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
a
