issuer and the Guarantors and the Initial Purchasers (as such term is defined in the Registration Rights Agreement), of Registerable Notes (as such term is defined in the applicable Registration Rights Agreements and collectively, the Senior Secured Notes and the Senior Notes are the Registerable Notes) in exchange for Exchange Notes (as such term is defined in the Registration Rights Agreements).

 

Unless otherwise specifically stated herein, all capitalized terms used herein which are defined in the Registration Rights Agreements have the respective meanings ascribed to them in the Registration Rights Agreements.

 

Scope of Review

 

As Saskatchewan counsel for the Company, the Co-issuer and the Guarantors, we have reviewed, among other things:

 

1.             the Registration Rights Agreements;

 

2.             the registration statement of the Company, the Co-issuer and the Guarantors named therein on Form F-4 dated February 12, 2010, as filed with the United States Securities and Exchange Commission, in respect of the registration of the Registerable Notes and the Exchange Offer (as such term is defined in the Registration Rights Agreement)  under the United States Securities Act of 1933, as amended (the “Registration Statement”);

 

3.             the Registerable Notes;

 

4.             the indenture in respect of the Senior Secured Notes made as of May 27, 2009 and first supplemented as of January 11, 2010 supplemented a second time as of February 12, 2010 and supplemented a third time as of April 26, 2010 among the Company, the Co-issuer, the Guarantors, the Bank of New York Mellon, as trustee and BNY Trust Company of Canada, as collateral agent (the “2009 Indenture”);

 

5.             the indenture in respect of the Senior Notes made as of January 19, 2010 and first supplemented as of April 26, 2010 among the Company, the Co-issuer, the Guarantors and the Bank of New York Mellon, as trustee (the “2010 Indenture”);

 

6.             a guarantee dated May 27, 2009 granted by MJR Partnership, MJR ULC, CW Partnership, CW ULC, MP Partnership, MP ULC, GE Partnership, GEP ULC, Link Petroleum Services, Chief, Gibson GCC, BRGP, BRLP and Bridge (collectively, the “Subsidiary Guarantors”) to and in favour of the Trustee and the other Creditors (as such terms are defined therein);

 

7.             a guarantee dated May 27, 2009 granted by the Borrower and Co-issuer to and in favour of the Trustee and the other Creditors (as such terms are defined therein);

 

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8.             a guarantee dated May 27, 2009 granted by the Parent to and in favour of the Trustee and the other Creditors (as such terms are defined therein);

 

9.             a guarantee dated January 19, 2010 granted by the Subsidiary Guarantors to and in favour of the Trustee and the other Creditors (as defined therein);

 

10.           a guarantee dated January 19, 2010 granted by the Borrower and Co-issuer to and in favour of the Trustee and the other Creditors (as defined therein);

 

11.           a guarantee dated January 19, 2010 granted by the Parent to and in favour of the Trustee and the other Creditors (as defined therein); and

 

12.           Subsidiary Guarantee Joinder Agreement dated February 9, 2010 between Johnstone and the Trustee (as defined therein) in respect of Johnstone becoming a Guarantor.

 

The documents set forth in paragraphs 6 through 12 are referred to collectively as the “Guarantees”.  The Registration Rights Agreements, the Registration Statement, Exchange Notes, the 2009 Indenture, the 2010 Indenture and the Guarantees are collectively referred to herein as the “Transaction Documents” and individually as a “Transaction Document”.

 

In addition, in connection with the opinions hereinafter expressed, we have considered such question of law and we have examined such statutes and regulations, corporate records, certificates and other documents as we have deemed relevant and necessary as the basis for the opinions hereinafter set forth.

 

In this opinion letter, Bridge Creek and Johnstone are referred to collectively as the “Saskatchewan Corporate Transaction Parties” and individually as a “Saskatchewan Corporate Transaction Party”; the Saskatchewan Corporate Transaction Parties, the Company, MJR ULC, CW ULC, MP ULC and GEP ULC are referred to collectively as the “Corporate Transaction Parties” and individually as a “Corporate Transaction Party”; MJR Partnership, CW Partnership, MP Partnership, GE Partnership and BR Partnership are referred to collectively as the “Partnership Transaction Parties” and individually as a “Partnership Transaction Party”.

 

We have also examined for the purposes of this opinion letter the following, and we have relied on the same as to various matters of fact expressed therein for purposes of the opinions expressed below:

 

1.             Certificates of Status issued by the Corporations Branch of the Department of Justice of Saskatchewan (the “Saskatchewan Corporations Branch”) in respect of each of the Corporate Transaction Parties dated April 26, 2010 (the “Corporate Transaction Parties’ Certificates of Status”);

 

2.             Certificates of Status issued by the Saskatchewan Corporations Branch in respect of each of the Partnership Transaction Parties (other than BR Partnership) dated April 26, 2010 (the “Partnership Transaction Parties’ Certificates of Status”);

 

3.             Saskatchewan Corporations Branch Corporate Profile Report searches for each of the Corporate Transaction Parties and the Partnership Transaction Parties dated April 26, 2010;

 

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4.             a Certificate of the Company, MJR ULC, CW ULC, MP ULC, GEP ULC, Bridge Creek, Chief, Gibson GCC, BRGP, Link Petroleum Services, Link Petroleum, Inc. and Gibson Energy (U.S.) Inc. (collectively, the “Officer’s Certificate Corporations” and each individually, an “Officer’s Certificate Corporation”) and the Partnership Transaction Parties dated May 27, 2009 containing, among other things, a certified copy of the articles and by-laws of each such Officer’s Certificate Corporations, a certified copy of each of the MJR Partnership partnership agreement, the CW Partnership partnership agreement, the MP Partnership partnership agreement, the GE Partnership partnership agreement and the BR Partnership agreement (collectively, the “Partnership Agreements”), a certified copy of the certificate of limited partnership for the BR Partnership and a certified copy of a resolution of the directors of each such Officer’s Certificate Corporation, the Company, as the managing partner of each Partnership Transaction Party (other than BR Partnership) and BRGP, as the general partner of the BR Partnership, and an extraordinary resolution of the partners of each Partnership Transaction Party (other than BR Partnership), in each case relating to the Transaction Documents to which it is a party; and

 

5.             a Certificate of the Officer’s Certificate Corporations and the Partnership Transaction Parties dated January 19, 2010 containing, among other things, a certified copy of the articles and by-laws of each such Officer’s Certificate Corporation, a certified copy of each of the Partnership Agreements, a certified copy of the certificate of limited partnership for the BR Partnership and a certified copy of a resolution of the directors of each such Officer’s Certificate Corporation, the Company, as the managing partner of each Partnership Transaction Party (other than BR Partnership) and BRGP, as the general partner of the BR Partnership, and an extraordinary resolution of the partners of each Partnership Transaction Party (other than BR Partnership), in each case relating to the Transaction Documents to which it is a party.

 

6.             a Certificate of Johnstone dated February 9, 2010 containing, among other things, a certified copy of the articles and by-laws of Johnstone and a certified copy of a resolution of the directors of Johnstone relating to the Transaction Documents to which it is a party.

 

We have also made such investigations, examined such certificates of public authorities, corporate and partnership records and other documents certified or otherwise identified to our satisfaction, and considered such questions of law as we have considered necessary to provide the opinions expressed herein.

 

Assumptions

 

In providing the opinions expressed herein, we have assumed:

 

(a)           the genuineness of all signatures, except those of signatories for the Transaction Parties, on all documents submitted to us as originals and on the originals of all documents submitted to us as copies;

 

(b)           the authenticity of all documents submitted to us as originals and the originals of all documents submitted to us as copies;

 

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(c)           the conformity to authentic original documents of all documents submitted to us as certified, conformed, facsimile, PDF or photostatic copies of original documents;

 

(d)           the indices and filing systems maintained at public offices that we have searched were accurate and complete on the dates of our searches;

 

(e)           the veracity and completeness of all information contained in all documents submitted to us;

 

(f)            the identity and legal capacity at all relevant times of any natural person;

 

(g)           all documents submitted to us have been executed in the form reviewed by us and have not been rescinded, amended, supplemented or otherwise modified since the date thereof by written or oral agreement or by conduct of the parties thereto, or otherwise;

 

(h)           no “distribution” or “trade” (as such terms are defined in The Securities Act, 1988 (Saskatchewan)) shall occur in the Province of Saskatchewan as a result of the Exchange Offer and the issuance of the Registerable Notes;

 

(i)            all certificates, letters or lists issued by governmental authorities or agencies referred to herein remain accurate as of the date hereof; and

 

(j)            there is no foreign law (as to which we have made no independent investigation) that would affect the opinions expressed here.

 

Applicable Law

 

We are solicitors qualified to carry on the practice of law in Saskatchewan and we express no opinions as to any laws, or any matters governed by any laws, other than the laws of Saskatchewan and the federal laws of Canada applicable in Saskatchewan (collectively, “Saskatchewan Law”) in effect at the date hereof.

 

Opinions

 

Based upon and subject to the foregoing and subject to the assumptions and qualifications hereinafter set forth, we are of the opinion that:

 

1.             Each of the Saskatchewan Corporate Transaction Parties is a valid and subsisting corporation under the laws of Saskatchewan.

 

2.             Each of the Company, MJR ULC, CW ULC, MP ULC and GEP ULC is registered to carry on business as an extra-provincial corporation in the Province of Saskatchewan.

 

3.             Each Partnership Transaction Party (other than BR Partnership) is registered under The Business Names Registration Act (Saskatchewan).

 

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4.             Each of the Saskatchewan Corporate Transaction Parties has the corporate power and capacity to execute and deliver the Transaction Documents to which it is a party and to perform its obligations thereunder.

 

5.             Each of the Transaction Documents to which a Saskatchewan Corporate Transaction Party is a party has been duly authorized, and, to the extent the execution and delivery thereof is governed by Saskatchewan Law, executed and delivered by each such Saskatchewan Corporate Transaction Party

 

Qualifications

 

The opinions expressed herein are subject to the following qualifications:  (i) no opinion is expressed with reference to compliance with the Personal Information Protection and Electronic Documents Act (Canada), the Privacy Act (Saskatchewan) or any privacy laws of any other jurisdiction; and (ii) to the extent that any of the certificates, lists, internet sites or other documents we have relied upon are based on any assumptions or made subject to any limitations, qualifications or exceptions, our opinion given in reliance thereon is based on the same assumptions and is subject to the same limitations, qualifications or exceptions.

 

We hereby consent to the filing of this opinion as an exhibit to the registration statement relating to the Registerable Notes and the Guarantees and to the reference to us under the heading “Legal Matters” in the prospectus contained therein.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933, as amended.

 

Yours truly,

 

 

/s/ MacPherson Leslie & Tyerman LLP

 

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