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EXHIBIT 4.6
SECOND AMENDMENT
TO
LOAN AGREEMENT
BY AND BETWEEN CARRIZO OIL & GAS, INC.
AND COMPASS BANK
This Second Amendment to the Loan Agreement (this "Second Amendment")
by and between CARRIZO OIL & GAS, INC., a Texas corporation (the "Borrower"),
and COMPASS BANK, a Texas chartered bank (the "Bank"), is entered into on this
15th day of May 1997 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 Loan Agreement dated December 6,
1996, as amended by First Amendment thereto dated April 4, 1997 (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 Bank increase the principal amount of the
Term Loan to $6,000,000.00, and Bank has agreed to do so according to the terms
set forth herein, which shall be incorporated into the Loan Agreement.
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:
I. Specific Amendments to Loan Agreement.
Article I is hereby amended by adding, replacing or amending the
following definitions therein:
"Certificate of Liquidity" shall have the meaning set forth in
Section 5.27.
"Liquid Assets" means Cash on hand and balances in checking
accounts available for immediate withdrawal, the value, from time to
time, of short-term, highly liquid
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investments that are readily convertible to Cash, such as treasury
bills, commercial paper and money market funds, and the value, from
time to time, of unrestricted shares of stock that are publicly traded
on the New York Stock Exchange, the American Stock Exchange, or
NASDAQ, but only to the extent the foregoing are free from all liens,
claims and encumbrances, including liens or security interests in
favor of the Bank.
"Revolving Commitment" means the obligation of Bank, subject
to the provisions of this Agreement and existing only through the last
Business Day prior to the Maturity Date, to advance to Borrower funds,
not to exceed at any one time outstanding an amount equal to the
lesser of: (a) Seven Million Two Hundred Thousand Dollars
($7,200,000.00), or (b) the Borrowing Base then in effect.
"Second Amendment" means the Second Amendment to this
Agreement executed by Borrower and Bank on May 15, 1997.
"Term Loan" means that certain $6,000,000.00 term loan made or
to be made by Bank to Borrower pursuant to Section 2.15 hereof.
"Term Note" means the amended and restated term note in the
original face amount of $6,000,000.00 dated May 15, 1997, made by
Borrower payable to the order of Bank, in substantially the form
attached to the Second Amendment as Exhibit "A," 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 2.15 hereof.
Section 2.15 is hereby amended by adding the following text at
the end of such section:
Within one (1) business day after Borrower has satisfied the
conditions set forth in Section 3.21, and provided Borrower is not
then in default of any of the other terms, conditions, representations
or warranties contained in this Agreement, Bank shall make a single
advance to Borrower in the amount of $3,000,000.00, such that the
resulting outstanding principal balance of the Term Loan shall then be
$6,000,000.00.
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Section 2.18 is hereby amended by replacing the sum,
"$30,000.00" that appears in the last line thereof with the sum, "$60,000.00."
Article III is hereby amended to add the following Section 3.21.
3.21 Conditions Precedent in Connection With the Second
Amendment. The obligation of Bank to make the additional advance
pursuant to Section 2.15 that increases the principal balance of the
Term Loan from $3,000,000.00 to $6,000,000,00 is subject to
satisfaction of the following conditions precedent:
(a) Receipt of Term Note, Second Amendment and
Certificate of Compliance. Bank shall have received the Term Note,
multiple counterparts of the Second Amendment, as requested by Bank,
and the Certificate of Compliance duly executed by an authorized
officer for Borrower.
(b) Accuracy of Representations and Warranties and No
Event of Default. The representations and warranties contained in
Article IV of this Agreement shall be true and correct in all material
respects on the date of the making of such Term Loan with the same
effect as though such representations and warranties had been made on
such date; and no Event of Default shall have occurred and be
continuing or will have occurred at the completion of the making of
such Loan.
(c) Legal Matters Satisfactory to Special Counsel to
Bank. All legal matters incident to the consummation of the
transactions contemplated by the Second Amendment shall be
satisfactory to the firm of Xxxxxxxxx & Xxxxxx, L.L.P., special
counsel for Bank.
(d) 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 or the Guarantors.
(e) Facility Fee. Bank shall have received an additional
facility fee in the amount of $30,000.00.
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Article V is hereby amended by adding thereto the following new
Section 5.27:
5.27 Liquidity of Certain Guarantors. Borrower shall cause
each of the Guarantors Xxxxxxxx, Xxxx, and Xxxxxxx to deliver to Bank
on or before October 15, 1997, a Certificate of Liquidity in the form
attached as Exhibit "B" to the Second Amendment, certifying the value
of such Guarantor's Liquid Assets effective as of September 30, 1997.
Section 7.01 is hereby amended by adding thereto the following new
clause (j):
(j) Borrower shall fail to cause each of the Guarantors
identified in Section 5.27 to deliver a Certificate of Liquidity of
such Guarantor by the date specified in such section, or any such
Certificate of Liquidity shall be false or misleading in any material
respect or shall disclose that such Guarantor owns Liquid Assets
valued at less than $2,500,000.00.
II. Reaffirmation of Representations and Warranties. To induce
Bank to enter into this Second Amendment, Borrower and each Guarantor hereby
reaffirms, as of the date hereof, 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 Second Amendment
and the performance by Borrower and each Guarantor of its obligations
under this Second Amendment are within Borrower's and each Guarantor'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 charter or by-laws of Borrower or any
Guarantor or of any agreement binding upon Borrower or any Guarantor.
B. The Loan Agreement as amended by this Second
Amendment represents the legal, valid and binding obligations of
Borrower and each Guarantor, enforceable against each in accordance
with their respective terms subject as to enforcement only to
bankruptcy, insolvency, reorganization,
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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.
III. Defined Terms. Except as amended hereby, terms used herein
that are defined in the Loan Agreement shall have the same meanings herein.
IV. Reaffirmation of Loan Agreement. This Second 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.
V. Entire Agreement. The Loan Agreement, as hereby further
amended, embodies the entire agreement between Borrower, the Guarantors and
Bank and supersedes all prior proposals, agreements and understandings relating
to the subject matter hereof. Borrower and each Guarantor 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.
VI. Governing Law. THIS SECOND 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 Second 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 Second 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.
VII. Severability. Whenever possible each provision of this Second
Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Second Amendment shall be
prohibited by or invalid under
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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 Second Amendment.
VIII. Execution in Counterparts. This Second Amendment may be
executed in any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument, and any signed counterpart shall be deemed delivered by the party
executing such counterpart if sent to any other party hereto by electronic
facsimile transmission.
IX. Section Captions. Section captions used in this Second
Amendment are for convenience of reference only, and shall not affect the
construction of this Second Amendment.
X. Successors and Assigns. This Second Amendment shall be
binding upon Borrower, each Guarantor and Bank and their respective successors
and assigns, and shall inure to the benefit of Borrower, each Guarantor and
Bank, and the respective successors and assigns of Bank.
XI. Non-Application of Chapter 15 of Texas Credit Codes. The
provisions of Chapter 15 of the Texas Credit Code (Vernon's Texas Civil
Statutes, Article 5069-15) are specifically declared by the parties hereto not
to be applicable to the Loan Agreement as hereby further amended or any of the
other Loan Documents or to the transactions contemplated hereby.
XII. Notice. THIS SECOND 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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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
BANK BORROWER
COMPASS BANK CARRIZO OIL & GAS, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxx
Vice President Vice President
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SCHEDULES AND EXHIBITS
The schedules and exhibits have been intentionally omitted herefrom. The
Company will furnish supplementally a copy of any or all of such omitted
schedules and exhibits to the Commission upon request.
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