Attached files
file | filename |
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8-K - FORM 8-K - Duncan Energy Partners L.P. | h83333e8vk.htm |
EX-10.2 - EX-10.2 - Duncan Energy Partners L.P. | h83333exv10w2.htm |
Exhibit 10.1
LIMITED WAIVER AGREEMENT
THIS LIMITED WAIVER AGREEMENT, hereinafter referred to as this Waiver, dated as of June 30,
2011, is made and entered into by and among Duncan Energy Partners L.P., a Delaware limited
partnership (the Borrower), the Lenders party hereto and Wells Fargo Bank, National
Association, successor-in-interest to Wachovia Bank, National Association, as Administrative Agent
under that certain Term Loan Agreement (as amended, the Term Loan Agreement) dated as of
April 18, 2008, among the Borrower, Wells Fargo Bank, National Association, as Administrative
Agent, and the Lenders party thereto.
WHEREAS, the Borrower projects its Leverage Ratio to slightly exceed 5.00 to 1.00 in the
second and third fiscal quarters of 2011 and has requested the Administrative Agent and Lenders
waive the covenant set forth in Section 6.07(b) of the Term Loan Agreement with respect thereto for
fiscal quarters ending June 30, 2011 and September 30, 2011, and the Administrative Agent and the
Lenders party hereto are willing to do so.
NOW, THEREFORE, subject to the conditions and limitations set forth herein, and in
consideration of the premises and the mutual agreements herein set forth, and for other good and
valuable consideration, the Borrower, the Administrative Agent and the Lenders party hereto do
hereby agree as follows:
The requirement of Section 6.07(b) of the Term Loan Agreement is hereby waived for fiscal quarters ending June 30, 2011 and September 30, 2011. PROVIDED, for purposes of subsection (a) of the definition of Applicable Rate set forth in Section 1.01 of the Term Loan Agreement, commencing July 1, 2011, the Leverage Ratio shall be deemed to be greater than 5.00 to 1.00 until but not including the first Business Day immediately following the date a compliance certificate is delivered pursuant to Section 5.01(d) certifying that the Leverage Ratio is less than or equal to 5.00 to 1.00 |
Borrower hereby represents and warrants to Administrative Agent and Lenders that there exists
no Default or Event of Default after giving effect to the waiver set forth herein, and all
representations and warranties contained herein, in the Term Loan Agreement or otherwise made in
writing by Borrower in connection herewith or therewith were true and correct in all material
respects when made, and are true and correct in all material respects at and as of the date hereof,
except, in each case, to the extent such representations and warranties relate to an earlier date,
in which case such representations and warranties were true and correct in all material respects as
of such earlier date.
Except as expressly waived or agreed herein, all covenants, obligations and agreements of
Borrower contained in the Term Loan Agreement shall remain in full force and effect in accordance
with their terms. Without limitation of the foregoing, the consents and agreements set forth
herein are limited precisely to the extent set forth herein and shall not be deemed to (a) be a
consent or agreement to, or waiver or modification of, any other term or condition of the Term Loan
Agreement or any of the documents referred to therein, or (b) except as expressly set forth herein,
prejudice any right or rights which Administrative Agent or any Lender may now have or may have in
the future under or in connection with the Term Loan Agreement or any of the documents referred to
therein. Except as expressly modified hereby, the terms and provisions of the Term Loan Agreement
and any other documents or instruments executed in connection with any of the foregoing, are and
hall remain in full force and effect in accordance with their terms, and the same are hereby ratified and
confirmed by Borrower in all respects.
Borrower agrees to reimburse and save Administrative Agent harmless from and against
liabilities for the payment of all out-of-pocket costs and expenses arising in connection with the
preparation, execution, delivery, amendment, modification, waiver and enforcement of, or the
preservation of any rights under, this Limited Waiver, including, without limitation, the
reasonable fees and expenses of legal counsel to Administrative Agent which may be payable in
respect of, or in respect of any modification of, this Limited Waiver.
This Limited Waiver, and the rights and obligations of the parties hereunder, shall be
construed in accordance with and be governed by the laws of the State of New York.
This Limited Waiver, and the documents referred to herein, represent the entire understanding
of the parties hereto regarding the subject matter hereof and supersede all prior and
contemporaneous oral and written agreements of the parties hereto with respect to the subject
matter hereof.
This Limited Waiver may be separately executed in counterparts and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed to constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be signed by their
respective duly authorized officers, effective as of the date first set forth herein.
DUNCAN ENERGY PARTNERS, L.P. |
||||
By: | DEP HOLDINGS, LLC, General Partner | |||
By: | /s/ Bryan F. Bulawa | |||
Bryan F. Bulawa | ||||
Senior Vice President, Chief Financial Officer and Treasurer | ||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Lender |
||||
By: | /s/ Mark Oberreuter | |||
Name: | Mark Oberreuter | |||
Title: | Vice President | |||
AGREED TO THIS 30th DAY OF JUNE, 2011: |
||||
Bank of America, N. A. | ||||
Name of Lender | ||||
By: | /s/ Joseph Scott | |||
Name: | Joseph Scott | |||
Title: | Director | |||
Bank of Nova Scotia
Name of Lender
By: | /s/ John Frazell | |||
Name: | John Frazell | |||
Title: | Director | |||
The Bank of Tokyo Mitsubishi UFJ, Ltd.
Name of Lender
By: | /s/ William S. Rogers | |||
Name: | William S. Rogers | |||
Title: | Authorized Signatory | |||
Barclays Bank PLC
Name of Lender
By: | /s/ May Huang | |||
Name: | May Huang | |||
Title: | Assistant Vice President | |||
Citibank, N. A.
Name of Lender
By: | /s/ Yasantha Gunaratna | |||
Name: | Yasantha Gunaratna | |||
Title: | Vice President | |||
DnB NOR Bank ASA
Name of Lender
By: | /s/ Evan Uhlick | |||
Name: | Evan Uhlick | |||
Title: | Vice President | |||
By: | /s/ Giacomo Landi | |||
Name: | Giacomo Landi | |||
Title: | Senior Vice President | |||
JPMorgan Chase Bank, N. A.
Name of Lender
By: | /s/ Kenneth J. Fatur | |||
Name: | Kenneth J. Fatur | |||
Title: | Managing Director |
Mizuho Corporate Bank, Ltd.
Name of Lender
By: | /s/ Leon Mo | |||
Name: | Leon Mo | |||
Title: | Authorized Signatory | |||
Morgan Stanley Bank, N. A
Name of Lender
By: | /s/ Susan Saxe | |||
Name: | Susan Saxe | |||
Title: | Authorized Signatory | |||
The Royal Bank of Scotland plc
Name of Lender
By: | /s/ Brian D. Williams | |||
Name: | Brian D. Williams | |||
Title: | Authorized Signatory | |||
UBS AG, Stamford Branch
Name of Lender
By: | /s/ Irja R. Otsa | |||
Name: | Irja R. Otsa | |||
Title: | Associate Director | |||
By: | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director | |||