EXHIBIT 3.5
REVOLVING NOTE
$30,000,000.00 May 24, 2002
FOR VALUE RECEIVED, the undersigned CARRIZO OIL & GAS, INC., a Texas
corporation (hereinafter referred to as the "Borrower") hereby unconditionally
promises to pay to the order of HIBERNIA NATIONAL BANK (the "Lender") at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, the principal sum of THIRTY
MILLION AND NO/100 DOLLARS ($30,000,000.00), in lawful money of the United
States of America together with interest from the date funds are made available
to the Borrower hereunder until paid at the rates specified in the Credit
Agreement (as hereinafter defined). All payments of principal and interest due
hereunder are payable at the office of Lender at 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000, or at such other address as Lender shall designate in
writing to Borrower.
The principal and all accrued interest on this Note shall be due and
payable in accordance with the terms and provisions of the Credit Agreement.
This Note is executed pursuant to that certain Credit Agreement
dated of even date herewith among Borrower, CCBM, Inc., and Lender (the "Credit
Agreement"). Reference is made to the Credit Agreement and the Loan Documents
(as that term is defined in the Credit Agreement) for a statement of prepayment,
rights and obligations of Borrower, for a statement of the terms and conditions
under which the due date of this Note may be accelerated and for statements
regarding other matters affecting this Note (including without limitation the
obligations of the holder hereof to advance funds hereunder, principal and
interest payment due dates, voluntary and mandatory prepayments, exercise of
rights and remedies, payment of attorneys' fees, court costs and other costs of
collection and certain waivers by Xxxxxxxx and others now or hereafter obligated
for payment of any sums due hereunder). Upon the occurrence of an Event of
Default, as that term is defined in the Credit Agreement and Loan Documents, the
holder hereof (i) may declare forthwith to be entirely and immediately due and
payable the principal balance hereof and the interest accrued hereon, and (ii)
shall have all rights and remedies of the Lender under the Credit Agreement and
Loan Documents. This Note may be prepaid in accordance with the terms and
provisions of the Credit Agreement. Reference is made to the Credit Agreement
for provisions concerning the applicable procedures for Advances under this
Note. NOTWITHSTANDING ANYTHING HEREIN CONTAINED TO THE CONTRARY, THE MAXIMUM
AGGREGATE AMOUNT OF ALL ADVANCES AT ANY TIME OUTSTANDING UNDER THIS NOTE (AND
XXXXXX'S OBLIGATION TO ADVANCE HEREUNDER) SHALL NOT EXCEED THE BORROWER BASE
AMOUNT (AS DEFINED IN THE CREDIT AGREEMENT) THEN IN EFFECT. Unless otherwise
defined herein, each capitalized term used herein shall have the same meaning
set forth in the Credit Agreement.
If Xxxxxx declares this Note to be in default, Lender has the right
prospectively (immediately following any applicable cure period) to adjust and
fix the simple interest rate under this Note until this Note is paid in full, as
follows: the fixed default interest rate shall be equal to twenty-one (21%)
percent per annum, or three (3%) percent per annum in excess of the
interest rate under this Note at the time of default, whichever is greater.
Notwithstanding the foregoing, the holder hereof shall never be entitled to
receive, collect or apply, as interest on this Note, any amount in excess of the
Maximum Rate (as such term is defined in the Credit Agreement), and, if the
holder hereof ever receives, collects, or applies as interest, any such amount
which would be excessive interest, it shall be deemed a partial prepayment of
principal and treated hereunder as such; and, if the indebtedness evidenced
hereby is paid in full, any remaining excess shall forthwith be paid to
Borrower. In determining whether or not the interest paid or payable, under any
specific contingency, exceeds the Maximum Rate, Borrower and the holder hereof
shall, to the maximum extent permitted under applicable law (i) characterize any
non-principal payment as an expense, fee or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of the
obligations evidenced by this Note and/or referred to in the Credit Agreement so
that the interest rate is uniform throughout the entire term of this Note;
provided that, if this Note is paid and performed in full prior to the end of
the full contemplated term thereof; and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, the holder hereof shall
refund to Borrower the amount of such excess or credit the amount of such excess
against the indebtedness evidenced hereby, and, in such event, the holder hereof
shall not be subject to any penalties provided by any laws for contracting for,
charging, taking, reserving or receiving interest in excess of the Maximum Rate.
If any payment of principal or interest on this Note shall become
due on a day other than a Business Day (as such term is defined in the Credit
Agreement), such payment shall be made on the next succeeding Business Day and
such extension of time shall in such case be included in computing interest in
connection with such payment.
If this Note is placed in the hands of an attorney for collection,
or if it is collected through any legal proceeding at law or in equity or in
bankruptcy, receivership or other court proceedings, Borrower agree to pay all
reasonable costs of collection, including, but not limited to, court costs and
reasonable attorneys' fees.
Borrower and each surety, endorser, guarantor and other party ever
liable for payment of any sums of money payable on this Note, jointly and
severally waive presentment and demand for payment, notice of intention to
accelerate the maturity, protest, notice of protest and nonpayment, as to this
Note and as to each and all installments hereof, and agree that their liability
under this Note shall be joint, several and solidary, and shall not be affected
by any renewal or extension in the time of payment hereof, or in any
indulgences, or by any release or change in any security for the payment of this
Note, and hereby consent to any and all renewals, extensions, indulgences,
releases or changes.
Borrower represents and warrants to Lender that loans evidenced by
this Note were entered into primarily for commercial or business purposes as
provided in La. R. S. 9:3509.
As security for the prompt and punctual payment of this Note,
Borrower collaterally assigns and pledges to Lender any rights which Borrower
may have to funds which Borrower maintains on deposit with Lender (with the
exception of funds deposited in tax-deferred
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accounts), and agrees that Lender may, upon occurrence of an Event of Default
under the Credit Agreement and the expiration of any applicable grace period
allowed to cure the Event of Default, apply such funds on deposit with Lender
against the unpaid balance of this Note.
This Note shall be governed by and construed in accordance with the
applicable laws of the State of Louisiana.
THIS WRITTEN NOTE, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
SET FORTH THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ALL PRIOR WRITTEN AND ORAL UNDERSTANDINGS BETWEEN THE
BORROWER AND THE LENDER AND ANY OTHER PARTIES WITH RESPECT TO THE MATTERS HEREIN
SET FORTH.
EXECUTED as of the date and year first above written.
CARRIZO OIL & GAS, INC.
a Texas corporation
By:
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Name: Xxxxx Xxxxxx
Title: Vice President and Chief Financial
Officer
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