FIRST AMENDMENT TO FORBEARANCE AGREEMENT AND AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO
FORBEARANCE
AGREEMENT AND
AMENDMENT
TO CREDIT AGREEMENT
This
First Amendment to Forbearance Agreement and Amendment to Credit Agreement (the
“First
Amendment”), dated as of December 11, 2008, is among SEMGROUP ENERGY
PARTNERS, L.P., a Delaware limited partnership (the “Borrower”), the
Guarantors (as defined in the Credit Agreement referred to below) party hereto
(collectively, the “Guarantors”) WACHOVIA
BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative
Agent”), L/C Issuer and Swing Line Lender under the Credit Agreement
referred to below and the Lenders signatory hereto.
R
E C I T A L S:
A. The
Borrower, the Administrative Agent and certain lenders that are parties thereto
(the “Lenders”)
entered into that certain Amended and Restated Credit Agreement dated as of
February 20, 2008 (as amended, modified, supplemented and waived from time to
time, the “Credit
Agreement”).
B. The
Borrower, the Guarantors, the Administrative Agent and certain of the Lenders
entered into that certain Forbearance Agreement and Amendment to Credit
Agreement dated as of September 12, 2008 (the “Forbearance
Agreement”), pursuant to which the Administrative Agent and such Lenders,
among other things, agreed to forbear from exercising their rights and remedies
under the Credit Agreement and the other Loan Documents relating to certain
Events of Default as described in the Forbearance Agreement (the “Existing Events of
Default”).
C. The
Existing Events of Default are continuing.
D. The
Borrower and the Guarantors have requested that the Administrative Agent and the
Lenders amend the Forbearance Agreement to extend the Forbearance
Period.
E. The
Administrative Agent and the Lenders have agreed to amend the Forbearance
Agreement and to enter into this First Amendment subject to and upon the terms
and conditions set forth herein.
NOW,
THEREFORE, the parties agree as follows:
1. Definitions. All
capitalized terms used in this First Amendment which are not otherwise defined
shall have the meanings given to those terms in the Credit Agreement, as amended
by the Forbearance Agreement (after taking into account the amendment contained
in Section 2
hereof).
2. Amendment to Section 3 of
the Forbearance Agreement. Section 3 of the Forbearance
Agreement is hereby amended by deleting the words “December 11, 2008” and
replacing them with the words “December 18, 2008.”
3. Conditions to
Effectiveness. This First Amendment shall be effective on the
date when and if each of the following conditions is satisfied:
(a) Execution and
Delivery. The Administrative Agent shall have received a
counterpart of this First Amendment executed and delivered by the Borrower, each
of the Guarantors, the Administrative Agent, and the Required
Lenders.
(b) No Default or Event of Default;
Accuracy of Representations and Warranties. The Borrower shall
deliver to the Administrative Agent a certificate of a Responsible Officer
certifying that, after giving effect to this First Amendment, no Default or
Event of Default (other than (i) the Existing Events of Default and (ii) the
Reporting Default, the Material Contract Defaults and the Swap Default (as each
is defined in the Forbearance Agreement)) shall exist and each of the
representations and warranties made by the Borrower and the Guarantors in the
Forbearance Agreement and in or pursuant to the Credit Agreement and the other
Loan Documents shall be true and correct in all material respects as if made on
and as of the date on which this First Amendment becomes effective, except to
the extent such representations and warranties expressly relate to an earlier
date.
(c) Expense
Reimbursements. The Borrower shall have paid all reasonable
invoices presented to the Borrower for expense reimbursements (including
reasonable attorneys’ and financial advisors’ fees and disbursements) due to the
Administrative Agent in accordance with Section 10.04 of the Credit
Agreement.
4. Effect of Forbearance
Termination Date. This First Amendment shall cease to be
effective upon the occurrence of the Forbearance Termination Date, and, other
than as set forth in Section 18 of the Forbearance Agreement, the form of the
Credit Agreement, as in effect immediately prior to the Effective Date, shall be
deemed to have been otherwise restored to such form in its entirety and the
applicable interest rate under the Credit Agreement shall be the Default Rate so
long as any Event of Default then exists.
5. Acknowledgement. The
Borrower hereby confirms and acknowledges as of the date hereof that it is
validly and justly indebted to the Administrative Agent and the Lenders for the
payment of all obligations under the Credit Agreement without offset, defense,
cause of action or counterclaim of any kind or nature whatsoever, and the Loan
Parties hereby release the Administrative Agent and the Lenders from any and all
Claims (as defined in Section 21 of the Forbearance Agreement) other than as
provided in Section 21 of the Forbearance Agreement.
6. Confirmation of Forbearance
Agreement. Except as amended by this First Amendment, all the
provisions of the Forbearance Agreement remain in full force and effect from and
after the date hereof, and each Loan Party hereby ratifies and confirms each
Loan Document to which it is a party. This First Amendment shall be
limited precisely as written and shall not be deemed (a) to be a consent granted
pursuant to, or a waiver or modification of, any other term or condition of the
Forbearance Agreement or any of the instruments or agreements referred to
therein or (b) to prejudice any right or rights which the Administrative Agent
or the Lenders may now have or have in the future under or in connection with
the Forbearance Agreement or any of the instruments or agreements referred to
therein. From and after the date hereof, all references in the
Forbearance Agreement to “this Agreement”, “hereof”, “herein”, or similar terms,
shall refer to the Forbearance Agreement as amended by this First
Amendment. Each of the Borrower and the Guarantors also hereby
ratifies and confirms that the Security Documents remain in full force and
effect in accordance with their terms and are not impaired or affected by this
First Amendment.
7. GOVERNING
LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Loan
Document. This First Amendment shall constitute a Loan
Document under the Credit Agreement, and all obligations included in this First
Amendment shall constitute Obligations under the Credit Agreement and shall be
secured by the Collateral.
9. Counterparts. This
First Amendment may be signed in any number of counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument. Delivery of an executed signature page to this
First Amendment by facsimile transmission or electronic photocopy (i.e. a
“.pdf”) shall be as effective as delivery of a manually signed
counterpart.
IN WITNESS WHEREOF, the
parties have caused this First Amendment to be duly executed as of the day and
year first above written.
By:
SemGroup Energy Partners GP, L.L.C.
its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
Guarantors:
SemGroup
Energy Partners Operating, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
SemMaterials
Energy Partners, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
SemGroup
Energy Partners, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
SemGroup
Crude Storage, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
SemPipe,
L.P.
By: SemPipe,
G.P., L.L.C., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
SemPipe,
G.P., L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Chief Financial Officer
Lenders:
Wachovia
Bank, National Association,
as L/C
Issuer,
Swing
Line Lender and Lender
By:_/s/ C. ▇▇▇▇
Hedrick____________
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
ABN AMRO Bank N.V., as a
Lender
By:_/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ __________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice
President
By:_/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇ __________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice
President
Bank of America, N.A., as a
Lender
By:_/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
_________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: Senior Vice
President
The Bank of Nova Scotia, as a
Lender
By:_/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Bank of Scotland PLC, as a
Lender
By:_/s/ ▇▇▇▇▇ ▇▇▇▇▇
_______________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Blue Ridge Investments LLC, as
a Lender
By:_/s/ Yongmei
Shen______________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BMO Capital Markets Financing Inc.,
as a Lender
By:_____________________________
Name:
Title:
Calyon New York Branch, as a
Lender
By:_/s/ ▇▇▇▇
Sidrane_______________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By:_/s/ ▇▇▇▇
Shean________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
Citibank, N.A., as a
Lender
By:_____________________________
Name:
Title:
Fortis Capital Corporation, as
a Lender
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Director
Guaranty Bank And Trust Company,
as a Lender
By:_/s/ ▇▇▇▇ ▇.
Nofoinger_____________
Name: ▇▇▇▇ ▇. Nofoinger
Title: Senior Vice
President
Halbis Distressed Opportunities
Master Fund LTD, as a Lender
By:_/s/ ▇▇▇▇▇
Sakon_________________
Name: ▇▇▇▇▇ Sakon
Title: VP
JPMorgan Chase Bank, N.A., as
a Lender
By:_____________________________
Name:
Title:
▇▇▇▇▇▇ Brothers Commercial Bank,
as a Lender
By:_____________________________
Name:
Title:
▇▇▇▇▇▇ Commercial Paper, Inc.,
as a Lender
By:_____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, as a
Lender
By:_____________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, as a
Lender
By:_____________________________
Name:
Title:
One East Liquidity Master LP,
as a Lender
By:_/s/ ▇▇▇▇
▇▇▇▇▇▇ _________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director and Authorized
Signatory
One East Partners Master LP,
as a Lender
By:_/s/ ▇▇▇▇
▇▇▇▇▇▇ _________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director and Authorized
Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank FSB, as a
Lender
By:_/s/ ▇▇▇▇▇▇▇
McKinnon___________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Royal Bank of Canada, as a
Lender
By:_/s/ ▇▇▇▇▇▇ ▇.
Vowell____________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
SunTrust Bank, N.A., as a
Lender
By:_/s/ ▇▇▇▇▇▇ ▇.
Ballestros________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice
President
UBS Loan Finance LLC, as a
Lender
By:_/s/ ▇▇▇▇ ▇.
Evans_____________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate Director, Banking
Products Services, US
By:_/s/ ▇▇▇▇ ▇.
▇▇▇▇ _____________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director, Banking
Products Services, US
Acknowledged:
Wachovia
Bank, National Association,
as
Administrative Agent
By:_/s/ C. ▇▇▇▇
Hedrick_____________
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director