EXHIBIT 10.1
FORM OF NOTE MODIFICATION AGREEMENT
This Note Modification Agreement (this "Modification") by and between BLUE
DOLPHIN ENERGY COMPANY (the "Borrower") and ________________ (the "Lender") is
entered into on the ____ day of April 2005.
RECITALS:
A. Borrower executed that certain Promissory Note dated September 8, 2004,
payable to the order of Lender, in the face amount of $__________ (the "Note"),
a copy of which is attached hereto as Exhibit A.
B. Pursuant to Section 3(c) of the Note, the Maturity Date under the Note
was extended to the Extended Maturity Date.
C. Borrower and Lender have agreed to amend certain terms of the Note.
D. Borrower and Lender desire to acknowledge and document the amendments to
the Note subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the promises herein contained, the
mutual benefits to be derived herefrom and other good and valuable consideration
received by each party, and each intending to be legally bound hereby, the
parties agree as follows:
1. Specific Amendments to Note.
A. The following definitions are hereby amended in their entirety to
read as follows:
Base Rate means, from day-to-day, an annual rate of interest equal to the
lesser of (a) 12.0% and (b) the Maximum Rate.
Maturity Date means the earlier to occur of (a) June 30, 2006, and (b) the
date upon which the Obligation has been accelerated pursuant to Section 11
below.
B. The following definition is hereby added to the Note:
Modification means that certain Note Modification Agreement dated April ____,
2005 between Borrower and Lender.
C. The definition of Extended Maturity Date as set forth in the Note
is hereby deleted therefrom for all purposes from and after the date of
this Modification.
D. Section 3(b) is hereby amended in its entirety to read as follows:
(b) So long as no Default exists on any interest payment date, from
the date of the Modification until the Maturity Date, interest due under
this Note that has accrued during such period shall not be payable on such
interest payment date, but shall continue to accrue on a daily basis and
shall be due and payable on the Maturity Date; provided that, all accrued
but unpaid interest under this Note shall be due and payable on any
interest payment if a Default exists on any such interest payment date. The
outstanding Principal Debt plus all accrued and unpaid interest on this
Note and all other Obligations shall be due and payable on the Maturity
Date.
2. General Amendments to Loan Documents. The Loan Documents shall continue
in force and effect to secure the obligations of Borrower pursuant to the Note,
and any reference to the descriptions of the obligations, indebtedness or
liabilities of Borrower secured by any such Loan Documents shall be deemed to
refer to the obligations of Borrower pursuant to the Note, as hereby amended.
This Modification modifies the Note and the other Loan Documents but in no way
acts as a release or relinquishment of the liens securing payment of the Note,
including without limitation the liens and security interests created by the
Mortgage, and such liens and security interests are hereby renewed, extended,
ratified, confirmed and carried forward by Borrower in all respects.
3. Conditions Precedent in Connection with the Modification. This
Modification shall not become effective unless and until the following
conditions have been satisfied:
A. Receipt of Modification. Lender shall have received multiple
counterparts of this Note Modification Agreement, as requested by Lender,
duly executed by an authorized officer of Borrower.
B. Payment of Legal Fees. Lender shall have paid to Xxxxxx & Xxxxxx,
L.L.P. all reasonable legal fees incurred to such firm in connection with
this Modification.
C. Legal Matters Satisfactory to Lender. All legal matters incident to
the consummation of the transactions contemplated by this Modification
shall be satisfactory to the Lender.
4. Reaffirmation of Representations and Warranties.
A. To induce the Lender to enter into this Modification, Borrower
hereby represents and warrants to Lender as follows:
i. The execution and delivery of this Modification and the
performance by the Borrower of its obligations under this
Modification (i) are within Borrower's corporate power, (ii) have
been duly authorized by all necessary corporate action, (iii)
have been authorized by all necessary governmental approval (if
any shall be required), and (iv) do not and will not contravene
or conflict with any provision of law or of the articles of
incorporation or the bylaws of Borrower or of any agreement
binding upon Borrower.
ii. This Modification 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.
iii. Since the original date of the Note, no change, event or state of
affairs has occurred and is continuing which would constitute a
Default or solely by the passage of time or the giving of notice
would constitute a Default.
B. To induce the Borrower to enter into this Modification, Lender
hereby represents and warrants to Borrower as follows:
i. Each and every document which evidences or secures payment of the
Note represents the valid, enforceable and collectible obligation
to Borrower.
ii. There are no existing claims, defenses or rights of setoff with
respect to any of the documents evidencing or securing payment of
the Note.
iii. Since the original date of the Note, no change, event or state of
affairs has occurred and is continuing which would constitute a
Default or solely by the passage of time or the giving of notice
would constitute a Default.
5. Reaffirmation of Note. This Modification shall be deemed to be an
amendment to the Note, and the Note, as amended hereby, is hereby ratified,
adopted and confirmed in each and every respect.
6. Defined Terms. Each capitalized term used herein, but not defined
herein, shall have the meaning given to it in the Note.
7. Governing Law. THIS MODIFICATION 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 Modification 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 the Borrower and the Lender, whether in law or equity,
including, but not limited to, any and all disputes arising out of or relating
to this Modification or any other Loan Documents; and venue in any such dispute
whether in federal or state court shall be laid in Xxxxxx County, Texas.
8. Severability. Whenever possible each provision of this Modification
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Modification 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 Modification.
9. Execution in Counterparts. This Modification may be executed in any
number of counterparts and by the different parties on separate counterparts on
different dates, and each such counterpart shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
agreement.
10. Section Captions. Section captions used in this Modification are for
convenience of reference only, and shall not affect the construction of this
Modification.
11. Successors and Assigns. This Modification shall be binding upon the
Borrower, the Lender and its respective successors and assigns, and shall inure
to the benefit of the Borrower, the Lender and the respective successors and
assigns of the Lender.
12. Non-Application of Chapter 346 of Texas Finance Code. The provisions of
Chapter 346 of the Texas Finance Code (which regulates certain revolving loan
accounts and revolving tri-party accounts) are specifically declared by the
parties hereto not to be applicable to this Modification or any of the other
Loan Documents or to the transactions contemplated hereby.
13. NOTICE OF FINAL AGREEMENT. THE WRITTEN NOTE AND LOAN DOCUMENTS, AS
HEREBY AMENDED, REPRESENT THE FINAL AGREEMENT AMONG THE LENDER AND BORROWER 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.
BORROWER:
BLUE DOLPHIN ENERGY COMPANY,
a Delaware corporation
By:_________________________
Xxxxxxx X. Xxxxxxxx
President
LENDER:
INVESTORS,
By:
By:_________________________
