FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

EX-10.1.1 2 dex1011.htm FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT First Amendment to Amended and Restated Credit Agreement

Exhibit 10.1.1

FIRST AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “First Amendment”) is dated as of April 19, 2011, and is made by and among PVR FINCO LLC, a Delaware limited liability company (the “Borrower”), the GUARANTORS (individually a “Guarantor” and collectively, the “Guarantors”), the FINANCIAL INSTITUTIONS PARTY HERETO (individually a “Lender” and collectively, the “Lenders”), BANK OF AMERICA, N.A., SUNTRUST BANK, BRANCH BANKING AND TRUST COMPANY and UNION BANK, each in its capacity as a documentation agent, and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders (the “Agent”). PNC Capital Markets LLC, RBC Capital Markets and Wells Fargo Bank, N.A. are Lead Arrangers, and RBC Capital Markets and Wells Fargo Bank, N.A. are Co-Syndication Agents under the Credit Agreement (defined below).

RECITALS:

WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent are parties to that certain Amended and Restated Credit Agreement, dated as of August 13, 2010 (the “Credit Agreement”); unless otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Credit Agreement;

WHEREAS, the Borrower and the Guarantors have requested that the Lenders agree to amend the Credit Agreement in order to (i) extend the Expiration Date, (ii) increase the Commitments to $1,000,000,000 and amend Schedule 1.1(B)-Part 1 to reflect such increase, (iii) permit an increase in Commitments of up to $200,000,000 in accordance with Section 2.10 [Increase in Commitments], (iv) amend the Maximum Secured Leverage Ratio and (v) amend Schedule 1.1(A) Pricing Grid, all pursuant to the terms and subject to the applicable conditions set forth herein, and the Lenders have agreed to amend the Credit Agreement as hereinafter provided.

NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound, and incorporating the above-defined terms herein, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and incorporated herein by reference.

2. Amendment to Credit Agreement.

(a) Definitions.

(i) The definition of Expiration Date contained in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:

“Expiration Date shall mean, with respect to the Commitments, April 19, 2016.”

(ii) The definition of Restricted Subsidiary contained in Section 1.1 of the Credit Agreement is hereby amended and restated as follows:

“Restricted Subsidiary means (i) with respect to the Parent, the Borrower and each of its Subsidiaries other than its Unrestricted Subsidiaries and (ii) with respect to each Loan Party, each of its Subsidiaries other than its Unrestricted Subsidiaries.”

(b) New Definitions. The following new definitions are hereby inserted in Section 1.1 of the Credit Agreement in alphabetical order:

“Begley Assets shall mean the assets acquired by certain of the Loan Parties pursuant to that certain Asset Purchase and Sale Agreement, dated as of December 15, 2010, among Penn Virginia Operating Co., LLC, a Delaware limited liability company, as purchaser, Begley Properties, LLC, a Kentucky limited liability company, as seller and Fidelity National Title Company, as escrow agent (except to the extent that such assets constitute Excluded Property).”

“First Amendment Date shall mean April 19, 2011.”

“After giving effect to such increase, (a) the total Commitments shall not exceed $1,200,000,000 and (b) the aggregate amount of all increases occurring after the First Amendment Date shall not exceed $200,000,000;”

(d) Amendment to Section 7.1.13(ii) [Collateral and Additional Collateral; Execution and Delivery of Additional Security Documents. Section 7.1.13(ii) is hereby amended by adding the following language at the end thereof:

“Notwithstanding the foregoing, within one hundred twenty (120) days following the First Amendment Date (which time period may be extended by an additional thirty (30) days in the Agent’s sole discretion), each Loan Party that has acquired Begley Assets shall (a) comply with the foregoing requirements as to such Begley Assets and (b) deliver legal opinions in form and substance reasonably satisfactory to the Agent as to the Security Documents pertaining to such Begley Assets and the other matters set forth in Section 6.1.4(b) [Opinions of Counsel].”

(e) Amendment to Section 7.2.18 [Maximum Secured Leverage Ratio]. Section 7.2.18 is hereby amended and restated as follows:

“The Loan Parties shall not permit the ratio of Consolidated Secured Indebtedness, as measured at the end of each fiscal quarter, to Consolidated EBITDA, calculated as of the end of each fiscal quarter for the four quarters then ended, to exceed (i) 3.75 to 1.0 for the end of each fiscal quarter occurring after the Closing Date through the fiscal quarter ended December 31, 2010 and (ii) 4.00 to 1.00 for the end of each fiscal quarter thereafter.”

(f) Amendment to Schedule 1.1(A)-Pricing Grid. Schedule 1.1(A)-Pricing Grid to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule 1.1(A)-Pricing Grid to this First Amendment and any change in pricing shall be effective as of the First Amendment Date.

(g) Amendment to Schedule 1.1(B)-Commitments of Lenders and Addresses for Notices. Schedule 1.1(B)-Commitments of Lenders and Addresses for Notices to this Credit Agreement-Part 1 is hereby deleted in its entirety and replaced with Schedule 1.1(B)-Commitments of Lenders and Addresses for Notices-Part 1 to this First Amendment.

3. Initial Borrowing/Conversion. Notwithstanding the requirement under Section 2.5 of the Credit Agreement that the Borrower deliver a Loan Request three (3) Business Days prior to a proposed Borrowing Date with respect to the conversion to the Euro-Rate Option for any Loans, the Lenders agree that the Borrower may deliver a Loan Request two (2) Business Days prior to the proposed Borrowing Date with respect to a Loan Request made on the First Amendment Date regarding the initial conversion of Loans to the Euro-Rate Option.

4. Conditions to Effectiveness. The amendments contained in Section 2 of this First Amendment shall become effective upon satisfaction of each of the following conditions being satisfied to the satisfaction of the Agent:

(a) Execution and Delivery of First Amendment. The Borrower, the Guarantors, the Lenders and the Agent shall have executed this First Amendment; each amended and restated Note and all other documentation necessary for effectiveness of this First Amendment, including amendments to Mortgages (or amendment and restatement of Mortgages) and flood zone determinations with respect to all real property Collateral on which a structure is erected, shall have been executed and delivered all to the satisfaction of the Borrower, the Lenders and the Agent.

(b) Organization, Authorization and Incumbency. There shall be delivered to the Agent for the benefit of each Lender a certificate, dated the date hereof and signed by the Secretary or an Assistant Secretary of each Loan Party, certifying as appropriate as to:

(i) all action taken by such party in connection with this First Amendment and the other documents executed and delivered in connection herewith, together with authorizing resolutions on behalf of each of the Loan Parties evidencing same;

(ii) the names of the officer or officers authorized to sign this First Amendment and the other documents executed and delivered in connection herewith and the true signatures of such officer or officers and specifying the Authorized Officers permitted to act on behalf of the Loan Parties for purposes of the Loan Documents and the true signatures of such officers, on which the Agent and each Lender may conclusively rely; and

(iii) copies of its organizational documents, including its certificate of incorporation, bylaws, certificate of limited partnership, partnership agreement, certificate of formation and limited liability company agreement, in each case as in effect on the date hereof, certified by the appropriate state official where such documents are filed in a state office together with certificates from the appropriate state officials as to the continued existence and good standing of the Borrower in each state where organized or qualified to do business; provided, however, that the Loan Parties may, in lieu of delivering copies of the foregoing organizational documents and good standing certificates, certify that the organizational documents and good standing certificates previously delivered by the Loan Parties to the Agent remain in full force and effect and have not been modified, amended, or rescinded.

(c) Material Adverse Change; Litigation. Each of the Loan Parties shall provide a certificate that represents and warrants to the Agent and the Lenders that by its execution and delivery hereof to the Agent, after giving effect to this First Amendment and the transactions contemplated herein:

(i) no Material Adverse Change shall have occurred with respect to the Borrower or any of the Loan Parties since the Closing Date of the Credit Agreement; and

(ii) there are no actions, suits, investigations, litigation or governmental proceedings pending or, to the Loans Parties’ knowledge, threatened against any of the Loan Parties that could reasonably be expected to result in a Material Adverse Change or relate to any of the transactions contemplated herein.

(d) Officer’s Certificate. There shall be delivered to the Agent a certificate of the Loan Parties, dated the date hereof and signed by the Chief Executive Officer, President, Vice President or Chief Financial Officer of each Loan Party, certifying that: (i) the representations and warranties of the Borrower contained in Article 5 of the Credit Agreement shall be true and accurate on and as of the date hereof with the same effect as though such representations and warranties had been made on and as of the date hereof (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), (ii) the Loan Parties shall have performed and complied with all covenants and conditions of the Credit Agreement and this First Amendment and (iii) no Event of Default or Potential Default under the Credit Agreement shall have occurred and be continuing or shall exist.

(e) Consents and Approvals. No consent, approval, exemption, order or authorization of, or a registration or filing with, any Official Body or any other Person is required by any Law or any agreement in connection with the execution, delivery and carrying out of this First Amendment by any Loan Party other than such consents, approvals, exemptions, orders or authorizations that have already been obtained.

(f) Opinions of Counsel.

(i) There shall be delivered to the Agent for the benefit of each Lender a written opinion of Morgan, Lewis & Bockius LLP, special counsel for the Loan Parties (other than Immaterial Subsidiaries), dated the First Amendment Date, and in form and substance satisfactory to the Agent and its counsel as to such matters with respect to the transactions contemplated herein as the Agent may reasonably request.

(ii) There shall be delivered to the Agent for the benefit of each Lender an opinion letter from local counsel in the jurisdiction in which each amendment to Mortgage (or amendment and restatement of Mortgage) is obtained with respect to the enforceability, validity and form of the amendment to Mortgage (or amendment and restatement of Mortgage) and any related fixture, as-extracted collateral and transmitting utility filings and such other matters as requested by Agent, all in form and substance reasonably satisfactory to the Agent.

(g) Financial Projections. The Borrower shall have delivered projected consolidated financial statements (including balance sheets, statements of operations and cash flows) through December 31, 2013 that are reasonably acceptable to the Lenders and the Agent.

(h) Fees. The Borrower shall have paid to the Agent any reasonable fees and expenses due and payable to the Agent and the Lenders and the reasonable costs and expenses of the Agent, including, without limitation, reasonable fees of the Agent’s counsel in connection with this First Amendment and any mortgage recording fees and mortgage or recording taxes.

5. Miscellaneous.

(a) Representations and Warranties. By its execution and delivery hereof to the Agent, each of the Loan Parties represents and warrants to the Agent and the Lenders that such Loan Party has duly authorized, executed and delivered this First Amendment.

(b) Full Force and Effect. All provisions of the Credit Agreement remain in full force and effect on and after the date hereof except as expressly amended hereby. The parties do not amend any provisions of the Credit Agreement except as expressly amended hereby.

(c) Counterparts. This First Amendment may be signed in counterparts (by facsimile transmission or otherwise) but all of such counterparts together shall constitute one and the same instrument.

(d) Incorporation into Credit Agreement. This First Amendment shall be incorporated into the Credit Agreement by this reference. All representations, warranties, Events of Default and covenants set forth herein shall be a part of the Credit Agreement as if originally contained therein.

(e) Governing Law. This First Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflict of laws principles.

(f) Payment of Fees and Expenses. The Borrower unconditionally agrees to pay and reimburse the Agent and save the Agent harmless against liability for the payment of all reasonable out-of-pocket costs, expenses and disbursements of the Agent, including, without limitation, the reasonable fees and expenses of counsel incurred by the Agent in connection with the development, preparation, execution, administration, interpretation or performance of this First Amendment and all other documents or instruments to be delivered in connection herewith.

(g) No Novation. Except as amended hereby, all of the terms and conditions of the Credit Agreement and the other Loan Documents shall remain in full force and effect. Borrower, the Guarantors, each Lender, and the Agent acknowledge and agree that this First Amendment is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations, loans, liabilities, or indebtedness under the Credit Agreement or the other Loan Documents.

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