Attached files
file | filename |
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8-K - FORM 8-K - Duncan Energy Partners L.P. | h83333e8vk.htm |
EX-10.1 - EX-10.1 - Duncan Energy Partners L.P. | h83333exv10w1.htm |
Exhibit 10.2
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, as Administrative Agent under that certain Revolving Credit and Term Loan Agreement
(the Credit Agreement) dated as of October 25, 2010, among the Borrower, Wells Fargo
Bank, National Association, as Administrative Agent and Swingline Lender, the Issuing Banks party
thereto, Citibank, N.A., DnB NOR Bank ASA and The Royal Bank of Scotland PLC, as Co-Syndication
Agents, and Scotia Capital, Barclays Bank PLC and Mizuho Corporate Bank, Ltd., as Co-Documentation
Agents.
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 Credit 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 Credit 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 Credit
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 Credit 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 Credit 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 Credit 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 Credit Agreement or any of the documents referred to therein.
Except as expressly modified hereby, the terms and provisions of the Credit Agreement and any other
documents or
instruments executed in connection with any of the foregoing, are and shall 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 | |||
Scotiabanc Inc. | ||||
Name of Lender |
||||
By: | /s/ H. Thind | |||
Name: | H. Thind | |||
Title: | Director | |||
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 | |||
BBVA Compass | ||||
Name of Lender |
||||
By: | /s/ Greg Determann | |||
Name: | Greg Determann | |||
Title: | Senior Vice President |
Credit Suisse AG, Cayman Islands Branch | ||||
Name of Lender |
||||
By: | /s/ Doreen Barr | |||
Name: | Doreen Barr | |||
Title: | Director | |||
By: | /s/ Sanja Gazahi | |||
Name: | Sanja Gazahi | |||
Title: | Associate |
Deutsche Bank AG New York Branch | ||||
Name of Lender |
||||
By: | /s/ Philippe Sandmeter | |||
Name: | Philippe Sandmeter | |||
Title: | Managing Director | |||
By: | /s/ Ross Levitsky | |||
Name: | Ross Levistsky | |||
Title: | Managing Director | |||
DnB NOR Bank ASA | ||||
Name of Lender |
||||
By: | /s/ Giacomo Landi | |||
Name: | Giacomo Landi | |||
Title: | Senior Vice President | |||
By: | /s/ Pal Boger | |||
Name: | Pal Boger | |||
Title: | Vice President | |||
ING Capital | ||||
Name of Lender |
||||
By: | /s/ Richard Ennis | |||
Name: | Richard Ennis | |||
Title: | Managing Director | |||
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 Williams | |||
Name: | Brian Williams | |||
Title: | Authorized Signatory | |||
Societe Generale | ||||
Name of Lender |
||||
By: | /s/ Stephen W. Warfel | |||
Name: | Stephen W. Warfel | |||
Title: | Managing Director | |||
UBS AG, Stamford Branch | ||||
Name of Lender |
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By: | /s/ Irja R. Otsa | |||
Name: | Irja R. Otsa | |||
Title: | Associate Director | |||
By: | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director | |||