exv10w2






Exhibit 10.2




Execution Version




OMNIBUS AGREEMENT




     THIS OMNIBUS AGREEMENT (“Agreement”), as it may be amended, modified or
supplemented from time to time in accordance with the terms hereof, is entered into effective as of
July 19, 2011 (the “Effective Date”), and is by and among OILTANKING PARTNERS, L.P., a
Delaware limited partnership (the “Partnership”), OTLP GP, LLC, a Delaware limited
liability company and the general partner of the Partnership (the “General Partner”), and
OILTANKING HOLDING AMERICAS, INC., a Delaware corporation (“OTA”). The above-named
entities are sometimes referred to in this Agreement each as a “Party” and collectively as
the “Parties.”



RECITALS:




     WHEREAS, on the Closing Date, OTA will contribute, or cause its subsidiaries to contribute,
all of their respective equity interests in certain subsidiaries of OTA to the Partnership (the
“Contribution”) in exchange for limited partnership interests in the Partnership, cash and
other consideration agreed to by the Parties; and



     WHEREAS, in connection with the Contribution, the Parties desire by their execution of this
Agreement to evidence their understanding as more fully set forth in this Agreement, with respect
to (1) the license to use certain Marks (as defined herein) of Oiltanking GmbH that have been
licensed to OTA; and (2) specified indemnification obligations of OTA and the Partnership Group.



     NOW, THEREFORE, in consideration of the premises and the covenants, conditions and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:



ARTICLE 1

DEFINITIONS




     1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below:


“Affiliate” means, with respect to any Person, any other Person who directly or indirectly
controls, is controlled by, or is under direct or indirect common control with, such Person, and
includes any Person in like relation to an Affiliate. A Person shall be deemed to “control”
another Person if such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise; and the term “controlled” shall have a similar
meaning. Without limiting the generality of the foregoing, it is agreed that any Person that owns
or controls, directly or indirectly, 50% or more of the voting securities of another Person shall
be deemed for purposes of this Agreement to control such other Person.



“Agreement” has the meaning given such term in the introduction to this Agreement..







 









 







“Arbitration Award” has the meaning given such term in Section 4.16.



“Cause” has the meaning given such term in the Partnership Agreement.



“Change of Control” means, with respect to any Person (the “Applicable Person”),
any of the following events:





     (a) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the Applicable Person’s assets to any
other Person, unless immediately following such sale, lease, exchange or other transfer
such assets are owned, directly or indirectly, by the Applicable Person;




     (b) the dissolution or liquidation of the Applicable Person;




     (c) the consolidation or merger of the Applicable Person with or into another Person,
other than any such transaction where:




     (i) the outstanding Voting Securities of the Applicable Person are changed
into or exchanged for Voting Securities of the surviving Person or its parent; and




     (ii) the holders of the Voting Securities of the Applicable Person immediately
prior to such transaction own, directly or indirectly, not less than a majority of
the outstanding Voting Securities of the surviving Person or its parent immediately
after such transaction; and




     (d) a “person” or “group” (within the meaning of Sections 13(d) or 14(d)(2) of the
Exchange Act) being or becoming the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) of more than 50% of all of the then outstanding Voting Securities
of the Applicable Person, except in a merger or consolidation that would not constitute a
Change of Control under clause (c) above.


“Closing Date” means the date of the closing of the initial public offering of Common Units
of the Partnership.



“Common Units” has the meaning given such term in the Partnership Agreement.



“Conflicts Committee” has the meaning given such term in the Partnership Agreement.



“Contribution” has the meaning given such term in the Recitals.



“Contribution Agreement” means that certain Contribution Agreement dated July 19, 2011 by
and between OTA, the Partnership and the other parties thereto pursuant to






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which OTA will make and cause its subsidiaries to make the Contribution to the Partnership.



“Discussion Date” has the meaning given such term in Section 4.17.



“Effective Date” has the meaning given such term in the introduction to this Agreement.



“Environmental Laws” means all federal, regional, state, and local laws, statutes, rules,
regulations, orders, ordinances, judgments, codes, injunctions, decrees, permits and other legally
enforceable requirements and rules of common law relating to (i) pollution or protection of human
health, the environment or natural resources; (ii) any Release or threatened Release of, or
exposure to, Hazardous Substances; or (iii) the generation, manufacture, processing, distribution,
use, treatment, storage, disposal, transport, arrangement for disposal or transport or handling of
any Hazardous Substances. Without limiting the foregoing, “Environmental Laws” include,
without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability
Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the
Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil
Pollution Act of 1990, the Safe Drinking Water Act, the Federal Hazardous Materials Transportation
Law, the Occupational Safety and Health Act and other environmental conservation and protection
laws, each as amended through the Closing Date.



“Environmental Losses” has the meaning given such term in Section 3.1(a).



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“General Partner” has the meaning given such term in the introduction to this Agreement.



“Governmental Authority” means:





     (a) any domestic or foreign government, whether national, federal, state provincial,
territorial, municipal or local (whether administrative, legislative, executive or
otherwise);




     (b) any agency, authority, ministry, department, regulatory body, court, central bank,
bureau, board or other instrumentality having legislative, judicial, taxing, regulatory,
prosecutorial or administrative powers or functions of, or pertaining to, government;




     (c) any court, tribunal, commission, individual, arbitrator, arbitration panel or
other body having adjudicative, regulatory, judicial, quasi-judicial, administrative or
similar functions; and



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     (d) other body or entity created under the authority of or otherwise subject to the
jurisdiction of any of the foregoing, including any stock or other securities exchange or
professional association.


“Group Member” means a member of the Partnership Group.



“Hazardous Substance” means (a) any substance that is designated, defined or
classified as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic
or hazardous substance, or terms of similar meaning, or that is otherwise regulated under any
Environmental Law, including, without limitation, any hazardous substance as such term is defined
under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, (b)
oil as defined in the Oil Pollution Act of 1990, as amended, petroleum, petroleum products, crude
oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel and other
petroleum hydrocarbons whether refined or unrefined and (c) asbestos, whether in a friable or a
non-friable condition, radioactive materials and polychlorinated biphenyls.



“Indemnified Party” means either the Partnership Group or OTA, as the case may be, each in
its capacity as a party entitled to indemnification in accordance with Section 2.7 and Article 3
hereof.



“Indemnifying Party” means either the Partnership Group or OTA, as the case may be, each in
its capacity as a party from whom indemnification may be required in accordance with Section 2.7
and Article 3 hereof.



“Licensees” means, for purposes of Article 2 hereof, the Partnership and its Subsidiaries.



“Licensor” means, for purposes of Article 2 hereof, OTA.



“Limited Partner” has the meaning given such term in the Partnership Agreement.



“Losses” means all losses, damages, liabilities, claims, demands, causes of action,
judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court
costs and reasonable attorney’s and experts’ fees) of any and every kind or character, known or
unknown, fixed or contingent.



“Marks” means all trademarks, trade names, logos and/or service marks identified on
Schedule 2.1 attached hereto, which Schedule may be amended from time to time with the
approval of OTA and the Conflicts Committee.



“Organizational Documents” means certificates or articles of incorporation, by-laws,
certificates of formation, limited liability company operating agreements, certificates of limited
partnership or limited partnership agreements or other formation or governing documents of a
particular entity.



“OTA” has the meaning given such term in the introduction to this Agreement.






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“OTA Entities” means OTA and any Person (other than the Partnership Entities) that directly
or indirectly through one or more intermediaries controls, is controlled by or is under common
control with, OTA; and “OTA Entity” means any of the OTA Entities.



“OTA Covered Environmental Losses” has the meaning given such term in Section 3.1(a).



“Other Losses” has the meaning given such term in Section 3.2(a).



“Partners” means the General Partner and the Limited Partners.



“Partnership” has the meaning given such term in the introduction to this Agreement.



“Partnership Agreement” means the First Amended and Restated Agreement of Limited
Partnership of the Partnership, as it may be amended from time to time.



“Partnership Assets” means the terminal services contracts, terminal services customer
relationships and terminal assets, directly or indirectly conveyed, contributed or otherwise
transferred (but not leased) to the Partnership Group as of the closing date pursuant to the
Contribution Agreement.



“Partnership Covered Environmental Losses” has the meaning given such term in Section
3.1(b).



“Partnership Entities” means the General Partner and each member of the Partnership Group;
and “Partnership Entity” means any of the Partnership Entities.



“Partnership Group” means the Partnership and its Subsidiaries.



“Party” or “Parties” have the meaning given such term in the introduction to this
Agreement.



“Person” is to be construed broadly and includes an individual, partnership, corporation,
business trust, limited liability company, limited liability partnership, joint stock company,
trust, unincorporated association, joint venture or other entity or a Governmental Authority.



“Release” or “Releasing” means depositing, spilling, leaking, pumping, pouring,
placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping,
leaking, dumping or disposing into the environment.



“Retained Assets” means the assets and investments owned by OTA or any of its Affiliates
that were not conveyed, contributed or otherwise transferred to the Partnership Group pursuant to a
particular contribution agreement.







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“Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of
the voting power of shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such
Person or a combination thereof, (b) a partnership (whether general or limited) in which such
Person or a Subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if more than 50% of the partnership interests of such
partnership (considering all of the partnership interests of the partnership as a single class) is
owned, directly or indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a
corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of a majority of the
directors or other governing body of such Person.



“Voluntary Cleanup Program” means a program of the United States or a state of the United
States enacted pursuant to Environmental Laws that provides for a mechanism for the written
approval of, or authorization to conduct, voluntary investigatory and remedial action for the
clean-up, removal or remediation of Hazardous Substances that exceeds actionable levels established
pursuant to Environmental Laws.



“Voting Securities” of a Person means securities of any class of such Person entitling the
holders thereof to vote in the election of, or to appoint, members of the board of directors or
other similar governing body of the Person; provided that, if such Person is a limited partnership,
Voting Securities of such Person shall be the general partner interest in such Person.




ARTICLE 2

LICENSE




     2.1 Grant of License. Upon the terms and conditions set forth in this Article 2, Licensor hereby grants and conveys to
Licensees a non-transferable, non-exclusive license with respect to Marks owned by Licensor, and a
non-transferable, non-exclusive sublicense with respect to Marks that are licensed to Licensor by
Oiltanking GmbH, to use the Marks in connection with the continuation of Licensees’ current
businesses and the current services performed therewith within the United States during the term of
this Agreement. Licensees shall not have the right to assign, transfer or sublicense any of the
rights granted hereunder, except upon the written consent of Licensor, which consent shall be given
or withheld at the sole discretion of Licensor and which shall be limited by such conditions as
Licensor may require at its sole discretion.



     2.2 Restrictions on Marks. In order to ensure the quality of uses under the Marks, and to protect the goodwill of the
Marks, Licensees agree as follows:




     (a) Licensees will use the Marks only in accordance with such quality standards and
specifications as may be established by Licensor and communicated to Licensees from time to
time, it being understood that Licensor has evaluated



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Licensees’ businesses and services
and determined that they are of a quality that justifies this grant of a license.
Licensees recognize the substantial goodwill associated with the Marks and will not permit
the quality of the businesses or services with which Licensees use the Marks to deteriorate
so as to affect adversely the goodwill associated with the Marks. If the quality of the
businesses or services with which Licensees use the Marks so deteriorates so as to affect
adversely the goodwill associated with the Marks, Licensees shall at their expense
immediately cease further use of the Marks and shall immediately cause the Marks to be
removed from all materials associated with the businesses and services until rectified and
from all marketing materials. Licensees shall promptly report to Licensor any material
changes in the quality of the businesses or services with which Licensees use the Marks.
Licensees will not cause any action, or permit or fail to prevent any action by Licensees’
Affiliates or any other Person under Licensees’ control, that is deemed to injure, harm or
dilute the distinctiveness or goodwill of the Marks;




     (b) Licensees will only use the Marks in formats approved by Licensor and only in
strict association with Licensees’ businesses and the services performed therewith;




     (c) Prior to publishing any new format or appearance of the Marks or any new
advertising or promotional materials that incorporate the Marks, Licensees shall first
provide such format, appearance or materials to Licensor for its approval. If Licensor
does not inform Licensees in writing within fourteen (14) days from the date of the receipt
of such new format, appearance, or materials that such new format, appearance, or materials
is unacceptable, then such new format, appearance or materials shall be deemed to be
acceptable and approved by Licensor. Licensor may withhold approval of any proposed
changes to the format, appearance or materials which Licensees propose to use in Licensor’s
sole discretion; and




     (d) Licensees shall not use any other trademarks, service marks, trade names or logos
in connection with the Marks.



     2.3 Ownership. Oiltanking GmbH, a German corporation, has licensed certain of the Marks to Licensor.
Oiltanking GmbH or Licensor, as the case may be, shall own all right, title and interest, including
all goodwill relating thereto, in and to the Marks, and all trademark rights embodied therein shall
at all times be solely vested in Oiltanking GmbH or Licensor. Licensees have no right, title,
interest or claim of ownership in the Marks, except for the licenses granted in this Agreement.
All use of the Marks shall inure to the benefit of
Licensor and Oiltanking GmbH. Licensees agree that they will not attack the title of Oiltanking
GmbH or Licensor in and to the Marks.



     2.4 Confidentiality. Licensees shall maintain in strictest confidence all confidential or nonpublic information or
material disclosed by Licensor and in the materials supplied hereunder in connection with the
license of the Marks, whether in writing or orally and whether or not marked as confidential. Such
confidential



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information includes, but is not limited to, algorithms, inventions, ideas, processes,
computer system architecture and design, operator interfaces, operational systems, technical
information, technical specifications, training and instruction manuals, and the like. In
furtherance of the foregoing confidentiality obligation, Licensees shall limit disclosure of such
confidential information to those of their employees, contractors or agents having a need to access
the confidential information for the purpose of exercising rights granted hereunder.



     2.5 Estoppel. Nothing in this Agreement shall be construed as conferring by implication, estoppel, or
otherwise upon Licensees (a) any license or other right under the intellectual property rights of
Licensor other than the license granted herein to the Marks as set forth expressly herein or (b)
any license rights other than those expressly granted herein.



     2.6 Warranties; Disclaimers.




     (a) Licensor represents and warrants that (i) Oiltanking GmbH or Licensor owns, and
Licensor has the right to license or sublicense, the Marks licensed under this Agreement
and (ii) the Marks do not infringe upon the rights of any third parties.




     (b) EXCEPT FOR THE WARRANTIES AND REPRESENTATIONS DESCRIBED IN SECTION 2.6(a),
LICENSOR DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS (EXPRESS OR
IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SUBJECT MATTER HEREOF, OR ANY PART THEREOF,
INCLUDING ANY AND ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS OR
SUITABILITY FOR ANY PURPOSE (WHETHER ANY LICENSEE KNOWS, HAS REASON TO KNOW, HAS BEEN
ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ALLEGED TO ARISE BY
LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.




2.7 Trademark Indemnification. (a) Licensees agree to defend, indemnify, and hold harmless Licensor from and against
any Losses suffered or incurred by Licensor by reason of or arising out of claims by third
parties based on alleged defects or failures of Licensees’ services.




     (b) Licensor will defend, indemnify, and hold harmless Licensee from and against any
Losses suffered or incurred by Licensees by reason of or arising out of any claim that any
Licensee’s authorized use of the Marks that complies with this Agreement infringes the
trademark rights of any third party.



     2.8 In the Event of Termination. In the event of termination of this Agreement pursuant to Section 4.4 or otherwise,
Licensees’ right to utilize or possess the Marks licensed under this Agreement shall automatically
cease, and no later than ninety (90) days following such termination of this Agreement, (i) the
Licensees shall cease all



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use of the Marks and shall adopt new trademarks, service marks, and trade
names that are not confusingly similar to the Marks and (ii) the General Partner shall have caused
each of the Licensees to change its legal name so that there is no longer any reference therein to
the name “Oiltanking,” any name or d/b/a then used by any OTA Entity or any variation, derivation
or abbreviation thereof, and in connection therewith, the General Partner shall cause each such
Licensee to make all necessary filings of certificates with the Secretary of State of the State of
Delaware and to otherwise amend its Organizational Documents by such date.



ARTICLE 3

INDEMNIFICATION




     3.1 Environmental Indemnification.




     (a) Subject to Section 3.1(c) and to the provisions of Section 3.3, OTA shall
indemnify, defend and hold harmless the Partnership Group from and against any Losses
suffered or incurred by the Partnership Group by reason of or arising out of:




     (i) with respect to the Partnership Assets, any violation or correction of
violation of Environmental Laws; or




     (ii) any event, circumstance, action, omission, condition or environmental
matter associated with or arising from the ownership or operation of the
Partnership Assets (including, without limitation, the exposure to or presence of
Hazardous Substances at, on, under, about or Releasing to or from the Partnership
Assets or the exposure to or Release of Hazardous Substances arising out of
operation of the Partnership Assets at non-Partnership Asset locations) including,
without limitation, (A) the cost and expense of any investigation, assessment,
evaluation, response,
abatement, monitoring, containment, cleanup, repair, restoration, remediation,
or other corrective action required or necessary under Environmental Laws or to
satisfy any applicable Voluntary Cleanup Program, (B) performance of a supplemental
environmental project authorized or consented to by a Governmental Authority in
partial or whole mitigation of a fine or penalty, (C) the cost or expense of the
preparation and implementation of any investigatory closure, remedial, corrective
action or other plans required or necessary under Environmental Laws or to satisfy
any applicable Voluntary Cleanup Program and (D) the cost and expense for any
environmental or toxic tort pre-trial, trial, or appellate legal or litigation
support work; provided, in the case of clauses (A) and (C) such cost and expense
shall not include the costs of and associated with project management and soil and
ground water monitoring performed at the conclusion of or in lieu of active soil or
groundwater remediation (collectively with Losses under Section 3.1(a)(i),
“Environmental Losses”); but only to the extent that such violation
complained of under Section 3.1(a)(i) or such events, omissions or



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conditions
included under Section 3.1(a)(ii) occurred or existed on or before the Closing Date
with respect to such Partnership Assets (collectively, “OTA Covered
Environmental Losses”).




     (b) Subject to Section 3.1(c) and to the provisions of Section 3.3, the Partnership
Group shall indemnify, defend and hold harmless the OTA Entities from and against any
Environmental Losses suffered or incurred by the OTA Entities relating to the ownership or
operation of the Partnership Assets to the extent occurring after the Closing Date
(“Partnership Covered Environmental Losses”), except to the extent that the
Partnership Group is indemnified with respect to any of such Environmental Losses that are
OTA Covered Environmental Losses under Section 3.1(a), or unless such indemnification would
not be permitted under the Partnership Agreement by reason of one of the provisos contained
in Section 7.7 of the Partnership Agreement.




     (c) Except for obligations with respect to claims made before the third anniversary of
the Closing Date for OTA Covered Environmental Losses or Partnership Covered Environmental
Losses, which shall not terminate, all indemnification obligations in this Section 3.1
shall terminate on the third anniversary of the Closing Date.



     3.2 Additional Indemnification.




     (a) In addition to and not in limitation of the indemnification provided under Section
3.1(a), subject to Section 3.3, OTA shall indemnify, defend and hold harmless the
Partnership Group from and against any Losses of any and every kind or character, known or
unknown, fixed or contingent, suffered or incurred by the Partnership Group (“Other
Losses”) by reason of or arising out of:




     (i) failure to convey good and indefeasible title to the Partnership Assets to
one or more members of the Partnership Group, and such failure renders the
Partnership Group unable to use or operate the Partnership Assets in substantially
the same manner as they were operated by the OTA Entities immediately prior to the
Closing Date with respect to such Partnership Assets;




     (ii) failure of the Partnership Group to be the owner on the Closing Date of
(A) valid and indefeasible easement rights, rights-of-way, leasehold and/or fee
ownership interests in and to the lands on which are located any Partnership Assets
and (B) valid title to 100% of the equity interest of Oiltanking Houston, L.P. and
Oiltanking Beaumont Partners, L.P., in each case to the extent that, such failure
renders the Partnership Group liable or unable to use or operate the Partnership
Assets in substantially the same manner as they were operated by the OTA Entities
immediately prior to the Closing Date;



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     (iii) failure of the Partnership Group to have on the Closing Date any consent
or governmental permit and such failure renders the Partnership unable to use or
operate the Partnership Assets in substantially the same manner as they were
operated by the OTA Entities immediately prior to the Closing Date;




     (iv) events and conditions associated with the Retained Assets whether
occurring before or after the Closing Date; and




     (v) all federal, state and local income tax liabilities attributable to the
ownership and operation of the Partnership Assets prior to the Closing Date,
including any such income tax liabilities of OTA that may result from the
consummation of the formation transactions for the Partnership Entities;




provided, however, that in the case of clauses (i), (ii), (iii) and (iv) above, such
indemnification obligations shall terminate on the third anniversary of the Closing Date;
and that in the case of clause (v) above, such indemnification obligations shall survive
until sixty (60) days after the termination of any applicable statute of limitations.




     (b) In addition to and not in limitation of the indemnification provided under Section
3.1(b) and the Partnership Agreement, the Partnership Group shall indemnify, defend and
hold harmless the OTA Entities from and against any Losses of any and every kind or
character, known or unknown, fixed or contingent, suffered or incurred by any of the OTA
Entities by reason of or arising out of events and conditions associated with the operation
of the Partnership Assets and occurring on or after the Closing Date unless such
indemnification would not be permitted under the Partnership Agreement by
reason of one of the provisos contained in Section 7.7 of the Partnership Agreement.



     3.3 Limitations Regarding Indemnification.




     (a) The aggregate liability of OTA under Section 3.1(a) shall not exceed $15.0
million.




     (b) No claims may be made against OTA for indemnification pursuant to Sections 3.1(a)
or 3.2(a) unless the aggregate dollar amount of the Losses suffered or incurred by the
Partnership Group exceeds $500,000 per calendar year, after such time and for the remainder
of the relevant calendar year OTA shall be liable for the full amount of such claims in
excess of $500,000, subject to the limitations of Section 3.3(a).




     (c) Notwithstanding anything herein to the contrary, in no event shall OTA have any
indemnification obligations under Section 3.1(a) for claims made



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as a result of additions
to or modifications of Environmental Laws promulgated after the Closing Date with respect
to a particular Partnership Asset.




     (d) In no event shall the Indemnifying Party be obligated to the Indemnified Party
under Section 3.1 or 3.2 for any Losses or income tax liabilities to the extent either (i)
reserved for in the Partnership Group’s financial statements as of the Closing Date or (ii)
recovered by the Indemnified Party under available insurance coverage, from contractual
rights or against any third party.



     3.4 Indemnification Procedures.




     (a) The Indemnified Party agrees that promptly after it becomes aware of facts giving
rise to a claim for indemnification under Section 2.7 or this Article 3, it will provide
notice thereof in writing to the Indemnifying Party, specifying the nature of and specific
basis for such claim; provided, however, that the Indemnified Party shall not submit claims
more frequently than once a calendar quarter (or twice in the case of the last calendar
quarter prior to the expiration of the applicable indemnity coverage under this Agreement).




     (b) The Indemnifying Party shall have the right to control all aspects of the defense
of (and any counterclaims with respect to) any claims brought against the Indemnified Party
that are covered by the indemnification under Section 2.7 or this Article 3, including,
without limitation, the selection of counsel, determination of whether to appeal any
decision of any court and the settling of any such matter or any issues relating thereto;
provided, however, that no such settlement shall be entered into without the consent of the
Indemnified Party (with the concurrence of the Conflicts Committee in the case of the
Partnership Group) unless it includes a full release of the Indemnified Party from
such matter or issues, as the case may be, and does not include the admission of fault,
culpability or a failure to act, by or on behalf of such Indemnified Party.




     (c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party, with
respect to all aspects of the defense of any claims covered by the indemnification under
Section 2.7 or this Article 3, including, without limitation, the prompt furnishing to the
Indemnifying Party of any correspondence or other notice relating thereto that the
Indemnified Party may receive, permitting the name of the Indemnified Party to be utilized
in connection with such defense, the making available to the Indemnifying Party of any
files, records or other information of the Indemnified Party that the Indemnifying Party
considers relevant to such defense and the making available to the Indemnifying Party, at
no cost to the Indemnifying Party, of any employees of the Indemnified Party; provided,
however, that in connection therewith the Indemnifying Party agrees to use reasonable
efforts to minimize the impact thereof on the operations of the Indemnified Party and
further agrees to endeavor to maintain the confidentiality of all files, records and other
information furnished by the Indemnified Party pursuant to this Section 3.4. In no event
shall the obligation of the Indemnified Party to cooperate with the Indemnifying Party as
set forth in the



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immediately preceding sentence be construed as imposing upon the
Indemnified Party an obligation to hire and pay for counsel in connection with the defense
of any claims covered by the indemnification set forth in Section 2.7 or this Article 3;
provided, however, that the Indemnified Party may, at its own option, cost and expense,
hire and pay for counsel in connection with any such defense. The Indemnifying Party
agrees to keep any such counsel hired by the Indemnified Party informed as to the status of
any such defense, but the Indemnifying Party shall have the right to retain sole control
over such defense.




     (d) In determining the amount of any Losses for which the Indemnified Party is
entitled to indemnification under this Agreement, the gross amount of the indemnification
will be reduced by (i) any insurance proceeds realized by the Indemnified Party and (ii)
all amounts recovered by the Indemnified Party under contractual indemnities from third
Persons. The Indemnified Party hereby agrees to use commercially reasonable efforts to
realize any applicable insurance proceeds or amounts recoverable under such contractual
indemnities.




     (e) The date on which the Indemnifying Party receives notification of a claim for
indemnification shall determine whether such claim is timely made.




     (f) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY’S
INDEMNIFICATION OBLIGATION HEREUNDER COVER OR INCLUDE CONSEQUENTIAL, INDIRECT, INCIDENTAL,
PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES OR LOST PROFITS SUFFERED BY ANY OTHER PARTY
ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.



ARTICLE 4

MISCELLANEOUS




     4.1 Choice of Law; Submission to Jurisdiction. This Agreement shall be subject to and governed by the laws of the State of Texas, excluding any
conflicts-of-law rule or principle that might refer the construction or interpretation of this
Agreement to the laws of another state. Each Party hereby submits to the jurisdiction of the state
and federal courts in the State of Texas and to venue in Texas.



     4.2 Notice. All notices, requests or consents provided for or permitted to be given pursuant to this
Agreement must be in writing and must be given by depositing same in the United States mail,
addressed to the Person to be notified, postpaid, and registered or certified with return receipt
requested or by delivering such notice in person or by telecopier or telegram to such Party.
Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by
telegram or telecopier shall be effective upon actual receipt if received during the recipient’s
normal business hours, or at the beginning of the recipient’s next business day after receipt if
not received during the recipient’s normal business hours. All notices to be sent to a Party
pursuant to this



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Agreement shall be sent to or made at the address set forth below or at such other
address as such Party may stipulate to the other Parties in the manner provided in this Section
4.2.


For notices to any of the OTA Entities:



Oiltanking Holding Americas, Inc.

15631 Jacintoport Blvd.

Houston, Texas 77015

Phone: (281) 457-7900

Fax: (281) 457-7991

Attention: Chief Financial Officer



For notices to any of the Partnership Entities:



Oiltanking Partners, L.P.

OTLP GP, LLC

15631 Jacintoport Blvd.

Houston, Texas 77015

Phone: (281) 457-7900

Fax: (281) 457-7991

Attention: Chief Financial Officer




     4.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to the matters contained
herein, superseding all prior contracts or agreements, whether oral or written, relating to the
matters contained herein, other than the Contribution Agreement.



     4.4 Termination. This Agreement, other than the provisions set forth in Section 2.7 and Articles 3 and 4 hereof,
shall terminate upon a Change of Control of the General Partner or the Partnership, other than any
Change of Control of the General Partner or the Partnership deemed to have occurred pursuant to
clause (d) of the definition of Change of Control solely as a result of a Change of Control of OTA.
Notwithstanding any other provision of this Agreement, if the General Partner is removed as general
partner of the Partnership under circumstances where Cause does not exist and the Common Units held
by the General Partner and its Affiliates are not voted in favor of such removal, this Agreement
may immediately thereupon be terminated by OTA.



     4.5 Effect of Waiver or Consent. No waiver or consent, express or implied, by any Party to or of any breach or default by any
Person in the performance by such Person of its obligations hereunder shall be deemed or construed
to be a consent or waiver to or of any other breach or default in the performance by such Person of
the same or any other obligations of such Person hereunder. Failure on the part of a Party to
complain of any act of any Person or to declare any Person in default, irrespective of how long
such failure continues, shall not constitute a waiver by such Party of its rights hereunder until
the applicable statute of limitations period has run.



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     4.6 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all
the Parties; provided, however, that the Partnership may not, without the prior approval of the
Conflicts Committee, agree to any amendment or modification of this Agreement that the General
Partner determines will adversely affect the holders of Common Units. Each such instrument shall
be reduced to writing and shall be designated on its face an “Amendment” or an “Addendum” to this
Agreement.



     4.7 Assignment; Third Party Beneficiaries. Except as provided in Section 2.1, any Party shall have the right to assign its rights under
this Agreement without the consent of any other Party, but no Party shall have the right to assign
its obligations under this Agreement without the consent of the other Parties. Each of the Parties
hereto specifically intends that each entity comprising the OTA Entities and each entity comprising
the Partnership Entities, as applicable, whether or not a Party to this Agreement, shall be
entitled to assert rights and remedies hereunder as third-party beneficiaries hereto with respect
to those provisions of this Agreement affording a right, benefit or privilege to any such entity.



     4.8 Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile, each of which
shall be deemed to be an original, but all of which shall constitute one and the same agreement.



     4.9 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any applicable rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse
to any Party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent
possible.



     4.10 Gender, Parts, Articles and Sections. Whenever the context requires, the gender of all words used in this Agreement shall include the
masculine, feminine and neuter, and the number of all words shall include the singular and plural.
All references to Article numbers and Section numbers refer to Articles and Sections of this
Agreement.



     4.11 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each
Party agrees to execute and deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the
terms, provisions and conditions of this Agreement and all such transactions.



     4.12 Withholding or Granting of Consent. Except as otherwise expressly provided in this Agreement, each Party may, with respect to any
consent or approval that it is entitled to grant pursuant to this Agreement, grant or withhold such
consent or



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approval in its sole and uncontrolled discretion, with or without cause, and subject to
such conditions as it shall deem appropriate.



     4.13 Laws and Regulations. Notwithstanding any provision of this Agreement to the contrary, no Party shall be required to
take any act, or fail to take any act, under this Agreement if the effect thereof would be to cause
such Party to be in violation of any applicable law, statute, rule or regulation.



     4.14 Negation of Rights of Limited Partners, Assignees and Third Parties. Except as set forth in Section 4.7, the provisions of this Agreement are enforceable solely by
the Parties, and no shareholder, limited partner, member, or assignee of OTA, the General Partner,
the Partnership or other Person shall have the right, separate and apart from OTA, the General
Partner or the Partnership, to enforce any provision of this Agreement or to compel any Party to
comply with the terms of this Agreement.



     4.15 No Recourse Against Officers and Directors. For the avoidance of doubt, the provisions of this Agreement shall not give rise to any right of
recourse against any officer or director of any OTA Entity or any Partnership Entity.



     4.16 Arbitration.



     Any dispute, controversy or claim arising out of or in connection with this Agreement shall be
settled by final and binding arbitration conducted in Houston, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration Association by one or more arbitrators
designated in accordance with said Rules. All arbitrators must have not less than seven years
experience in the energy industry. The Parties agree that the award of the arbitral tribunal (the
“Arbitration Award”) shall be: (a) conclusive, final and binding upon the Parties; and (b) the sole
and exclusive remedy between the Parties regarding any and all claims and counterclaims presented
to the arbitral tribunal. All notices to be given in connection with the arbitration shall be as
provided in Section 4.2 of this Agreement. The Arbitration Award shall include interest, at a rate
determined as appropriate by the arbitrators, from the date of any breach or other violation of
this Agreement to the date when the Arbitration Award is paid in full. The Arbitration Award shall
also include the fixing of the expense of the arbitration and the assessment of the same, as is
appropriate in the opinion of the arbitrators, against either or both Parties hereto. Each Party
shall otherwise bear its cost for its respective legal fees, witnesses, depositions and other
out-of-pocket expenses incurred in the course of the arbitration.



     4.17 Dispute Resolution.



     If the Parties are unable to resolve any service or performance issues or if there is a
material breach of this Agreement that has not been corrected within thirty (30) days of receipt of
notice of such breach, representatives of each of the Parties in dispute shall meet promptly to
review and resolve such issues and breaches in good faith (the date on which such Persons first so
meet, the “Discussion Date”). If such Persons are unable to



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fully resolve any such issues and
breaches in good faith promptly after the Discussion Date, any remaining disputes shall be resolved
in accordance with Section 4.16.



[Signature pages follow.]







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     IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the
Effective Date.



	 	 	 	 	 	 	 

	 	 	OILTANKING HOLDING AMERICAS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carlin G. Conner	 	 
	 

	 	Name:
	 	 

Carlin G. Conner
	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 	 	OTLP GP, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carlin G. Conner	 	 
	 

	 	Name:
	 	 

Carlin G. Conner
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	OILTANKING PARTNERS, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	OTLP GP, LLC,	 	 
	 

	 	 	 	Its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carlin G. Conner	 	 
	 

	 	Name:
	 	 

Carlin G. Conner
	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 






Signature Page — Omnibus Agreement








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Schedule 2.1




Marks





Oiltanking


We Can, We Care

www.oiltankingpartners.com

www.oiltanking.com

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