Exhibit 4
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "First
Amendment") dated as of May 1, 1997, is made and entered into
among PENN VIRGINIA CORPORATION, a Virginia corporation
("Borrower"), the Banks (as thereinafter defined), and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association ("TCB") acting in its capacity as agent for the Banks
(in such capacity, the "Agent").
WHEREAS, Borrower, the financial institutions party thereto
(the "Banks") and the Agent have heretofore entered into a Credit
Agreement dated as of August 2, 1996 (the "Credit Agreement")
providing for, among other things, revolving credit loans to made
by the Banks to Borrower in a principal amount not to exceed
$50,000,000 in the aggregate at anytime outstanding on the terms
and subject to the conditions therein set forth; and
WHEREAS, the parties desire to amend the Credit Agreement in
order, among other things, to increase from $50,000,000 to
$75,000,000 the aggregate commitments of the Banks under the
Credit Agreement and to modify certain other provisions of the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, representations and warranties herein set
forth, and for other good and valuable consideration, the parties
hereto agree as follows:
1. Modification of Section 1.1.
1.1 Section 1.1 of the Credit Agreement is hereby
amended by changing the definition therein of "Applicable
Eurodollar Margin" to read in its entirety as set forth below:
"Applicable Eurodollar Margin" shall mean, with
respect to each Eurodollar Borrowing:
(a) on each day on which the Utilized Percentage of Borrowing
Base is less than twenty-five percent (25%), one-half of the
percent (0.50%) per annum;
(b) on each day on which the Utilized Percentage of Borrowing
Base is equal to or greater than twenty-five percent (25%) but
less than fifty percent (50%), five-eighths of one percent
(0.625%) per annum;
(c) on each day of which the Utilized Percentage of Borrowing
Base is equal to or greater than fifty percent (50%) but less
than seventy-five percent (75%), seven-eighths of one percent
(0.875%) per annum;
(d) on each day of which the Utilized Percentage of Borrowing
Base is equal to or greater than seventy-five percent (75%), one
and one-eighth of one percent (1.125%) per annum.
1.2 Section 1.1 of the Credit Agreement is hereby
further amended by changing the definition therein of "Borrowing
Base Period" to read in its entirety as set forth below:
"Borrowing Base Period" means (a) initially, the
period from the Effective Date through May 31, 1997; and (b)
thereafter, each six month period beginning on June 1 or December
1 of each year.
1.3 Section 1.1 of the Credit Agreement is hereby
further amended by changing the definition therein of "Immaterial
Oil and Gas Interests" to read in its entirety as set forth
below:
"Immaterial Oil and Gas Interest" shall have the
meaning assigned to that term in Section 5.6 hereof.
1.4 Section 1.1 of the Credit Agreement is hereby
further amended by changing the definition therein of "Total
Commitment" to read in its entirety as set forth below:
"Total Commitment" shall mean $75,000,000 as the
same may be reduced from time to time pursuant to Section 2.9.
2. Modification of Section 2.5. Section 2.5 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
SECTION 2.5 Fees.
(a) In consideration of each Bank's commitment to
make Revolving Credit Loans, the Borrower will pay to Agent for
the account of each Bank a commitment fee determined on a daily
basis by applying the applicable Commitment Fee Rate to such
Bank's Commitment percentage of the difference between (i) the
Available Commitment and (ii) the aggregate outstanding principal
amount of the Revolving Credit Loans, on each day from the
Effective Date to but excluding the maturity Date. This
commitment fee shall be due and payable in arrears on the first
day of the next succeeding Fiscal Quarter, on the date of each
reduction in the Total
Commitment Fee Rate shall based on the Utilized Percentage of
Borrowing Base in effect on each such day and calculated pursuant
to the following table:
Utilized Percentage Applicable Commitment
of Borrowing Base Fee Rate
---------------------- ---------------------------
Less than fifty percent (50%) one-fourth of one percent
(0.25%) per annum
Equal to or greater than three-tenths of one percent
fifty-percent (50%) but less (0.30%) per annum
than seventy-five percent (75%)
Greater than or equal to seven-twentieths of one
seventy-five percent (75%) percent (0.35%) per annum
(b) In consideration of each Bank's commitment to
participate in Letters of Credit, the Borrower will pay to Agent
for the account of each Bank a letter of credit fee equal to the
greater of (i) $500.00 and (ii) a fee determined by applying the
applicable Letter of Credit Fee Rate to the face amount of each
Letter of Credit from the date of issuance thereof to the date on
which such Letter of Credit expires. All such Letter of Credit
fees shall be payable in full in advance of the issuance of such
letter of Credit. The Agent shall pay to each Bank its
Commitment Percentage of such Letter of Credit fee. The
applicable "Letter of Credit Fee Rate" shall be based on the
Utilized Percentage of Borrowing Base in effect on each such day
and calculated pursuant to the following table:
Utilized Percentage of Borrowing Applicable Commitment Fee
Base Rate
-------------------------------- --------------------------
Less than twenty-five percent one-fourth of one percent
(%25) (0.50%) per annum
Equal to or greater than five-eighths of one percent
twenty-five percent 25%) but (0.625%) per annum
(less than fifty percent (50%)
Equal to or greater than fifty seven-eighths of one percent
percent (50%) but less than (0.875%) per annum
seventy-five percent (75%)
Greater than or equal to one and one-eighth of one
seventy-five percent (75%) percent( 1.125%) per annum
3. Modification of Section 3.1. Section 3.1 of the
Credit Agreement is hereby amended by adding the phrase
"commencing March 31, 1997" immediately after the word "year"
appearing in the second line thereof.
4. Modification of Section 3.3. Section 3.3 of the
Credit Agreement is hereby amended by deleting the number
"$35,000,000" appearing twice in the sixth line thereof and
substituting the number "$45,000,000" in lieu thereof.
5. Modification of Section 3.5. Section 3.5 is hereby
amended by deleting the date "November 1, 1996" and substituting
the date "June 1, 1997" in lieu thereof.
6. Modification of Section 7.14. Section 7.14 of the
Credit Agreement is hereby amended by deleting the phrase
"seventy-five percent (75%)" appearing in the fourth line thereof
and substituting the phrase "one hundred percent (100%)" in lieu
thereof.
7. Modification of Schedule 1.1. Schedule 1.1 to the
Credit Agreement is hereby amended in its entirety to read
effective on the Effective Date as provided Exhibit A attached
hereto.
8. Notes. Each of the three new Notes from the
Borrower to each of the Banks delivered pursuant to Section 10.2
of this First Amendment shall be deemed to be the Notes under the
Credit Agreement.
9. Representations and Warranties: No Default.
Borrower hereby represents and warrants that:
9.1 The Borrower has the corporate power and authority
and legal right (i) to execute and deliver this First Amendment
and to perform the Credit Agreement as amended through this First
Amendment and (ii) to execute, deliver and perform the New Notes
and each other agreement or instrument contemplated hereby to
which it is or will be a party, and (iii) to borrow under the
Credit Agreement as amended through this First Amendment and the
New Notes. The execution and delivery of the First Amendment and
performance of the Credit Agreement as amended through the First
Amendment and the consummation of the transactions contemplated
thereby, and the borrowing of funds under the Credit Agreement as
amended through this First Amendment and the notes, have been
duly approved by the board of directors of the Borrower and no
other corporate proceedings on the part of the Borrower are
necessary to consummate such transactions. The Credit Agreement
as amended through this First Amendment constitutes the legal,
valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar
laws related to creditors' rights generally and by general
principles of equity which may limit the right to obtain
equitable remedies (regardless of whether such enforceability is
considered in a proceeding in equity or at law). This First
Amendment has been and each New Note of the Borrower will be,
duly executed and delivered on behalf of the Borrower.
9.2 The New Notes, when executed and delivered by the
Borrower, will be enforceable against the Borrower in accordance
with its terms, except as enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws relating to creditors' rights
generally and by general principles of equity principles of
equity which may limit the right to obtain equitable remedies
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
9.3 The representations and warranties of the Borrower
contained in Article V of the Credit Agreement are true, complete
and correct in all material respects on and as of the Effective
Date as though made on and as of the Effective Date (or, if
stated to have been made solely as of an earlier date, were true
and correct as of such earlier date).
9.4 No Default or Event or Default under the Credit
Agreement (other than a Default which is cured by the execution
and delivery of this First Amendment) has occurred and is
continuing.
10. Effectiveness. This First Amendment shall become
effective on the date when each of the following conditions shall
have been fulfilled (the "Effective Date"):
10.1 The Borrower and each Bank shall have duly executed
a counterpart of this First Amendment and delivered the same to
the Agent, or, in the case of any Bank as to which an executed
counterpart hereof shall not have been so delivered, the Agent
shall have received written confirmation by facsimile, telecopy
or other similar writing from such Bank of execution of a
counterpart hereof by such Bank; and
10.2 Each of the Banks shall have exchanged its prior
promissory note for a new Note in the form of Exhibit A to the
Credit Agreement in the principal amounts set forth on Exhibit A
hereto, duly executed by the Borrower, payable to the order of
each Bank, as applicable, dated hereof and with all blanks
appropriately completed.
10.3 Each Subsidiary Guarantor shall have executed and
delivered to the Agent for the benefit of the Banks multiple
counterparts of a Reaffirmation of Guaranty substantially in the
form attached hereto as Exhibit B; and
10.4 The Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Borrower, dated the
Effective Date, certifying as to (i) the adoption and continuing
effect of resolutions of the board of directors of the Borrower
authorizing the transactions contemplated in the First Amendment;
(ii) no amendments, modifications, changes or alterations to, or
revocation, repeal or supersession of, (x) its Articles of
Incorporation since August 2, 1996, and (y) its Bylaws since
August 2, 1996; and (iii) the incumbency of all officers of the
Borrower who will execute or have executed any document or
instrument required to be delivered hereunder, containing the
signature of same;
10.5 The Agent shall have received a certificate of the
Secretary or Assistant Secretary of each Subsidiary Guarantor,
dated the Effective Date, certifying as to (i) the adoption and
continuing effect of resolutions of the board of directors of the
Borrower authorizing the transactions contemplated in the First
Amendment; (ii) no amendments, modifications, changes or
alterations to, or revocation, repel or supersession of, (x) its
Articles of Incorporation since August 2, 1996, and (y) its
Bylaws since August 2, 1996; and (iii) the incumbency of all
officers of the Borrower who will execute or have executed any
document or instrument required to be delivered hereunder,
containing the signature of same;
10.6 The Agent shall have received the favorable written
legal opinion of legal counsel to the Borrower and its
Subsidiaries, addressed to the Agent for the benefit of the Banks
and dated as of the Effective Date, and in form and substance
satisfactory to the Agent; and
10.7 Borrower shall have executed and delivered, or
caused to be executed and delivered, such other documents and
instruments and taken such other actions as the Bank may
reasonably request in connection with this First Amendment or the
matters referred to herein.
11. Ratification. Except as amended and modified
through this First Amendment, the Credit Agreement and all other
Loan Documents shall continue in full force and effect. The
Credit Agreement and this First Amendment shall be read, taken
and construed as one and the same instrument. The Credit
Agreement as amended through this First Amendment, and all rights
and powers created thereby or thereunder and under such other
Loan Documents are in all respects ratified and affirmed.
12. Counterparts. This First Amendment may be signed
in any number of counterparts, and by different parties on
separate counterparts, each of which shall be construed as an
original, but all of which together shall constitute one and the
same instrument.
13. Certain Defined Terms. Capitalized terms used
herein without definition shall have the meaning assigned to them
in the Credit Agreement. The term "Credit Agreement" as defined
and used in the other Loan Documents or any other instrument,
document or writing furnished to the Bank by Borrower in
connection with the Credit Agreement shall mean the Credit
Agreement as amended through this First Amendment. The term
"Notes" as defined and used in the Loan Documents or any other
instrument, document or writing furnished to the Agent or the
Banks by the Borrower in connection with the Credit Agreement
shall mean the New Notes.
14. Expenses. The Borrower shall pay to the Agent all
expenses incurred in connection with the negotiation,
preparation, distribution, execution and delivery of the First
Amendment, the New Notes, and the Reaffirmation of guaranty
(including, without limitation, as to each of the foregoing, the
reasonable fees and disbursements of legal counsel).
15. Headings. The headings herein shall be accorded no
significance in interpreting this First Amendment.
16. GOVERNING LAW. THE CREDIT AGREEMENT AS AMENDED
THROUGH THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND OF THE
UNITED STATES OF AMERICA TO THE EXTENT APPLICABLE.
17. FINAL AGREEMENT. THE CREDIT AGREEMENT AS AMENDED
THROUGH THIS FIRST AMENDMENT, THE NEW NOTES, THE SUBSIDIARY
GUARANTY AS REAFFIRMED BY THE REAFFIRMATION OF GUARANTY AND THE
OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN
SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the date first above
written.
BORROWER:
PENN VIRGINIA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial
Officer
AGENT:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
as Agent
By: /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BANKS:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
as Agent
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A TO
THE FIRST AMENDMENT
SCHEDULE 1.1
to
Credit Agreement
Commitments, Banks, Addresses
Amount of Commitment
Bank Name and Address Commitment Percentage
------------------------------- ----------- ----------
Texas Commerce Bank National $30,000,000 40%
Association
707 Xxxxxx 5-TCBN-86
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
Global Oil and Gas
Telecopy No: (000) 000-0000
Telephone No: (000) 000-0000
First Union National Bank of $22,500,000 30%
North Carolina*
x/x Xxxxx Xxxxx Xxxxxxxxxxx xx
Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No: (000) 000-0000
Telecopy No: (000-000-0000
The First National Bank of Chicago $22,500,000 30%
One First Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx/Xxxx Xxxxxxx
Energy Unit
Telephone No: (000) 000-0000
(000) 000-0000 ------------ ---------
$75,000,000 100.0000%
EXHIBIT B
REAFFIRMATION OF GUARANTY
This Reaffirmation of Guaranty dated as of May 1, 1997, is
made by each of the parties listed on the signatures pages
hereof, together with each other person who may become a party
hereto pursuant to Section 22 of the Guaranty defined below (each
a "Subsidiary Guarantor" and collectively, "Subsidiary
Guarantors"), jointly and severally, in favor of TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association ("TCB")
as agent on behalf of the financial institutions that are or may
from time to time become signatories to the Credit Agreement
defined below (the "Banks")(in such capacity, the "Agent").
WHEREAS, Penn Virginia Corporation, a Virginia corporation
(the "Borrower"), the Banks and the Agent are parties to that
certain Credit Agreement dated as of August 2, 1996 (the "Credit
Agreement"); and
WHEREAS, pursuant to that certain Subsidiary Guaranty dated
as of August 2, 1996, (the "Guaranty"), each of the Subsidiary
Guarantors unconditionally guaranteed the punctual payment when
due of the "Obligations" (as that term is defined in the Credit
Agreement) of the Borrower under the Credit Agreement; and
WHEREAS, the Borrower has requested that the Banks and the
Agent increase their respective Commitments under the Credit
Agreement; and
WHEREAS, the Agent and the Banks are willing to consent to
such an increase in their respective Commitments under the Credit
Agreement upon the execution and delivery of this Reaffirmation
of Guaranty by an authorized representative of each Subsidiary
Guarantor;
NOW, THEREFORE, as an inducement to the Agent and the Banks
to increase the aggregate Commitments under the Credit Agreement
from $50,000,000 to $75,000,000, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged by each Subsidiary Guarantor, each subsidiary
Guarantor agrees as follows:
1. Each Subsidiary Guarantor is aware of, and consents to,
the terms and provisions of that certain First Amendment to
Credit Agreement dated as of May 1, 1997, by among the Borrower,
the Banks and the Agent (the "First Amendment").
2. Each Subsidiary Guarantor hereby agrees that the Guaranty
shall remain unchanged and the terms, conditions,
representations, warranties, and covenants of said Guaranty are
true as of the date hereof, are ratified and confirmed in all
respects and shall be continuing and binding upon each Subsidiary
Guarantor and such Guaranty shall be fully applicable to all
loans made under the increased commitments and pursuant to the
Credit Agreement as amended through the First Amendment. Each
Subsidiary Guarantor hereby agrees that the terms of the Credit
Agreement shall in no manner impair the Guaranty or any of the
obligations of any Subsidiary Guarantor thereunder, and all of
the terms of the Guaranty are in full force and effect.
3. Each Subsidiary Guarantor hereby represents and warrants
to the Banks and the Agent that (a) such Subsidiary Guarantor has
the corporate power, authority and legal right to execute and
deliver this Reaffirmation of Guaranty and to perform its
obligations under the Guaranty, as ratified and affirmed hereby,
and has taken all necessary corporate action to authorize the
execution and delivery of this Reaffirmation of Guaranty, (b)
this Reaffirmation of Guaranty has been duly executed and
delivered on behalf of such Subsidiary Guarantor, and (c) the
Guaranty, as ratified and affirmed hereby, constitutes a valid
and legally binding agreement enforceable against such Subsidiary
Guarantor in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws relating to
creditors' right generally and by general principles of equity
which may limit the right to obtain equitable remedies
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
4. Capitalized terms used herein which are defined in the
Guaranty and not otherwise defined herein shall have the meanings
specified therein.
5. This instrument shall be governed by and construed in
accordance with the laws of the State of Texas.
6. THE GUARANTY, AS REAFFIRMED HEREBY, TOGETHER WITH THE
OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN
SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
EXECUTED to be effective as of the date first written above.
"SUBSIDIARY GURANTORS"
PENN VIRGINIA OIL & GAS CORPORATION
PENN VIRGINIA COAL COMPANY
PENN VIRGINIA RESOURCES CORPORATION
PENN VIRGINIA EQUITIES CORPORATION
