THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Third Amendment”) is dated as of February 21, 2013, and is made by and among PVR XXXXX LLC, a Delaware limited liability company (the “Borrower”), the GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO (individually a “Guarantor” and collectively, the “Guarantors”), the FINANCIAL INSTITUTIONS PARTY TO THE CREDIT AGREEMENT (AS HEREINAFTER DEFINED) (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 Xxxxx Fargo Bank, N.A. are Lead Arrangers, and RBC Capital Markets and Xxxxx 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, as amended by that certain First Amendment to Credit Agreement dated April 19, 2011 and that certain Second Amendment to Credit Agreement dated April 23, 2012 (as so 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 make certain modifications to the Credit Agreement relating to the Leverage Ratio covenant as set forth more specifically 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. Amendments to Credit Agreement.
(a) Amendment to Section 1.1 [Certain Definitions] – New Definitions. Section 1.1 of the Credit Agreement is hereby amended to insert the following new definitions in the appropriate alphabetical order therein:
(i) “Third Amendment shall mean that certain Third Amendment to Credit Agreement by and among the Borrower, the other Loan Parties, the Required Lenders and the Agent dated as of February 21, 2013.”
(ii) “Third Amendment Date shall mean February 21, 2013.”
(b) Amendment to Section 1.1 [Certain Definitions] – Amended and Restated Definitions. The following definitions set forth in Section 1.1 of the Credit Agreement are hereby amended and restated in their entirety as follows:
(i) “General Partner shall mean PVR GP, LLC, a Delaware limited liability company and the sole general partner of the Parent.”
(ii) “Parent shall mean PVR Partners, L.P., a Delaware limited partnership and its successors and permitted assigns.”
(c) Amendment to Section 7.2.16 [Maximum Leverage Ratio]. Section 7.2.16 of the Credit Agreement is hereby amended and restated as follows:
“7.2.16 Maximum Leverage Ratio.
The Loan Parties shall not permit the ratio of Consolidated Total Indebtedness of the Parent and its Restricted Subsidiaries, as measured at the end of each fiscal quarter, to Consolidated EBITDA, calculated as of the end of each fiscal quarter for the four fiscal quarters then ended, to exceed 6.50 to 1.00 commencing with the fiscal period ending June 30, 2012 through the fiscal period ending December 31, 2012, 5.75 to 1.00 commencing with the fiscal period ending March 31, 2013 through the fiscal period ending June 30, 2013, 5.50 to 1.00 commencing with the fiscal period ending September 30, 2013 through the fiscal period ending December 31, 2013, and 5.25 to 1.00 commencing with the fiscal period ending March 31, 2014 and for each fiscal period thereafter.”
(d) Amendment and Restatement of Schedule 1.1(A). Schedule 1.1(A) to the Credit Agreement is hereby amended and restated in its entirety in the form bearing the same reference attached hereto.
(e) Amendment and Restatement of Schedule 1.1(B). Part 2 of Schedule 1.1(B) [Addresses for Notices to Borrower and Guarantors] to the Credit Agreement is hereby amended and restated in its entirety in the form bearing the same reference attached hereto.
(f) Amendment and Restatement of Schedule 5.1.3. Schedule 5.1.3 to the Credit Agreement is hereby amended and restated in its entirety in the form bearing the same reference attached hereto.
(g) Amendment and Restatement of Exhibit 7.3.3 [Quarterly Compliance Certificate]. Exhibit 7.3.3 to the Credit Agreement is hereby amended and restated in its entirety in the form bearing the same reference attached hereto.
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3. Conditions to Effectiveness. The amendments contained in Section 2 of this Third Amendment shall become effective upon each of the following conditions being satisfied to the satisfaction of the Agent:
(a) Execution and Delivery of Third Amendment. The Borrower, the Guarantors, the Required Lenders and the Agent shall have executed this Third Amendment and all other documentation referred to below shall have been executed and delivered all to the reasonable satisfaction of the Borrower, the Required 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 Third 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 Third 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) Fees. The Borrower shall have paid: to the Agent, for the benefit of the Lenders consenting, in writing, to the Third Amendment on or before the Third Amendment Date, the fees due and payable pursuant to the Fee Letter dated February 1, 2013.
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 (i) such Loan Party has duly authorized, executed and delivered this Third Amendment, (ii) the representations and warranties of the Loan Parties contained in Article 5 of the Credit Agreement are true and accurate in all material respects 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 (provided that representations and warranties which relate solely to an earlier date or time shall be true and correct in all material respects on and as of the specific dates or times referenced to therein), (iii) the Loan Parties have performed and complied with all covenants and conditions of the Credit Agreement and this Third Amendment and (iv) no Event of Default or Potential Default under the Credit Agreement has occurred and is continuing or exists.
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(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 Third 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 Third 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 Third 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 Third 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 Third 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.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, have executed this Third Amendment as of the day and year first above written.
| BORROWER: | ||
| PVR XXXXX LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | Executive Vice President & Chief Financial Officer | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| GUARANTORS: | ||||||||
| CONNECT ENERGY SERVICES, LLC | ||||||||
| CONNECT GAS PIPELINE LLC | ||||||||
| DULCET ACQUISITION LLC | ||||||||
| FIELDCREST RESOURCES LLC | ||||||||
| K RAIL LLC | ||||||||
| KANAWHA RAIL LLC | ||||||||
| LJL, LLC | ||||||||
| LOADOUT LLC | ||||||||
| PENN VIRGINIA OPERATING CO., LLC | ||||||||
| PVR GAS GATHERING, LLC | ||||||||
| PVR GAS PIPELINE, LLC | ||||||||
| PVR GAS PROCESSING, LLC | ||||||||
| PVR HYDROCARBONS LLC | ||||||||
| PVR XXXXXXX GAS PROCESSING, LLC | ||||||||
| PVR MARCELLUS GAS GATHERING, LLC | ||||||||
| PVR NEPA GAS GATHERING, LLC | ||||||||
| PVR MIDSTREAM LLC | ||||||||
| PVR WATER SERVICES, LLC | ||||||||
| SUNCREST RESOURCES LLC | ||||||||
| XXXXX FORK LLC | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxx | |||||||
| Title: | Executive Vice President & Chief Financial Officer of each of the above-listed entities | |||||||
| PVR PARTNERS, L.P. | ||||||||
| By: | PVR GP, LLC, its sole general partner | |||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxx | |||||||
| Title: | Executive Vice President & Chief Financial Officer | |||||||
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| LENDERS: | ||
| PNC BANK, NATIONAL ASSOCIATION, individually and as Agent | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Senior Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| LENDERS: | ||
| BANK OF AMERICA, N.A. | ||
| By: | /s/ Xxxxxx Serie | |
| Name: | Xxxxxx Serie | |
| Title: | Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| BOKF, N.A. d/b/a Bank of Oklahoma | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Assistant Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| BARCLAYS BANK PLC | ||
| By: | /s/ Xxxxxxxx X. Kona | |
| Name: | Xxxxxxxx X. Kona | |
| Title: | Assistant Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| BRANCH BANKING AND TRUST COMPANY | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| CAPITAL ONE, N.A. | ||
| By: | /s/ Xxxxx X. Xxx | |
| Name: | Xxxxx X. Xxx | |
| Title: | Senior Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| CITIBANK, N.A. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| COMERICA BANK | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Managing Director | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| JPMORGAN CHASE BANK, N.A. | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxx | |
| Title: | Authorized Officer | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| ROYAL BANK OF CANADA | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Authorized Signatory | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| SUNTRUST BANK | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| TD BANK, N.A. | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Senior Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| THE HUNTINGTON NATIONAL BANK | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Vice President, Large Corporate Banking | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| THE ROYAL BANK OF SCOTLAND PLC | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Authorised Signatory | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| UBS LOAN FINANCE LLC | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxx | |
| Title: | Associate Director | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| UNION BANK | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Senior Vice President – Mining & Minerals | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| FIRST COMMONWEALTH BANK | ||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |
| Name: | Xxxxxx X. Xxxxxx, Xx. | |
| Title: | Senior Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Vice President | |
[SIGNATURE PAGE TO PVR XXXXX LLC THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT]
| XXXXX FARGO BANK, N.A. | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxxxxx | |
| Title: | Senior Vice President | |
SCHEDULE 1.1(A)
Variable Pricing and Fees Based on Leverage Ratio
A. Commencing with the fiscal period ending June 30, 2012 and for each fiscal period through the fiscal period ending December 31, 2013, the Pricing Grid shall be:
| Level |
Leverage Ratio |
Euro-Rate Margin (Loan) |
Base Rate Margin (Loan) |
Commitment Fee |
Applicable Letter of Credit Fee |
|||||||||||||
| I | Less than or equal to 3.00 to 1.00 | 1.750 | % | 0.750 | % | 0.375 | % | 1.750 | % | |||||||||
| II | Greater than 3.00 to 1.00 but less than or equal to 3.50 to 1.00 | 2.000 | % | 1.000 | % | 0.375 | % | 2.000 | % | |||||||||
| III | Greater than 3.50 to 1.00 but less than or equal to 4.00 to 1.00 | 2.250 | % | 1.250 | % | 0.500 | % | 2.250 | % | |||||||||
| IV | Greater than 4.00 to 1.00 but less than or equal to 4.50 to 1.00 | 2.500 | % | 1.500 | % | 0.500 | % | 2.500 | % | |||||||||
| V | Greater than 4.50 to 1.00 but less than or equal to 5.00 to 1.00 | 2.750 | % | 1.750 | % | 0.500 | % | 2.750 | % | |||||||||
| VI | Greater than 5.00 to 1.00 but less than or equal to 5.50 to 1.00 | 3.000 | % | 2.000 | % | 0.500 | % | 3.000 | % | |||||||||
| VII | Greater than 5.50 to 1.00 | 3.500 | % | 2.500 | % | 0.500 | % | 3.500 | % | |||||||||
The Borrower shall deliver a closing date compliance certificate that gives pro forma effect to the Chief Gathering Acquisition and pricing shall be set at the level of the Pricing Grid that corresponds to such pro forma Leverage Ratio until receipt of the compliance certificate of the Borrower for the fiscal quarter ending June 30, 2012.
B. Commencing with the fiscal period ending March 31, 2014 and for each fiscal period thereafter, the Pricing Grid shall be:
| Level |
Leverage Ratio |
Euro-Rate Margin (Loan) |
Base Rate Margin (Loan) |
Commitment Fee |
Applicable Letter of Credit Fee |
|||||||||||||
| I | Less than or equal to 3.00 to 1.00 | 1.750 | % | 0.750 | % | 0.375 | % | 1.750 | % | |||||||||
| II | Greater than 3.00 to 1.00 but less than or equal to 3.50 to 1.00 | 2.000 | % | 1.000 | % | 0.375 | % | 2.000 | % | |||||||||
| III | Greater than 3.50 to 1.00 but less than or equal to 4.00 to 1.00 | 2.250 | % | 1.250 | % | 0.500 | % | 2.250 | % | |||||||||
| IV | Greater than 4.00 to 1.00 but less than or equal to 4.50 to 1.00 | 2.500 | % | 1.500 | % | 0.500 | % | 2.500 | % | |||||||||
| V | Greater than 4.50 to 1.00 | 2.750 | % | 1.750 | % | 0.500 | % | 2.750 | % | |||||||||
C. Notwithstanding the foregoing, at any time during which the Borrower has failed to deliver a compliance certificate to the Agent when due, upon the request of the Required Lenders, the Leverage Ratio shall be deemed, solely for the purpose of this Schedule 1.1(A), to be, (1) commencing with the fiscal period ending June 30, 2012 and for each fiscal period through the fiscal period ending December 31, 2013, Level VII of the applicable Pricing Grid, until such time as the Borrower shall deliver the required compliance certificate and (2) commencing with the fiscal period ending March 31, 2014 and for each fiscal period thereafter, Level V of the applicable Pricing Grid, until such time as the Borrower shall deliver the required compliance certificate. Notwithstanding the foregoing, the above interest rates shall be increased by (i) 25 basis points per annum if and for so long as the Borrower’s Corporate Family Rating under either Xxxxx’x Investor Service, Inc. or Standard & Poor’s Ratings Services is less than Ba3 or BB- respectively and (ii) without duplication of the amount set forth in subclause (i) above, 50 basis points per annum if and for so long as the Borrower’s Corporate Family Rating under Xxxxx’x Investor Service, Inc. and Standard & Poor’s Ratings Services is less than Ba3 or BB- respectively.
Any change in the Applicable Margin, Applicable Commitment Fee and the Applicable Letter of Credit Fee Rate shall be based upon the financial statements and compliance certificates provided pursuant to Sections 7.3.1 [Quarterly Financial Statements] and 7.3.2 [Annual Financial Statements] and shall become effective on the date such financial statements are due in accordance with Section 7.3.3 [Certificate of the Borrower].
If, as a result of any restatement of or other adjustment to the financial statements of the Loan Parties or for any other reason, the Loan Parties or the Lenders determine that (i) the Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Agent for the account of the applicable Lenders, promptly on demand by the Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code of the United States, automatically and without further action by the Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Agent, or any Lender, as the case may be, under Section 2.9 [Letter of Credit Subfacility] or 3.3 [Interest After Default] or 8 [Default]. The Loan Parties’ obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Part 2 - Addresses for Notices to Borrower and Guarantors:
AGENT:
| Name | PNC BANK, NATIONAL ASSOCIATION | |
| Address: | X0-XXXX-00-0 | |
| Xxx XXX Xxxxx - 0xx Xxxxx | ||
| 000 Xxxxx Xxxxxx | ||
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 | ||
| Attention: | Xxxxxxx X. Xxxxxxx | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| BORROWER: | ||
| Name | PVR XXXXX LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Executive Vice President & Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
|
GUARANTORS:
| ||
| Name | PVR NEPA GAS GATHERING, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | CONNECT ENERGY SERVICES, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | CONNECT GAS PIPELINE LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | DULCET ACQUISITION LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | FIELDCREST RESOURCES LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | K RAIL LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
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| Name | KANAWHA RAIL LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | LJL, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | LOADOUT LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PENN VIRGINIA OPERATING CO., LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR PARTNERS, L.P. | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
4
| Name | PVR GAS PIPELINE, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR GAS PROCESSING, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR HYDROCARBONS LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR XXXXXXX GAS PROCESSING LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR MARCELLUS GAS GATHERING, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
5
| Name | PVR MIDSTREAM LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR GAS GATHERING, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | PVR WATER SERVICES, LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| Name | SUNCREST RESOURCES LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx | |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
6
| Name | XXXXX FORK LLC | |
| Address: | Three Radnor Corporate Center - Xxxxx 000 | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: | Xxxxxx X. Xxxxxxx, Chief Financial Officer | |
| Telephone: | (000) 000-0000 | |
| Telecopy: | (000) 000-0000 | |
| Email: | xxxxxxxx@xxxxxxxxxxx.xxx |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
7
SCHEDULE 5.1.3
Subsidiaries
OWNER
| 1. | Penn Virginia Operating Co., LLC, a Delaware limited liability company, owns 100% of the outstanding membership and voting interests in: |
| a. | Loadout LLC, a Delaware limited liability company |
| b. | K Rail LLC, a Delaware limited liability company |
| c. | Kanawha Rail LLC, a Virginia limited liability company |
| d. | Suncrest Resources LLC, a Delaware limited liability company |
| e. | Fieldcrest Resources LLC, a Delaware limited liability company |
| x. | Xxxxx Fork LLC, a Delaware limited liability company |
| g. | Dulcet Acquisition LLC, a Delaware limited liability company |
| h. | LJL, LLC, a West Virginia limited liability company |
| 2. | Loadout LLC owns 50% of the outstanding membership and voting interests in: |
| a. | Coal Handling Solutions LLC, a Delaware limited liability company* |
| b. | Kingsport Handling LLC, a Delaware limited liability company* |
| c. | Kingsport Services LLC, a Delaware limited liability company* |
| 3. | Coal Handling Solutions LLC owns 50% of the outstanding membership and voting interests in: |
| x. | Xxxxxxxxx Handling LLC, a Delaware limited liability company* |
| b. | Maysville Handling LLC, a Delaware limited liability company* |
| 4. | PVR Midstream LLC, a Delaware limited liability company, owns 100% of the outstanding membership and voting interests in: |
| a. | PVR Gas Processing, LLC, a Delaware limited liability company |
| b. | PVR Hydrocarbons LLC, an Oklahoma limited liability company |
| c. | PVR Xxxxxxx Gas Processing LLC, an Oklahoma limited liability company+ |
| d. | Connect Energy Services, LLC, a Delaware limited liability company |
| e. | Connect Gas Pipeline LLC, a Delaware limited liability company |
| f. | PVR Gas Pipeline, LLC, a Delaware limited liability company |
| g. | PVR Gas Gathering, LLC, a Delaware limited liability company |
| h. | PVR Marcellus Gas Gathering, LLC, a Delaware limited liability company |
and 25% of the outstanding membership and voting interests in:
| i. | Thunder Creek Gas Services, L.L.C., a Wyoming limited liability company* |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
8
and 50% of the outstanding limited partnership interests, a non-voting interest, in
| x. | Xxxx Limited Partnership I, an Oklahoma limited partnership* |
and 91% of the outstanding limited partnership interests, a non-voting interest, in
| k. | CBC/Xxxx Limited Partnership, an Oklahoma limited partnership* |
| 5. | Xxxx Limited Partnership I owns a 5.43% partnership interest in Bright Star Partnership, a Texas partnership* |
| 6. | CBC/Xxxx Limited Partnership owns a 4.57% partnership interest in Bright Star Partnership, a Texas partnership* |
| 7. | PVR Marcellus Gas Gathering, LLC owns 100% of the outstanding membership and voting interests in: |
| a. | PVR NEPA Gas Gathering, LLC, a Texas limited liability company |
| b. | PVR Water Services, LLC, a Delaware limited liability company |
| 8. | PVR Water Services, LLC owns 51% of the outstanding membership and voting interests in Aqua-PVR Water Services, LLC, a Delaware limited liability company* |
| * | Unrestricted Subsidiary |
| + | Immaterial Subsidiary |
9
Unrestricted Subsidiaries
| a. | CBC/Xxxx Limited Partnership, an Oklahoma limited partnership |
| x. | Xxxx Limited Partnership I, an Oklahoma limited partnership |
| x. | Xxxxxx Star Partnership, a Texas partnership |
| d. | Coal Handling Solutions LLC, a Delaware limited liability company |
| x. | Xxxxxxxxx Handling LLC, a Delaware limited liability company |
| f. | Maysville Handling LLC, a Delaware limited liability company |
| g. | Kingsport Handling LLC, a Delaware limited liability company |
| h. | Kingsport Services LLC, a Delaware limited liability company |
| i. | Thunder Creek Gas Services, L.L.C., a Wyoming limited liability company |
| k. | Aqua-PVR Water Services, LLC, a Delaware limited liability company |
Immaterial Subsidiaries
| a. | PVR Xxxxxxx Gas Processing, LLC, an Oklahoma limited liability company |
EXHIBIT 7.3.3
QUARTERLY COMPLIANCE CERTIFICATE
,
PNC Bank, National Association, as Agent
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Ladies and Gentlemen:
I refer to the Amended and Restated Credit Agreement dated as of August 13, 2010 (as amended and as the same may be amended, restated, modified or supplemented from time to time, the “Credit Agreement”) among PVR XXXXX LLC (the “Borrower”), each of the Guarantors now or hereafter party thereto, the Lenders now or hereafter party thereto (the “Lenders”) and PNC Bank, National Association, in its capacity as administrative agent for the Lenders (in such capacity, the “Agent”). Unless otherwise defined herein, terms defined in the Credit Agreement are used herein with the same meanings.
I, , [Chief Executive Officer/President/Chief Financial Officer] of the Borrower, do hereby certify in my capacity as [Chief Executive Officer/President/Chief Financial Officer] as of the [quarter/year ended , ] (the “Report Date”), as follows (each calculation determined and consolidated in accordance with GAAP):
1. Maximum Leverage Ratio1. The ratio of (A) Consolidated Total Indebtedness of the Parent and its Restricted Subsidiaries to (B) Consolidated EBITDA of the Parent and its Restricted Subsidiaries is to 1.0, which ratio does not exceed the permitted ratio of 6.50 to 1.00 commencing with the fiscal period ending June 30, 2012 through the fiscal period ending December 31, 2012, 5.75 to 1.00 commencing with the fiscal period ending March 31, 2013 through the fiscal period ending June 30, 2013, 5.50 to 1.00 commencing with the fiscal period ending September 30, 2013 through the fiscal period ending December 31, 2013, and 5.25 to 1.00 commencing with the fiscal period ending March 31, 2014 and for each fiscal period thereafter, Consolidated Total Indebtedness of the Parent and its Restricted Subsidiaries and Consolidated EBITDA of the Parent and its Restricted Subsidiaries being determined as in (A) and (B) below.
| (a) | Consolidated Total Indebtedness of the Parent and its Restricted Subsidiaries on a consolidated basis, as of the end of the fiscal quarter of the Parent ending as of the Report Date as to any and all indebtedness, obligations or liabilities for or in respect of the following and computed as follows; provided, however, that |
| 1 | See § 7.2.16 of the Credit Agreement. |
| PNC Bank, National Association, as Agent Page 2 |
Report for the Fiscal [Quarter/Year] Ending |
Consolidated Total Indebtedness shall exclude (a) any surety bonds under clause (iii) below and(b) net obligations under clause (iv) below (exclusive of any xxxx-to-market adjustment not requiring any actual cash payment or settlement):
| (i) | borrowed money | $ | ||
| (ii) | amounts raised under or liabilities in respect of any note purchase or acceptance credit facility | $ | ||
| (iii) | the face amount of all letters of credit (including standby and commercial), banker’s acceptances, surety bonds, and similar instruments issued for the account of such Person, and, without duplication, all drafts drawn and unpaid thereunder | $ | ||
| (iv) | net obligations under any Hedging Transaction, currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate management device in an amount equal to (a) if such Hedging Transaction or other device has been closed out, the termination value thereof, or (b) if such Hedging Transaction or other device has not been closed out, the xxxx-to-market value thereof determined on the basis of readily available quotations provided by any recognized dealer in such Hedging Transaction or device | $ | ||
| (v) | any other transaction (including forward sale or purchase agreements, deferred purchase price arrangements (excluding contingent purchase price payments required under purchase agreements related to Permitted Acquisition to the extent that such contingent purchase price payments are not yet earned or determinable), title retention device, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by the Parent or any of its Restricted Subsidiaries to finance its operations or capital requirements (but not including trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note or other evidence of indebtedness and which are not more than sixty (60) days past due) | $ | ||
| PNC Bank, National Association, as Agent Page 3 |
Report for the Fiscal [Quarter/Year] Ending |
| (vi) |
any Guaranty by the Parent or any of its Restricted Subsidiaries of Indebtedness for borrowed money | $ | ||||
| (vii) |
unsecured indebtedness in connection with senior subordinated note offerings | $ | ||||
| (viii) |
sum of items (i) through (vii) equals Consolidated Total Indebtedness | $ | ||||
| (b) | Consolidated EBITDA of the Parent and its Restricted Subsidiaries as of the end of each fiscal quarter of the Parent for the four fiscal quarters ending as of the Report Date2, computed as follows: |
| (i) |
consolidated net income after deducting all operating expenses, provisions for all taxes and reserves (including reserves for all deferred income taxes) and all other proper deductions (excluding non-cash extraordinary items of gain and loss (including without limitation those items created by mandated changes in accounting treatment), and gains or losses accounted for on the equity method, except to the extent of cash distributions received during such period) | $ | ||||
| (ii) |
all interest (including the interest portion of any capitalized lease obligations) | $ | ||||
| (iii) |
all letter of credit fees or commissions due and payable by the Parent and its Restricted Subsidiaries with regard to Indebtedness | $ | ||||
| (iv) |
the sum of items (ii) and (iii) equals Consolidated Interest Expense | $ | ||||
| (v) |
income taxes | $ | ||||
| (vi) |
depletion expense | $ | ||||
| (vii) |
depreciation expense | $ | ||||
| (viii) |
amortization expense | $ | ||||
| 2 | See definition of “Consolidated EBITDA” in § 1.1 of the Credit Agreement: Dispositions by the Loan Parties with respect to a business or assets pursuant to Section 7.2.7 of the Credit Agreement shall be treated as if consummated at the beginning of such period. |
| PNC Bank, National Association, as Agent Page 4 |
Report for the Fiscal [Quarter/Year] Ending |
| (ix) |
non-recurring transaction costs expensed (in accordance with GAAP) by the Loan Parties in connection with the Chief Gathering Acquisition and the equity and debt financings related thereto in an aggregate amount not to exceed $40,000,000 | $ | ||||
| (x) |
[actual transition expenses incurred during the fiscal years 2010 and 2011 (including, without limitation, a one-time, non-cash charge for the vesting of equity awards relating to the separation from PVA), in an amount equal to $ ]3 | $ | ||||
| (xi) |
sum of items (i), (iv) and (v) through [(ix)][(x)] equals Consolidated EBITDA | $ | ||||
| 2. | Minimum Interest Coverage Ratio4. The ratio of (A) Consolidated EBITDA of the Parent and its Restricted Subsidiaries to (B) Consolidated Interest Expense of the Parent and its Restricted Subsidiaries, each as calculated below, as of the end of each fiscal quarter of the Parent for the four fiscal quarters ending as of the Report Date is to 1.0, which ratio is not less than the permitted ratio of 2.5 to 1.0. |
| (a) |
Consolidated EBITDA of the Parent and its Restricted Subsidiaries from item (1)(B)[(x)][(xi)] above | $ | ||||
| (b) |
Consolidated Interest Expense of the Parent and its Restricted Subsidiaries from item (1)(B)(iv) above | $ | ||||
| 3. | Maximum Senior Secured Leverage Ratio5. The ratio of (A) Consolidated Senior Secured Indebtedness of the Parent and its Restricted Subsidiaries to (B) Consolidated EBITDA of the Parent and its Restricted Subsidiaries is to 1.0, which ratio does not exceed the permitted ratio of 4.00 to 1.00, Consolidated Senior Secured Indebtedness of the Parent and its Restricted Subsidiaries and Consolidated EBITDA of the Parent and its Restricted Subsidiaries being determined as in (A) and (B) below. |
| (a) | Consolidated Senior Secured Indebtedness of the Parent and its Restricted Subsidiaries on a consolidated basis, as of the end of the fiscal quarter of the Parent ending as of the Report Date as to any and all indebtedness, obligations or liabilities set forth in Item 1(A) above that are secured by a senior secured first Lien on real or personal property, which amount equals $ . |
| (b) | Consolidated EBITDA of the Parent and its Restricted Subsidiaries as of the end of each fiscal quarter of the Parent for the four fiscal quarters ending as of the Report Date as set forth in Item 1(B) above, which amount equals $ . |
| 3 | (ix) only applies in reference to fiscal years 2010 and 2011 and is limited to an aggregate amount of $7,500,000 |
| 4 | See § 7.2.17 of the Credit Agreement. |
| 5 | See § 7.2.18 of the Credit Agreement. |
| PNC Bank, National Association, as Agent Page 5 |
Report for the Fiscal [Quarter/Year] Ending |
| 4. | Limitation on Investments. The aggregate amount of investments of the Loan Parties (other than the Parent) and the Loan Parties’ Restricted Subsidiaries, other than investments permitted by items (i) through (iv) of Section 7.2.4 of the Credit Agreement, as of the Report Date is $ , which does not exceed the permitted amount of fifteen percent (15%) of Consolidated Assets allowed for investment in Unrestricted Subsidiaries, as set forth in item (v) of Section 7.2.4 of the Credit Agreement. |
| 5. | Limitation on Indebtedness. As of the Report Date (a) the aggregate amount of Indebtedness incurred by the Loan Parties (other than the Parent) and the Loan Parties’ Restricted Subsidiaries in respect of capital leases and secured by Purchase Money Security Interests totals $ , which amount does not exceed the permitted amount of $5,000,000 as set forth in item (iv) of Section 7.2.1 of the Credit Agreement, and (b) the aggregate principal amount of other unsecured Indebtedness permitted under item (ix) of Section 7.2.1 of the Credit Agreement totals $ , which amount does not exceed the permitted amount of $15,000,000 as set forth in such item. |
| 6. | Limitation on Dispositions of Assets or Subsidiaries. Consolidated Assets of the Loan Parties equals $ . As of the Report Date, sales, transfers or leases of assets of the Loan Parties (other than the Parent) and the Loan Parties’ Subsidiaries, other than those specifically excepted by items (i) through (iii) of Section 7.2.7 of the Credit Agreement, total $ which amount is % of Consolidated Assets and does not exceed the permitted amount of $ in any fiscal year of the Parent, which permitted amount equals [select one as applicable: 2.5% of Consolidated Assets as set forth in item (iv) of Section 7.2.7 of the Credit Agreement6 or 10% of Consolidated Assets as set forth in item (v) of Section 7.2.7 of the Credit Agreement and the Sale Proceeds were reinvested in replacement or substitute assets or applied as a mandatory prepayment in accordance with such item]. |
| 7. | Covenants, Conditions, Representations, Warranties, Event of Default or Potential Default. As of the date hereof, all of the representations and warranties of the Loan Parties contained in Section 5 of the Credit Agreement and in the other Loan Documents are true in all material respects 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 expressly relate solely to an earlier date or time, which representations and warranties shall be true on and as of the specific dates or times referred to therein); and no Event of Default or Potential Default exists and is continuing. |
| 6 | When such sale, transfer or lease of assets is added to all other such sales, transfers or leases of assets since the Closing Date, the aggregate amount of all such sales, transfers or leases of assets does not exceed $ , which is 10% of the Consolidated Assets. |
| PNC Bank, National Association, as Agent Page 6 |
Report for the Fiscal [Quarter/Year] Ending |
[SIGNATURE PAGE TO FOLLOW]
[SIGNATURE PAGE TO QUARTERLY COMPLIANCE CERTIFICATE]
IN WITNESS WHEREOF, the undersigned has executed this Certificate this day of , 20 .
| PVR XXXXX LLC | ||
| By: |
| |
| Name: |
| |
| Title: | [Chief Executive Officer / President / | |
| Chief Financial Officer] | ||
