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EXHIBIT 99.10
NINTH AMENDMENT
TO
FIRST AMENDED, RESTATED, AND COMBINED LOAN AGREEMENT
DATED AUGUST 28, 1997
BY AND BETWEEN CARRIZO OIL & GAS, INC.
AND COMPASS BANK
This Ninth Amendment to the Loan Agreement (this "Ninth Amendment") by
and between CARRIZO OIL & GAS, INC., a Texas corporation (the "Borrower"), and
COMPASS BANK, an Alabama state chartered bank, formerly a Texas chartered bank
(the "Bank"), is entered into on this 15th day of December 1999, and shall be
effective as of that date for all purposes.
W I T N E S S E T H:
Borrower and Bank entered into a First Amended, Restated, and Combined
Loan Agreement dated August 28, 1997, as amended by the First Amendment thereto
dated December 23, 1997, the Second Amendment thereto dated December 30, 1997,
the Third Amendment thereto dated July 30, 1998, the Fourth Amendment thereto
dated September 24, 1998, the Fifth Amendment thereto dated March 22, 1999, the
Sixth Amendment thereto dated April 23, 1999, the Seventh Amendment thereto
dated August 27, 1999 and the Eighth Amendment thereto dated November 11, 1999
(collectively, the "Loan Agreement"). Capitalized terms used, but not defined
herein, shall have the meanings prescribed therefor in the Loan Agreement.
Borrower has requested that the Loan Agreement be further amended and
that the Bank consent to Borrower entering into a certain subordinated loan
transaction otherwise disallowed under certain covenants in the Loan Agreement,
and the Bank has agreed to such requests, subject to the terms and conditions
set forth in this Ninth Amendment.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by Borrower and Bank, and each intending
to be legally bound hereby, the parties agree as follows:
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I. Specific Amendments to Loan Agreement.
Article I, Definitions, is hereby amended by adding the following definitions
thereto:
"Borrower Certificate" means the certificate from an
authorized officer of Borrower certifying that attached
thereto as Exhibits A, B, C and D are true and complete copies
of the Chase Documents and the Enron Documents.
"Chase" means, collectively, CB Capital Investors,
L.P. and its affiliates, together with its permitted
successors and assigns.
"Chase Documents" means the Securities Purchase
Agreement, the Warrant Agreement, the Shareholders' Agreement
and the Registration Rights Agreement comprising the Chase
Transaction, each as amended, modified, rearranged and/or
restated from time to time in compliance with the Chase
Subordination Agreement and the Chase Purchase Agreement.
"Chase Purchase Agreement" means the Securities
Purchase Agreement between Borrower and the Investors dated
December 15, 1999 in the form of Exhibit "A" attached to the
Chase Certificate.
"Chase Subordinated Promissory Notes" means those
certain promissory notes dated December 15, 1999 executed by
Borrower payable to the Investors in the form attached as
Exhibit "B" to the Chase Purchase Agreement.
"Chase Subordination Agreement" means the Memorandum
of Subordination Agreement between the Bank, Borrower and the
Investors dated December 15, 1999 in the form of Exhibit "A"
attached to the Ninth Amendment.
"Chase Transaction" means that certain transaction
between Borrower and the Investors as evidenced by the Chase
Documents.
"Current Assets" and "Current Liabilities" means at
any time, all assets or liabilities, respectively, that
should, in accordance with GAAP, be classified as current
assets or current liabilities on the balance sheet of
Borrower; provided that Current Assets shall include the
available but unadvanced portion of the Revolving Commitment
and Current Liabilities shall not include the current
scheduled payments under the Second Term Loan.
"Enron Documents" means that certain Stock and
Warrant Purchase Agreement dated December 1, 0000 xxxxx
Xxxxxxxx, Xxxxx Xxxxx Xxxxxxx Corp., Sundance Assets, L.P. and
Joint Energy Development Investments II Limited Partnership
and the amended warrants contemplated thereby.
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"Enron Transaction" means the transaction evidenced
by the Enron Documents.
"Investors" means those Persons listed on Schedule
1.1 of the Chase Purchase Agreement, together with their
permitted successors and assigns.
"Ninth Amendment" means the Ninth Amendment to this
Agreement executed by Borrower and Bank on December 15, 1999.
"Working Capital" means Current Assets minus Current
Liabilities.
Article I, Definitions, is hereby amended by revising the definition of
"Loan Documents" by adding the clause "and the Chase Subordination Agreement"
immediately after the term "including the Subordination Agreement" in that
definition.
Article I, Definitions, is hereby further amended by revising the
following defined terms in their entirety to read as follows:
"Maturity Date" means January 1, 2002.
"Second Term Loan Maturity Date" means the earlier
of: (1) the date of closing of the issuance of additional
equity of Borrower, other than with regard to the Chase
Transaction, if the net proceeds of such issuance are
sufficient to repay in full the Second Term Loan; (2) the date
of closing of the issuance of convertible subordinated debt of
Borrower, other than with regard to the Chase Transaction, if
the proceeds of such issuance are sufficient to repay in full
the Second Term Loan; (3) the date of repayment of the
Revolving Loan and the termination of the Revolving
Commitment; and (4) July 1, 2001.
"Second Term Loan Note" means the Second Amended and
Restated Term Note in the original face amount of
$9,000,000.00 executed December 15, 1999, but dated effective
March 22, 1999, made by Borrower payable to the order of Bank,
in substantially the form attached to the Ninth Amendment as
Exhibit "B," together with all deferrals, renewals,
extensions, amendments, modifications or rearrangements
thereof, which promissory note shall evidence the advances to
Borrower by Bank pursuant to Section 2.22 hereof.
Subsection 2.10(a), Borrowing Base Oil and Gas Properties, is
hereby amended by replacing the first two sentences of that section
with the following text:
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The Borrowing Base attributable to the Borrowing Base Oil and
Gas Properties is established at $3,750,000.00 effective as of
November 22, 1999; provided, however, that the Borrowing Base
value attributable to the Borrowing Base Oil and Gas
Properties shall be reduced to $2,750,000.00 at the earlier
of: (i) the consummation of the Chase Transaction by Borrower
and the Investors or (ii) December 15, 1999; and such latter
Borrowing Base shall then continue in effect until
redetermined on the next Borrowing Base review currently
scheduled for March 1, 2000.
Section 2.24, Repayment of Second Term Loan, as amended by the
Fifth Amendment, is hereby further amended by replacing the text of
that section with the following:
Interest on the Second Term Note, calculated as aforesaid in
Section 2.04, shall be repaid by Borrower in monthly
installments on the first day of each month following the
advance from Bank to Borrower pursuant to Section 2.22,
through and including the Second Term Loan Maturity Date. For
the period beginning on the date of the Ninth Amendment until
June 1, 2000, principal payments on the Second Term Loan
evidenced by Second Term Note shall not be due, unless
preceded by the Second Term Loan Maturity Date, when the
entire unpaid balance of the Second Term Note, inclusive of
principal and interest, shall be paid in full. Except as
provided for in the preceding sentence, principal under the
Second Term Loan evidenced by the Second Term Note will be
repaid in consecutive monthly installments in the amount of
$290,000.00 each, beginning on July 1, 2000 through and
including December 1, 2000, and thereafter in consecutive
monthly installments in the amount of $440,000.00 each,
beginning on January 1, 2001, and continuing on the first day
of each successive calendar month until the Second Term Loan
Maturity Date, when the entire unpaid balance of the Second
Term Note, inclusive of principal and interest, shall be paid
in full.
Article III, Conditions, is hereby amended by adding the following
Section 3.23.
3.23 Conditions Precedent in Connection with the Ninth
Amendment. The Ninth Amendment shall not be binding on the Bank until
satisfaction of the following conditions precedent:
(a) Receipt of Ninth Amendment, Second Amended and Restated
Term Note and Compliance Certificate. Bank shall have received multiple
fully executed counterparts of the Ninth Amendment, as requested by
Bank, the Second Amended and Restated Term Note and the Compliance
Certificate duly executed by an authorized officer for Borrower.
(b) Additional Loan Documents. Bank shall have received
multiple fully executed counterparts of the (i) Chase Subordination
Agreement, (ii) the Borrower Certificate to which the instruments
evidencing the Chase Transaction are attached as Exhibits A, B, C, and
D and (iii) the Enron Documents, all in form and substance satisfactory
to Bank.
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(c) Accuracy of Representations and Warranties and No Event of
Default. After giving effect to the Ninth Amendment, the
representations and warranties contained in Article IV of the Loan
Agreement shall be true and correct in all material respects on the
date of the Ninth Amendment with the same effect as though such
representations and warranties had been made on such date; and after
giving effect to the Ninth Amendment, no Event of Default shall have
occurred and be continuing or will have occurred upon the execution of
the Ninth Amendment.
(d) Legal Matters Satisfactory to Special Counsel to Bank. All
legal matters incident to the consummation of the transactions
contemplated by the Ninth Amendment shall be satisfactory to the firm
of Xxxxxx & Xxxxxx, L.L.P., special counsel for Bank.
(e) Legal Fees. All reasonable legal fees and expenses owed by
Bank to Xxxxxx & Xxxxxx, L.L.P. in connection with the Loan Agreement
shall have been paid by Borrower including the legal fees and expenses
incurred by Bank to such counsel in connection with the Ninth Amendment
through December 15, 1999 in the amount of $14,423.21 for which an
invoice will be delivered to Borrower at least twenty-four (24) hours
prior to its signing of the Ninth Amendment.
(f) No Material Adverse Change. No material adverse change
shall have occurred since the date of this Agreement in the condition,
financial or otherwise, of Borrower.
(g) Restructuring Fee. Bank shall have received a
restructuring fee in the amount of $85,000.00, $60,000.00 of which
shall represent the fee due from Borrower to Bank for Bank's continued
commitment pursuant to the Second Term Loan.
(h) Principal Payment. Bank shall have received a principal
payment of $2,000,000.00 to be applied against the Second Term Note.
(i) Payment of Subordinated Promissory Note. Bank shall have
received satisfactory evidence of the full and final payment of the
Subordinated Promissory Note by Borrower.
(j) Principal Payment on Note. Bank shall have received a
principal payment of $1,000,000.00 to be applied against the Note
pursuant to the reduction of the Borrowing Base pursuant to Section
2.10(a), as amended by the Ninth Amendment.
Article V, Affirmative Covenants, is hereby amended by adding the
following new Section 5.38:
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5.38 Working Capital. Borrower shall maintain a minimum
Working Capital balance at all times of $2,000,000.00.
Article V, Affirmative Covenants, is hereby further amended by revising
the following sections to read as follows:
Section 5.19 Tangible Net Worth Requirement, as amended by the
First and Sixth Amendments, is hereby further amended by revising that
section in its entirety to read as follows:
Effective on the date of the Ninth Amendment, Borrower shall
maintain a total Tangible Net Worth of not less than
$34,000,000.00, increasing by: (x) fifty percent (50%) of net
income (excluding losses) of Borrower subsequent to December
31, 1999, and (y) one hundred percent (100%) of any increases
in shareholders' equity resulting from the sale or issuance of
stock in Borrower subsequent to December 31, 1999.
Section 5.20 Cash Flow to Debt Service Ratio, is amended by
revising that section in its entirety to read as follows:
5.20 EBITDA to Debt Service Ratio. Borrower will
maintain (calculated in accordance with GAAP) a ratio of
quarterly EBITDA to quarterly Debt Service of not less than
1.25 to 1.0. For the purposes of calculating this ratio:
(a) "EBITDA" shall be defined as the sum of net
income plus interest (net of interest income), taxes,
depletion, depreciation, amortization, any other non-cash
charges, and capitalized (cash) income not reflected in
Borrower's income statement, less non-cash income items of
Borrower, and all capitalized general and administrative
expenses, including capitalized expenses relating to full-time
staff salaries allocated to capital projects.
(b) "Debt Service" shall be defined as the sum of (i)
actual cash principal and interest amounts (including any
capitalized interest payments) that Borrower is obligated to
pay during such quarter on Indebtedness other than in
connection with this Agreement and (ii) cash principal and
interest amounts (including any capitalized interest payments)
required to be paid by Borrower during such quarter in
connection with this Agreement (excluding payments made
pursuant to the Chase Transaction and the repayment of the
Subordinated Promissory Note); provided that the interest
payments under (i) and (ii) above shall be net of interest
income.
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For purposes of calculating the Cash Flow to Debt Service Ratio, Debt
Service shall not include required payments (i) pursuant to the Ninth
Amendment, (ii) the scheduled balloon payment on the Term Loan due July
1, 2001 and (iii) the scheduled balloon payment due August 31, 2001 to
be applied against the Seitel Data promissory note listed on Schedule A
to the Seventh Amendment.
Section 6.01, Other Indebtedness, as amended by the Seventh
and Eighth Amendments, is hereby further amended by deleting the word
"and" immediately preceding clause (f) and adding the following clause
(g) at the end of that Section:
and (g) the Indebtedness evidenced by the Chase Subordinated
Promissory Notes and guaranties executed by any Subsidiary of
Borrower guarantying payment thereof.
Exhibit "B" (Form of Note) attached to the Fifth Amendment is
hereby replaced with Exhibit "B" attached to this Ninth Amendment.
II. Certain Consents. Bank consents to Borrower:
A. Entering into and the consummating the Chase Transaction and
executing the Chase Subordinated Promissory Notes evidencing
Borrower's obligations to the Investors pursuant to the Chase
Purchase Agreement, the terms of such notes thereby limited and
restricted by the Chase Subordination Agreement; provided,
however, that, notwithstanding anything to the contrary in the
Chase Purchase Agreement, Bank consents to (i) the optional
prepayments of the Chase Subordinated Promissory Notes as
provided in Section 3.6 of the Chase Purchase Agreement, if and
only if, (x) no Event of Default shall have occurred or be
continuing, (y) any such prepayment would not cause the
occurrence of an Event of Default, and (z) the Second Term Loan
shall have been paid in full and (ii) the mandatory prepayments
of the Chase Subordinated Promissory Notes as provided in Section
3.5 of the Chase Purchase Agreement but only to the extent as
provided therein and in the Chase Subordination Agreement;
B. Paying in full the Subordinated Promissory Notes.
C. Entering into and the consummation of the transaction evidenced
by the Enron Documents.
D. Issuing of stock of Borrower pursuant to the Chase Transaction,
the dividends and distribution terms of such stock thereby
limited and restricted by the Loan Agreement; and
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E. Issuing of certain stock warrants of Borrower pursuant to the
Chase Transaction, provided that such stock warrants shall be
limited and restricted by the Loan Agreement.
III. Certain Waivers. Bank hereby waives compliance with the negative
covenants of the Loan Agreement, including the provisions of Section 6.01 and
6.07 of the Loan Agreement, solely to the extent that any such covenants would
be breached by the execution, delivery and performance of the Chase Transaction
and the Enron Transaction to the extent, but only to the extent, that such
transaction is described in the Chase Transaction and the Enron Transaction.
IV. Reaffirmation of Representations and Warranties. To induce Bank to enter
into this Ninth Amendment, Borrower hereby reaffirms, as of the date hereof,
after giving effect to the Ninth Amendment, its representations and warranties
contained in Article IV of the Loan Agreement and in all other documents
executed pursuant thereto, and additionally represents and warrants as follows:
A. The execution and delivery of this Ninth Amendment and the
performance by Borrower of its obligations under this Ninth Amendment
are within Borrower's power, have been duly authorized by all necessary
corporate action, have received all necessary governmental approval (if
any shall be required), and do not and will not contravene or conflict
with any provision of law or of the articles of incorporation, charter
or bylaws of Borrower or of any agreement binding upon Borrower.
B. The Loan Agreement as amended by this Ninth Amendment,
represents the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with its terms, subject as
to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally.
C. No Event of Default or Unmatured Event of Default has
occurred and is continuing as of the date hereof.
V. Defined Terms. Except as amended hereby, terms used herein that are defined
in the Loan Agreement shall have the same meanings in this Ninth Amendment.
VI. Reaffirmation of Loan Agreement. This Ninth Amendment shall be deemed to
be an amendment to the Loan Agreement, and the Loan Agreement, as further
amended hereby, is hereby ratified, approved and confirmed in each and every
respect. All references to the Loan Agreement herein and in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the Loan
Agreement as amended hereby.
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VII. Entire Agreement. The Loan Agreement, as hereby further amended, embodies
the entire agreement between Borrower and Bank and supersedes all prior
proposals, agreements and understandings relating to the subject matter hereof.
Borrower certifies that it is relying on no representation, warranty, covenant
or agreement except for those set forth in the Loan Agreement as hereby further
amended and the other documents previously executed or executed of even date
herewith.
VIII. Governing Law. THIS NINTH AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. This Ninth Amendment has been entered into in Xxxxxx
County, Texas, and it shall be performable for all purposes in Xxxxxx County,
Texas. Courts within the State of Texas shall have jurisdiction over any and all
disputes between Borrower and Bank, whether in law or equity, including, but not
limited to, any and all disputes arising out of or relating to this Ninth
Amendment or any other Loan Document; and venue in any such dispute whether in
federal or state court shall be laid in Xxxxxx County, Texas.
IX. Severability. Whenever possible each provision of this Ninth Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Ninth Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Ninth Amendment.
X. Execution in Counterparts. Each party hereto acknowledges that this
Agreement may be executed in several counterparts by each party at different
times and in different locations; that each separate counterpart bearing the
signature of any party may be effectively delivered to the other parties by the
delivery of an electronic facsimile sent via telecopier; that each party so
delivering any such counterpart shall be bound by its facsimile signature
thereon; and that the signature pages from counterparts signed by each party may
be collated into one or more copies of this agreement, which shall constitute
one and the same agreement among all parties hereto.
XI. Section Captions. Section captions used in this Ninth Amendment are for
convenience of reference only, and shall not affect the construction of this
Ninth Amendment.
XII. Successors and Assigns. This Ninth Amendment shall be binding upon
Borrower and Bank and their respective successors and assigns, and shall inure
to the benefit of Borrower and Bank, and the respective successors and assigns
of Bank.
XIII. Non-Application of Chapter 346 of Texas Finance Codes. In no event shall
Chapter 346 of the Texas Finance Code (which regulates certain revolving loan
accounts and revolving tri-party accounts) apply to this Loan Agreement as
hereby further amended or any other Loan Documents or the transactions
contemplated hereby.
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XIV. Notice. THIS NINTH AMENDMENT TOGETHER WITH THE LOAN AGREEMENT, AND THE
OTHER LOAN DOCUMENTS 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.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment
to be duly executed as of the day and year first above written.
BANK BORROWER
COMPASS BANK CARRIZO OIL & GAS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------- ---------------------
Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxx
Executive Vice President Vice President
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EXHIBIT "A"
FORM OF CHASE SUBORDINATION AGREEMENT
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EXHIBIT "B"
SECOND AMENDED AND RESTATED TERM NOTE
$9,000,000.00 Houston, Texas March 22, 1999
On the dates hereinafter prescribed, for value received, CARRIZO OIL &
GAS, INC., a Texas corporation (the "Borrower"), having an address at 00000 Xx.
Xxxx'x Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, promises to pay to the order of
COMPASS BANK (herein called "Bank"), at its principal offices at 00 Xxxxxxxx
Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, (i) the principal
amount of NINE MILLION AND NO/100 DOLLARS ($9,000,000.00), and (ii) interest on
the principal balance remaining unpaid from the date of the advance until
maturity at a rate of interest equal to lesser of (a) the "Floating Rate" (as
hereinafter defined), calculated on the basis of a year of 365 or 366 days, as
the case may be, and for the actual number of days elapsed (including the first
day but excluding the last day), or (b) the "Maximum Rate" (as hereinafter
defined). Any increase or decrease in interest rate resulting from a change in
the Maximum Rate shall be effective immediately when such change becomes
effective, without notice to Borrower, unless Applicable Law (as defined below)
requires that such increase or decrease not be effective until a later time, in
which event such increase or decrease shall be effective at the earliest time
permitted under the provisions of such law.
Notwithstanding the foregoing, if during any period the Floating Rate
exceeds the Maximum Rate, the rate of interest in effect on this Note shall be
limited to the Maximum Rate during each such period, but at all times thereafter
the rate of interest in effect on this Note shall be the Maximum Rate until the
total amount of interest accrued on this Note equals the total amount of
interest which would have accrued hereon if the Floating Rate had at all times
been in effect.
All payments on this Note shall be applied first to accrued interest
and the balance, if any, to principal.
"Floating Rate" means a per annum interest rate equal to the Index Rate
(as defined below) in effect from time to time plus two percent (2.0%), provided
that at such time no Event of Default or Unmatured Event of Default (as defined
in the First Amended, Restated, and Combined Loan Agreement dated August 28,
1997, as amended by the First Amendment thereto dated December 23, 1997, the
Second Amendment thereto dated December 30, 1997, the Third Amendment dated July
30, 1998, the Fourth Amendment dated September 24, 1998 and the Fifth Amendment
thereto dated March 22, 1999, the Sixth Amendment thereto dated April 23, 1999,
the Seventh Amendment thereto dated August 27, 1999, the Eighth Amendment
thereto dated November 11, 1999 and the Ninth Amendment thereto dated of even
date herewith, between Borrower and Bank (the "Loan Agreement")) has occurred
and is continuing; then thereafter, "Floating Rate" shall mean a per annum
interest rate equal to the Index Rate in effect from time to time plus five
percent (5%).
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"Index Rate" means at any time, the prime rate established in The Wall
Street Journal's "Money Rates" or similar table. If multiple prime rates are
quoted in the table, then the highest prime rate will be the Index Rate. In the
event that the prime rate is no longer published by The Wall Street Journal in
the "Money Rates" or similar table, then Bank may select an alternative
published index based upon comparable information as a substitute Index Rate.
Upon the selection of a substitute Index Rate, the applicable interest rate
shall thereafter vary in relation to the substitute index. Such substitute index
shall be the same index that is generally used as a substitute by Bank on all
Index Rate loans.
"Maximum Rate" means the Maximum Rate of non-usurious interest
permitted from day to day by Applicable Law.
"Applicable Law" means that law in effect from time to time and
applicable to this Note which lawfully permits the charging and collection of
the highest permissible lawful, non-usurious rate of interest on this Note. To
the extent federal law permits Lender to contract for, charge or receive a
greater amount of interest, Lender will rely on federal law instead of the Texas
Finance Code for the purpose of determining the Maximum Rate. Additionally, to
the maximum extent permitted by applicable law now or hereafter in effect,
Lender may, at its option and from time to time, implement any other method of
computing the Maximum Rate under the Texas Finance Code or under other
applicable law, by giving notice, if required, to Borrower as provided by
applicable law now or hereafter in effect. Notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents, it is not the
intention of Lender to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration.
"Business Day" shall mean any day on which banks are open for general
banking business in the State of Texas, other than a Saturday, a Sunday, a legal
holiday or any other day on which banks in the State of Texas are required or
authorized by law or executive order to close.
Principal and interest, calculated pursuant to Section 2.04 of the Loan
Agreement, on this Note shall be repaid by Borrower as set forth in Section 2.24
of the Loan Agreement.
When the first (1st) day of a calendar month falls upon a Saturday,
Sunday or legal holiday, the payment of interest and principal, if any, due upon
such date shall be due and payable upon the next succeeding Business Day.
In no event shall the aggregate of the interest on this Note, plus any
other amounts paid in connection with the loan evidenced by this Note which
would under Applicable Law be deemed "interest," ever exceed the maximum amount
of interest which, under Applicable Law, could be lawfully charged on this Note.
Bank and Borrower specifically intend and agree to limit contractually the
interest payable on this Note to not more than an amount determined at the
Maximum Rate. Therefore, none of the terms of this Note or any other instruments
pertaining to or securing this Note shall ever be construed to create a contract
to pay interest at a rate in excess of the Maximum Rate,
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and neither Borrower nor any other party liable herefor shall ever be liable for
interest in excess of that determined at the Maximum Rate, and the provisions of
this paragraph shall control over all provisions of this Note or of any other
instruments pertaining to or securing this Note. If any amount of interest taken
or received by Bank shall be in excess of the maximum amount of interest which,
under Applicable Law, could lawfully have been collected on this Note, then the
excess shall be deemed to have been the result of a mathematical error by the
parties hereto and shall be refunded promptly to Borrower. All amounts paid or
agreed to be paid in connection with the indebtedness evidenced by this Note
which would under Applicable Law be deemed "Interest" shall, to the extent
permitted by Applicable Law, be amortized, prorated, allocated and spread
throughout the full term of this Note.
This Note is secured by all security agreements, collateral
assignments, mortgages and lien instruments executed by Borrower (or by any
other party) in favor of Bank, including those executed simultaneously herewith,
those executed heretofore and those hereafter executed, and including
specifically and without limitation the "Security Instruments" described and
defined in the Loan Agreement.
This Note is the Second Amended and Restated Term Note issued pursuant
to the Ninth Amendment to the Loan Agreement and it amends and restates, but
does not extinguish, the Term Note dated September 24, 1998 in the face amount
of $7,000,000.00, and the Amended and Restated Term Note dated March 22, 1999 in
the face amount of $9,000,000.00, both executed by Borrower and made payable to
Bank. Reference is hereby made to the Loan Agreement for a statement of the
rights and obligations of the holder of this Note and the duties and obligations
of Borrower in relation thereto; but neither this reference to the Loan
Agreement nor any provisions thereof shall affect or impair the absolute and
unconditional obligation of Borrower to pay any outstanding and unpaid principal
of and interest on this Note when due, in accordance with the terms of the Loan
Agreement.
In the event of default in the payment when due of any of the principal
of or any interest on this Note, or in the event of default under the terms of
the Loan Agreement or any of the Security Instruments, or if any event occurs or
condition exists which authorizes the acceleration of the maturity of this Note
under any agreement made by Borrower, Bank (or other holder of this Note) may,
at its option, without presentment or demand or any notice to Borrower or any
other person liable herefor, declare the unpaid principal balance of and accrued
interest on this Note to be immediately due and payable.
If this Note is collected by suit or through the Probate or Bankruptcy
Court, or any judicial proceeding, or if this Note is not paid at maturity,
however such maturity may be brought about, and is placed in the hands of an
attorney for collection, then Borrower agrees to pay reasonable attorneys' fees,
not to exceed 10% of the full amount of principal and interest owing hereon at
the time this Note is placed in the hands of an attorney.
Borrower and all sureties, endorsers and guarantors of this Note waive
demand, presentment for payment, notice of nonpayment, protest, notice of
protest, notice of intent to accelerate maturity,
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notice of acceleration of maturity, and all other notices, filing of suit and
diligence in collecting this Note or enforcing any of the security herefor, and
agree to any substitution, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon and further agrees
that it will not be necessary for Bank, in order to enforce payment of this Note
by them, to first institute suit or exhaust its remedies against any Borrower or
others liable herefor, or to enforce its rights against any security herefor,
and consent to any one or more extensions or postponements of time of payment of
this Note on any terms or any other indulgences with respect hereto, without
notice thereof to any of them. Bank may transfer this Note, and the rights and
privileges of Bank under this Note shall inure to the benefit of Bank's
representatives, successors or assigns.
Executed December 15, 1999 but effective the 22nd day of March 1999.
CARRIZO OIL & GAS, INC.
By:
-------------------------------
Xxxxx X. Xxxxxx
Vice President
4
18
COMPLIANCE CERTIFICATE
I, Xxxxx X. Xxxxxx, Vice President of CARRIZO OIL & GAS, INC.
(the "Company"), pursuant to Section 3.23(a) of the First Amended, Restated, and
Combined Loan Agreement dated as of August 28, 1997, as amended, by and among
COMPASS BANK ("Bank") and the Company (the "Agreement") do hereby certify, as of
the date hereof, that to my knowledge:
1. After giving effect to the Ninth Amendment, no Event of
Default (as defined in the Agreement) has occurred and is
continuing, and no Unmatured Event of Default (as defined in
the Agreement) has occurred and is continuing;
2. No material adverse change has occurred in the business
prospects, financial condition, or the results of operations
of the Company since the date of the previous Financial
Statements (as defined in the Agreement) provided to Bank;
3. After giving effect to the Ninth Amendment, each of the
representations and warranties of the Company contained in
Article IV of the Agreement is true and correct in all
respects.
This certificate is executed this 15th day of December 1999.
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Xxxxx X. Xxxxxx
