AMENDED AND RESTATED GUARANTY FEE AGREEMENT
Exhibit 10.2
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
Xxxxxxxx X. Xxxxxxx (“Guarantor”) and Lazarus Refining
& Marketing, LLC, a Delaware limited liability company
(“LRM”).
Guarantor and LRM are sometimes
referred to herein as the "Parties".
WHEREAS, on June 22, 2015, Guarantor and LRM
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 certain LRM loan
agreements;
WHEREAS, LRM entered a Loan and Security Agreement
(as amended, restated, supplemented or otherwise modified from time
to time, the “Loan
and Security Agreement”)
dated May 2, 2014, with Sovereign Bank (“Lender”)
as evidenced by that certain Promissory Note (the
“2014
Note”) of even date with
the Loan and Security Agreement, in the original principal sum of
TWO MILLION AND 00/100 DOLLARS ($2,000,000.00);
and
WHEREAS, LRM 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
“2015
Note”) of even date with
the Loan Agreement, in the original principal sum of THREE MILLION
AND 00/100 DOLLARS ($3,000,000.00); and
WHEREAS,
as a condition precedent to Lender’s obligations to extend
credit to LRM under both the Loan and Security Agreement and the
Loan Agreement, Lender required the execution and delivery of a
guaranty as security for the obligations of LRM under: (i) the Loan
and Security Agreement and 2014 Note and (ii) the Loan Agreement
and 2015 Note; and
WHEREAS,
Guarantor entered:
(i) a
Guaranty Agreement (as amended, restated, supplemented or otherwise
modified from time to time, the “2014
Guaranty”) of even date
with the Loan and Security Agreement and 2014 Note in favor of
Lender to secure LRM’s obligations under the Loan and
Security Agreement and 2014 Note; and
(ii) a
Guaranty Agreement (as amended, restated, supplemented or otherwise
modified from time to time, the “2015
Guaranty”) of even date
with the Loan Agreement and 2015 Note in favor of Lender to secure
LRM’s obligations under the Loan Agreement and 2015
Note.
NOW,
THEREFORE, in consideration of the 2014 Guaranty, the 2015
Guaranty, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by LRM,
the Parties agree as follows:
1. Payment
of Fee. LRM 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 both the Loan and Security Agreement and 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 REFINING & MARKETING,
LLC
XXXXXXXX
X. XXXXXXX
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By:
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/s/
XXXXX X. XXXX
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By:
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/s/
XXXXXXXX X. XXXXXXX
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Xxxxx
X. Xxxx
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Xxxxxxxx
X. Xxxxxxx
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