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Exhibit
10.1
WAIVER AND TENTH AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
This Waiver and Tenth
Amendment to Amended and Restated Credit Agreement (this “
Amendment ”) dated as of November 26, 2007
(the “ Effective Date ”), is by and among PENN
VIRGINIA CORPORATION, a Virginia corporation (the “
Borrower ”), the Lenders (as defined in the Credit
Agreement referred to below) party hereto, and JPMORGAN CHASE BANK,
N.A. (successor by merger to Bank One, N.A. (Main Office Chicago))
(the “ Administrative Agent ”).
R E C I T A L S:
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 (the “ Seventh Amendment
”), and as amended by that certain Waiver and Eighth
Amendment to Amended and Restated Credit Agreement dated as of
August 1, 2007, and as amended by that certain Waiver and
Ninth Amendment to Amended and Restated Credit Agreement dated as
of October 5, 2007, 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 the Administrative Agent and the Lenders amend
certain provisions of the Credit Agreement as set forth herein to
expand the types of unsecured notes that the Borrower is permitted
to issue to include not only senior unsecured notes (as permitted
by the Seventh Amendment), but also subordinated unsecured notes or
convertible unsecured notes (or any combination thereof, including
senior unsecured convertible notes, subordinated unsecured
convertible notes or senior subordinated unsecured convertible
notes) under an indenture containing terms customary for unsecured
notes of the applicable type; and
WHEREAS, the Borrower
currently intends to issue senior subordinated unsecured
convertible notes in an aggregate principal amount of $150,000,000
(as such principal amount may be increased by the Borrower and the
underwriters depending upon the market demand for such notes or the
exercise of any over-allotment rights (or both)), as will be
permitted by the Credit Agreement as amended hereby (the “
Subordinated Convertible Offering ”); and
WHEREAS, in connection with
the Subordinated Convertible Offering, the Borrower also intends to
purchase for cash one or more call options (together, the “
Purchased Call Option ”) from one or more third
parties (which may be a Lender or an affiliate thereof) with
respect to a specified number of shares of the Borrower’s
issued and outstanding capital stock to be determined based on the
aggregate principal amount of the Subordinated Convertible Offering
(the “ Purchased Call Shares ”) at a strike
price approximately equal to the conversion price of the senior
subordinated unsecured convertible notes offered under the
Subordinated Convertible Offering (the “ Conversion
Price ”); and
WHEREAS, in connection with
the Subordinated Convertible Offering, the Borrower also intends to
sell one or more warrants (together, the “ Warrant
”) to one or more third parties (which may be a Lender or an
affiliate thereof) with respect to a specified number of shares of
the Borrower’s issued and outstanding capital stock to be
determined (but anticipated to be equivalent in number to the
number of Purchased Call Shares) (the “ Warrant Shares
”) at a strike price in excess of the Conversion Price;
and
WHEREAS, settlement or
payments upon early termination of the Purchased Call Option or the
Warrant may occur in shares of such cash, capital stock or a
combination thereof; and
WHEREAS, the Borrower’s
cost of the Purchased Call Option will be paid from the proceeds of
the Subordinated Convertible Offering; and
WHEREAS, the Borrower has
requested that the Administrative Agent and the Lenders consent to
the Purchased Call Option and the Warrant and waive any limitation
set forth in the Credit Agreement (including, in particular, any
limitation contained in the negative covenants pertaining to
Restricted Payments or Investments) or any other Loan Document that
might otherwise restrict the Borrower from entering into the
Purchased Call Option and the Warrant (or any component transaction
thereof) or exercising its rights or performing its obligations
thereunder; and
WHEREAS, the Borrower has
requested that the Lenders make certain other modifications to the
Credit Agreement 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 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.
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Section 2. Amendments
to Credit Agreement . The Credit Agreement is hereby amended as
follows:
(a) The definition of
“Permitted Refinancing Indebtedness” in
Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
“ “ Permitted
Refinancing Indebtedness ” means Indebtedness (for
purposes of this definition, “new Indebtedness”)
incurred in exchange for, or proceeds of which are used to
refinance, all or any portion of the Unsecured Notes (including any
settlement payments or other obligations in respect of Unsecured
Notes for which a conversion election has been made by the holder
of such Unsecured Note) (the “ Refinanced Indebtedness
”); provided that (a) the portion of such new
Indebtedness incurred to refinance the Refinanced Indebtedness is
in an aggregate principal amount not in excess of the sum of
(i) the aggregate principal amount then outstanding of the
Refinanced Indebtedness (or, if the Refinanced Indebtedness is
exchanged or acquired for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount), and (ii) an amount necessary to
pay any fees and expenses, including premiums, related to such
exchange or refinancing; (b) such new Indebtedness has a
stated maturity no earlier than the date that is 91 days after the
earlier of (i) the Facility Termination Date and (ii) the
date on which there are no Loans, LC Obligations or other
obligations hereunder outstanding and all of the Commitments are
terminated and an average life no shorter than the period beginning
on the date of incurrence of such Indebtedness and ending on the
date that is 91 days after the Facility Termination Date;
(c) such new Indebtedness does not contain any covenants that
are more onerous to the Borrower and its Subsidiaries than those
imposed by the Refinanced Indebtedness; (d) the stated
interest or coupon rate of such new Indebtedness is reasonably
acceptable to the Administrative Agent; and (e) such new
Indebtedness (and any Contingent Obligations in respect thereof) is
unsecured.”
(b) The definition of
“Redemption” in Section 1.1 of the Credit
Agreement is hereby amended by deleting the reference therein to
“Senior Notes” and inserting in place thereof the words
“Unsecured Notes”.
(c) Section 1.1 of the
Credit Agreement is hereby amended by inserting in the
alphabetically appropriate places the new defined terms
“Unsecured Notes”, “Unsecured Notes
Documents” and “Unsecured Notes
Indenture”:
“ “ Unsecured
Notes ” means any senior unsecured notes, senior
unsecured convertible notes, subordinated unsecured notes,
subordinated unsecured convertible notes, or senior
subordinated
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unsecured convertible notes,
in each case, issued by the Borrower in one or more transactions on
or after November 21, 2007.”
“ “ Unsecured
Notes Documents ” means, as applicable, both individually
and collectively, any Unsecured Notes and any related Unsecured
Notes Indenture.”
“ “ Unsecured
Notes Indenture ” means, collectively, any indenture by
and among the Borrower, as issuer, and a trustee, and any and all
related documentation entered into in connection therewith,
pursuant to which Unsecured Notes shall have been issued, as the
same may be amended, restated, modified or supplemented from time
to time.”
(d) Section 1.1 of the
Credit Agreement is hereby amended by deleting the defined terms
“Senior Notes”, “Senior Notes Documents”
and “Senior Notes Indenture”.
(e) Each of Sections 5.4 and
5.16 of the Credit Agreement is hereby amended by deleting each
reference therein to the words “Senior Notes Document”
and inserting in place thereof the words or “Unsecured Notes
Documents”.
(f) Section 5.28 of the
Credit Agreement is hereby amended and restated in its entirety to
provide as follows:
“ 5.28. Seniority
Designation . For the purposes of the Unsecured Notes Documents
or any Permitted Refinancing Indebtedness, the Obligations have
been irrevocably designated as “senior indebtedness”
(or such other applicable term denoting seniority) ranking, as
applicable, equally in right of payment with any senior unsecured
notes (including any such notes that are convertible) issued under
such Unsecured Notes Documents and senior in right of payment to
any subordinated unsecured notes or senior subordinated unsecured
notes (including any such notes that are convertible) issued under
such Unsecured Notes Documents without giving effect to rights in
the Collateral of the Administrative Agent, the LC Issuer, the
Lenders and the other beneficiaries thereof.”
(g) Section 6.1.1(vi) of
the Credit Agreement is hereby amended by deleting the word
“Senior” in the parenthetical phrase the
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