EXHIBIT 10.35
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (hereinafter
called this "Amendment") is dated as of June 2, 2015 (the "Amendment Effective
Date"), by and among Synergy Resources Corporation (the "Borrower"), each Lender
(defined below) signatory hereto and SunTrust Bank, as Administrative Agent for
the Lenders (in such capacity, together with its successors in such capacity
"Administrative Agent") and as an Issuing Bank.
W I T N E S S E T H:
WHEREAS, the Borrower, Administrative Agent and the lenders from time to
time party thereto (the "Lenders") are parties to that certain Amended and
Restated Credit Agreement dated as of November 28, 2012, as amended by the
following: that certain First Amendment to Credit Agreement dated as of February
12, 2013, Second Amendment to Credit Agreement dated as of June 28, 2013, Third
Amendment to Credit Agreement dated as of December 20, 0000, Xxxxxx Xxxxxxxxx to
Credit Agreement dated as of June 3, 2014 and Fifth Amendment to Credit
Agreement dated as of December 14, 2014 (the "Existing Credit Agreement" and, as
amended by this Amendment and as further amended, modified or restated from time
to time, the "Credit Agreement"), whereby upon the terms and conditions therein
stated the Lenders have agreed to make certain loans to the Borrower upon the
terms and conditions set forth therein;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement as set forth below; and
WHEREAS, subject to the terms and conditions hereof, the Lenders are
willing to agree to the amendments to the Credit Agreement as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties to this Amendment hereby agree as
follows:
SECTION 1. Definitions. Unless otherwise defined in this Amendment, each
capitalized term used herein but not otherwise defined herein has the meaning
given such term in the Credit Agreement. The interpretive provisions set forth
in Sections 1.02, 1.03 and 1.04 of the Credit Agreement shall apply to this
Amendment.
SECTION 2. Borrowing Base. Effective on the Amendment Effective Date, the
Borrowing Base is decreased to $175,000,000. The Borrowing Base redetermination
provided for by this Amendment is the Scheduled Redetermination for June 15,
2015.
SECTION 3. Amendments to Credit Agreement. Effective on the Amendment
Effective Date, the Credit Agreement is hereby further amended as follows:
(a) Section 1.01 (Certain Defined Terms) is amended by adding the following
new definitions in proper alphabetical order:
"Triggering Event" means (a) the sale or other disposition by Borrower
or any Subsidiary of any Oil and Gas Properties or (b) the Unwind of any
Borrowing Base Hedging Agreement, which, in either such case, after giving
effect to such event, results in the aggregate amount of all such events
(the fair market value of such Oil and Gas Properties subject to such sale
and the xxxx-to-market value of such Borrowing Base Hedging Agreement
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subject to any such event), since the most recent Scheduled Redetermination
Date exceeding 5% of the Borrowing Base then in effect.
"Triggering Value" means, at any time, (a) the aggregate Borrowing
Base value of Borrowing Base Hedging Agreements that the Borrower or any
Subsidiary Unwinds since the most recent Scheduled Redetermination Date,
determined as of the date of the applicable Unwind, as determined by the
Administrative Agent in its reasonable judgment, and in the case of each
such Borrowing Base Hedging Agreement that the Borrower or any Subsidiary
Unwinds, taking into account any Borrowing Base Hedging Agreement that is
put into place substantially contemporaneously with the Unwind, plus (b)
the amount equal to the aggregate value assigned to all Oil and Gas
Properties that Borrower or any Subsidiary sells or otherwise disposes of,
as assigned to each such Property in the most recently delivered Reserve
Report, since the most recent Scheduled Redetermination Date.
(b) Section 2.07(f) (Borrowing Base Reduction Events) is amended to read as
follows:
"(f) Borrowing Base Reduction Events.
(i) If the Borrower or any Subsidiary novates, sells,
assigns, unwinds, terminates, restructures, modifies, amends or otherwise
affects ("Unwinds") any Borrowing Base Hedging Agreement, the Borrower
shall promptly provide the Administrative Agent with written notice of
such Unwind and, if such Unwind results in a Triggering Event, the
Borrowing Base then in effect shall automatically be reduced by an amount
equal to the Triggering Value (which reduction shall be in addition to the
Administrative Agent's right to request Interim Redetermination between
each Scheduled Redetermination).
(ii) If the Borrower or any Subsidiary sells or
otherwise disposes of any of its or their Oil and Gas Properties and if
such sale or other disposition results in a Triggering Event, the
Borrowing Base then in effect shall automatically be reduced by an amount
equal to the Triggering Value (which reduction shall be in addition to the
Administrative Agent's right to request an Interim Redetermination between
each Scheduled Redetermination)."
(c) Section 9.11(d)(iii) (Sale of Properties) is amended to read as
follows:
"(iii) if such Oil and Gas Property was included in the most
recently delivered Reserve Report and the sale or other disposition
thereof results in a Triggering Event, the Borrowing Base shall
automatically be reduced pursuant to Section 2.07(f)(ii),"
(d) Section 9.01(b) (Current Ratio) is amended to read as follows:
"(b) Minimum Liquidity. The Borrower will not permit, as of
the last day of any fiscal quarter, the amount of its (i) cash and cash
equivalents plus (ii) unused availability under the total Commitments (but
only to the extent that the conditions to borrowing are able to be met at
such time) to be less than $25,000,000, determined at the end of the
fiscal quarter ending May 31, 2015 and each fiscal quarter thereafter."
SECTION 4. Conditions of Effectiveness(a) . This Amendment shall become
effective as of the Amendment Effective Date, provided that each of the
following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received a counterpart of this
Amendment which shall have been executed by the Administrative Agent, the
Issuing Bank, the Lenders and the Borrower (which may be by telecopy or PDF
transmission).
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(b) Payment by the Borrower of the fees and expenses of the Administrative
Agent's counsel pursuant to Section 12.03(a) of the Credit Agreement, including
fees and expenses in connection with the preparation, negotiation and closing of
this Amendment, to the extent invoiced at least three Business Days prior to the
Amendment Effective Date.
(c) All representations and warranties set forth in each of the Loan
Documents (including this Amendment) shall be true and correct in all material
respects (other than those representations and warranties that are expressly
qualified by a Material Adverse Effect or other materiality, in which case such
representations and warranties shall be true and correct in all respects).
SECTION 5. Representations and Warranties. The Borrower represents and
warrants to Administrative Agent and the Lenders, with full knowledge that such
Persons are relying on the following representations and warranties in executing
this Amendment, as follows:
(a) It has the organizational power and authority to execute, deliver and
perform this Amendment, and all necessary organizational action on the part of
it requisite for the due execution, delivery and performance of this Amendment
has been duly and effectively taken.
(b) The Credit Agreement, as amended by this Amendment, the Loan Documents
and each and every other document executed and delivered to the Administrative
Agent and the Lenders in connection with this Amendment to which it is a party
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
(c) This Amendment does not and will not violate any provisions of any of
the Organizational Documents of the Borrower.
(d) No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, the Borrower of this Amendment.
(e) On the Amendment Effective Date, before and after giving effect to this
Amendment, (i) since November 30, 2014, no Material Adverse Effect has occurred,
(ii) no Default or Event of Default has occurred and is continuing, and (iii)
all representations and warranties set forth in each of the Loan Documents are
true and correct in all material respects (other than those representations and
warranties that are expressly qualified by a Material Adverse Effect or other
materiality, in which case such representations and warranties are true and
correct in all respects).
SECTION 6. Miscellaneous.
(a) Reference to the Credit Agreement. Upon the effectiveness hereof, on
and after the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein," or words of like import, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Effect on the Credit Agreement; Ratification. Except as specifically
amended by this Amendment, the Credit Agreement shall remain in full force and
effect and is hereby ratified and confirmed. By its acceptance hereof, the
Borrower hereby ratifies and confirms each Loan Document to which it is a party
in all respects, after giving effect to the Borrowing Base redetermination and
amendments set forth herein.
(c) Extent of Amendments. Except as otherwise expressly provided herein,
the Credit Agreement and the other Loan Documents are not amended, modified or
affected by this Amendment. The Borrower hereby ratifies and confirms that (i)
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except as expressly amended hereby, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Credit Agreement
remain in full force and effect, (ii) each of the other Loan Documents are and
remain in full force and effect in accordance with their respective terms, and
(iii) the Collateral and the Liens on the Collateral securing the Indebtedness
are unimpaired by this Amendment and remain in full force and effect.
(d) Loan Documents. The Loan Documents, as such may be amended in
accordance herewith, are and remain legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their respective terms. This
Amendment is a Loan Document.
(e) Claims. As additional consideration to the execution, delivery, and
performance of this Amendment by the parties hereto and to induce Administrative
Agent and Lenders to enter into this Amendment, the Borrower represents and
warrants that, as of the date hereof, it does not know of any defenses,
counterclaims or rights of setoff to the payment of any Indebtedness of the
Borrower to Administrative Agent, Issuing Bank or any Lender.
(f) Execution and Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument. Delivery of an executed counterpart of this Amendment by facsimile
or pdf shall be equally as effective as delivery of a manually executed
counterpart.
(g) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York and applicable federal laws of
the United States of America.
(h) Headings. Section headings in this Amendment are included herein for
convenience and reference only and shall not constitute a part of this Amendment
for any other purpose.
SECTION 7. NO ORAL AGREEMENTS. THE RIGHTS AND OBLIGATIONS OF EACH OF THE
PARTIES TO THE LOAN DOCUMENTS SHALL BE DETERMINED SOLELY FROM WRITTEN
AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN
SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS AMENDMENT AND
THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY THE BORROWER, ADMINISTRATIVE AGENT,
ISSUING BANK AND/OR LENDERS REPRESENT THE FINAL AGREEMENT BETWEEN SUCH PARTIES,
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
SUCH PARTIES.
SECTION 8. No Waiver. The Borrower hereby agrees that no Event of Default
and no Default has been waived or remedied by the execution of this Amendment by
the Administrative Agent or any Lender. Nothing contained in this Amendment nor
any past indulgence by the Administrative Agent, Issuing Bank or any Lender, nor
any other action or inaction on behalf of the Administrative Agent, Issuing Bank
or any Lender, (i) shall constitute or be deemed to constitute a waiver of any
Defaults or Events of Default which may exist under the Credit Agreement or the
other Loan Documents, or (ii) shall constitute or be deemed to constitute an
election of remedies by the Administrative Agent, Issuing Bank or any Lender, or
a waiver of any of the rights or remedies of the Administrative Agent, Issuing
Bank or any Lender provided in the Credit Agreement, the other Loan Documents,
or otherwise afforded at law or in equity.
Signatures Pages Follow
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER: SYNERGY RESOURCES CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx
Co-Chief Executive Officer
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SUNTRUST BANK,
as Administrative Agent and as an Issuing
Bank and a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
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COMMUNITY BANKS OF COLORADO,
as an Issuing Bank and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. XxXxxx
------------------------------------
Name: Xxxxxx X. XxXxxx
Title: Senior Vice President
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AMEGY BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: VP
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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
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CREDIT AGRICOLE CORPORATE AND INVESTMENT
BANK, as a Lender
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx Xxx
------------------------------------
Name: Xxxx Xxx
Title: Director
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DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
IBERIABANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
