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Exhibit
10.2
CLOSING CONTRIBUTION,
CONVEYANCE, ASSIGNMENT
AND ASSUMPTION
AGREEMENT
This CLOSING CONTRIBUTION,
CONVEYANCE, ASSIGNMENT AND ASSUMPTION AGREEMENT (this “
Agreement ”), dated as of this 20th day of
July, 2007 is entered into by and among SemGroup Energy Partners,
L.P., a Delaware limited partnership (“ MLP
”), SemGroup Energy Partners G.P., L.L.C., a Delaware limited
liability company (“ GP ”), SemGroup
Holdings, L.P., a Delaware limited partnership (“
Holdings ”), SemCrude, L.P., a Delaware limited
partnership (“ SemCrude ”), SemGroup,
L.P., an Oklahoma limited partnership (“
SemGroup ”), and SemGroup Energy Partners
Operating, L.L.C., a Delaware limited liability company (“
OLLC ”). MLP, GP, Holdings, SemCrude, SemGroup
and OLLC are sometimes herein referred to individually as a “
Party ” and collectively as the “
Parties .”
RECITALS
WHEREAS, GP and Holdings have
formed MLP, pursuant to the Delaware Revised Uniform Limited
Partnership Act (the “ Delaware LP Act
”), for the purpose of engaging in any business activity that
is approved by GP and that lawfully may be conducted by a limited
partnership organized pursuant to the Delaware LP Act.
WHEREAS, in order to
accomplish the objectives and purposes in the preceding recital,
the following actions have been taken prior to the date
hereof:
1. SemGroup formed SemGroup
Holdings G.P., L.L.C. (“ Holding GP ”)
under the terms of the Delaware Limited Liability Company Act (the
“ Delaware LLC Act ”).
2. Holding GP and SemGroup
formed Holdings under the terms of the Delaware LP Act, and Holding
GP contributed $0.01 and SemGroup contributed $999.99 in exchange
for a 0.01% general partner interest and a 99.99% limited
partnership interest, respectively, in Holdings.
3. Holdings formed GP under
the terms of the Delaware LLC Act and contributed $1,000.00 in
exchange for all of the member interests in GP.
4. GP and Holdings formed MLP
under the terms of the Delaware LP Act, and GP contributed $20.00
and Holdings contributed $980.00 in exchange for a 2% general
partner interest and a 98% limited partner interest, respectively,
in MLP.
5. MLP formed OLLC under the
terms of the Delaware LLC Act and contributed $1,000.00 in exchange
for all of the member interests in OLLC.
6. SemCrude formed SemGroup
Energy Partners, L.L.C. (“ SGEP ”) under
the terms of the Delaware LLC Act and contributed $1,000.00 in
exchange for all of the member interests in SGEP.
7. SemCrude formed SemPipe
G.P., L.L.C. (“ SPGP ”) under the terms
of the Delaware LLC Act and contributed $1,000.00 in exchange for
all of the member interests in SPGP.
8. SemOperating G.P., L.L.C.,
an Oklahoma limited liability company, and a wholly-owned
subsidiary of SemGroup (“ SOGP ”),
conveyed its 0.5% general partner interest in SemPipe, L.P., a
Texas limited partnership (“ SemPipe ”),
to SPGP.
9. SemGroup conveyed its
99.5% limited partner interest in SemPipe to SGEP.
10. SemCrude conveyed all of
the member interests in SPGP to SGEP.
11. SemCrude conveyed all of
the Crude Oil Business Assets (as such term is defined in that
certain Contribution, Conveyance, Assignment and Assumption
Agreement dated as of May 23, 2007 by and among SOGP, SPGP,
SemGroup, SGEP and SemCrude) to SGEP.
12. MLP, as the Borrower,
entered into the Credit Agreement.
WHEREAS, as of the Effective
Time (which is at least one (1) business day prior to the
closing of the Offering), each of the following actions shall
occur:
1. SemCrude will convey its
entire member interest in SGEP to SemGroup.
2. SemGroup will convey its
entire member interest in SGEP to Holdings as a capital
contribution and Holdings will convey 2% of such interest to
GP.
3. GP will convey to MLP its
2% member interest in SGEP in exchange for (a) 511,643 general
partner units in MLP representing a 2% general partner interest in
MLP and (b) the Incentive Distribution Rights.
4. Holdings will convey to
MLP its 98% member interest in SGEP in exchange for 12,570,504
Subordinated Units representing a 49.1% limited partner interest in
MLP and 12,500,000 Common Units representing a 48.9% limited
partner interest in MLP.
5. MLP will convey to OLLC
its entire member interest in SGEP as a capital
contribution.
6. MLP will borrow $137.5
million (the “ Debt ”) under the terms of
the Credit Agreement and MLP will, in turn, distribute those funds
to Holdings, and Holdings will, in turn, distribute those funds to
SemGroup.
7. The agreements of limited
partnership and the limited liability company agreements of the
aforementioned entities will be amended and restated to the extent
necessary to reflect the applicable matters set forth above and as
contained in this Agreement.
WHEREAS, at least one
business day after the Effective Time, the public, through the
Underwriters, will purchase from Holdings for $275,000,000 in cash,
less the net amount of $16,843,750 payable to the Underwriters
after taking into account the Underwriters’ discount of
6.125%, the structuring fee payable to CitiGroup Global Markets
Inc. and the Underwriters’ reimbursement of certain expenses
in connection with the Offering, in exchange for all of the Common
Units owned by Holdings on such date (representing a 48.9% limited
partner interest in MLP).
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ARTICLE 1
Definitions
1.01
“Acquisition” means consummation of the transactions
contemplated by the terms of this Agreement.
1.02 “Agreement”
means this Closing Contribution, Conveyance and Assumption
Agreement.
1.03 “Common
Unit” has the meaning assigned to such term in the
Partnership Agreement.
1.04 “Credit
Agreement” means the Credit Agreement, dated as of
July 20, 2007, among MLP, Wachovia Bank, National Association,
as administrative agent, Bank of America, N.A., as syndication
agent, and the lenders party thereto.
1.05 “Debt” has
the meaning assigned such term in the recitals.
1.06 “Effective
Time” shall mean 8:00 a.m. New York, New York time on
July 20, 2007.
1.07 “Incentive
Distribution Rights” has the meaning assigned to such term in
the Partnership Agreement.
1.08 “MLP” has
the meaning assigned to such term in the opening paragraph of this
Agreement.
1.09 “Offering”
means the offering by Holdings of the Common Units to the public in
an underwritten public offering.
1.10 “Partnership
Agreement” means the First Amended and Restated Agreement of
Limited Partnership of MLP dated as of June 20,
2007.
1.11 “Subordinated
Unit” has the meaning assigned to such term in the
Partnership Agreement.
1.12
“Underwriters” means CitiGroup Global Markets Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Lehman
Brothers Inc., RBC Capital Markets, LLC, A.G. Edwards &
Sons, Inc., Raymond James & Associates, Inc., Sanders
Morris Harris Inc. and BOSC, Inc., a subsidiary of BOK Financial
Corp.
ARTICLE 2
Contribution,
Acknowledgments and Distributions
2.01 Distribution of
the SGEP Interest by SemCrude to SemGroup . SemCrude hereby
grants, distributes, bargains, conveys, assigns, transfers, sets
over and delivers to
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SemGroup, its successors and assigns,
for its and their own use forever, all right, title and interest in
and to SemCrude’s entire member interest in SGEP, and
SemGroup hereby accepts such member interest.
2.02 Contribution of
the SGEP Interest by SemGroup to Holdings . SemGroup hereby
grants, contributes, bargains, conveys, assigns, transfers, sets
over and delivers to Holdings, its successors and assigns, for its
and their own use forever, all right, title and interest in and to
SemGroup’s entire member interest in SGEP, as a capital
contribution, and Holdings hereby accepts such member interest as a
contribution to the capital of Holdings.
2.03 Contribution of
the SGEP Interest by Holdings to GP . Holdings hereby
grants, contributes, bargains, conveys, assigns, transfers, sets
over and delivers to GP, its successors and assigns, for its and
their own use forever, all right, title and interest in and to 2%
of Holdings’ member interest in SGEP, as a capital
contribution, and GP hereby accepts such member interest as a
contribution to the capital of MLP.
2.04 Contribution of
the SGEP Interest by GP to MLP . GP hereby grants,
contributes, ba
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