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Exhibit
10.1
WAIVER AND NINTH AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This Waiver and Ninth
Amendment to Amended and Restated Credit Agreement (this “
Amendment ”) dated as of October 5, 2007
(the “ Effective Date ”), is by and among PENN
VIRGINIA CORPORATION, a Virginia corporation (the “
Borrower ”), the financial institutions party hereto,
as lenders, and JPMORGAN CHASE BANK, N.A. (successor by merger to
Bank One, N.A. (Main Office Chicago)) (the “
Administrative Agent ”).
RECITALS:
WHEREAS, the Borrower, each
Lender then a party thereto, the Administrative Agent, the other
agents party thereto, and the LC Issuer have heretofore entered
into that certain Amended and Restated Credit Agreement dated as of
December 4, 2003, as amended by that certain Consent and First
Amendment to Amended and Restated Credit Agreement dated as of
December 29, 2004, and as amended by that certain Second
Amendment to Amended and Restated Credit Agreement dated as of
December 15, 2005, and as amended by that certain Third
Amendment to Amended and Restated Credit Agreement dated as of
April 14, 2006, and as amended by that certain Fourth
Amendment to Amended and Restated Credit Agreement dated as of
August 25, 2006, and as amended by that certain Fifth
Amendment to Amended and Restated Credit Agreement dated as of
November 1, 2006, and as amended by that certain Sixth
Amendment to Amended and Restated Credit Agreement dated as of
April 13, 2007, and as amended by that certain Seventh
Amendment to Amended and Restated Credit Agreement dated as of
June 12, 2007, and as amended by that certain Waiver and
Eighth Amendment to Amended and Restated Credit Agreement dated as
of August 1, 2007 (the “ Eighth Amendment
”), and as otherwise amended, supplemented or modified from
time to time prior to the Effective Date (the “ Credit
Agreement ”), pursuant to which the Lenders have agreed
to make revolving credit loans to, and participate in letters of
credit issued for, the benefit of the Borrower under the terms and
provisions stated therein; and
WHEREAS, the Borrower has
requested that (i) Capital One N.A. (“ Capital
One ”) become a Lender party to the Credit Agreement as
set forth herein, and (ii) each of Comerica Bank and PNC Bank,
National Association (each of which is, as of the Effective Date,
and has heretofore been, a party to the Credit Agreement as a
Lender (each, an “ Assigning Lender ”)),
severally and not jointly, sell and assign to Capital One, and
Capital One purchase and assume from each Assigning Lender, a
portion of each Assigning Lender’s respective Commitment and
a proportionate share of each Assigning Lender’s respective
outstanding Loans and participations in Letters of Credit, such
that, after giving effect to such sale and assignment and purchase
and assumption, each of the Assigning Lenders and Capital One shall
have Commitments, outstanding Loans and participations in Letters
of Credit proportionate (relative to all of the outstanding Loans
and participations in Letters of Credit) to their respective
Commitments set forth on Annex I hereto; and
WHEREAS, the Borrower has
also requested that the Lenders make certain modifications to the
Credit Agreement and the Loan Documents as more particularly set
forth below, subject to the terms and conditions set forth herein
and in the Credit Agreement as amended hereby; and
WHEREAS, subject to the terms
and conditions of this Amendment and the Credit Agreement, each of
the Lenders party hereto (including Capital One) and the
Administrative Agent have agreed to enter into this Amendment in
order to effectuate such amendments and modifications to the Credit
Agreement;
NOW, THEREFORE, in
consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Definitions . Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same
meaning as in the Credit Agreement.
Section 2. Amendments
to Credit Agreement . The Credit Agreement is hereby amended as
follows:
(a) The definition of
“Aggregate Commitment” in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to
provide as follows:
“ “ Aggregate
Commitment ” means the aggregate of the Commitments of
all the Lenders, as increased or reduced from time to time pursuant
to the terms hereof; provided that the Aggregate Commitments shall
not at any time exceed $525,000,000”.
(b)
Section 2.5(ii)(a)(2) of the Credit Agreement is hereby
amended by deleting “$500,000,000” therein and
inserting in its place “$525,000,000”.
(c) The Credit Agreement is
hereby amended by deleting the existing Commitment Schedule to the
Credit Agreement and inserting in its place the schedule of
commitments set forth in Annex 1 attached to this Amendment as
the new Commitment Schedule to the Credit Agreement.
Section 3. Conditions
Precedent . The effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions
precedent:
(a) Executed Amendment
. The Administrative Agent shall have received a counterpart of
this Amendment duly executed by the Borrower, the Administrative
Agent, the LC Issuer and each of the Lenders (including Capital
One).
(b) Notes . The
Administrative Agent shall have received a Note on behalf each
Lender that has requested a Note pursuant to Section 2.13 of
the Credit Agreement payable to the order of each such requesting
Lender.
(c) Legal Opinions .
The Administrative Agent shall have received the written legal
opinion of (i) Nancy M. Snyder, Esq., as general counsel to
Borrower and the Guarantors, and (ii) Vinson & Elkins
L.L.P., as special counsel to Borrower and the Guarantors, each of
which shall be addressed to the Administrative Agent, the LC Issuer
and the Lenders and shall be in form and substance satisfactory to
the Administrative Agent.
Page 2
(d) Other Conditions .
The Borrower shall have confirmed and acknowledged to the
Administrative Agent, the LC Issuer and the Lenders, and by its
execution and delivery of this Amendment the Borrower does hereby
confirm and acknowledge to the Administrative Agent and the
Lenders, that (i) the execution, delivery and performance of
this Amendment has been duly authorized by all requisite corporate
action on the part of the Borrower; (ii) the Credit Agreement
and each other Loan Document to which it is a party constitute
valid and legally binding agreements enforceable against the
Borrower in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting the enforcement of creditors’
rights generally and by general principles of equity;
(iii) the representations and warranties made by the Borrower
or any other Loan Party contained in the Credit Agreement and in
the other Loan Documents are true and correct on and as of the date
hereof in all material respects as though made as of the date
hereof; (iv) no Default or Unmatured Default exists under the
Credit Agreement or any of the other Loan Documents.
Section 4. Renewal
and Continuation of Existing Loans and Letters of Credit
.
(a) In connection herewith,
each Assigning Lender, severally and not jointly, irrevocably sells
and assigns to Capital One, and Capital One hereby irrevocably
purchases and assumes from each Assigning Lender, as of the
Effective Date, so much of each such Assigning Lender’s
respective Commitment, outstanding Loans and participations in
Letters of Credit, and rights and obligations in its capacity as a
Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto (including without
limitation any guaranties and, to the extent permitted to be
assigned under applicable law, all claims (including without
limitation contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity), suits,
causes of action and any other right of such Assigning Lender
against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions
governed thereby), such that each Assigning Lender’s and
Capital One’s Commitment, percentage of the outstanding Loans
and participations in Letters of Credit, and rights and obligations
as a Lender shall be equal to its Pro Rata Share (determined based
on the Commitments set forth on Annex I hereto) of the
aggregate amount of all Commitments, outstanding Loans and all
participations in Letters of Credit and other rights and
obligations. Capital One acknowledges and agrees that the sale and
assignment, and purchase and assumption hereunder is without
recourse to the Assigning Lenders (or any other Lender) and without
any warranties whatsoever by any Assigning Lender (except as
expressly set forth in Section 6), any other Lender or the
Administrative Agent.
(b) Upon the Effective Date,
all Loans and participations in Letters of Credit of the Assigning
Lenders outstanding immediately prior to the Effective Date shall
be, and hereby are, restructured, rearranged, renewed, extended and
continued as provided in this Amendment and shall continue as Loans
and participations in Letters of Credit of each Assigning Lender
and Capital One, respectively, under the Credit
Agreement.
Page 3
Section 5. Capital
One as a Lender .
(a) Upon the effectiveness of
this Amendment, and by its execution and delivery hereof, Capital
One (i) shall be deemed automatically to have become a party
to the Credit Agreement, (ii) shall have all the rights and
obligations of a “Lender” under the Credit Agreement
and the other Loan Documents, and (iii) has agreed, and does
hereby agree, to be bound by the terms and conditions set forth in
the Credit Agreement and the other Loan Documents to which the
Lenders are a party, in each case, as if it were a signatory
thereto.
(b) Capital One
(i) represents and warrants that (1) it has full power
and authority, and has taken all action necessary, to execute and
deliver this Amendment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit
Agreement, (2) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied
by it in order to become a Lender, provide its Commitment and
acquire its interest in the Loans and participations in Letters of
Credit outstanding as of the Effective Date, (3) from and
after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of
its Commitment, shall have the obligations of a Lender thereunder,
and (4) it has received a copy of the Credit Agreement and the
other Loan Documents, together with copies of the most recent
financial statements delivered pursuant to Section 6.1.1
thereof, as applicable, and such other documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment, become a Lender, provide its
respective Commitment and acquire its interest in the Loans and
participations in Letters of Credit outstanding as of the Effective
Date, on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent (or
any Affiliate thereof acting in any capacity) or any other Lender;
and (ii) agrees that (1) it will, independently and
without reliance on the Administrative Agent (or any Affiliate
thereof acting in any capacity) or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement and any other Loan
Documents, and (2) it will perform in accordance with their
terms all of the obligations that by the terms of the Credit
Agreement or any other Loan Documents are required to be performed
by it as a Lender.
(c) Capital One
here
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