exhibit10-9.htm


    Exhibit 10.9

     

    WAIVER
AND AMENDMENT TO CREDIT AGREEMENT

    


    This
Waiver and Amendment to Credit Agreement (this “Amendment”), dated as
of March 29, 2010, is among BLUEKNIGHT 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”), WELLS
FARGO BANK, N.A., as Administrative Agent (the “Administrative
Agent”), L/C Issuer and Swing Line Lender under the Credit Agreement
referred to below, and the Lenders (as defined below) signatory
hereto.

    


    R
E C I T A L S:

    


    A. The
Borrower, the Administrative Agent and the 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
Guarantors have guaranteed the obligations of the Borrower under the Credit
Agreement pursuant to that certain Amended and Restated Guaranty, dated as of
February 20, 2008, in favor of the Administrative Agent (as amended,
supplemented or modified, the “Guaranty”).

     

    C. Section
6.01(a) of the Credit Agreement requires the Borrower to deliver within 90 days
of the end of the preceding fiscal year, among other things, certain
Consolidated financial statements (all as further described in Section 6.01(a)),
to be audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders (as used herein, the “Auditor’s Report and
Opinion”, and such accountant, the “Auditor”), which
Auditor’s Report and Opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern”
(such a qualification or exception, a “Going Concern
Qualification”) or like qualification or exception or any qualification
or exception as to the scope of such audit.

     

    D. The
Borrower has been informed by the Auditor, and has informed the Administrative
Agent, that (i) the Auditor’s Report and Opinion to be delivered by the Auditor
with respect to the fiscal year ended December 31, 2009 will contain a Going
Concern Qualification, (ii) the Auditor’s Report and Opinion to be delivered by
the Auditor with respect to the fiscal year ending  December 31, 2010
may contain a Going Concern Qualification, and, accordingly, has requested that
the Administrative Agent and the Lenders agree to waive compliance by the
Borrower with Section 6.01(a) of the Credit Agreement, solely to the extent
set forth herein.

     

    E. The
Administrative Agent and the Lenders party hereto are willing to waive
compliance with such provisions of the Credit Agreement subject to and upon the
terms and conditions set forth in this Amendment.

     

    F. The
Administrative Agent and the Lenders party hereto have agreed to amend the
Credit Agreement subject to and upon the terms and conditions set forth in this
Amendment.

     

    
      
         


      

      
        1

        
        

      

      
         


      

    


    NOW,
THEREFORE, the parties agree as follows:

    


    1. Definitions.  All
capitalized terms used in this Amendment which are not otherwise defined shall
have the meanings given to those terms in the Credit Agreement (after taking
into account any amendments contained herein).

     

    2. Amendment to Section 1.01 of
the Credit Agreement.

     

    (a) Section
1.01 of the Credit Agreement is hereby amended by deleting the definition of
“Applicable Rate” in its entirety and replacing it with the
following:

     

      “Applicable Rate” means, from and after
the March  2010 Waiver Effective Date, (i) with respect to any Base Rate
Loan, 7.50% per annum, (ii) with respect to any Eurodollar Rate Loan, 8.50% per
annum, and (iii) with respect to any commitment fee, 1.50%.

     

    (b) Section
1.01 of the Credit Agreement is hereby further amended by adding the following
language to the definition of “Consolidated EBITDA” before the “,” at the end of
clause (a)(i):

     

    “and all
Deferred Interest and Deferred Letter of Credit Fees for such
period”.

     

    (c) Section
1.01 of the Credit Agreement is hereby further amended by deleting the term
“interest expense” from clause (b)(i) of the definition of “Excess Cash Flow”
and replacing it with the term “Interest Expense”.

     

    (d) Section
1.01 of the Credit Agreement is hereby further amended by adding the following
language to the definition of “Interest Expense” before the “;” at the end of
clause (a):

     

    “, but
excluding any Deferred Interest accrued on the Loans pursuant to Section
2.08(c)”.

     

    (e) Section
1.01 of the Credit Agreement is hereby further amended by adding the following
language to the definition of “Interest Expense” before the “;” at the end of
clause (b):

     

    “, but
excluding any Deferred Letter of Credit Fees accrued on the Loans pursuant to
Section
2.09(a)”.

     

    (f) Section
1.01 of the Credit Agreement is hereby further amended by inserting the
following defined terms in their appropriate alphabetical order:

     

    “Deferred Interest”
has the meaning specified in Section
2.08(c).

     

    “Deferred Interest Payment
Date” has the meaning specified in Section
2.08(c).

     

    “Deferred Letter of Credit
Fee” has the meaning specified in Section
2.09(a).

     

     

    
      
         


      

      
        2

        
        

      

      
         


      

    


    “March 2010 Waiver and
Amendment” shall mean that certain Waiver and Amendment to Credit
Agreement, dated as of the March 2010 Waiver Effective Date, by and among the
Borrower, the Guarantors, the Administrative Agent and each Lender party
thereto.

     

    “March 2010 Waiver Effective
Date” shall mean March 30, 2010.

     

    “Refinancing” shall
mean the repayment in full of the Loans, together with any accrued interest
thereon (other than the Deferred Interest), and the termination of all Revolver
Commitments pursuant to Section 2.06 of the Credit Agreement on or before the
Refinancing Deadline.

     

    “Refinancing Deadline”
shall mean January 6, 2011.

     

    3. Amendment to Section 2.08 of
the Credit Agreement.  Subsection 2.08(c) of the Credit
Agreement is hereby amended by inserting the following prior to the “.” at the
end of the first sentence thereof:

     

    “; provided, however, that,
beginning on the March 2010 Waiver Effective Date through and including the
Interest Payment Date immediately prior to the Maturity Date, on each Interest
Payment Date, with respect to each Loan, Borrower shall pay in cash an amount of
interest equal to the Applicable Rate, less 2.00% per
annum.  The remaining 2.00% per annum shall have, and shall be deemed
to have, accrued; provided, however, that the
payment thereof shall be deferred (the aggregate amount of such deferred
payments of interest, the “Deferred Interest”)
and not be payable until the earlier of (i) the Maturity Date and (ii) the
repayment in full of the Loans and the termination of all Revolver Commitments
pursuant to Section 2.06 of the Credit Agreement (such date, the “Deferred Interest Payment
Date”).  Notwithstanding anything to the contrary contained
herein or in any other Loan Document, if the Borrower completes a Refinancing,
all Deferred Interest accrued through the date of such Refinancing shall be
automatically forgiven.  Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Deferred Interest is not
payable until the Deferred Interest Payment Date, and the Deferred Interest
accrues as simple interest such that no interest accrues on the Deferred
Interest.”

     

    4. Amendment to Section 2.09 of
the Credit Agreement.  Subsection 2.09(a) of the Credit
Agreement is hereby amended by inserting the following prior to the “.” at the
end of the third sentence thereof:

     


    
      
         


      

      
        3

        
        

      

      
         


      

    


    “provided, however, that,
beginning on the March 2010 Waiver Effective Date, with respect to each Letter
of Credit Fee, Borrower shall pay in cash Letter of Credit Fees equal to the
Applicable Rate, less 2.00% per
annum.  The remaining 2.00% per annum shall have, and shall be deemed
to have, accrued; provided, however, that the
payment thereof shall be deferred (for each Letter of Credit, the aggregate
amount of such deferred payments, the “Deferred Letter of Credit
Fee”) and not be payable until the Deferred Interest Payment
Date.  Notwithstanding anything to the contrary contained herein or in
any other Loan Document, if the Borrower completes a Refinancing, all Deferred
Letter of Credit Fees accrued through the date of such Refinancing shall be
automatically forgiven.  Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Deferred Letter of Credit
Fees are not payable until the Deferred Interest Payment Date, and the Deferred
Letter of Credit Fees accrue as simple interest such that no interest accrues on
the Deferred Letter of Credit Fees.”

     

    5. Amendment to Section 6.01 of
the Credit Agreement.  Subsection 6.01(c) is hereby amended by
inserting the following sentence at the end of such subsection:

     

    “Within
three Business Days after each delivery of monthly financial information
pursuant to this subsection (c), the Borrower shall deliver to the
Administrative Agent a written report, to be certified by a Responsible Officer,
which shall provide a narrative description of such financial information,
including, without limitation, a summary and review of the business operations
of the Borrower and the Guarantors for such month.”

     

    6. Waiver of Section 6.01 of
the Credit Agreement.  Subject to the terms and conditions set
forth herein, effective on, and subject to the occurrence of, the Effective Date
(as hereinafter defined), the Administrative Agent and the Lenders hereby waive,
for the benefit of the Borrower and the Guarantors, compliance by the Borrower
with Section 6.01(a) of the Credit Agreement, (a) with respect to the fiscal
year ended December 31, 2009 solely to the extent
that such Section requires that the Auditor’s Report and Opinion to be delivered
by the Auditor shall not be subject to a Going Concern Qualification or like
qualification or exception (the “2009 Going Concern
Waiver”), provided that the
2009 Going Concern Waiver is limited to a Going Concern Qualification or like
qualification or exception relating to the following: (i) inability to raise
sufficient capital or revenues to meet obligations; (ii) increased
expenses as a result of events surrounding the bankruptcy of the Borrower’s
former parent; (iii) the securities
class action and other actions currently pending against the Borrower and/or
(iv) the Borrower’s potential inability to comply with the financial covenants
in the Credit Agreement as a result of the foregoing (the foregoing (i) through
(iv), the “Permitted
Qualifications”); and (b) with respect to the fiscal year ending December
31, 2010, solely to the extent
that such Section requires that the Auditor’s Report and Opinion to be delivered
by the Auditor shall not be subject to any Going Concern Qualification (the
“2010 Going Concern
Waiver”), provided that the
2010 Going Concern Waiver is limited to a Going Concern Qualification (but not any like
qualification or exception) related to (i) the Permitted
Qualifications and/or (ii) amounts coming
due under the Credit Agreement upon reaching the Maturity Date (i.e., the Loans
being classified under GAAP as current maturities of long-term
debt).  For the avoidance of doubt, except as expressly set forth in
this Section, the Lenders have not waived, and do not hereby waive (i) the
Borrower’s future obligation to comply with the provisions of Section 6.01(a)
waived hereby or (ii) the Borrower’s present and future obligation to comply
with each other provision of the Credit Agreement (as amended hereby), including
without limitation all other requirements of Section 6.01(a) and Article VII
thereof.

     

    
      
         


      

      
        4

        
        

      

      
         


      

    


    7. Excess Cash Flow
Prepayment.  The parties hereto hereby agree that the amount of
Excess Cash Flow to be paid on March 31, 2010 by Borrower to the Administrative
Agent for the benefit of the Lenders to ratably prepay the Loans pursuant to
Section 2.05(j) of the Credit Agreement shall be an amount equal to
$3,793,394.00, as further set forth on Schedule I, attached hereto and made a
part hereof.

     

    8. Representations and
Warranties.  The Borrower represents and warrants to the
Administrative Agent and the Lenders that the following statements are true,
correct and complete:

     

    (a) Representations and
Warranties.  After giving effect to this Amendment, each of the
representations and warranties made by the Borrower and the Guarantors pursuant
to the Credit Agreement, as amended hereby, and the other Loan Documents is true
and correct in all material respects on and as of the date of this Amendment,
except to the extent such representations and warranties expressly relate to an
earlier date.

     

    (b) No Default or Event of
Default.  After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.

     

    (c) Execution, Delivery and
Enforceability.  This Amendment has been duly and validly
executed and delivered by the Borrower and the Guarantors and constitutes their
legal, valid and binding obligations, enforceable against the Borrower and the
Guarantors in accordance with its terms, except as such enforceability may be
limited by applicable Debtor Relief Laws and by general principles of
equity.

     

    9. Conditions to
Effectiveness.  This Amendment shall be effective on the date
when and if each of the following conditions is satisfied (such date, the “Effective
Date”):

     

    (a) Execution and
Delivery.  The Administrative Agent shall have received a
counterpart of this Amendment executed and delivered by the Borrower, each of
the Guarantors 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 Amendment, no Default or Event of
Default shall exist and each of the representations and warranties made by the
Borrower and the Guarantors herein 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 Amendment becomes effective,
except to the extent such representations and warranties expressly relate to an
earlier date.

     

    (c) Consents and Approvals. All necessary consents
and approvals to this Amendment shall have been obtained.

     

    (d) Expense
Reimbursements.  The Borrower shall have paid all reasonable
invoices presented to the Borrower on or before 5 p.m. (Eastern Time) on March
26, 2010 for expense reimbursements (including reasonable attorneys’ and
financial advisors’ fees and disbursements) due to the Administrative Agent and
the Lenders in accordance with Section 10.04 of the Credit
Agreement.  The payment of invoices presented to the Borrower after 5
p.m. (Eastern Time) on March 26, 2010 shall not be a condition to the
effectiveness of this Amendment, provided, that the
failure of the Administrative Agent or any Lender to present such an invoice by
such time shall not be a waiver of the Borrower’s obligation to pay all such
invoices as soon as is reasonably practicable after the Effective
Date.

     

    
      
         


      

      
        5

        
        

      

      
         


      

    


    (e) Fees.  The Borrower
shall have, and shall be deemed to have, accrued, a fee equal to $1,000,000.00,
which shall be paid to the Administrative Agent for the benefit of the Lenders
who execute and deliver a counterpart of this Amendment to the Administrative
Agent by 5 p.m. (Eastern Time) on March 29, 2010, and allocated pro rata among
such Lenders as follows: (i) $500,000.00 by 5 p.m. (Eastern Time) on the
Effective Date (the “Effective Date
Payment”) and (ii) $500,000 by 5 p.m. (Eastern Time) on June 30,
2010.  For the avoidance of doubt, payment by the Borrower of the
Effective Date Payment shall be a condition to the effectiveness of this
Amendment.

     

    10. Release.  For
purposes of this Section 
10, 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 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 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 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).

     

    11. 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 
10 of this Amendment) other than as provided in Section 
10 of this Amendment.

     


    
      
         


      

      
        6

        
        

      

      
         


      

    


    12. Confirmation of Credit
Agreement and Security Documents.  Except as amended by this
Amendment, all the provisions of the Credit 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 Amendment
shall be limited precisely as written and shall not, except as set forth herein,
be deemed (a) to be a consent granted pursuant to, or a waiver or modification
of, any other term or condition of the Credit 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 Credit Agreement or any of the
instruments or agreements referred to therein.  From and after the
date hereof, all references in the Credit Agreement to “this Agreement”,
“hereof”, “herein”, or similar terms, shall refer to the Credit Agreement as
amended by this 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 Amendment.

     

    13. Mutual
Representation.  As of the Effective Date, and after giving
effect hereto, neither the Lenders parties hereto nor the Borrower nor any
Guarantor is aware of the existence of any Default or Event of Default under the
Loan Documents.

     

    14. Material Weakness and
Restatement.  Reference is made to the Borrower’s Form 8-K
filed with the SEC on March 12, 2010, relating to a material weakness in
internal control over financial reporting related to the Partnership’s process
for analyzing and applying complex accounting associated with debt arrangements,
and the Borrower’s need to restate its unaudited financial statements previously
filed by the Borrower with the SEC as part of the June 30, 2009 and September
30, 2009 quarterly reports on Form 10-Q (the matters disclosed in such Form 8-K,
including the restatement of such financial statements, being hereinafter
referred to as the “Material Weakness and Restatement”).  Subject to
the terms and conditions set forth herein, effective on, and subject to the
occurrence of, the Effective Date, for the avoidance of doubt the Administrative
Agent and the Lenders hereby agree that the Material Weakness and Restatement do
not constitute a Default or an Event of Default under the Loan
Documents.

     

    15. GOVERNING
LAW.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

     

    16. Loan
Document.  This Amendment shall constitute a Loan Document
under the Credit Agreement, and all obligations included in this Amendment
(including, without limitation, all obligations for the payment of principal,
interest, fees and other amounts and expenses) shall constitute Obligations
under the Credit Agreement and shall be secured by the Collateral.

     

    17. Counterparts.  This
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
Amendment by facsimile transmission or electronic photocopy (e.g. a “.pdf”)
shall be as effective as delivery of a manually signed counterpart.

     


    
      
         


      

      
        7

        
        

      

      
         


      

    


        IN WITNESS WHEREOF, the parties
have caused this Amendment to be duly executed as of the day and year first
above written.

    

      
        	 
      	
                BLUEKNIGHT
      ENERGY PARTNERS L.P.

              
	 
      	
                (f/k/a
      SemGroup Energy Partners, L.P.)

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                Blueknight
      Energy Partners G.P., L.L.C.,

              
	 
      	 
      	
                its
      general partner (f/k/a SemGroup Energy Partners, G.P.,
    L.L.C.)

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	/s/
      Alex G. Stallings
	 
      	 
      	 
      	
                Name:
      Alex G. Stallings

              
	 
      	 
      	 
      	
                Title: 
       Chief Financial Officer and Secretary

              
	 
      	 
      	 
      	 
      
	 
      	
                Guarantors:

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                BKEP PIPELINE, L.P.
      (f/k/a SemPipe, L.P.)

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                BKEP
      Pipeline G.P., L.L.C.,

              
	 
      	 
      	
                its
      general partner (f/k/a SemPipe G.P., L.L.C.)

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                By:

              	/s/ Alex G.
  Stallings
	 
      	 
      	 
      	
                Name:
      Alex G. Stallings

              
	 
      	 
      	 
      	
                Title:  
      Chief Financial Officer and Secretary 

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                BKEP PIPELINE G.P., L.L.C.
      (f/k/a SemPipe G.P., L.L.C.)

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Alex G. Stallings
	 
      	 
      	
                Name:

              	Alex
      G. Stallings
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                BKEP CRUDE, L.L.C.
      (f/k/a SemGroup Energy Partners, L.L.C.)

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Alex G. Stallings 
	 
      	 
      	
                Name:

              	Alex
      G. Stallings
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary
	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


      
        	 
      	
                BKEP OPERATING, L.L.C.
      (f/k/a SemGroup Energy Partners Operating,
  L.L.C.)

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Alex G.
      Stallings
	 
      	 
      	
                Name:
      

              	Alex
      G. Stallings	 
      
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                BKEP MATERIALS, L.L.C.
      (f/k/a SemMaterials Energy Partners, L.L.C.)

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Alex G.
      Stallings
	 
      	 
      	
                Name:

              	Alex
      G. Stallings	 
      
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                BKEP STORAGE, L.L.C.
      (f/k/a SemGroup Crude Storage, L.L.C.)

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Alex G.
      Stallings
	 
      	 
      	
                Name:

              	Alex
      G. Stallings	 
      
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                BKEP ASPHALT, L.L.C.
      (f/k/a SGLP Asphalt, L.L.C)

              
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Alex G.
      Stallings
	 
      	 
      	
                Name:

              	Alex
      G. Stallings	 
      
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                BKEP MANAGEMENT, INC.
      (f/k/a SGLP Management, Inc.)

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Alex G.
      Stallings
	 
      	 
      	
                Name:

              	Alex
      G. Stallings	 
      
	 
      	 
      	
                Title:

              	Chief
      Financial Officer and Secretary	 
      
	 
      	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


      
        	 
      	
                Lenders:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Wells
      Fargo Bank, N.A.

              
	 
      	
                (f/k/a
      Wachovia Bank, National Association),

              
	 
      	 
      	
                as
      L/C Issuer,

              	 
      
	 
      	 
      	
                Swing
      Line Lender and Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      D. Paul Hulbert III
	 
      	 
      	
                Name:

              	D.
      Paul Hulbert III	 
      
	 
      	 
      	
                Title:

              	Director	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 	The
      Royal Bank of Scotland N.V.
	 
      	
                (f/k/a ABN AMRO Bank N.V.), as a
      Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Parker H. Douglas
	 
      	 
      	
                Name:

              	Parker
      H. Douglas	 
      
	 
      	 
      	
                Title:

              	Managing
      Director	 
      
	 	 	 	 	 
	 	 	 	 	 
	 	By:	/s/
      David W. Stack
	 	 	Name:	David
      W. Stack	 
	 
      	 
      	Title: 
      	Senior
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Bank of America, N.A.,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Cameron D. Taylor
	 
      	 
      	
                Name:

              	Cameron
      D. Taylor	 
      
	 
      	 
      	
                Title:

              	Senior
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                The Bank of Nova Scotia,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Marc Graham
	 
      	 
      	
                Name:

              	Marc
      Graham	 
      
	 
      	 
      	
                Title:

              	Director	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Bank of Scotland PLC, as
      a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Julia R. Franklin
	 
      	 
      	
                Name:

              	Julia
      R. Franklin	 
      
	 
      	 
      	
                Title:

              	Assistant
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


      
        	 
      	
                Blue Ridge Investments LLC,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      John Hlebendahl	 
      
	 
      	 
      	
                Name:

              	John
      Hlebendahl	 
      
	 
      	 
      	
                Title:

              	VP;
      Controller	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                BMO Capital Markets Financing
      Inc., as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Richard A. Garcia	 
      
	 
      	 
      	
                Name:

              	Richard
      A. Garcia	 
      
	 
      	 
      	
                Title:

              	Vice
      President	 
      
	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 
	 
      	Credit
      Agricole Corporate and Investment Bank	 
      
	 
      	
                (f/k/a Caylon New York Branch), as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Anne G. Shean	 
      
	 
      	 
      	
                Name:

              	Anne
      G. Shean	 
      
	 
      	 
      	
                Title:

              	Managing
      Director	 
      
	 	 	 	 	 
	 	 	 	 	 
	 	By:	/s/
      Richard Teitelbaum	 
	 	 	Name:	Richard
      Teitelbaum	 
	 
      	 
      	Title:	Director	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Citibank, N.A., as a
      Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	________________________________ 	 
      
	 
      	 
      	
                Name:

              	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Evergreen High Income Fund,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Authorized
      Signatory	 
      
	 
      	 
      	
                Name:

              	Authorized
      Signatory	 
      
	 
      	 
      	
                Title:

              	Authorized
      Signatory	 
      
	 
      	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


      
        	 
      	
                Evergreen Income Advantage
      Fund, as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Authorized
      Signatory	 
      
	 
      	 
      	
                Name:

              	Authorized
      Signatory	 
      
	 
      	 
      	
                Title:

              	Authorized
      Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Evergreen Multi-Sector Income,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Authorized
      Signatory 	 
      
	 
      	 
      	
                Name:

              	Authorized
      Signatory	 
      
	 
      	 
      	
                Title:

              	Authorized
      Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Evergreen Utilities & High
      Income Fund, as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Authorized
      Signatory	 
      
	 
      	 
      	
                Name:

              	Authorized
      Signatory	 
      
	 
      	 
      	
                Title:

              	Authorized
      Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Fortis Capital Corporation,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	________________________________ 
      	 
      
	 
      	 
      	
                Name:

              	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Guaranty Bank And Trust
      Company, as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	________________________________ 
      	 
      
	 
      	 
      	
                Name:

              	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


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

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Phillip D. Martin	 
      
	 
      	 
      	
                Name:

              	Phillip
      D. Martin	 
      
	 
      	 
      	
                Title:

              	Senior
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                GE
      Business Financial Services, Inc.,

              
	 
      	
                (f/k/a
      Merrill Lynch Business Financial Services, Inc), as a
    Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Stephen P. Lenihan	 
      
	 
      	 
      	
                Name:

              	Stephen
      P. Lenihan	 
      
	 
      	 
      	
                Title:

              	Authorized
      Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                One East Liquidity Master LP,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Siuu Toussi	 
      
	 
      	 
      	
                Name:

              	Siuu
      Toussi	 
      
	 
      	 
      	
                Title:

              	Partner
      and Authorized Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                One East Partners Master LP,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/ Siuu Toussi	 
      
	 
      	 
      	
                Name:

              	Siuu
      Toussi	 
      
	 
      	 
      	
                Title:

              	Partner
      and Authorized Signatory	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Raymond James Bank FSB,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Garrett McKinnon	 
      
	 
      	 
      	
                Name:

              	Garrett
      McKinnon	 
      
	 
      	 
      	
                Title:

              	Senior
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      


      
        	 
      	
                Royal Bank of Canada, as
      a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Leslie P. Vowell	 
      
	 
      	 
      	
                Name:

              	Leslie
      P. Vowell	 
      
	 
      	 
      	
                Title:

              	Atoerney-In-Fact	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Solus Core Opportunities Master
      Fund, as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	________________________________	 
      
	 
      	 
      	
                Name:

              	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                SunTrust Bank, N.A., as
      a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Katherine Bass	 
      
	 
      	 
      	
                Name:

              	Katherine
      Bass	 
      
	 
      	 
      	
                Title:

              	First
      Vice President	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                UBS Loan Financial LLC,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	________________________________	 
      
	 
      	 
      	
                Name:

              	 
      	 
      
	 
      	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                Woodsland Commercial Bank,
      as a Lender

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	 
      	
                By:

              	/s/
      Brian Halbeisen	 
      
	 
      	 
      	
                Name:

              	Brian
      Halbeisen	 
      
	 
      	 
      	
                Title:

              	Vice
      President	 
      


      


      
        
           


        

        
           


          
          

        

        
           


        

      



    Acknowledged:

    


    Wells
Fargo Bank, N.A.

    (f/k/a
Wachovia Bank, National Association),

        as
Administrative Agent

    


    


    By: D. Paul Hulbert III

    Name: D. Paul Hulbert III

    Title:  
Director