Blueprint





 










 Exhibit
10.4



 



AMENDED AND RESTATED OPERATING AGREEMENT


 


THIS
AMENDED AND RESTATED MANAGEMENT AGREEMENT (this “Amended and
Restated Agreement”) is effective as of April 1, 2017
(the “Effective Date”), by and between Lazarus Energy
Holdings, LLC, a Delaware limited liability company
(“LEH”),
Lazarus Energy, LLC, a Delaware limited liability company
(“LE”),
and Blue Dolphin Energy Company, a Delaware corporation
(“Blue
Dolphin”). (LEH, LE, and Blue Dolphin are collectively
referred to herein as the “Parties”).


 


W I T N
E S S E T H:


 


WHEREAS, LE owns a
refinery located in Nixon, Texas (the
“Refinery”);


 


WHEREAS, the
ownership of all of the membership interests of LE was acquired by
Blue Dolphin effective as of February 15, 2012;


 


WHEREAS, LE and
Blue Dolphin engaged LEH to manage and operate Blue Dolphin and the
Refinery, and LEH has provided management services in the areas of
operations and management of the business of the companies thereto
(collectively the “Services”);


 


WHEREAS, following
the termination of a Crude Oil Supply and Throughput Services
Agreement (as amended and supplemented) and a Joint Marketing
Agreement (as amended and supplemented), each dated August 12,
2011, by and among LE and Genesis Energy, LP and GEL Tex Marketing,
LLC, the agreement between the Parties requires
modification.


 


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Parties hereto agree as
follows:


 


1.           Throughout
the Term of this Amended and Restated Agreement LEH agrees to
perform the Services in the interest of LE and Blue Dolphin,
subject to the terms and conditions stated herein. The Services
shall be performed on a continuing basis without any further
specific requests or instructions.


 


2.           LE
and Blue Dolphin may also request LEH to render additional special
services and LEH undertakes to comply with such requests to the
extent that it has the time, resources, manpower and expertise to
do so.


 


3.           For
the purposes of certainty, it is understood and agreed that the
term “Services” does not include any activities that
can be exercised by LEH as a shareholder and the Services shall be
provided in a way that is independent of any such
shareholding.


 



4.           

Quality. The Services provided
by LEH hereunder shall be provided in a good and workmanlike manner
in accordance with prevailing industry standards.






 


 




 

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5.           

Compensation. In consideration
for its services hereunder, LE shall assign to LEH:






 



(a)           

Blue Dolphin shall
reimburse LEH at cost plus five percent (5%) for all reasonable
Blue Dolphin expenses incurred while performing the Services.
Amounts payable to LEH by Blue Dolphin for expenses incurred in a
calendar month shall be paid as incurred.






 



(b)           

Management services
as defined under Services shall exclude the payment of property
taxes, property insurance, principal and interest on loans,
turnaround expenses, capital expenditures, environmental and
regulatory compliance matters (including purchase of related
equipment and supplies), product dyes, chemicals, propane, fuel and
other items as determined from time to time by Blue Dolphin’s
board of directors (the “Board”),
at their sole discretion.






 



6.           

Term. The “Term” of
this Amended and Restated Agreement shall begin on the date hereof
and shall expire:






 



(a)           

Upon the third
anniversary of the Effective Date, which termination date shall be
April 1, 2020.






 



(b)           

Upon written notice
of either party upon the material breach of this Amended and
Restated Agreement by the other party.






 



(b)           

Upon 90 days’
notice by the Board if the Board determines that this Amended and
Restated Agreement is not in the best interest of Blue
Dolphin.






 


The
termination of this Amended and Restated Agreement shall not affect
the survival of Section 7 of this Amended and Restated
Agreement.


 



7.           

Indemnification.






 



(a)           

LEH will indemnify,
defend and hold harmless LE, Blue Dolphin, and their affiliates,
and their respective officers, directors and employees, from and
against any claim or liability arising from the negligence or
willful misconduct of LEH, or from any injury suffered or alleged
to be suffered by any employee of LEH.






 



(b)           

LE will indemnify,
defend and hold harmless LEH, its affiliates, and their respective
officers, directors and employees, from and against any claim or
liability arising from the negligence or willful misconduct of LE
or Blue Dolphin.






 


8.           Remedies.
If any legal action or other proceeding is brought for the
enforcement of this Amended and Restated Agreement, or because of
an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Amended and Restated
Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding in addition to any other
relief to which it or he may be entitled at law or
equity.




 

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9.           Successors.
This Amended and Restated Agreement shall be binding upon each of
the Parties upon their execution, and inure to the benefit of the
Parties hereto and their successors and assigns. Any assignee
whatsoever will be bound by the obligations of the assigning party
under this Amended and Restated Agreement, and any assignment shall
not diminish the liability or obligation of the assignor under the
terms of this Amended and Restated Agreement unless otherwise
agreed.


 


10.           Severability.
In the event that any one or more of the provisions contained in
this Amended and Restated Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provision of this Amended and Restated Agreement or any such other
instrument.


 


11.           Paragraph
Headings. The paragraph headings used herein are descriptive
only and shall have no legal force or effect
whatsoever.


 


12.           Gender.
Whenever the context so requires, the masculine shall include the
feminine and neuter, and the singular shall include the plural and
conversely.


 


13.           Governing
Law. This Amended and Restated Agreement shall be governed
by and construed in accordance with the laws of the state of Texas
applicable to agreements and contracts executed and to be wholly
performed there, without giving effect to the conflicts of law
principles thereof. Venue for any action brought in connection
herewith shall lie in Harris County, Texas.


 


14.           Remedies.
In the event of any action, dispute or litigation from the Parties
hereto relating to the interpretation or enforcement of this
Amended and Restated Agreement or otherwise relating to the subject
matter hereof, the prevailing party shall be entitled to recover
reasonable attorneys’ fees and court costs.


 


15.           Multiple
Counterparts. This Amended and Restated Agreement may be
executed in multiple counterparts, each of which shall be deemed an
original.


 


16.           Waiver.
Any waiver by either party to be enforceable must be in writing and
no waiver by either party shall constitute a continuing
waiver.


 


17.           Cross
References. References in this Amended and Restated
Agreement to Articles, Sections, Exhibits, or Schedules shall be
deemed to be references to Articles, Sections, Exhibits, and
Schedules of this Amended and Restated Agreement unless the context
specifically and expressly requires otherwise.


 


18.           Entire
Agreement. This Amended and Restated Agreement and the other
agreements referred to herein set forth the entire understanding of
the Parties hereto relating to the subject matter hereof and
thereof and supersede all prior agreements and understandings among
or between any of the Parties relating to the subject matter hereof
and thereof.


 



[Remainder of page intentionally left blank; signature page to
follow.]


 




 

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IN
WITNESS WHEREOF, the Parties have executed this Amended and
Restated Agreement as of the date and year first set forth
above.


 


LAZARUS
ENERGY HOLDINGS, LLC


 


 


 


By:_________________________________


Name:
Jonathan P. Carroll


Title:
Director


 


 


 


LAZARUS
ENERGY, LLC


 


 


 


By:_________________________________


Name:
Jonathan P. Carroll


Title:
Director


 


 


 


 


 


BLUE
DOLPHIN ENERGY COMPANY


 


 


By:_________________________________


Name:
Tommy L. Byrd


Title:
Chief Financial Officer, Treasurer and


Assistant
Secretary


 


 




 

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