THIRD AMENDMENT TO FORBEARANCE AGREEMENT AND AMENDMENT TO CREDIT AGREEMENT
Exhibit
10-1
THIRD
AMENDMENT TO
FORBEARANCE
AGREEMENT AND
AMENDMENT
TO CREDIT AGREEMENT
This
Third Amendment to Forbearance Agreement and Amendment to Credit Agreement (the
“Third
Amendment”), dated as of March 17,
2009, is among SEMGROUP ENERGY PARTNERS, L.P., a Delaware limited partnership
(the “Borrower”), the
Guarantors (as defined in the Credit Agreement referenced 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
referenced below and the Lenders (as defined below) 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 (as amended, supplemented or modified
from time to time, including without limitation by (i) the First Amendment to
Forbearance Agreement and Amendment to Credit Agreement, dated as of December
11, 2008, among the Borrower, the Guarantors, the Administrative Agent and
certain of the Lenders and (ii) the Second Amendment to Forbearance Agreement
and Amendment to Credit Agreement, dated as of December 18, 2008, among the
Borrower, the Guarantors, the Administrative Agent and certain of the Lenders,
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 as amended hereby
(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 further amend the Forbearance Agreement to, among other things, extend
the Forbearance Period.
E. The
Administrative Agent and the Lenders have agreed to further amend the
Forbearance Agreement and to enter into this Third 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 Third 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 amendments contained
herein).
2. Amendment to Section 3 of
the Forbearance Agreement. Section 3 of the
Forbearance Agreement is hereby amended by
(a) deleting
subsection (b) in its entirety and replacing it with the following:
“(b) any
Default or Event of Default that results from (i) any failure by the Borrower to
file its quarterly report on Form 10-Q with the SEC within the time period
required by the Credit Agreement, the Securities Exchange Act of 1934 or
applicable law, with respect to the Borrower’s fiscal quarter ended June 30,
2008, the Borrower’s fiscal quarter ended September 30, 2008 and the Borrower’s
fiscal quarter ending March 31, 2009, or the failure by the Borrower to file its
annual report on Form 10-K with the SEC within the time period required by the
Credit Agreement, the Securities Exchange Act of 1934 or applicable law, with
respect to the Borrower’s fiscal year ended December 31, 2008, or (ii) any
failure by the Borrower to timely deliver to the Administrative Agent (x) the
financial statements and other information required by Sections 6.01(b) and
6.02(a) of the Credit Agreement with respect to the Borrower’s fiscal quarter
ended June 30, 2008 or (y) the audited financial statements, auditor’s report
and other information required by Sections 6.01(a) and 6.02(a) of the Credit
Agreement with respect to the Borrower’s fiscal year ended December 31, 2008
(such Defaults and Events of Default, collectively, the “Reporting Default”),
provided that
such financial statements, auditor’s report and other information required by
Sections 6.01(a), 6.01(b) and 6.02(a) of the Credit Agreement shall be delivered
to the Administrative Agent no later than April 8, 2009, provided that the
certificate of a Responsible Officer of the General Partner accompanying such
financial statements and other information shall state that it has been prepared
in good faith and in accordance with GAAP, provided further that such
statements and information may be subject to adjustments based upon changes made
by the Borrower’s outside auditor and any such changes shall not constitute a
Default or Event of Default;”
(b) inserting
the words “and the Borrower’s fiscal quarter ending March 31, 2009” immediately
after the words “Borrower’s fiscal quarter ended December 31, 2008” where such
words appear in subsection (e) thereof, and
(c) deleting
the words “March 18, 2009” and replacing them with the words “April 8,
2009.”
3. Amendment to Section 6 of
the Forbearance Agreement. Section 6 of the
Forbearance Agreement is hereby amended by
(a) deleting
the definition of “Forbearance Agreement” set forth therein and inserting in
lieu thereof the following:
“Forbearance
Agreement” shall mean that certain Forbearance Agreement and Amendment to
Credit Agreement, dated as of September 12, 2008, among the Borrower, the
Guarantors, the Administrative Agent and the Lenders party thereto, as may be
amended from time to time, including, without limitation, by the First Amendment
to Forbearance Agreement, the Second Amendment to Forbearance Agreement and the
Third Amendment to Forbearance Agreement.
(b) inserting
the following additional defined term in the appropriate alphabetical
order:
“Third Amendment to
Forbearance Agreement” shall mean that certain Third Amendment to
Forbearance Agreement and Amendment to Credit Agreement, dated as of March 17,
2009, among the Borrower, the Guarantors, the Administrative Agent and certain
of the Lenders.
4. Amendment to Section 18 of
the Forbearance Agreement. Section 18 of the
Forbearance Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:
“Effect of Forbearance
Termination Date. Except as expressly set forth in the
Forbearance Agreement (as amended by the First Amendment to Forbearance
Agreement, the Second Amendment to Forbearance Agreement and Third Amendment to
Forbearance Agreement), all amendments to the Credit Agreement, the terms of the
First Amendment to Forbearance Agreement, the terms of the Second Amendment to
Forbearance Agreement, the terms of the Third Amendment to Forbearance Agreement
and Sections 14, 16, 17(e) (with respect to confidentiality), 19, 20, 21, 22 and
23 of the Forbearance Agreement shall survive the termination of the Forbearance
Agreement.”
5. Amendment to Schedule 2 to
the Forbearance Agreement. Schedule 2 to the
Forbearance Agreement is hereby amended by deleting such Schedule in its
entirety and replacing it with Schedule 2 hereto.
6. Continuing
Obligations. During the Forbearance Period:
(a) the
Borrower shall continue to retain (i) the Investment Bank or another investment
banking firm reasonably acceptable to the Administrative Agent and the Lenders
and (ii) Zolfo Xxxxxx or another advisory and interim management firm reasonably
acceptable to the Administrative Agent and the Lenders, a senior managing
director or equivalent employee of which shall act as Transformation
Officer.
(b) the
Borrower shall continue to pay all reasonable attorneys’ and financial advisors’
fees and disbursements incurred in connection with the enforcement and
protection of the Lenders’ rights under the Credit Agreement and the Loan
Documents in accordance with Section 10.04 of the Credit Agreement.
7. Conditions to
Effectiveness. This Third 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 Third 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 Third Amendment, no Default or
Event of Default (other than (i) the Existing Events of Default and (ii) the
Reporting Default, the Material Contract Defaults, the Swap Default and the
Covenant 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 Second Amendment becomes
effective, except to the extent such representations and warranties expressly
relate to an earlier date.
(c) Fees. The Borrower
shall have paid to the Administrative Agent for the benefit of the Lenders who
execute and deliver a counterpart of this Third Amendment to the Administrative
Agent by 1:00 p.m. (Eastern Time) on March 18, 2009, a fee equal to 0.25% of the
Aggregate Commitments of all of the Lenders (whether or not party hereto) which
amount will be credited against any amendment fee related to any amendment that
is consummated prior to April 8, 2008.
(d) 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 and for the period from and after July 18, 2008, to the
Lenders in accordance with Section 10.04 of the Credit Agreement.
8. Release. For
purposes of this Section 8, the
following terms shall have the following definitions:
“Related Parties”
shall mean, with respect to any released party, such party’s parents,
subsidiaries, affiliates, successors, assigns, predecessors in interest,
officers, directors, employees, agents, representatives, attorneys, financial
advisors, accountants and shareholders, if any.
“Claims” shall
mean any and all claims, losses, debts, liabilities, demands,
obligations, promises, acts, omissions, agreements, costs, expenses, damages,
injuries, suits, actions, causes of action, including without limitation, any
and all rights of setoff, recoupment or counterclaim of any kind or nature
whatsoever, in law or in equity, known or unknown, suspected or unsuspected,
contingent or fixed.
Excluding
only the continuing obligations of the Lenders and the Administrative Agent
under the Credit Agreement, the Loan Documents and this Agreement, the Borrower
and each Guarantor, effective as of the effective date of this Third Amendment,
hereby releases, acquits and forever discharges the Lenders and the
Administrative Agent, and each of them, and their respective Related Parties, of
and from any and all Claims arising out of, related or in any way connected with
the Credit Agreement, the Loan Documents or the transactions contemplated by any
thereof, including, without limitation, any action or failure to act, prior to
the effective date of this Third Amendment, in response to or otherwise in
connection with the events or circumstances arising under or otherwise related
to the Credit Agreement, the Loan Documents or any Defaults or Events of Default
occurring under the Credit Agreement or the Loan Documents, in each case to the
extent, and only to the extent, that (i) such Claims arose prior to the
effective date of this Third Amendment, (ii) such Claims result or derive from
actions taken or not taken by a releasee in its capacity(ies) as a Lender(s) or
as Administrative Agent under the Credit Agreement or the Loan Documents, and
(iii) such Claims do not result or derive from actions taken or not taken by a
releasee with respect to or in relation to SemGroup, SemCrude L.P.,
SemMaterials, L.P., K.C. Asphalt, L.L.C. or any of their affiliates (other than
the Borrower and the Guarantors).
9. 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 8 of this Third Amendment) other than as provided
in Section 8 of this Third Amendment.
10. Confirmation of Forbearance
Agreement. Except as amended by this Third 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 Third 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 Third
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
Third Amendment.
11. GOVERNING
LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. Loan
Document. This Third Amendment shall constitute a Loan
Document under the Credit Agreement, and all obligations included in this Third
Amendment shall constitute Obligations under the Credit Agreement and shall be
secured by the Collateral.
13. Counterparts. This
Third 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
Third Amendment by facsimile transmission or electronic photocopy (i.e. a
“.pdf”) shall be as effective as delivery of a manually signed
counterpart.
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IN WITNESS WHEREOF, the
parties have caused this Third 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/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
Guarantors:
SemGroup
Energy Partners Operating, L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SemMaterials
Energy Partners, L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SemGroup
Energy Partners, L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SemGroup
Crude Storage, L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SemPipe,
L.P.
By: SemPipe,
G.P., L.L.C., its General Partner
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SemPipe,
G.P., L.L.C.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
SGLP
Management, Inc.
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Financial Officer
Lenders:
Wachovia
Bank, National Association,
as L/C
Issuer,
Swing
Line Lender and Lender
By:_/s/ C. Xxxx
Hedrick____________
Name: C. Xxxx Xxxxxxx
Title: Managing Director
ABN AMRO Bank N.V., as a
Lender
By:_____________________________
Name:
Title:
Bank of America, N.A., as a
Lender
By:_/s/ Xxxx X. Xxxxxxx III
_________
Name: Xxxx X. Xxxxxxx III
Title: Senior Vice
President
The Bank of Nova Scotia, as a
Lender
By:_/s/ Xxx
Xxxxxx _____________
Name: Xxx Xxxxxx
Title: Director
Bank of Scotland PLC, as a
Lender
By:_____________________________
Name:
Title:
Blue Ridge Investments LLC, as
a Lender
By:_/s/ Authorized
Signatory_______
Name: Authorized Signatory
Title: Authorized
Signatory
BMO Capital Markets Financing Inc.,
as a Lender
By:_/s/ Xxxxxxx X.
Garcia__________
Name: Xxxxxxx X. Xxxxxx
Title: Director
Calyon New York Branch, as a
Lender
By:_/s/ Xxxxxxxx
Sweeney____________
Name: Xxxxxxxx Xxxxxxx
Title: Managing Director
By:_/s/ Xxxx X. Xxxxx
_____________
Name: Xxxx X. Xxxxx
Title: Director
Citibank, N.A., as a
Lender
By:_/s/ Xxxx
Mugno_______________
Name: Xxxx Xxxxx
Title: Vice President
Fortis Capital Corporation, as
a Lender
By:
Name:
Title:
Guaranty Bank And Trust Company,
as a Lender
By:_/s/ Xxxx X.
Nofsinger_____________
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice
President
Halbis Distressed Opportunities
Master Fund LTD, as a Lender
By:_/s/ Xxxxx
Sakon _____________
Name: Xxxxx Sakon
Title: Vice President
JPMorgan Chase Bank, N.A., as
a Lender
By:_/s/ Xxxxxxx X.
Martin____________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice
President
Xxxxxx Brothers Commercial Bank,
as a Lender
By: /s/ Xxxx
Xxxxxx
Name: Xxxx Xxxxxx
Title: Chief Credit
Officer
Xxxxxx Commercial Paper, Inc.,
as a Lender
By:_____________________________
Name:
Title:
GE Business Financial Services, Inc.,
fka Xxxxxxx Xxxxx Business Financial Services, Inc., as a
Lender
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Duly Authorized
Signatory
GE Business Financial Services, Inc.,
fka Xxxxxxx Xxxxx Business Financial Services, Inc., as a
Lender
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Duly Authorized
Signatory
One East Liquidity Master LP,
as a Lender
By:_/s/ Xxx
Xxxxxxxx _________
Name: Xxx Xxxxxxxx
Title: Authorized
Signatory
One East Partners Master LP,
as a Lender
By:_/s/ Xxx
Xxxxxxxx _________
Name: Xxx Xxxxxxxx
Title: Authorized
Signatory
Xxxxxxx Xxxxx Bank FSB, as a
Lender
By:_/s/ Xxxxxxx XxXxxxxx
___________
Name: Xxxxxxx XxXxxxxx
Title: Senior Vice
President
Royal Bank of Canada, as a
Lender
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
SunTrust Bank, N.A., as a
Lender
By:_/s/ Xxxxxx X.
Ballesteros_______
Name: Xxxxxx X.
Xxxxxxxxxxx
Title: Senior Vice
President
UBS Loan Finance LLC, as a
Lender
By: /s/ Xxxx X.
Xxxxx
Name: Xxxx X. Xxxxx
Title: Associate Director
UBS Loan Finance LLC, as a
Lender
By: /s/ Xxxx X.
Xxxx
Name: Xxxx X. Xxxx
Title: Associate Director
Acknowledged:
Wachovia
Bank, National Association,
as
Administrative Agent
By:_/s/ C. Xxxx
Hedrick_____________
Name: C. Xxxx Xxxxxxx
Title: Managing Director
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SCHEDULE
2
TO
FORBEARANCE
AGREEMENT AND
AMENDMENT
TO CREDIT AGREEMENT
[The
amount of ending book cash is $28,000,000 on a week by week basis for the weeks
ending March 21, 2009 through April 4, 2009.]
