NON-DISCLOSURE AGREEMENT
Exhibit 99.9
1. Introduction. This Non-Disclosure Agreement (this “Agreement”), dated April 28, 2011,
is entered into among Blueknight Energy Partners, L.P., a Delaware limited partnership
(“Blueknight”), and Blueknight Energy Partners G.P., L.L.C., a Delaware limited liability company
(the “General Partner”), on the one hand, and MSD Torchlight, L.P. (“Receiving Party”), on the
other hand. From time to time, Blueknight and the General Partner may (but shall not be obligated
to) disclose to Receiving Party certain “non-public” information relating to Blueknight, the
General Partner, their respective Affiliates and their respective businesses. Receiving Party
acknowledges that, in making any such disclosures, Blueknight is relying on an exception to the
disclosure requirements of Regulation FD requiring the recipients of such non-public information,
which may also be Material, to agree to keep such information confidential. In consideration for
the receipt of such non-public information, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Blueknight, the General Partner and
Receiving Party agree as follows:
2. Definitions.
(a) “Affiliate” has the meaning provided in Rule 12b-2 of the Exchange Act.
(b) “Blueknight Non-public Information” shall mean information pertaining to Blueknight, the
General Partner and/or their respective Affiliates that has not been Publicly Disclosed and that
Blueknight or the General Partner discloses to Receiving Party, including, without limitation, all
information regarding the refinancing of Blueknight disclosed, discussed or made available to
Receiving Party in connection with any meeting (whether telephonic or in-person) among
representatives of Blueknight, the General Partner and/or their respective Affiliates, on the one
hand, and representatives of Receiving Party, on the other hand. The term Blueknight Non-public
Information shall not include, however, information which (i) is or becomes generally available to
the public other than as a result of disclosure by Receiving Party in breach of this Agreement,
(ii) was or becomes available to Receiving Party on a non-confidential basis prior to or after its
disclosure by Blueknight or the General Partner from a person, other than Blueknight or the General
Partner, who is not known by Receiving Party to be bound by an obligation to Blueknight or the
General Partner to keep such information confidential or (iii) is developed independently by
Receiving Party without use of Blueknight Non-public Information and without violating any of the
provisions of this Agreement.
(c) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(d) “Group” has the meaning provided such term in Blueknight’s partnership agreement.
(e) “Material” shall have the meaning given such term under applicable federal and state
securities laws, regulations, and interpretations thereof.
(f) “Publicly Disclosed” shall mean public disclosure by Blueknight of the information in
question, either via the filing of appropriate reports with the Securities and Exchange Commission,
press release announcement, or other method of “public disclosure” within the meaning of applicable
federal and state securities laws, regulations, and interpretations thereof.
3. Obligation to Maintain Confidentiality. Receiving Party shall (a) keep and maintain any
Material Blueknight Non-public Information in strict confidence and (b) not disclose to any other
person the fact that Blueknight Non-public Information has been made available to Receiving Party,
except, in each case, to the extent that Receiving Party is requested pursuant to, or required by,
applicable law or regulation (including any filings required (and disclosures contained therein)
under Section 13(d) of the Exchange Act) or by legal process
(including by deposition, interrogatory, request for documents, subpoena, or similar process) to
disclose any such information; provided, however, that Receiving Party may disclose such
information to such of its representatives who need such information for the purpose of evaluating
or assisting with Receiving Party’s investment in Blueknight, it being understood that such
representatives shall be informed in advance by Receiving Party of the confidential nature of such
information and Receiving Party shall be responsible for any breach of the provisions of this
letter by such representatives; provided, further, that Receiving Party may disclose such
information to the Other Blueknight Unitholders (as defined below) in connection with any
discussions during the period beginning on April 29, 2011 and ending on (and including) May 3, 2011
that Receiving Party may have with the Other Blueknight Unitholders relating to the subject matter
of the Additional Refinancing Meeting (as defined below). Each of Blueknight and the General
Partner agrees that the Other Blueknight Unitholders are not and shall not be prohibited from
disclosing such information to Receiving Party in connection with any such discussions.
4. Trading in Blueknight Securities; Additional Refinancing Meeting.
(a) Receiving Party hereby acknowledges that it is aware that the United States securities
laws prohibit any person who has Material non-public information about a company from purchasing or
selling securities of such company or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell
such securities in reliance upon such information.
(b) On March 3, 2011 and March 22, 2011, representatives of Blueknight, the General Partner
and/or their respective Affiliates met with representatives of Receiving Party as well as certain
other limited partners of Blueknight (such other limited partners, the “Other Blueknight
Unitholders”) to discuss the refinancing and recapitalization of Blueknight (the “Prior Refinancing
Meetings”). The parties agree that it is expected that prior to the expiration of the Lock-Up
Period (as defined below), representatives of Blueknight, the General Partner and/or their
respective Affiliates will meet with representatives of Receiving Party to further discuss the
refinancing and recapitalization of Blueknight (the “Additional Refinancing Meeting”). The parties
agree that (i) Receiving Party will not be considered part of a Group for purposes of Blueknight’s
partnership agreement (including, without limitation, for purposes of the term “Outstanding” as
defined therein) with the Other Blueknight Unitholders and (ii) neither Blueknight nor the General
Partner will assert that the Receiving Party is part of a “group” (as such term is used in Section
13(d)(3) of the Exchange Act) with the Other Blueknight Unitholders, in each case, solely because
of any discussions during the period beginning on April 29, 2011 and ending on (and including) May
3, 2011 that Receiving Party may have with the Other Blueknight Unitholders relating to the subject
matter of the Additional Refinancing Meeting. Furthermore, the parties agree that (x) at the
Additional Refinancing Meeting there may be discussion in the nature of offers to compromise the
disputed claims made in filings with the Securities and Exchange Commission (including filings made
on Schedule 13D), correspondence to the General Partner and Blueknight and/or statements made by
Receiving Party or its representatives to the General Partner and Blueknight or their
representatives and (y) all conduct of, or oral statements made by, Blueknight, the General
Partner, Receiving Party or their respective representatives at the Additional Refinancing Meeting
that concern prospective settlement of the disputed claims (other than such conduct or statements
containing information which (1) is or becomes generally available to the public other than as a
result of disclosure by the party receiving the information at the Additional Refinancing Meeting
in breach of this Agreement, (2) was or becomes available to the party receiving the information at
the Additional Refinancing Meeting on a non-confidential basis prior to or after its disclosure at
the Additional Refinancing Meeting from a person who is not known by the party receiving the
information at the Additional Refinancing Meeting to be bound by an obligation to the party
disclosing such information at the Additional Refinancing Meeting to keep such information
confidential or (3) is developed independently without use of conduct or statements at the
Additional Refinancing Meeting that concern prospective settlement of the disputed claims and
without
violating any of the provisions of this Agreement) are inadmissible and may not be used in any
subsequent proceeding under applicable federal or state rules of evidence.
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(c) Receiving Party agrees during the period beginning on the date hereof and ending on (and
including) May 12, 2011 (the “Lock-Up Period”), unless specifically consented to in writing by
Blueknight, Receiving Party and its controlled Affiliates will not, directly or indirectly, effect
any sale (including any short-sale) or acquisition of any equity securities (or beneficial
ownership thereof) or acquisition of assets of Blueknight or any of its Affiliates. Blueknight and
the General Partner agree that prior to the expiration of the Lock-Up Period, unless specifically
consented to in writing by Receiving Party, Blueknight will not file a proxy statement with the
Securities and Exchange Commission relating to the Unitholder Meeting (as defined in the Global
Transaction Agreement, dated as of October 25, 2010, by and among the General Partner, Blueknight
and the purchasers set forth in Schedule I thereto).
(d) On or before May 12, 2011, Blueknight shall publicly disclose any Blueknight Non-public
Information disclosed to Receiving Party at the Additional Refinancing Meeting that Blueknight, in
its good faith judgment, determines is Material non-public information under United States
securities laws with respect to Blueknight or Blueknight’s securities. Blueknight shall promptly
notify Receiving Party after making such disclosure.
5. Miscellaneous.
(a) Receiving Party acknowledges that none of Blueknight, the General Partner nor any of their
respective representatives makes any representations or warranties, express or implied, as to the
accuracy or completeness of any Blueknight Non-public Information, that none of Blueknight, the
General Partner nor any of their respective representatives shall have any liability whatsoever to
Receiving Party or any other person as a result of their use of any Blueknight Non-public
Information or any errors therein or omissions therefrom and that Receiving Party shall assume full
and exclusive responsibility for any conclusions derived from the Blueknight Non-public
Information.
(b) Each of Blueknight, the General Partner and Receiving Party agrees that money damages
would not be a sufficient remedy for any breach of this Agreement and that each of the parties
shall be entitled, without the requirement of posting a bond or other security, to specific
performance and injunctive or other equitable relief as a remedy for any breach of this Agreement.
Such remedy shall not be deemed to be the exclusive remedy for a breach of this Agreement, but
shall be in addition to all other remedies available at law or in equity. In the event of
litigation relating to this Agreement, the non-prevailing party as determined by a court of
competent jurisdiction in a final judgment shall be liable and pay to the prevailing party the
reasonable legal fees and expenses such prevailing party has incurred in connection with such
litigation, including any appeal therefrom.
(c) This Agreement and the obligations of the parties hereunder (other than Section 4(b))
shall terminate upon the earlier to occur of (i) May 12, 2011, (ii) such time as Receiving Party is
no longer in possession of Blueknight Non-public Information and (iii) with respect to any Section
of this Agreement (other than Section 4(b)), such earlier time as set forth in such Section.
Section 4(b) of this Agreement and the obligations of the parties under Section 4(b) shall
terminate upon the date that is ten (10) years from the date hereof.
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(d) This Agreement shall be subject to, and construed in accordance with, the laws of the
State of New York (excluding its conflicts of laws rules that would require application of the laws
of any jurisdiction other than the State of New York) and applicable federal laws and regulations.
This Agreement contains the entire agreement and understanding among the parties concerning the
subject matter hereof, and supersedes any
prior agreements, written or oral, relating to the subject matter hereof. This Agreement may be
amended, modified or waived only by a separate writing executed by Blueknight and Receiving Party
expressly so amending, modifying or waiving this Agreement. This Agreement may not be transferred
or assigned (by operation of law or otherwise) by Receiving Party without the prior written consent
of Blueknight, and shall inure to the benefit of and be binding upon the parties hereto and their
respective permitted successors and assigns. This Agreement may be executed by facsimile and in
any number of counterparts, each of such counterparts shall for all purposes be deemed an original
and all such counterparts shall together constitute but one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement effective as of the
date first set forth above.
BLUEKNIGHT ENERGY PARTNERS, L.P. |
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By: | Blueknight Energy Partners G.P., L.L.C. | |||
By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Chief Financial Officer | |||
BLUEKNIGHT ENERGY PARTNERS G.P., L.L.C. |
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By: | /s/ Xxxx Xxxxxxxxx | |||
Name: | Xxxx Xxxxxxxxx | |||
Title: | Chief Financial Officer | |||
MSD TORCHLIGHT, L.P. |
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By: | MSD Capital, L.P. | |||
By: | /s/ Xxxxxxxx Xxxxxxx | |||
Name: | Xxxxxxxx Xxxxxxx | |||
Title: | Authorized Signatory |
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