Attached files
Exhibit 10.4
AMENDED AND RESTATED GUARANTY FEE AGREEMENT
THIS AMENDED AND RESTATED GUARANTY FEE AGREEMENT
(this “Amended
Agreement”) is made as of
April 1, 2017 (the “Effective
Date”), by and between
Jonathan P. Carroll (“Guarantor”) and Lazarus Energy,
LLC, a Delaware limited liability company
(“LE”).
Guarantor and LE are sometimes
referred to herein as the "Parties".
WHEREAS,
on June 22, 2015, Guarantor and LE entered that certain Guaranty
Fee Agreement (the “Existing Agreement”) wherein
Guarantor receives fees for providing a personal guarantee on
repayment of funds borrowed and interest accrued under a certain LE
loan agreement;
WHEREAS, LE entered a Loan Agreement (as amended,
restated, supplemented or otherwise modified from time to time, the
“Loan
Agreement”) dated June
22, 2015, with Sovereign Bank (“Lender”)
as evidenced by that certain Promissory Note (the
“Note”)
of even date with the Loan Agreement, in the original principal sum
of TWENTY-FIVE MILLION AND 00/100 DOLLARS ($25,000,000.00);
and
WHEREAS,
as a condition precedent to Lender’s obligations to extend
credit to LE under the Loan Agreement, Lender required the
execution and delivery of an unconditional guaranty as security for
the obligations of LE under the Loan Agreement and Note;
and
WHEREAS, Guarantor entered a United States
Department of Agriculture Rural Development Unconditional
Guarantee, Business and Industry Guaranteed Loan Program (as
amended, restated, supplemented or otherwise modified from time to
time, the “Guaranty”)
of even date with the Loan Agreement and Note in favor of Lender to
secure LE’s obligations under the Loan Agreement and
Note.
NOW,
THEREFORE, in consideration of the Guaranty and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by LE, the Parties agree as
follows:
1. Payment
of Fee. LE shall pay
Guarantor or assignee a fee in an amount equal to two percent
(2.00%) per annum, paid monthly, of the outstanding principal
balance owed under the Loan Agreement (the
“Guaranty
Fee Basis”). Amounts
payable to Guarantor as the Guaranty Fee shall be paid in cash and
shares of Blue Dolphin Energy Company common stock, par value $0.01
per share (the “Common Stock”) at the end of each
calendar month. The initial payment under this Amended Agreement
shall be 100% in Common Stock. Thereafter, payments shall be 50% in
cash and 50% in Common Stock. For the second payment and each
payment thereafter, the number of shares of Common Stock issued
shall be determined by dividing the Guaranty Fee by 50% (the
“Share
Basis Amount”). The Share
Basis Amount shall then be divided by the preceding 30-day average
closing price of the Common Stock. This 30-day average closing
price shall be the cost basis for the issued shares, and the issued
shares shall be restricted pursuant to applicable securities
holding periods for affiliates.
2. Governing
Law. This Agreement shall
be governed and construed in accordance with the laws of the State
of Texas without reference to any conflict of law
provision.
3. Counterparts.
This Agreement may be executed in multiple counterparts, including
counterparts transmitted by facsimile, each of which will be deemed
an original, but both of which together will constitute one and the
same instrument.
[Remainder of page intentionally left blank; signature page to
follow.]
IN WITNESS WHEREOF, the Parties have executed this Amended Agreement
as of the Effective Date.
LAZARUS ENERGY,
LLC
JONATHAN
P. CARROLL
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By:
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/s/
TOMMY L. BYRD
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By:
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/s/
JONATHAN P. CARROLL
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Tommy
L. Byrd
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Jonathan
P. Carroll
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