bdco_ex101





 











 Exhibit 10.1




AMENDED AND RESTATED OPERATING AGREEMENT


 


 


THIS
AMENDED AND RESTATED OPERATING AGREEMENT (this “Amended and
Restated Agreement”) is effective as of April 1, 2020
(the “Effective
Date”), by and between Lazarus Energy Holdings, LLC, a
Delaware limited liability company (“LEH”),
Blue Dolphin Energy Company, a Delaware corporation
(“Blue
Dolphin”), Lazarus Energy, LLC, a Delaware limited
liability company (“LE”),
Lazarus Refining & Marketing, LLC, a Delaware limited liability
company (“LRM”),
Nixon Product Storage, LLC, a Delaware limited liability company
(“NPS”),
Blue Dolphin Pipe Line Company, a Delaware corporation
(“BDPL”),
Blue Dolphin Petroleum Company, a Delaware corporation
(“BDPC”)
and Blue Dolphin Services Co., a Texas corporation
(“BDSC”).
(LEH, Blue Dolphin, LE, LRM, NPS, BDPL, BDPC and BDSC are
collectively referred to herein as the “Parties”).


 


W I T N
E S S E T H:


 


WHEREAS, Blue
Dolphin, LE, LRM, NPS, BDPL, BDPC and BDSC desire to engage LEH to
manage and operate the companies thereto, and LEH has previously
provided management services in the areas of operations and
management of the business of certain of the companies thereto
(collectively the “Services”); and


 


WHEREAS, following
the expiration of the Amended and Restated Operating Agreement
dated April 1, 2017, by and among LEH, LE and Blue Dolphin, the
agreement between the parties requires evaluation and
renewal.


 


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


 


1.         
Commencing on the Effective Date and throughout the Term of this
Amended and Restated Agreement, LEH agrees to
perform the Services in the interest of Blue Dolphin, LE, LRM, NPS,
BDPL, BDPC and BDSC, 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.           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.


 


3.          
Quality. The
Services provided by LEH hereunder shall be provided in a good and
workmanlike manner in accordance with prevailing industry
standards.


 


 




 








 





 

4.           
Compensation. In
consideration for the Services hereunder:


 

(a)           
Blue Dolphin, LE, LRM, NPS, BDPL, BDPC and BDSC shall reimburse LEH
at cost for all direct expenses, either paid directly by LEH or
financed with LEH’s credit card. Amounts payable to LEH shall
be invoiced by LEH weekly, but may be reimbursed
sooner.


 

(b)           
Blue Dolphin shall also pay to LEH a management fee equal to 5% of
all consolidated operating costs, excluding crude costs,
depreciation, amortization and interest (the “Management
Fee”).


 

5.           
Term. The
“Term” of this Amended and Restated Agreement shall
begin on the Effective Date and shall expire upon the earliest to
occur of the following:


 

(a)           
Upon the third anniversary of the Effective Date, which termination
date shall be April 1, 2023.


 

(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 of Directors of Blue
Dolphin (the “Board”)
if the Board determines that this Amended and Restated Agreement is
not in the best interest of Blue Dolphin, LE, LRM, NPS, BDPL, BDPC
and/or BDSC.


 


The
termination of this Amended and Restated Agreement shall not affect
the survival of Section 6 of this Amended and Restated
Agreement.


 

6.           
Indemnification.


 

(a)           
LEH will indemnify, defend and hold harmless Blue Dolphin, LE, LRM,
NPS, BDPL, BDPC, BDSC, 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)           
Blue Dolphin, LE, LRM, NPS, BDPL, BDPC and BDSC 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 Blue
Dolphin, LE, LRM, NPS, BDPL, BDPC or BDSC.


 


7.           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.


 




 








 






 


8.           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.


 


9.           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.


 


10.       
  Paragraph
Headings. The paragraph headings used herein are descriptive
only and shall have no legal force or effect
whatsoever.


 


11.         
Gender. Whenever
the context so requires, the masculine shall include the feminine
and neuter, and the singular shall include the plural and
conversely.


 


12.         
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.


 


13.           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.


 


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


 


15.        
  Waiver. Any
waiver by either party to be enforceable must be in writing and no
waiver by either party shall constitute a continuing
waiver.


 


16.           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.


 


17.         
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.


 



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follow.]


 




 








 






 


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


 


 


 


	


BLUE DOLPHIN ENERGY COMPANY

	
 

	


LAZARUS ENERGY HOLDINGS, LLC


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	

/s/
JONATHAN P. CARROLL


	

Jonathan
P. Carroll

	
 

	

Jonathan
P. Carroll


	

President

	
 

	

Managing
Member


	
 

	
 

	
 


	


LAZARUS ENERGY, LLC

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President

	
 

	
 


	
 

	
 

	
 


	


LAZARUS REFINING & MARKETING, LLC

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President

	
 

	
 


	
 

	
 

	
 


	


NIXON PRODUCT STORAGE, LLC

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President

	
 

	
 


	
 

	
 

	
 


	


BLUE DOLPHIN PIPE LINE COMPANY

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President

	
 

	
 


	
 

	
 

	
 


	


BLUE DOLPHIN PETROLEUM COMPANY

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President

	
 

	
 


	
 

	
 

	
 


	


BLUE DOLPHIN SERVICES CO.

	
 

	
 


	
 

	
 

	
 


	

/s/
JONATHAN P. CARROLL

	
 

	
 


	

Jonathan
P. Carroll

	
 

	
 


	

President