ex10-1.htm


    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.

     

    SEMGROUP
ENERGY PARTNERS, L.P.

    


    


    By:
SemGroup Energy Partners GP, L.L.C.

           its
General Partner

    


    By: /s/ Michael J.
Brochetti                                                                  

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    Guarantors:

    


    SemGroup
Energy Partners Operating, L.L.C.

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    SemMaterials
Energy Partners, L.L.C.

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    SemGroup
Energy Partners, L.L.C.

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    SemGroup
Crude Storage, L.L.C.

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    SemPipe,
L.P.

        By:  SemPipe,
G.P., L.L.C., its General Partner

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    SemPipe,
G.P., L.L.C.

    


    


    By: /s/ Michael J.
Brochetti                                                          

    Name:
Michael J. Brochetti

    Title:
Chief Financial Officer

    


    


    


    Lenders:

    


    Wachovia
Bank, National Association,

        as L/C
Issuer,

        Swing
Line Lender and Lender

    


    By:_/s/ C. Mark
Hedrick____________

    Name: C. Mark Hedrick

    Title: Managing Director

    


    


    ABN AMRO Bank N.V., as a
Lender

    


    By:_/s/ Parker H.
Douglas  __________

    Name: Parker H. Douglas

    Title: Senior Vice
President

    


    By:_/s/ David W.
Stack      __________

    Name: David W. Stack

    Title: Senior Vice
President

    


    


    Bank of America, N.A., as a
Lender

    


    By:_/s/ John H. Woodiel III
_________

    Name: John H. Woodiel III

    Title: Senior Vice
President

    


    


    The Bank of Nova Scotia, as a
Lender

    


    


    By:_/s/ Andrew Ostrov
_____________

    Name: Andrew Ostrov

    Title: Director

    


    


    Bank of Scotland PLC, as a
Lender

    


    


    By:_/s/ Karen Weich
_______________

    Name: Karen Weich

    Title: Vice President

    


    


    Blue Ridge Investments LLC, as
a Lender

    


    


    By:_/s/ Yongmei
Shen______________

    Name: Yongmei Shen

    Title: Vice President

    


    


    BMO Capital Markets Financing Inc.,
as a Lender

    


    


    By:_____________________________

    Name:

    Title:

    


    


    Calyon New York Branch, as a
Lender

    


    


    By:_/s/ Alan
Sidrane_______________

    Name: Alan Sidrane

    Title: Managing Director

    


    By:_/s/ Anne
Shean________________

    Name: Anne Shean

    Title: Director

    


    Citibank, N.A., as a
Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    Fortis Capital Corporation, as
a Lender

    


    


    By: /s/ Darrell
Holley                                                          

    Name:
Darrell Holley

    Title:
Managing Director

    


    By: /s/ Darrell
Holley                                                          

    Name:
Ilene Fowler

    Title:
Director

    


    


    Guaranty Bank And Trust Company,
as a Lender

    


    


    By:_/s/ Gail J.
Nofoinger_____________

    Name: Gail J. Nofoinger

    Title: Senior Vice
President

    


    


    Halbis Distressed Opportunities
Master Fund LTD, as a Lender

    


    By:_/s/ Peter
Sakon_________________

    Name: Peter Sakon

    Title: VP

    


    JPMorgan Chase Bank, N.A., as
a Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    Lehman Brothers Commercial Bank,
as a Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    Lehman Commercial Paper, Inc.,
as a Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    Merrill Lynch Bank USA, as a
Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    Merrill Lynch Capital, as a
Lender

    


    By:_____________________________

    Name:

    Title:

    


    


    One East Liquidity Master LP,
as a Lender

    


    


    By:_/s/ Sina
Toussi              _________

    Name: Sina Toussi

    Title: Managing Director and Authorized
Signatory

    


    


    One East Partners Master LP,
as a Lender

    


    


    By:_/s/ Sina
Toussi              _________

    Name: Sina Toussi

    Title: Managing Director and Authorized
Signatory

    


    


    Raymond James Bank FSB, as a
Lender

    


    


    By:_/s/ Garrett
McKinnon___________

    Name: Garrett McKinnon

    Title: Vice President

    


    Royal Bank of Canada, as a
Lender

    


    


    By:_/s/ Leslie P.
Vowell____________

    Name: Leslie P. Vowell

    Title: Attorney-in-Fact

    


    


    SunTrust Bank, N.A., as a
Lender

    


    


    By:_/s/ Samuel M.
Ballestros________

    Name: Samuel M. Ballestros

    Title: Senior Vice
President

    


    


    UBS Loan Finance LLC, as a
Lender

    


    


    By:_/s/ Mary E.
Evans_____________

    Name: Mary E. Evans

    Title: Associate Director, Banking
Products Services, US

    


    By:_/s/ Irja R.
Otsa     _____________

    Name: Irja R. Otsa

    Title: Associate Director, Banking
Products Services, US

    


    


    Acknowledged:

    


    Wachovia
Bank, National Association,

        as
Administrative Agent

    


    


    By:_/s/ C. Mark
Hedrick_____________

    Name: C. Mark Hedrick

    Title: Managing Director