Exhibit 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (the “ First Amendment
”) is dated as of March 27, 2009, 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, NA, BNP PARIBAS AND WACHOVIA BANK, NATIONAL
ASSOCIATION , each in its capacity as a documentation agent,
BRANCH BANKING AND TRUST COMPANY, SOCIÉTÉ
GÉNÉRALE AND UNION BANK, N.A. , each in its
capacity as a senior managing agent, and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as administrative agent for the
Lenders (the “ Agent ”). PNC Capital Markets LLC
and RBC Capital Markets are Joint Lead Arrangers, and PBC Capital
Markets is Syndication Agent 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 5,
2008, (as amended, 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 certain
provisions of the Credit Agreement in order to make changes to the
pricing grid set forth on Schedule 1.1(A) to the Credit Agreement,
and revise certain definitions, all pursuant to the terms and
subject to the applicable conditions set forth herein, and the
Required 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) New Definition . The
following new definitions are hereby inserted in Section 1.1
of the Credit Agreement in alphabetical order:
“ First Amendment Effective
Date means March 27, 2009.”
(b) Existing Definition
.
(i) The definition of Consolidated
EBITDA contained in Section 1.1 of the Credit Agreement is
hereby amended and restated as follows:
“ Consolidated EBITDA
shall mean, for any period of determination, Consolidated Net
Income for such period, (x) excluding therefrom (A) any
non-cash items of gain or loss (including without limitation
(i) those items created by mandated changes in accounting
treatment or (ii) any impairment charge or asset write-off
related to intangible assets (including good-will), long-lived
assets, and investments in debt and equity securities pursuant to
GAAP, but excluding any non-cash charge that results in an accrual
of a reserve for cash charges in any future period) and
(B) any gain or loss of any other Person accounted for on the
equity method, except to the extent of cash distributions received
during the relevant period plus (y) the aggregate amounts
deducted in determining Consolidated Net Income for such period in
respect of (i) Consolidated Interest Expense, (ii) income
taxes, (iii) depletion and depreciation expense and
(iv) amortization expense; provided , however ,
that for the purposes of this definition, (1) with respect to
(a) a business acquired by the Loan Parties pursuant to a
Permitted Acquisition or Unrestricted Subsidiaries redesignated as
Restricted Subsidiaries pursuant to Section 7.2.21,
Consolidated EBITDA shall be calculated on a pro forma basis (in a
manner reasonably acceptable to the Agent) as if such Permitted
Acquisition or redesignation had been consummated at the beginning
of such period, (2) with respect to a business or assets
disposed of by the Loan Parties pursuant to Section 7.2.7
hereof or Loan Parties redesignated as Unrestricted Subsidiaries
pursuant to Section 7.2.21, Consolidated EBITDA shall be
calculated as if such disposition or redesignation had been
consummated at the beginning of such period and (3) to the
extent that the computation of Consolidated EBITDA includes a gain
or loss with respect to a Hedging Transaction, Consolidated EBITDA
shall be (a) increased by any non-cash items of loss arising
from Hedging Transactions net of any actual cash payments related
to the items(s) giving rise to the loss and (b) decreased by
any non-cash items of gain arising from Hedging Transactions net of
any actual cash payments related to the items(s) giving rise to the
gain and (4) at Borrower’s election and in the event
that a Loan Party or any of its Restricted Subsidiaries undertakes
a Material Project, the Loan Parties may add a Material Project
Consolidated EBITDA Adjustment to Consolidated
EBITDA.”
(c) Schedules . In order to
reflect the changes in the pricing grid set forth on Schedule
1.1(A) to the Credit Agreement, Schedule 1.1(A) [Pricing
Grid] shall be amended and restated to read as set forth on the
Schedule 1.1(A) attached to this Amendment.
3. 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 Required
Lenders and the Agent shall have executed this Amendment, and all
other documentation necessary for effectiveness of this Amendment
shall have been executed and delivered all to the satisfaction of
the Borrower, the Required Lenders and the Agent.
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(b) Organization, Authorization
and Incumbency . There shall be delivered to the Agent for the
benefit of each Lender a certificate, dated as of the First
Amendment Effective Date 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 Loan
Documents together with resolutions of the general partner of the
Parent of the Borrower on behalf of each of 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 First Amendment Effective Date,
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) Opinion of Counsel . The
Borrower shall cause to be delivered to the Agent an opinion of
counsel of the Borrower with respect to this First Amendment in
such form as shall be acceptable to the Agent.
(d) Financial Projections .
The Borrower shall have delivered to the Agent satisfactory
projected consolidated financial statements of the Loan Parties
including pro forma balance sheets, pro forma income statements and
pro forma cash flow statements for the three fiscal years following
the First Amendment Effective Date.
(e) Material Adverse Change .
Each of the Loan Parties 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, 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.
(f) Litigation . Each of the
Loan Parties 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, 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.
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(g) Officer’s
Certificate . There shall be delivered to the Agent a
certificate of the Loan Parties, dated the First Amendment
Effective Date and signed by the Chief Executive Officer,
President, Vice President or Chief Financial Officer of each Loan
Party, certifying that: (1) 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 First Amendment
Effective Date with the same effect as though such representations
and warranties had been made on and as of such date (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); (2) the Loan Parties shall have performed and
complied with all covenants and conditions of the Credit Agreement
and this First Amendment; and (3) no Event of Default or
Potential Default under the Credit Agreement shall have occurred
and be continuing or shall exist.
(h) Representations and
Warranties; No Event of Default . The representations and
warranties set forth in the Credit Agreement and this First
Amendment shall be true and correct on and as of the First
Amendment Effective Date with the same effect as though such
representations and warranties had been made on and as of such date
(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), and no Potential Default or Event of Default shall
exist and be continuing under the Credit Agreement or under any
other Material Contract, as of the First Amendment Effective
Date.
(i) 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.
(j) Fees . The Borrower shall
have paid to the Agent any 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 Amendment.
4. 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 First Amendment Effective Date and the date
hereof except as expressly amended hereby. The parties do not amend
any provisions of the Credit Agreement except as expressly amended
hereby.
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(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 out-of-pocket costs, expenses and
disbursements, including without limitation, to the Agent for
itself the reasonable costs and expenses of the Agent including,
without limitation, the reasonable fees and expenses of counsel
incurred by the Agent in connection with the development,
preparation,
