exv10w2






Exhibit 10.2




EXECUTION VERSION




FIRST AMENDED AND RESTATED PIPELINES, TANKAGE AND LOADING RACK

THROUGHPUT AGREEMENT

(TULSA EAST)




     This First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (this
“Agreement”) is dated as of March 31, 2010, by and between Holly Refining &
Marketing-Tulsa, LLC (“Holly Tulsa”), HEP Tulsa LLC (“HEP Tulsa”) and Holly Energy
Storage-Tulsa LLC (“HEP Storage-Tulsa”). Each of Holly Tulsa, HEP Tulsa and HEP
Storage-Tulsa are individually referred to herein as a “Party” and collectively as the
“Parties.”



RECITALS:




     WHEREAS, pursuant to that certain Asset Sale and Purchase Agreement dated as of October 1,
2009 (the “Group 1 Purchase Agreement”) by and among Holly Tulsa, HEP Tulsa and Sinclair
Tulsa Refining Company, Holly Tulsa acquired certain refining assets and other related assets
located in Tulsa, Oklahoma (the “Refinery”) and HEP Tulsa acquired certain product delivery
pipeline, tankage and loading rack assets located at the Refinery (the “Group 1 Assets”);



     WHEREAS, in connection with the closing of the transactions contemplated by the Group 1
Purchase Agreement, Holly Tulsa and HEP Tulsa entered into a Pipelines, Tankage and Loading Rack
Throughput Agreement (the “Original Tulsa East Throughput Agreement”) to, among other
things, set forth the terms and conditions under which HEP Tulsa will provide certain
transportation, storage and loading services for Holly Tulsa with respect to the Group 1 Assets;



     WHEREAS, pursuant to an LLC Interest Purchase Agreement dated March 31, 2010, by and between
HEP Tulsa and HEP Refining, L.L.C., as purchasers, and Holly Tulsa and Lea Refining Company, as
sellers and Holly Corporation (the “Group 2 Purchase Agreement”), HEP Tulsa acquired from
Holly Tulsa all of the issued and outstanding membership interests of HEP Storage-Tulsa;



     WHEREAS, HEP Storage-Tulsa is the owner of certain additional storage tank assets, a rail
loading rack and a truck unloading rack located at the Refinery, the Transferred Tulsa East Assets
as defined in the Group 2 Purchase Agreement (the “Group 2 Assets” and, together with the
Group 1 Assets, the “HEP Purchased Assets”);



     WHEREAS, the Parties desire that HEP Storage-Tulsa be added as a party to this Agreement; and



     WHEREAS, in connection with the closing of the transactions contemplated by the Group 2
Purchase Agreement, Holly Tulsa, HEP Tulsa, and HEP Storage-Tulsa desire to amend and restate the
Original Tulsa East Throughput Agreement as provided herein.



     NOW, THEREFORE, in consideration of the covenants and obligations contained herein, the
Parties hereby agree as follows:



 









 





     Section 1. Definitions



     Capitalized terms used throughout this Agreement and not otherwise defined herein shall have
the meanings set forth below.



     “Affiliate” means, with to respect to a specified person, any other person
controlling, controlled by or under common control with that first person. As used in this
definition, the term “control” includes (i) with respect to any person having voting securities or
the equivalent and elected directors, managers or persons performing similar functions, the
ownership of or power to vote, directly or indirectly, voting securities or the equivalent
representing 50% or more of the power to vote in the election of directors, managers or persons
performing similar functions, (ii) ownership of 50% or more of the equity or equivalent interest in
any person and (iii) the ability to direct the business and affairs of any person by acting as a
general partner, manager or otherwise. Notwithstanding the foregoing, for purposes of this
Agreement, Holly Tulsa, on the one hand, and HEP Tulsa and HEP Storage-Tulsa, on the other hand,
shall not be considered affiliates of each other.



     “Agreement” has the meaning set forth in the preamble to this Agreement.



     “Applicable Law” means any applicable statute, law, regulation, ordinance, rule,
judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license,
agreement, requirement, or other governmental restriction or any similar form of decision of, or
any provision or condition of any permit, license or other operating authorization issued under any
of the foregoing by, or any determination of, any Governmental Authority having or asserting
jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each
case as amended (including, without limitation, all of the terms and provisions of the common law
of such Governmental Authority), as interpreted and enforced at the time in question.



     “Arbitrable Dispute” means any and all disputes, Claims, controversies and other
matters in question between Holly Tulsa, on the one hand, and HEP Tulsa or HEP Storage-Tulsa, on
the other hand, arising out of or relating to this Agreement or the alleged breach hereof, or in
any way relating to the subject matter of this Agreement regardless of whether (a) allegedly
extra-contractual in nature, (b) sounding in contract, tort or otherwise, (c) provided for by
Applicable Law or otherwise or (d) seeking damages or any other relief, whether at law, in equity
or otherwise.



     “bpd” means barrels per day.



     “Claim” means any existing or threatened future claim, demand, suit, action,
investigation, proceeding, governmental action or cause of action of any kind or character (in each
case, whether civil, criminal, investigative or administrative), known or unknown, under any
theory, including those based on theories of contract, tort, statutory liability, strict liability,
employer liability, premises liability, products liability, breach of warranty or malpractice.



     “Claimant” has the meaning set forth in Section 13(e).



     “Closing Date” means, with respect to the Group 1 Assets, the date on which such
assets were acquired by HEP Tulsa pursuant to the Group 1 Purchase Agreement, and, with respect to



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



2









 




the Group 2 Assets, the date on which such assets were acquired through HEP Tulsa’s acquisition of
all of the issued and outstanding membership interests of HEP Storage-Tulsa pursuant to the Group 2
Purchase Agreement.




     “Contract Quarter” means a three-month period that commences on January 1, April 1,
July 1, or October 1 and ends on March 31, June 30, September 30, or December 31, respectively.



     “Control” (including with correlative meaning, the term “controlled by”) means, as
used with respect to any Person, the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.



     “Covered Environmental Losses” has the meaning set forth in Section 10(a).



     “Crude Oil” means the direct liquid product of oil wells, oil processing plants, the
indirect liquid petroleum products of oil or gas wells, oil sands or a mixture of such products,
but does not include natural gas liquids or Refined Products.



     “Damaged Party” has the meaning set forth in Section 12(b).



     “Disputed Deficiency Notice” has the meaning set forth in Section 9(a).



     “Disputed Deficiency Payment” has the meaning set forth in Section 9(a).



     “DRA” has the meaning set forth in Section 2(i).



     “Effective Time” means 11:59 p.m., Dallas, Texas time, on March 31, 2010.



     “Environmental Laws” means all federal, state, and local laws, statutes, rules,
regulations, orders, and ordinances, now or hereafter in effect, relating to protection of the
environment including, 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, the Safe Drinking Water Act, the Hazardous
Materials Transportation Act, and other environmental conservation and protection laws, each as
amended from time to time.



     “Force Majeure” means acts of God, strikes, lockouts or other industrial disturbances,
acts of the public enemy, wars, blockades, insurrections, riots, storms, floods, washouts, arrests,
the order of any Governmental Authority having jurisdiction while the same is in force and effect,
civil disturbances, explosions, breakage, accident to machinery, storage tanks or lines of pipe,
inability to obtain or unavoidable delay in obtaining material or equipment, and any other causes
whether of the kind herein enumerated or otherwise not reasonably within the control of the Party
claiming suspension and which by the exercise of due diligence such Party is unable to prevent or
overcome. Notwithstanding anything in this Agreement to the contrary, inability of a
Party to make payments when due, be profitable or to secure funds, arrange bank loans or other




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



3









 




financing, obtain credit or have adequate capacity or production (other than for reasons of Force
Majeure) shall not be regarded as events of Force Majeure.




     “Force Majeure Notice” has the meaning set forth in Section 4(b).



     “Governmental Authority” means any federal, state, local or foreign government or any
provincial, departmental or other political subdivision thereof, or any entity, body or authority
exercising executive, legislative, judicial, regulatory, administrative or other governmental
functions or any court, department, commission, board, bureau, agency, instrumentality or
administrative body of any of the foregoing.



     “Group 1 Assets” has the meaning set forth in the recitals to this Agreement.



     “Group 1 Assets Assumed OPEX” means the amount set forth on Schedule IV
attached hereto.



     “Group 1 Assets OPEX Recovery Amount” means an amount equal to (a) the difference
between the percentage increase in PPI for a given year minus seven percent (7%) multiplied by (b)
the then-current Group 1 Assets Assumed OPEX.



     “Group 1 Deficiency Notice” has the meaning set forth in Section 9(a).



     “Group 1 Deficiency Payment” has the meaning set forth in Section 9(a).



     “Group 1 Loading Rack” means the light products, asphalt and propane truck loading
rack located at the Refinery and more specifically described in the Group 1 Purchase Agreement.



     “Group 1 Loading Rack Tariff” means the amount set forth on Schedule III
attached hereto.



     “Group 1 Purchase Agreement” has the meaning set forth in the recitals to this
Agreement.



     “Group 1 Tankage” means the tanks set forth on Exhibit A attached hereto.



     “Group 1 Tankage Base Tariff” means the amount set forth on Schedule II
attached hereto.



     “Group 1 Tankage Excess Tariff” means the amount set forth on Schedule II
attached hereto.



     “Group 1 Tankage Excess Throughput” means 120,000 bpd of Refined Products, in the
aggregate, on average for each Contract Quarter.



     “Group 1 Tankage Incentive Tariff” means the amount set forth on Schedule II
attached hereto.



     “Group 2 Assets” has the meaning set forth in the recitals to this Agreement.




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



4









 





     “Group 2 Assets Assumed OPEX” means the amount set forth on Schedule VII attached
hereto.



     “Group 2 Assets OPEX Recovery Amount” means an amount equal to (a) the difference
between the percentage increase in PPI for a given year minus seven percent (7%) multiplied by (b)
the then-current Group 2 Assets Assumed OPEX.



     “Group 2 Deficiency Notice” has the meaning set forth in Section 9(a).



     “Group 2 Deficiency Payment” has the meaning set forth in Section 9(a).



     “Group 2 Loading Rack” means the rail loading rack located at the Refinery and more
specifically described in the Group 2 Purchase Agreement.



     “Group 2 Loading Rack Tariff” means the amount set forth on Schedule VI
attached hereto.



     “Group 2 Purchase Agreement” has the meaning set forth in the recitals to this
Agreement.



     “Group 2 Tankage” means the tanks set forth on Exhibit B attached hereto.



     “Group 2 Tankage Base Tariff” means the amount set forth on Schedule V
attached hereto.



     “Group 2 Tankage Excess Tariff” means the amount set forth on Schedule V
attached hereto.



     “Group 2 Tankage Excess Throughput” means 120,000 bpd of Products, in the aggregate,
on average for each Contract Quarter.



     “Group 2 Tankage Incentive Tariff” means the amount set forth on Schedule V
attached hereto.



     “Hazardous Substance” means (a) any substance that is designated, defined, or
classified as a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous
substance, or that is otherwise regulated under any Environmental Law, including, without
limitation, any hazardous substance as defined under the Comprehensive Environmental Response,
Compensation, and Liability Act, and (b) petroleum, crude oil, gasoline, natural gas, fuel oil,
motor oil, waste oil, diesel fuel, jet fuel, and other refined petroleum hydrocarbons.



     “Heavy Products” means fuel oil, asphalt, coker feed, vacuum tower bottoms,
atmospheric tower bottoms, pitch, or roofing flux.



     “HEP Purchased Assets” has the meaning set forth in the recitals to this Agreement.



     “HEP Storage-Tulsa” has the meaning set forth in the preamble to this Agreement.



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



5









 





     “HEP Tulsa” has the meaning set forth in the preamble to this Agreement.



     “HEP Tulsa Payment Obligations” has the meaning set forth in Section 15(a).



     “Holly” means Holly Corporation, a Delaware corporation.



     “Holly Tulsa” has the meaning set forth in the preamble to this Agreement.



     “Holly Tulsa Payment Obligations” has the meaning set forth in Section 14(a).



     “Indemnified Party” means the Persons seeking indemnification in accordance with
Section 10.



     “Indemnifying Party” means the Person from whom indemnification may be required in
accordance with Section 10.



     “Intermediate Products” means non-finished intermediate products pipelined from the
Tulsa West Refinery to the Refinery either for further processing or to be blended into finished
gasoline, including high sulfur diesel fuel for DHT feed, naphtha for reformer feed, gas oil or LEF
for FCC feed, reformate and light straight run.



     “LPG Products” means propane, refinery grade propylene, normal butane, and isobutane.



     “Minimum Group 1 Loading Rack Revenue Commitment” has the meaning set forth in
Section 2(c)(i).



     “Minimum Group 1 Loading Rack Throughput” means 26,000 bpd of Products, in the
aggregate, on average for each Contract Quarter.



     “Minimum Group 1 Tankage Revenue Commitment” has the meaning set forth in Section
2(b)(i).



     “Minimum Group 1 Tankage Throughput” means 80,000 bpd of Refined Products, in the
aggregate, on average for each Contract Quarter.



     “Minimum Group 2 Loading Rack Revenue Commitment” has the meaning set forth in Section
2(e)(i).



     “Minimum Group 2 Loading Rack Throughput” means 1,800 bpd of Products, in the
aggregate, on average for each Contract Quarter.



     “Minimum
Group 2 Tankage Revenue Commitment” has the meaning set forth in Section
2(d)(i).



     “Minimum Group 2 Tankage Throughput” means 90,000 bpd of Crude Oil and Intermediate
Products, in the aggregate, on average for each Contract Quarter.



     “Minimum Pipeline Revenue Commitment” has the meaning set forth in Section
2(a)(i).



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



6









 





     “Minimum Pipeline Throughput” means 60,000 bpd of Refined Products, in the aggregate,
on average for each Contract Quarter.



     “Omnibus Agreement” means the Fourth Amended and Restated Omnibus Agreement, dated as
of March 31, 2010, by and among Holly, the Partnership and certain of their respective
subsidiaries, as the same may be amended hereafter, from time-to-time.



     “Operating Partnership” means Holly Energy Partners-Operating, L.P., a Delaware
limited partnership.



     “Original Tulsa East Throughput Agreement” has the meaning set forth in the recitals
to this Agreement.



     “Parties” or “Party” has the meaning set forth in the preamble to this
Agreement.



     “Partnership” means Holly Energy Partners, L.P., a Delaware limited partnership.



     “Person” means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or political
subdivision thereof or other entity.



     “Pipeline Tariff” means the amount set forth on Schedule I attached hereto.



     “Pipelines” means those two (2) product delivery lines extending from the Group 1
Tankage to interconnection points with the Magellan pipeline.



     “PPI” has the meaning set forth in Section 2(a)(ii).



     “Prime Rate” means the prime rate per annum announced by Union Bank, N.A., or if Union
Bank, N.A. no longer announces a prime rate for any reason, the prime rate per annum announced by
the largest U.S. bank measured by deposits from time to time as its base rate on corporate loans,
automatically fluctuating upward or downward with each announcement of such prime rate.



     “Products” means Refined Products, LPG Products, Intermediate Products and Heavy
Products.



     “Prudent Industry Practice” means such practices, methods, acts, techniques, and
standards as are in effect at the time in question that are consistent with (a) the standards
generally followed by the United States pipeline and terminalling industries or (b) such higher
standards as may be applied or followed by Holly Tulsa and its Affiliates in the performance of
similar tasks or projects, or by HEP Tulsa, HEP Storage-Tulsa and their Affiliates in the
performance of similar tasks or projects.



     “Refined Products” means gasoline, kerosene, ethanol and diesel fuel.



     “Refinery” has the meaning set forth in the recitals.




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



7









 





     “Refund” has the meaning set forth in Section 9(c).



     “Related Indemnified Parties” means, with respect to each Party hereto, such Party’s
Affiliates, such Party and its Affiliates’ successors and assigns, and each of the respective
directors and officers (or Persons in any similar capacity if such Person is not a corporation),
employees, consultants and agents of such Party, its Affiliates and their respective successors and
assigns.



     “Respondent” has the meaning set forth in Section 13(e).



     “Tankage Revenue Commitment” means the Minimum Group 1 Tankage Revenue Commitment and
the Minimum Group 2 Tankage Revenue Commitment.



     “Term” has the meaning set forth in Section 6.



     “Toxic Tort” means a claim or cause of action arising from personal injury or property
damage incurred by the plaintiff that is alleged to have been caused by exposure to, or
contamination by, Hazardous Substances that have been released into the environment by or as a
result of the actions or omissions of the defendant.



     “Tulsa West Refinery” means the refinery owned by Holly Tulsa located at 1700 S.
Union, Tulsa, Oklahoma.



     Section 2. Agreement to Use Services Relating to Pipelines, Tankage and Loading
rack.



     The Parties intend to be strictly bound by the terms set forth in this Agreement, which sets
forth revenues to HEP Tulsa and HEP Storage-Tulsa to be paid by Holly Tulsa and requires HEP Tulsa
and HEP Storage-Tulsa to provide certain transportation, storage and loading services to Holly
Tulsa. The principal objective of HEP Tulsa is for Holly Tulsa to meet or exceed its obligations
with respect to the Minimum Pipeline Revenue Commitment, to meet or exceed its obligations with
respect to the Minimum Group 1 Tankage Revenue Commitment, and to meet or exceed its obligations
with respect to the Minimum Group 1 Loading Rack Revenue Commitment. The principal objective of
HEP Storage-Tulsa is for Holly Tulsa to meet or exceed its obligations with respect to the Minimum
Group 2 Tankage Revenue Commitment and to meet or exceed its obligations with respect to the
Minimum Group 2 Loading Rack Commitment. The principal objective of Holly Tulsa is for HEP Tulsa
and HEP Storage-Tulsa to provide services to Holly Tulsa in a manner that enables Holly Tulsa to
operate the Refinery.



     (a) Minimum Pipeline Revenue Commitment. During the Term and subject to the terms and
conditions of this Agreement, Holly Tulsa agrees as follows:




     (i) Subject to Section 4, Holly Tulsa shall pay HEP Tulsa throughput fees
associated with the Pipelines that will satisfy the Minimum Pipeline Revenue Commitment in
exchange for HEP Tulsa providing Holly Tulsa a minimum of 60,000 barrels per day of
aggregate capacity in the Pipelines. The “Minimum Pipeline Revenue Commitment”
shall be an amount of revenue to HEP Tulsa for each Contract Quarter




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



8









 






determined by
multiplying the Minimum Pipeline Throughput by the Pipeline Tariff as
such Pipeline Tariff may be revised pursuant to Section 2(a)(ii). Holly Tulsa
will pay HEP Tulsa the Pipeline Tariff for all quantities of Refined Products shipped on the
Pipelines. Notwithstanding the foregoing, in the event that the Closing Date for the
Pipeline is any date other than the first day of a Contract Quarter, then the Minimum
Pipeline Revenue Commitment for the initial Contract Quarter shall be prorated based upon
the number of days actually in such contract quarter and the initial Contract Quarter.




     (ii) The Pipeline Tariff shall be adjusted on July 1 of each calendar year commencing
on July 1, 2011, by an amount equal to the upper change in the annual change rounded to four
decimal places of the Producers Price Index-Commodities-Finished Goods, (PPI), et al.
(“PPI”), produced by the U.S. Department of Labor, Bureaus of Labor Statistics;
provided that the Pipeline Tariff shall never be increased by more than 3% for any such
calendar year. The series ID is WPUSOP3000 as of September 7, 2009 – located at
http://www.bls.gov/data/. The change factor shall be calculated as follows: annual PPI
index (most current year) less annual PPI index (most current year minus 1)
divided by annual PPI index (most current year minus 1). An example for year 2009
change is: [PPI (2008) – PPI (2007)] / PPI (2007) or (177.1 – 166.6) / 166.6 or .063 or
6.3%. If the PPI index change is negative in a given year then there will be no change in
the Pipeline Tariff. If the above index is no longer published, then Holly Tulsa and HEP
Tulsa shall negotiate in good faith to agree on a new index that gives comparable protection
against inflation, and the same method of adjustment for increases in the new index shall be
used to calculate increases in the Pipeline Tariff. If Holly Tulsa and HEP Tulsa are unable
to agree, a new index will be determined by binding arbitration in accordance with
Section 13(e), and the same method of adjustment for increases in the new index
shall be used to calculate increases in the Pipeline Tariff. To evidence the Parties’
agreement to each adjusted Pipeline Tariff, the Parties shall execute an amended, modified,
revised or updated Schedule I and attach it to this Agreement. Such amended,
modified, revised or updated Schedule I shall be sequentially numbered (e.g.
Schedule I-1, Schedule I-2, etc.), dated and appended as an additional
schedule to this Agreement and shall replace the prior version of Schedule I in its
entirety.




     (iii) If Holly Tulsa is unable to transport on the Pipelines the volumes of Refined
Products required to meet the Minimum Pipeline Revenue Commitment as a result of HEP Tulsa’s
operational difficulties, prorationing, or the inability to provide sufficient capacity for
the Minimum Pipeline Throughput, then the Minimum Pipeline Revenue Commitment applicable to
the Contract Quarter during which Holly Tulsa is unable to transport such volumes of Refined
Products will be reduced by an amount equal to: (A) the volume of Refined Products that
Holly Tulsa was unable to transport on the Pipelines (but not to exceed the Minimum Pipeline
Throughput), as a result of HEP Tulsa’s operational difficulties, prorationing or inability
to provide sufficient capacity on the Pipelines to achieve the Minimum Pipeline Throughput,
multiplied by (B) the Pipeline Tariff. This Section 2(a)(iii) shall not apply in
the event HEP Tulsa gives notice of a Force Majeure event in accordance with Section
4, in which case the Minimum




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



9









 







Pipeline Revenue Commitment shall be suspended in
accordance with and as provided in Section 4.



     (b) Minimum Group 1 Tankage Revenue Commitment; Group 1 Tankage Tariffs. During the
Term and subject to the terms and conditions of this Agreement, Holly Tulsa agrees as follows:




     (i) Subject to Section 4, Holly Tulsa shall pay HEP Tulsa throughput fees
associated with the Group 1 Tankage that will satisfy the Minimum Group 1 Tankage Revenue
Commitment in exchange for HEP Tulsa providing Holly Tulsa a minimum of 1,362,500 barrels of
aggregate capacity in the Group 1 Tankage. The “Minimum Group 1 Tankage Revenue
Commitment” shall be an amount of revenue to HEP Tulsa for each Contract Quarter
determined by multiplying the Minimum Group 1 Tankage Throughput by the Group 1 Tankage Base
Tariff as such Group 1 Tankage Base Tariff may be revised pursuant to Section
2(b)(iii). Notwithstanding the foregoing, in the event that the Closing Date for the
Group 1 Tankage is any date other than the first day of a Contract Quarter, then the Minimum
Group 1 Tankage Revenue Commitment for the initial Contract Quarter shall be prorated based
upon the number of days actually in such contract quarter and the initial Contract Quarter.
Subject to (i) any Applicable Law and (ii) technical specifications of the Group 1 Tankage,
Holly Tulsa may request that HEP Tulsa change the service of any of the Group 1 Tankage from
storage of one Product to storage of a different Product; provided, however, that
Holly Tulsa shall indemnify and hold HEP Tulsa harmless from and against all costs and
expenses associated with any such changing of service including but not limited to costs of
complying with any Applicable Law affecting such change of service.




     (ii) Group 1 Tankage throughput shall be determined by the sum of Refined Products
shipped on the Pipelines and loaded at the Group 1 Loading Rack. If the average throughput
for any Contract Quarter exceeds the Minimum Group 1 Tankage Throughput attributable to such
Contract Quarter then, (i) for each throughput barrel in excess of the Minimum Group 1
Tankage Throughput but less than or equal to the Group 1 Tankage Excess Throughput, Holly
Tulsa shall pay HEP Tulsa throughput fees in the amount of the Group 1 Tankage Incentive
Tariff as such amount may be revised pursuant to Section 2(b)(iii) and (ii) for each
throughput barrel in excess of the Group 1 Tankage Excess Throughput, Holly Tulsa shall pay
HEP Tulsa throughput fees in the amount of the Group 1 Tankage Excess Tariff as such amount
may be revised pursuant to Section 2(b)(iii).




     (iii) The Group 1 Tankage Base Tariff, Group 1 Tankage Incentive Tariff, and Group 1
Tankage Excess Tariff shall each be adjusted on July 1 of each calendar year commencing on
July 1, 2011, by an amount equal to the upper change in the annual change rounded to four
decimal places of the PPI following the same procedure as set forth in Section
2(a)(ii) above (including the provisions regarding binding arbitration); provided that
the Group 1 Tankage Base Tariff, Group 1 Tankage Incentive Tariff, and Group 1 Tankage
Excess Tariff shall never be increased by more than 3% for any such calendar year. To
evidence the Parties’ agreement to each adjusted Group 1 Tankage Base Tariff, Group 1
Tankage Incentive Tariff, and Group 1 Tankage Excess Tariff, the




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



10









 






Parties shall execute an
amended, modified, revised or updated Schedule II and attach it to this Agreement.
Such amended, modified, revised or updated Schedule II shall be sequentially
numbered (e.g. Schedule II-1, Schedule II-2, etc.), dated and appended as an
additional schedule to this Agreement and shall replace the prior version of
Schedule II in its entirety.




     (iv) If Holly Tulsa is unable to deliver to the Group 1 Tankage the volumes of Refined
Products required to meet the Minimum Group 1 Tankage Revenue Commitment as a result of HEP
Tulsa’s operational difficulties, prorationing or the inability to provide sufficient
capacity, then the Minimum Group 1 Tankage Revenue Commitment applicable to the Contract
Quarter during which Holly Tulsa is unable to deliver such volumes of Refined Products will
be reduced by an amount equal to: (A) the volume of Refined Products that Holly Tulsa was
unable to deliver to the Tankage (but not to exceed the Minimum Group 1 Tankage Throughput),
as a result of HEP Tulsa’s operational difficulties, prorationing or inability to provide
sufficient capacity to achieve the Minimum Group 1 Tankage Throughput, multiplied by (B) the
Group 1 Tankage Base Tariff. This Section 2(b)(iv) shall not apply in the event HEP
Tulsa gives notice of a Force Majeure event in accordance with Section 4, in which
case the Minimum Group 1 Tankage Revenue Commitment shall be suspended in accordance with
and as provided in Section 4.



     (c) Minimum Group 1 Loading Rack Revenue Commitment.




     (i) Subject to Section 4, Holly Tulsa shall pay HEP Tulsa throughput fees
associated with the Group 1 Loading Rack that will satisfy the Group 1 Minimum Loading rack
Revenue Commitment in exchange for HEP Tulsa providing Holly Tulsa a minimum of 26,000
barrels per day of aggregate capacity at the Group 1 Loading Rack. The “Minimum Group 1
Loading Rack Revenue Commitment” shall be an amount of revenue to HEP Tulsa for each
Contract Quarter determined by multiplying the Minimum Group 1 Loading Rack Throughput by
the Group 1 Loading Rack Tariff as such Group 1 Loading Rack Tariff may be revised pursuant
to Section 2(c)(ii). Holly Tulsa will pay HEP Tulsa the Group 1 Loading Rack Tariff
for all quantities of Products loaded at the Group 1 Loading Rack. Notwithstanding the
foregoing, in the event that the Closing Date for the Group 1 Loading Rack is any date other
than the first day of a Contract Quarter, then the Minimum Group 1 Loading Rack Revenue
Commitment for the initial Contract Quarter shall be prorated based upon the number of days
actually in such contract quarter and the initial Contract Quarter.




     (ii) The Group 1 Loading Rack Tariff shall be adjusted on July 1 of each calendar year
commencing on July 1, 2011, by an amount equal to the upper change in the annual change
rounded to four decimal places of the PPI following the same procedure as set forth in
Section 2(a)(ii) above (including the provisions regarding binding arbitration);
provided that the Group 1 Loading Rack Tariff shall never be increased by more than 3% for
any such calendar year. To evidence the Parties’ agreement to each adjusted Group 1 Loading
Rack Tariff, the Parties shall execute an amended, modified, revised or updated Schedule
III and attach it to this Agreement. Such amended, modified, revised or updated
Schedule III shall be sequentially numbered




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



11









 






(e.g. Schedule III-1,
Schedule III-2, etc.), dated and appended as an additional schedule to this
Agreement and shall replace the prior version of Schedule III in its entirety.




     (iii) If Holly Tulsa is unable to load at the Group 1 Loading Rack the volumes of
Products, in the aggregate, required to meet the Minimum Group 1 Loading Rack Revenue
Commitment as a result of HEP Tulsa’s operational difficulties, prorationing or the
inability to provide sufficient capacity, then the Minimum Group 1 Loading Rack Revenue
Commitment applicable to the Contract Quarter during which Holly Tulsa is unable to load
such volumes of Products will be reduced for such period of time by an amount equal to: (A)
the volume of Products, in the aggregate, that Holly Tulsa was unable to load at the Group 1
Loading Rack (but not to exceed the Minimum Group 1 Loading Rack Throughput), as a result of
HEP Tulsa’s operational difficulties, prorationing or inability to provide sufficient
capacity to achieve the Minimum Group 1 Loading Rack Throughput, multiplied by (B) the Group
1 Loading Rack Tariff. This Section 2(c)(iii) shall not apply in the event HEP
Tulsa gives notice of a Force Majeure event in accordance with Section 4, in which
case the Minimum Group 1 Loading Rack Revenue Commitment shall be suspended in accordance
with and as provided in Section 4.



     (d) Minimum Group 2 Tankage Revenue Commitment; Tankage Tariffs. During the Term and
subject to the terms and conditions of this Agreement, Holly Tulsa agrees as follows:




     (i) Subject to Section 4, Holly Tulsa shall pay HEP Storage-Tulsa throughput
fees associated with the Group 2 Tankage that will satisfy the Minimum Group 2 Tankage
Revenue Commitment in exchange for HEP Storage-Tulsa providing Holly Tulsa a minimum of
2,122,644 barrels of aggregate capacity in the Group 2 Tankage. The “Minimum Group 2
Tankage Revenue Commitment” shall be an amount of revenue to HEP Storage-Tulsa for each
Contract Quarter determined by multiplying the Minimum Group 2 Tankage Throughput by the
Group 2 Tankage Base Tariff as such Group 2 Tankage Base Tariff may be revised pursuant to
Section 2(d)(iii). Notwithstanding the foregoing, in the event that the Closing
Date for the Group 2 Tankage is any date other than the first day of a Contract Quarter,
then the Minimum Group 2 Tankage Revenue Commitment for the initial Contract Quarter shall
be prorated based upon the number of days actually in such contract quarter and the initial
Contract Quarter. Subject to (i) any Applicable Law and (ii) technical specifications of
the Group 2 Tankage, Holly Tulsa may request that HEP Storage-Tulsa change the service of
any of the Group 2 Tankage from storage of Crude Oil or a Product to storage of Crude Oil or
a different Product; provided, however, that Holly Tulsa shall indemnify and hold
HEP Storage-Tulsa harmless from and against all costs and expenses associated with any such
changing of service including but not limited to costs of complying with any Applicable Law
affecting such change of service.




     (ii) Group 2 Tankage Throughput shall be determined by the sum of pipeline quantities
of Crude Oil and Intermediate Products received at the Refinery, including Crude Oil and
Intermediate Products received at the Refinery from the Tulsa West Refinery. If the average
throughput for any Contract Quarter exceeds the Minimum Group 2 Tankage Throughput
attributable to such Contract Quarter then, (i) for each



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



12









 







throughput barrel in excess of the
Minimum Group 2 Tankage Throughput but less than or equal to the Group 2 Tankage Excess
Throughput, Holly Tulsa shall pay HEP Storage-Tulsa throughput fees in the amount of the
Group 2 Tankage Incentive Tariff as such
amount may be revised pursuant to Section 2(d)(iii) and (ii) for each
throughput barrel in excess of the Group 2 Tankage Excess Throughput, Holly Tulsa shall pay
HEP Storage-Tulsa throughput fees in the amount of the Group 2 Tankage Excess Tariff as such
amount may be revised pursuant to Section 2(d)(iii).




     (iii) The Group 2 Tankage Base Tariff, Group 2 Tankage Incentive Tariff, and Group 2
Tankage Excess Tariff shall each be adjusted on July 1 of each calendar year commencing on
July 1, 2011, by an amount equal to the upper change in the annual change rounded to four
decimal places of the PPI following the same procedure as set forth in Section
2(a)(ii) above (including the provisions regarding binding arbitration); provided that
the Group 2 Tankage Base Tariff, Group 2 Tankage Incentive Tariff, and Group 2 Tankage
Excess Tariff shall never be increased by more than 3% for any such calendar year. To
evidence the Parties’ agreement to each adjusted Group 2 Tankage Base Tariff, Group 2
Tankage Incentive Tariff, and Group 2 Tankage Excess Tariff, the Parties shall execute an
amended, modified, revised or updated Schedule V and attach it to this Agreement.
Such amended, modified, revised or updated Schedule V shall be sequentially numbered
(e.g. Schedule V-1, Schedule V-2, etc.), dated and appended as an additional
schedule to this Agreement and shall replace the prior version of Schedule V in its
entirety.




     (iv) If Holly Tulsa is unable to deliver to the Group 2 Tankage the volumes of Crude
Oil and Intermediate Products required to meet the Minimum Group 2 Tankage Revenue
Commitment as a result of HEP Storage-Tulsa’s operational difficulties, prorationing or the
inability to provide sufficient capacity, then the Minimum Group 2 Tankage Revenue
Commitment applicable to the Contract Quarter during which Holly Tulsa is unable to deliver
such volumes of Crude Oil and Intermediate Products will be reduced by an amount equal to:
(A) the volume of Crude Oil and Intermediate Products that Holly Tulsa was unable to deliver
to the Tankage (but not to exceed the Minimum Group 2 Tankage Throughput), as a result of
HEP Storage-Tulsa’s operational difficulties, prorationing or inability to provide
sufficient capacity to achieve the Minimum Group 2 Tankage Throughput, multiplied by (B) the
Group 2 Tankage Base Tariff. This Section 2(d)(iv)shall not apply in the event HEP
Storage-Tulsa gives notice of a Force Majeure event in accordance with Section 4, in
which case the Minimum Group 2 Tankage Revenue Commitment shall be suspended in accordance
with and as provided in Section 4.



     (e) Minimum Group 2 Loading Rack Revenue Commitment.




     (i) Subject to Section 4, Holly Tulsa shall pay HEP Storage-Tulsa throughput
fees associated with the Group 2 Loading Rack that will satisfy the Minimum Group 2 Loading
rack Revenue Commitment in exchange for HEP Storage-Tulsa providing Holly Tulsa a minimum of
1,800 barrels per day of aggregate capacity at the Group 2 Loading Rack. The “Minimum
Group 2 Loading Rack Revenue Commitment” shall be an amount of revenue to HEP
Storage-Tulsa for each Contract Quarter determined by multiplying




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



13









 







the Minimum Group 2
Loading Rack Throughput by the Group 2 Loading Rack Tariff as such Group 2 Loading Rack
Tariff may be revised pursuant to Section 2(c)(ii)(e)(ii). Holly Tulsa will pay HEP
Storage-Tulsa the Group 2 Loading Rack Tariff for all
quantities of Products loaded at the Group 2 Loading Rack. Notwithstanding the
foregoing, in the event that the Closing Date for the Group 2 Tankage is any date other than
the first day of a Contract Quarter, then the Minimum Group 2 Loading Rack Revenue
Commitment for the initial Contract Quarter shall be prorated based upon the number of days
actually in such contract quarter and the initial Contract Quarter.




     (ii) The Group 2 Loading Rack Tariff shall be adjusted on July 1 of each calendar year
commencing on July 1, 2011, by an amount equal to the upper change in the annual change
rounded to four decimal places of the PPI following the same procedure as set forth in
Section 2(a)(ii) above (including the provisions regarding binding arbitration);
provided that the Group 2 Loading Rack Tariff shall never be increased by more than 3% for
any such calendar year. To evidence the Parties’ agreement to each adjusted Group 2 Loading
Rack Tariff, the Parties shall execute an amended, modified, revised or updated Schedule
VI and attach it to this Agreement. Such amended, modified, revised or updated
Schedule VI shall be sequentially numbered (e.g. Schedule VI-1, Schedule
VI-2, etc.), dated and appended as an additional schedule to this Agreement and shall
replace the prior version of Schedule VI in its entirety.




     (iii) If Holly Tulsa is unable to load at the Group 2 Loading Rack the volumes of
Products, in the aggregate, required to meet the Minimum Group 2 Loading Rack Revenue
Commitment as a result of HEP Storage-Tulsa’s operational difficulties, prorationing or the
inability to provide sufficient capacity, then the Minimum Group 2 Loading Rack Revenue
Commitment applicable to the Contract Quarter during which Holly Tulsa is unable to load
such volumes of Products will be reduced for such period of time by an amount equal to: (A)
the volume of Products, in the aggregate, that Holly Tulsa was unable to load at the Group 2
Loading Rack (but not to exceed the Minimum Group 2 Loading Rack Throughput), as a result of
HEP Storage-Tulsa’s operational difficulties, prorationing or inability to provide
sufficient capacity to achieve the Minimum Group 2 Loading Rack Throughput, multiplied by
(B) the Group 2 Loading Rack Tariff. This Section 2(c)(iii)(e)(iii) shall not apply
in the event HEP Storage-Tulsa gives notice of a Force Majeure event in accordance with
Section 4, in which case the Minimum Group 2 Loading Rack Revenue Commitment shall
be suspended in accordance with and as provided in Section 4.



     (f) Clarification of Calculation of Tankage Throughput Amounts.




     (i) Any streams moved internally within the Refinery will not be included in
determining the volumes for any Tankage Revenue Commitment.




     (ii) Any Refined Products received from the Tulsa West Refinery or moved out of the
Refinery will not be included in determining the volumes for the Minimum Group 2 Tankage
Revenue Commitment.




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



14









 






     (iii) For the avoidance of doubt, any high sulfur diesel fuel that Holly Tulsa may
transport from the Tulsa West Refinery through the Group 1 Tankage or Group 2 Tankage for
processing in the Refinery’s distillate hydrotreater shall be subject to the Group 2 Tankage
tariff, and the resulting ultra low sulfur diesel fuel produced from the
high sulfur diesel fuel and then shipped from the Refinery via either the Pipelines or
the loading rack located at the Refinery shall be subject to the applicable Group 1 Tankage
tariffs.



     (g) Volumetric Gains and Losses. Holly Tulsa shall, during the Term, (i) absorb all
volumetric gains in the Pipelines, and (ii) be responsible for all volumetric losses in the
Pipelines up to a maximum of 0.5%. HEP Tulsa shall be responsible for all volumetric losses in
excess of 0.5% in the Pipelines during the Term.



     (h) Obligations of HEP Tulsa and HEP Storage-Tulsa.




     (i) Group 1 Assets. During the Term and subject to the terms and conditions of
this Agreement, including Section 13(b), HEP Tulsa agrees to: (A) own or lease,
operate and maintain the Pipelines, Group 1 Tankage, and Group 1 Loading Rack and all
related assets necessary to handle the Crude Oil and Products from Holly Tulsa; (B) provide
the services required under this Agreement and perform all operations relating the
Pipelines, Group 1 Tankage, and Group 1 Loading Rack including, but not limited to, tank
gauging, tank maintenance, tank dike maintenance, loading trucks, interaction with third
party pipelines, and customer interface for access agreements; and (C) maintain adequate
property and liability insurance covering the Pipelines, Group 1 Tankage, Group 1 Loading
Rack and any related assets owned by HEP Tulsa and necessary for the operation of the
Pipelines, Group 1 Tankage, and Group 1 Loading Rack.




     (ii) Group 2 Assets. During the Term and subject to the terms and conditions
of this Agreement, including Section 13(b), HEP Storage-Tulsa agrees to: (A) own or
lease, operate and maintain the Group 2 Tankage and Group 2 Loading Rack and all related
assets necessary to handle the Crude Oil and Products from Holly Tulsa; (B) provide the
services required under this Agreement and perform all operations relating the Group 2
Tankage and Group 2 Loading Rack including, but not limited to, tank gauging, tank
maintenance, tank dike maintenance, loading trucks, interaction with third party pipelines,
and customer interface for access agreements; and (C) maintain adequate property and
liability insurance covering the Group 2 Tankage and Group 2 Loading Rack and any related
assets owned by HEP Storage-Tulsa and necessary for the operation of the Group 2 Tankage and
Group 2 Loading Rack.



     Notwithstanding the foregoing, subject to Section 13(b) of this Agreement and Article
V of the Omnibus Agreement, HEP Tulsa and HEP Storage-Tulsa are free to sell any of their assets,
including assets that provide services under this Agreement, and Holly Tulsa is free to merge with
another entity and to sell all of its assets or equity to another entity at any time.



     (i) Drag Reducing Agents and Additives. If HEP Tulsa determines that adding drag
reducing agents (“DRA”) to the Refined Products is reasonably required to move Refined
Products in the quantities necessary to meet Holly Tulsa’s schedule or as may be
otherwise be



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)





15











 




required to safely move such quantities of Refined Products, HEP Tulsa shall provide
Holly Tulsa with an analysis of the proposed cost and benefits thereof. In the event that Holly
Tulsa agrees to use such additives as proposed by HEP Tulsa, Holly Tulsa shall reimburse HEP Tulsa
for the costs of adding any DRA to the and Refined Products.




     (j) Change in Pipeline Direction; Product Service or Origination and Destination.
Without Holly Tulsa’s prior written consent, HEP Tulsa shall not (i) reverse the direction of any
of the Pipelines; (ii) change, alter or modify the product service of any of the Pipelines; or
(iii) change, alter or modify the origination or destination of any of the Pipelines; provided,
however, that HEP Tulsa may take any necessary emergency action to prevent or remedy a release
of Refined Products from any of the Pipelines without obtaining the consent required by
this Section 2(j). Holly Tulsa shall have the right to reverse the direction of any of the
Pipelines if Holly Tulsa agrees to (i) reimburse HEP Tulsa for the additional costs and expenses
incurred by HEP Tulsa as a result of such change in direction (both to reverse and re-reverse);
(ii) reimburse HEP Tulsa for all costs arising out of HEP Tulsa’s inability to perform under any
transportation service contract due to the reversal of the direction of the Pipelines; and (iii)
pay the Pipeline Tariff set forth on Schedule I, as it may be amended from time-to-time in
accordance with this Agreement, for any such flow reversal.



     (k) Notification of Utilization.




     (i) Group 1 Assets. Upon request by HEP Tulsa, Holly Tulsa will provide to HEP
Storage-Tulsa written notification of Holly Tulsa’s reasonable good faith estimate of their
anticipated future utilization of Pipelines, Group 1 Tankage, and Group 1 Loading Rack as
soon as reasonably practicable after receiving such request.




     (ii) Group 2 Assets. Upon request by HEP Storage-Tulsa, Holly Tulsa will
provide to HEP Storage-Tulsa written notification of Holly Tulsa’s reasonable good faith
estimate of their anticipated future utilization of Group 2 Tankage and Group 2 Loading Rack
as soon as reasonably practicable after receiving such request.



     (l) Scheduling and Accepting Movement. HEP Tulsa and HEP Storage-Tulsa will use their
reasonable commercial efforts to schedule movement and accept movements of Crude Oil and Products
in a manner that is consistent with the historical dealings between the Parties, as such dealings
may change from time to time.



     (m) Taxes. Holly Tulsa will pay all taxes, import duties, license fees and other
charges by any Governmental Authority levied on or with respect to the Crude Oil and Products
handled by Holly Tulsa for transportation, storage or loading by HEP Tulsa or HEP Storage-Tulsa.
Should any Party be required to pay or collect any taxes, duties, charges and or assessments
pursuant to any Applicable Law or authority now in effect or hereafter to become effective which
are payable by the any other Party pursuant to this Section 2(m) the proper Party shall
promptly reimburse the other Party therefor.



     (n) Timing of Payments. Holly Tulsa will make payments to HEP Tulsa and HEP
Storage-Tulsa by electronic payment with immediately available funds on a monthly basis during the
Term with respect to services rendered or reimbursable costs or expenses incurred by HEP



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)




16









 




Tulsa or
HEP Storage-Tulsa under this Agreement in the prior month. Payments not received by HEP Tulsa or
HEP Storage-Tulsa on or prior to the applicable payment date will accrue interest at the Prime Rate
from the applicable payment date until paid.




     (o) Increases in Tariff Rates.




     (i) Group 1 Assets. If new Applicable Laws are enacted that require HEP Tulsa
to make capital expenditures with respect to the Pipelines, Group 1 Tankage, or Group 1
Loading Rack, HEP Tulsa may amend the Pipeline Tariff, Group 1 Tankage Base Tariff, and
Group 1 Loading Rack Tariff, as applicable, in order to recover HEP Tulsa’s cost of
complying with these Applicable Laws (as determined in good faith and including a reasonable
return); provided, however, that HEP Tulsa may not amend the Pipeline
Tariff, Group 1 Tankage Base Tariff, or Group 1 Loading Rack Tariff pursuant to this
Section 2(o) unless and until HEP Tulsa has made capital expenditures of
$2,000,000.00 in the aggregate with respect to the Pipelines, Group 1 Tankage and Group 1
Loading Rack in order to comply with such new Applicable Laws.




     (ii) Group 2 Assets. If new Applicable Laws are enacted that require HEP
Storage-Tulsa to make capital expenditures with respect to the Group 2 Tankage or Group 2
Loading Rack, HEP Storage-Tulsa may amend the Group 2 Tankage Base Tariff and Group 2
Loading Rack Tariff, as applicable, in order to recover HEP Storage-Tulsa’s cost of
complying with these Applicable Laws (as determined in good faith and including a reasonable
return); provided, however, that HEP Storage-Tulsa may not amend the Group 2
Tankage Base Tariff, or Group 2 Loading Rack Tariff pursuant to this Section 2(o)
unless and until HEP Storage-Tulsa has made capital expenditures of $2,000,000.00 in the
aggregate with respect to the Group 2 Tankage and Group 2 Loading Rack in order to comply
with such new Applicable Laws.




     (iii) Holly Tulsa, on one hand and HEP Tulsa and HEP Storage-Tulsa, on the other hand,
shall use their reasonable commercial efforts to comply with these Applicable Laws, and
shall negotiate in good faith to mitigate the impact of these Applicable Laws and to
determine the amount of the new tariff rates. If Holly Tulsa, on one hand and HEP Tulsa and
HEP Storage-Tulsa, on the other hand, are unable to agree on the amount of the new tariff
rates that HEP Tulsa and HEP Storage-Tulsa will charge, such tariff rates will be determined
by binding arbitration in accordance with Section 13(e). Any applicable exhibit or
schedule to this Agreement will be updated, amended or revised, as applicable, in accordance
with this Agreement to reflect any changes in tariff rates agreed to in accordance with this
Section 2(o).



     (p) Reimbursement of Operating Expenses.




     (i) Group 1 Assets. At the end of the first four (4) Contract Quarters
following the Closing Date for the Group 1 Assets, HEP Tulsa shall calculate the aggregate
operating expenses incurred in the operation of the Group 1 Assets (but such calculation
shall not include extraordinary and non-recurring items of expense that are not reasonably
expected to recur in future periods during the Term). In the event that such aggregate
operating expenses exceed the Group 1 Assets Assumed OPEX, (A)


 First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



17









 






Holly Tulsa shall reimburse
HEP Tulsa for such operating expenses incurred in excess of the Group 1 Assets Assumed OPEX,
and (B) HEP Tulsa shall increase the Group 1 Tankage Base Tariff by the amount necessary to
increase the Minimum Group 1 Tankage Revenue Commitment by an amount equal to such aggregate
operating expenses in excess of the Group 1 Assets Assumed OPEX for the remainder of the
Term, and the Parties shall execute an amended, modified, revised or updated Schedule
IV reflecting
such aggregate operating expenses as the new Group 1 Assets Assumed OPEX. In the event
that such aggregate operating expenses are less than the Group 1 Assets Assumed OPEX, HEP
Tulsa shall decrease the Group 1 Tankage Base Tariff by the amount necessary to decrease the
Minimum Group 1 Tankage Revenue Commitment by an amount equal to the difference between the
Group 1 Assets Assumed OPEX and such actual operating expenses for the remainder of the
Term, and the Parties shall execute an amended, modified, revised or updated Schedule
IV reflecting such aggregate operating expenses as the new Group 1 Assets Assumed OPEX.
In the event that the PPI increase for any given year is greater than seven percent (7%),
then, in addition to any other applicable increases during such year, HEP Tulsa shall
increase the Group 1 Tankage Base Tariff by an additional amount necessary to increase the
Minimum Group 1 Tankage Revenue Commitment by the Group 1 Assets OPEX Recovery Amount. Such
Group 1 Assets OPEX Recovery Amount shall be added to the then-current Group 1 Assets
Assumed OPEX, and the Parties shall execute an amended, modified, revised or updated
Schedule IV reflecting the addition of such Group 1 Assets OPEX Recovery Amount to
the Group 1 Assets Assumed OPEX.




     (ii) Group 2 Assets. At the end of the first four (4) Contract Quarters
following the Closing Date for the Group 2 Assets, HEP Storage-Tulsa shall calculate its
aggregate operating expenses incurred in the operation of the Group 2 Assets (but such
calculation shall not include extraordinary and non-recurring items of expense that are not
reasonably expected to recur in future periods during the Term). In the event that such
aggregate operating expenses exceed the Group 2 Assets Assumed OPEX, (A) Holly Tulsa shall
reimburse HEP Storage-Tulsa for such operating expenses incurred in excess of the Group 2
Assets Assumed OPEX, and (B) HEP Storage-Tulsa shall increase the Group 2 Tankage Base
Tariff by the amount necessary to increase the Minimum Group 2 Tankage Revenue Commitment by
an amount equal to such aggregate operating expenses in excess of the Group 2 Assets Assumed
OPEX for the remainder of the Term, and the Parties shall execute an amended, modified,
revised or updated Schedule VII reflecting such aggregate operating expenses as the
new Group 2 Assets Assumed OPEX. In the event that such aggregate operating expenses are
less than the Group 2 Assets Assumed OPEX, HEP Storage-Tulsa shall decrease the Group 2
Tankage Base Tariff by the amount necessary to decrease the Minimum Group 2 Tankage Revenue
Commitment by an amount equal to the difference between the Group 2 Assets Assumed OPEX and
such actual operating expenses for the remainder of the Term, and the Parties shall execute
an amended, modified, revised or updated Schedule VII reflecting such aggregate
operating expenses as the new Group 2 Assets Assumed OPEX. In the event that the PPI
increase for any given year is greater than seven percent (7%), then, in addition to any
other applicable increases during such year, HEP Storage-Tulsa shall increase the Group 2
Tankage Base Tariff by an additional amount necessary to increase the Minimum



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)




18









 






Group 2
Tankage Revenue Commitment by the Group 2 Assets OPEX Recovery Amount. Such Group 2 Assets
OPEX Recovery Amount shall be added to the then-current Group 2 Assets Assumed OPEX, and the
Parties shall execute an amended, modified, revised or updated Schedule VII
reflecting the addition of such Group 2 Assets OPEX Recovery Amount to the Group 2 Assets
Assumed OPEX.



     Section 3. Agreement to Remain Shipper



     With respect to any Crude Oil or Products that are transported, stored or handled in
connection with any of the Group 1 Assets or the Group 2 Assets, Holly Tulsa agrees that it will
continue acting in the capacity of the shipper of any such Crude Oil or Products for its own
account at all times that such Crude Oil or Products are being transported, stored or handled in
such Group 1 Assets or Group 2 Assets, as the case may be.



     Section 4. Notification of Shut-down or Reconfiguration; Force Majeure



     (a) Holly Tulsa must deliver to HEP Tulsa or HEP Storage-Tulsa, as applicable, at least six
months advance written notice of any planned shut down or reconfiguration (excluding planned
maintenance turnarounds) of the Refinery or any portion of the Refinery that would reduce the
Refinery’s output. Holly Tulsa will use its commercially reasonable efforts to mitigate any
reduction in revenues or throughput obligations under this Agreement that would result from such a
shut down or reconfiguration.




     (i) Group 1 Assets. If Holly Tulsa shuts down or reconfigures the Refinery or
any portion of the Refinery (excluding planned maintenance turnarounds) and reasonably
believes in good faith that such shut down or reconfiguration will jeopardize its ability to
satisfy its Minimum Pipeline Revenue Commitment, Minimum Group 1 Tankage Revenue Commitment,
or Minimum Group 1 Loading Rack Revenue Commitment under this Agreement, then within 90 days
of the delivery of the written notice of the planned shut down or reconfiguration, Holly
Tulsa shall (A) propose a new Minimum Pipeline Revenue Commitment, Minimum Group 1 Tankage
Revenue Commitment, or Minimum Group 1 Loading Rack Revenue Commitment under this Agreement,
as applicable, such that the ratio of the new Minimum Pipeline Revenue Commitment, Minimum
Group 1 Tankage Revenue Commitment, or Minimum Group 1 Loading Rack Revenue Commitment, as
the case may be, under this Agreement over the anticipated production level following the
shut down or reconfiguration will be approximately equal to the ratio of the original
Minimum Pipeline Revenue Commitment, Minimum Group 1 Tankage Revenue Commitment, or Minimum
Group 1 Loading Rack Revenue Commitment under this Agreement over the original production
level and (B) propose the date on which the new Minimum Pipeline Revenue Commitment, Minimum
Group 1 Tankage Revenue Commitment, or Minimum Group 1 Loading Rack Revenue Commitment under
this Agreement shall take effect. Unless objected to by HEP Tulsa within 60 days of receipt
by HEP Tulsa of such proposal, such new Minimum Pipeline Revenue Commitment, Minimum Group 1
Tankage Revenue Commitment, or Minimum Group 1 Loading Rack Revenue Commitment under this
Agreement shall become effective as of the date proposed by Holly Tulsa. To the extent that
HEP Tulsa does not agree with Holly Tulsa’s proposal, any changes in Holly Tulsa’s
obligations under this Agreement, or the




First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



19









 






date on which such changes will take effect, will
be determined by binding arbitration in accordance with Section 13(e). Any
applicable exhibit or schedule to this Agreement will be updated, amended or revised, as
applicable, in accordance with this Agreement to reflect any change in the Minimum Pipeline
Revenue Commitment, Minimum Group 1 Tankage Revenue Commitment, or Minimum Group 1 Loading
Rack Revenue Commitment under this Agreement agreed to in accordance with this Section
4(a).




     (ii) If Holly Tulsa shuts down or reconfigures the Refinery or any portion of the
Refinery (excluding planned maintenance turnarounds) and reasonably believes in good faith
that such shut down or reconfiguration will jeopardize its ability to satisfy its Group 2
Tankage Revenue Commitment or Minimum Group 2 Loading Rack Revenue Commitment under this
Agreement, then within 90 days of the delivery of the written notice of the planned shut
down or reconfiguration, Holly Tulsa shall (A) propose a new Minimum Group 2 Tankage Revenue
Commitment or Minimum Group 2 Loading Rack Revenue Commitment under this Agreement, as
applicable, such that the ratio of the new Minimum Group 2 Tankage Revenue Commitment or
Minimum Group 2 Loading Rack Revenue Commitment, as the case may be, under this Agreement
over the anticipated production level following the shut down or reconfiguration will be
approximately equal to the ratio of the original Minimum Group 2 Tankage Revenue Commitment
or Minimum Group 2 Loading Rack Revenue Commitment under this Agreement over the original
production level and (B) propose the date on which the new Minimum Group 2 Tankage Revenue
Commitment or Minimum Group 2 Loading Rack Revenue Commitment under this Agreement shall
take effect. Unless objected to by HEP Storage-Tulsa within 60 days of receipt by HEP
Storage-Tulsa of such proposal, such new Minimum Group 2 Tankage Revenue Commitment or
Minimum Group 2 Loading Rack Revenue Commitment under this Agreement shall become effective
as of the date proposed by Holly Tulsa. To the extent that HEP Storage-Tulsa does not agree
with Holly Tulsa’s proposal, any changes in Holly Tulsa’s obligations under this Agreement,
or the date on which such changes will take effect, will be determined by binding
arbitration in accordance with Section 13(e). Any applicable exhibit or schedule to
this Agreement will be updated, amended or revised, as applicable, in accordance with this
Agreement to reflect any change in the Minimum Group 2 Tankage Revenue Commitment or Minimum
Group 2 Loading Rack Revenue Commitment under this Agreement agreed to in accordance with
this Section 4(a).



     (b) In the event that any Party is rendered unable, wholly or in part, by a Force Majeure
event from performing its obligations under this Agreement for a period of more than thirty (30)
consecutive days, then, upon the delivery of notice and full particulars of the Force Majeure event
in writing within a reasonable time after the occurrence of the Force Majeure event relied on
(“Force Majeure Notice”), the obligations of the Parties, so far as they are affected by
the Force Majeure event, shall be suspended for the duration of any inability so caused. Any
suspension of the obligations of the Parties as a result of this Section 4(b) shall extend
the Term (to the extent so affected) for a period equivalent to the duration of the inability set
forth in the Force Majeure Notice. Holly Tulsa will be required to pay any amounts accrued and due
under this Agreement at the time of the Force Majeure event. The cause of the Force Majeure event
shall so far as possible be remedied with all reasonable dispatch, except that no




First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



20











 




Party shall be
compelled to resolve any strikes, lockouts or other industrial disputes other than as it shall
determine to be in its best interests. In the event a Force Majeure event prevents HEP Tulsa, HEP
Storage-Tulsa or Holly Tulsa from performing substantially all of their respective obligations
under this Agreement for a period of more than one (1) year, this Agreement may be terminated by
HEP Tulsa, HEP Storage-Tulsa, or Holly Tulsa, by providing written notice thereof to the other
Parties.




     Section 5. Agreement Not to Challenge Tariffs



     Holly Tulsa agrees to any tariff rate changes for the Pipelines in accordance with this
Agreement. Holly Tulsa agrees (a) not to challenge, nor to cause their Affiliates to challenge,
nor to encourage or recommend to any other Person that it challenge, or voluntarily assist in any
way any other Person in challenging, in any forum, tariffs (including joint tariffs) of HEP Tulsa
that HEP Tulsa has filed or may file containing rates, rules or regulations that are in effect at
any time during the Term and regulate the transportation of the Refined Products, and (b) not to
protest or file a complaint, nor cause their Affiliates to protest or file a complaint, nor
encourage or recommend to any other Person that it protest or file a complaint, or voluntarily
assist in any way any other Person in protesting or filing a complaint, with respect to regulatory
filings that the HEP Tulsa has made or may make at any time during the Term to change tariffs
(including joint tariffs) for transportation of Refined Products in each case so long as such
tariffs, regulatory filings or rates changed do not conflict with the terms of this Agreement.



     Section 6. Effectiveness and Term



     This Agreement shall be effective as of the Effective Time, and shall terminate at 12:01 a.m.
Dallas, Texas, time on December 1, 2024, unless extended by written mutual agreement of the Parties
or as set forth in Section 7 (the “Term). The Party(ies) desiring to extend this
Agreement pursuant to this Section 6 shall provide prior written notice to the other
Parties of its desire to so extend this Agreement; such written notice shall be provided not more
than twenty-four (24) months and not less than the later of twelve (12) months prior to the date of
termination or ten (10) days after receipt of a written request from another Party (which request
may be delivered no earlier than twelve (12) months prior to the date of termination) to provide
any such notice or lose such right.



     Section 7. Right to Enter into a New Agreement



     (a) In the event that Holly Tulsa provides prior written notice to HEP Tulsa and HEP
Storage-Tulsa of the desire of Holly Tulsa to extend this Agreement by written mutual agreement of
the Parties, the Parties shall negotiate in good faith to extend this Agreement by written mutual
agreement, but, if such negotiations fail to produce a written mutual agreement for extension by a
date six months prior to the termination date, then HEP Tulsa and HEP Storage-Tulsa shall have the
right to negotiate to enter into one or more pipelines, tankage and loading agreements with one or
more third parties to begin after the date of termination; provided, however, that until
the end of one year following termination without renewal of this Agreement, Holly Tulsa will have
the right to enter into a new pipelines, tankage and loading agreement with HEP Tulsa or HEP
Storage-Tulsa on commercial terms that substantially match the terms upon which HEP Tulsa or HEP
Storage-Tulsa, as applicable, propose to enter into an agreement with a




First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



21









 




third party for similar
services with respect to all or a material portion of the Group 1 Assets or the Group 2 Assets. In
such circumstances, HEP Tulsa or HEP Storage-Tulsa, as applicable, shall give Holly Tulsa
forty-five (45) days prior written notice of any proposed new pipelines, tankage and loading
agreement with a third party, and such notice shall inform Holly Tulsa of the fee schedules,
tariffs, duration and any other terms of the proposed third party agreement and Holly Tulsa shall
have forty-five (45) days following receipt of such notice to agree to the terms
specified in the notice or Holly Tulsa shall lose the rights specified by this Section
7(a) with respect to the assets that are the subject of such notice.




     (b) In the event that Holly Tulsa fails to provide prior written notice to HEP Tulsa and HEP
Storage-Tulsa of the desire of Holly Tulsa to extend this Agreement by written mutual agreement of
the Parties pursuant to Section 6, HEP Tulsa and HEP Storage-Tulsa shall have the right,
during the period from the date of Holly Tulsa’s failure to provide written notice pursuant to
Section 6 to the date of termination of this Agreement, to negotiate to enter into a new
pipelines, tankage and loading agreement with a third party; provided, however, that at any
time during the twelve (12) months prior to the expiration of the Term, Holly Tulsa will have the
right to enter into a new pipelines, tankage and loading agreement with HEP Tulsa or HEP
Storage-Tulsa on commercial terms that substantially match the terms upon which HEP Tulsa or HEP
Storage-Tulsa, as applicable, propose to enter into an agreement with a third party for similar
services with respect to all or a material portion of the Group 1 Assets or the Group 2 Assets. In
such circumstances, HEP Tulsa or HEP Storage-Tulsa, as applicable, shall give Holly Tulsa
forty-five (45) days prior written notice of any proposed new pipelines, tankage and loading
agreement with a third party, and such notice shall inform Holly Tulsa of the fee schedules,
tariffs, duration and any other terms of the proposed third party agreement and Holly Tulsa shall
have forty-five (45) days following receipt of such notice to agree to the terms specified in the
notice or Holly Tulsa shall lose the rights specified by this Section 7(b) with respect to
the assets that are the subject of such notice.



     Section 8. Notices



     (a) Any notice or other communication given under this Agreement shall be in writing and shall
be (i) delivered personally, (ii) sent by documented overnight delivery service, (iii) sent by
email transmission, or (iv) sent by first class mail, postage prepaid (certified or registered
mail, return receipt requested). Such notice shall be deemed to have been duly given (x) if
received, on the date of the delivery, with a receipt for delivery, (y) if refused, on the date of
the refused delivery, with a receipt for refusal, or (z) with respect to email transmissions, on
the date the recipient confirms receipt. Notices or other communications shall be directed to the
following addresses:



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



22









 






     Notices to Holly Tulsa:


c/o Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attn: David L. Lamp

Email address: president@hollycorp.com



with a copy, which shall not constitute notice, but is required in order to

giver proper notice, to:



c/o Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attn: General Counsel

Email address: generalcounsel@hollycorp.com





     Notices to HEP Tulsa or HEP Storage-Tulsa:


c/o Holly Energy Partners, L.P.

100 Crescent Court, Suite 1600

Dallas, TX 75201

Attn: David G. Blair

Email address: SVP-HEP@hollyenergy.com



with a copy, which shall not constitute notice, but is required in order to

give proper notice, to:



c/o Holly Energy Partners, L.P.

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attn: General Counsel

Email address: generalcounsel@hollycorp.com




     (b) Any Party may at any time change its address for service from time to time by giving
notice to the other Parties in accordance with this Section 8.



     Section 9. Deficiency Payments



     (a) As soon as practicable following the end of each Contract Quarter under this Agreement,




     (i) HEP Tulsa shall deliver to Holly Tulsa a written notice (the “Group 1
Deficiency Notice”) detailing any failure of Holly Tulsa to meet their obligations under
Section 2(a)(i), Section 2(b)(i), or Section 2(c)(i);
provided, however, that Holly Tulsa’s obligations pursuant to the Minimum
Pipeline Revenue Commitment, Minimum Group 1



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)




23









 






Tankage Revenue Commitment, and the Minimum
Group 1 Loading Rack Revenue Commitment shall, in each case, be assessed on a quarterly
basis for the purposes of this Section 9. Notwithstanding the previous sentence,
any deficiency owed by Holly Tulsa due to its failure to satisfy the Minimum Pipeline
Revenue Commitment, Minimum Group 1 Tankage Revenue Commitment, or Minimum Group 1 Loading
Rack Revenue Commitment in any Contract Quarter shall be offset by any revenue owed to HEP
Tulsa in excess of the Minimum Pipeline Revenue Commitment, Minimum Group 1 Tankage Revenue
Commitment, or Minimum Group 1 Loading Rack Revenue Commitment for such Contract Quarter.
The Group 1 Deficiency Notice shall (A) specify in reasonable detail the nature of any
deficiency and (B) specify the approximate dollar amount that HEP Tulsa believes would have
been paid by Holly Tulsa to HEP Tulsa if Holly Tulsa had complied with its obligations
pursuant to Section 2(a)(i), Section 2(b)(i), or Section 2(c)(i), as
applicable (the “Group 1 Deficiency Payment”). Holly Tulsa shall pay the Group 1
Deficiency Payment to HEP Tulsa upon the later of: (1) ten (10) days after their
receipt of the Group 1 Deficiency Notice and (2) thirty (30) days following the end of
the related Contract Quarter.




     (ii) HEP Storage-Tulsa shall deliver to Holly Tulsa a written notice (the “Group 2
Deficiency Notice”) detailing any failure of Holly Tulsa to meet their obligations under
Section 2(d)(i) or Section 2(e)(i); provided, however, that
Holly Tulsa’s obligations pursuant to the Minimum Group 2 Tankage Revenue Commitment and
Minimum Group 2 Loading Rack Revenue Commitment shall, in each case, be assessed on a
quarterly basis for the purposes of this Section 9. Notwithstanding the previous
sentence, any deficiency owed by Holly Tulsa due to its failure to satisfy the Minimum Group
2 Tankage Revenue Commitment or Minimum Group 2 Loading Rack Revenue Commitment in any
Contract Quarter shall be offset by any revenue owed to HEP Storage-Tulsa in excess of the
Minimum Group 2 Tankage Revenue Commitment or Minimum Group 2 Loading Rack Revenue
Commitment for such Contract Quarter. The Group 2 Deficiency Notice shall (A) specify in
reasonable detail the nature of any deficiency and (B) specify the approximate dollar amount
that HEP Storage-Tulsa believes would have been paid by Holly Tulsa to HEP Storage-Tulsa if
Holly Tulsa had complied with its obligations pursuant to Section 2(d)(i) or
Section 2(e)(i), as applicable (the “Group 2 Deficiency Payment”). Holly
Tulsa shall pay the Group 2 Deficiency Payment to HEP Storage-Tulsa upon the later of: (1)
ten (10) days after their receipt of the Group 2 Deficiency Notice and (2) thirty (30) days
following the end of the related Contract Quarter.



     (b) If Holly Tulsa disagrees with any Group 1 Deficiency Notice or Group 2 Deficiency Notice
(the “Disputed Deficiency Notice”), then, following the payment of the undisputed portion
of the deficiency payment related to the Disputed Deficiency Notice (the “Disputed Deficiency
Payment”) to HEP Tulsa or HEP Storage-Tulsa, as applicable, if any, Holly Tulsa shall send
written notice thereof regarding the disputed portion of the Disputed Deficiency Notice to HEP
Tulsa or HEP Storage-Tulsa, as applicable, and a senior officer of Holly (on behalf of Holly Tulsa)
and a senior officer of the Partnership (on behalf of HEP Tulsa and HEP Storage-Tulsa) shall meet
or communicate by telephone at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary and shall negotiate in good


 First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



24









 




faith to attempt to resolve any
differences that they may have with respect to matters specified in the Disputed Deficiency Notice.
During the 30-day period following the payment of the Disputed Deficiency Payment, Holly Tulsa
shall have access to the working papers of HEP Tulsa or HEP Storage-Tulsa, as applicable, relating
to the Disputed Deficiency Notice. If such differences are not resolved within thirty (30) days
following Holly Tulsa’s receipt of the Disputed Deficiency Notice, Holly Tulsa, on the one hand,
and HEP Tulsa and HEP Storage-Tulsa, on the other hand, shall, within forty-five (45) days
following Holly Tulsa’s receipt of the Disputed Deficiency Notice, submit any and all matters which
remain in dispute and which were properly included in the Disputed Deficiency Notice to arbitration
in accordance with Section 13(e).




     (c) If it is finally determined pursuant to this Section 9 that Holly Tulsa is
required to pay any or all of the disputed portion of the Disputed Deficiency Payment, Holly Tulsa
shall promptly pay such amount to HEP Tulsa or HEP Storage-Tulsa, as applicable, together with
interest thereon at the Prime Rate, in immediately available funds.



     (d) The Parties acknowledge and agree that there shall be no carry-over of deficiency payments
beyond each Contract Quarter provided for in Section 9(a) with respect to the Minimum
Pipeline Revenue Commitment, the Minimum Group 1 Tankage Revenue Commitment, Minimum Group 2
Tankage Revenue Commitment, Minimum Group 2 Loading Rack Revenue Commitment or Minimum Group 1
Loading Rack Revenue Commitment.



     (e) The Parties acknowledge and agree that no revenue generated as a result of tariffs paid
with respect to any specific minimum revenue commitment hereunder, such as the Minimum Pipeline
Revenue Commitment, the Minimum Group 1 Tankage Revenue Commitment, Minimum Group 2 Tankage Revenue
Commitment, Minimum Group 2 Loading Rack Revenue Commitment or Minimum Group 1 Loading Rack Revenue
Commitment, shall be considered in determining whether Holly Tulsa has satisfied any other minimum
revenue commitment hereunder for purposes of determining any deficiency pursuant to this
Section 9, though once the amount of such deficiencies are determined, the Parties may
offset payments due on account of such deficiencies in accordance with Section 9(a).



     Section 10. Indemnification



     (a) Environmental Indemnification




     (i) Indemnification of HEP Tulsa and HEP Storage-Tulsa. From and after each
Closing Date, Holly Tulsa shall indemnify, defend and hold harmless HEP Tulsa, HEP
Storage-Tulsa and their Related Indemnified Parties from and against environmental and Toxic
Tort losses (including, without limitation, economic losses, diminution in value suffered by
third parties, and lost profits), damages, injuries (including, without limitation, personal
injury and death), liabilities, claims, demands, causes of action, judgments, settlements,
fines, penalties, costs, and expenses (including, without limitation, court costs and
reasonable attorney’s and expert’s fees) of any and every kind or character, known or
unknown, fixed or contingent, suffered or incurred by HEP Tulsa, HEP Storage-Tulsa or their
Related Indemnified Parties or any third party to the extent arising out of:


 First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



25









 






(A) any violation or correction of violation of Environmental Laws
associated with the ownership or operation of the HEP Purchased
Assets, or




(B) any event or condition associated with ownership or operation of
the HEP Purchased Assets (including, without limitation, the presence
of Hazardous Substances on, under, about or migrating to or from the
HEP Purchased Assets or the disposal or release of Hazardous
Substances generated by operation of the HEP Purchased Assets at
non-HEP Purchased Asset locations), including, without limitation,
(1) the cost and expense of any investigation, assessment,
evaluation, monitoring, containment, cleanup, repair, restoration,
remediation, or other corrective action required or necessary under
Environmental Laws, (2) the cost or expense of the preparation and
implementation of any closure,
remedial, corrective action, or other plans required or necessary
under Environmental Laws, and (3) the cost and expense for any
environmental or Toxic Tort pre-trial, trial, or appellate legal or
litigation support work;




but only to the extent that such violation complained of under Section 10(a)(i)(A)
or such events or conditions included under Section 10(a)(i)(B) occurred before the
Closing Date applicable to the assets to which such violation, events or conditions relate
(collectively, “Covered Environmental Losses”).




     (ii) Burden of Proof for Tank Claims. To the extent that a good faith claim by
HEP Tulsa, HEP Storage-Tulsa or their Related Indemnified Parties for indemnification under
Section 10(a)(i)(A) or Section 10(a)(i)(B) arises from events or conditions
at the tanks included in the HEP Purchased Assets or the soil immediately underneath such
tanks or such tanks’ secondary containment, and Holly Tulsa refuses to provide such
indemnification, then the burden of proof shall be on Holly Tulsa to demonstrate that the
events or conditions giving rise to the claim arose after the Closing Date applicable to the
assets to which such claims relate.




     (iii) Indemnification of Holly Tulsa. HEP Tulsa and HEP Storage-Tulsa shall
indemnify, defend and hold harmless Holly Tulsa and its Related Indemnified Parties from and
against environmental and Toxic Tort losses (including, without limitation, economic losses,
diminution in value and lost profits suffered by third parties), damages, injuries
(including, without limitation, personal injury and death), liabilities, claims, demands,
causes of action, judgments, settlements, fines, penalties, costs, and expenses (including,
without limitation, court costs and reasonable attorney’s and expert’s fees) of any and
every kind or character, known or unknown, fixed or contingent, suffered or incurred by
Holly Tulsa and its Related Indemnified Parties or any third party to the extent arising out
of:




(A) any violation or correction of violation of Environmental Laws
associated with the operation of the HEP Purchased Assets


 First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



26









 






by a Person
other than a Holly Entity or ownership and operation of the HEP
Purchased Assets by a Person other than a Holly Entity, or




(B) any event or condition associated with the operation of the HEP
Purchased Assets by a Person other than Holly Tulsa and its
Affiliates or ownership and operation of the HEP Purchased Assets by
a Person other than Holly Tulsa and its Affiliates (including, but
not limited to, the presence of Hazardous Substances on, under, about
or migrating to or from the HEP Purchased Assets or the disposal or
release of Hazardous Substances generated by operation of the HEP
Purchased Assets at non-HEP Purchased Asset locations) except, where
Holly Tulsa or one of its Affiliates is operating an HEP Purchased
Asset, to the extent resulting from the negligent acts or omissions
or willful misconduct of Holly
Tulsa or such Affiliate including, without limitation, (1) the cost
and expense of any investigation, assessment, evaluation, monitoring,
containment, cleanup, repair, restoration, remediation, or other
corrective action required or necessary under Environmental Laws, (2)
the cost or expense of the preparation and implementation of any
closure, remedial, corrective action, or other plans required or
necessary under Environmental Laws, and (3) the cost and expense for
any environmental or Toxic Tort pre-trial, trial, or appellate legal
or litigation support work;




but only to the extent such violation complained of under Section 10(a)(iii)(A) or
such events or conditions included under Section 10(a)(iii)(B) occurred after the
Closing Date applicable to the assets to which such violation, event or condition relate;
provided, however, that nothing stated above shall make HEP Tulsa or HEP
Storage-Tulsa responsible for any post-Closing Date negligent actions or omissions or
willful misconduct by Holly Tulsa or its Affiliates.



     (b) Indemnification Procedures.




     (i) The Indemnified Party agrees that promptly after it becomes aware of facts giving
rise to a claim for indemnification under this Agreement, it will provide notice thereof in
writing to the Indemnifying Party, specifying the nature of and specific basis for such
claim.




     (ii) 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 this Agreement, 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
unless it includes a full release of the Indemnified Party from such matter or issues, as
the case may be.



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



27









 






     (iii) 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
this Agreement, 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 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 maintain the confidentiality of
all files, records, and other information furnished by the Indemnified Party pursuant to
this Section 10(b). In no event shall the obligation of the Indemnified Party to
cooperate with the Indemnifying Party as set forth in the
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 this Agreement; 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.




     (iv) In determining the amount of any loss, cost, damage or expense for which the
Indemnified Party is entitled to indemnification under this Agreement, the gross amount of
the indemnification will be reduced by all amounts recovered by the Indemnified Party under
contractual indemnities (other than insurance policies) from third Persons. An Indemnified
Party shall be obligated to pursue all contractual indemnities that such Indemnified Party
has with third Persons outside of this Agreement, provided, however, if the
Indemnified Party’s right to such indemnification is assignable, the Indemnified Party may,
in its sole discretion and in lieu of pursuing such claim, elect to assign such
indemnification claim to the Indemnifying Party to pursue and shall reasonably cooperate
with the Indemnifying Party (including, without limitation, making its relevant books,
records, officers, information and testimony reasonably available to the Indemnifying Party)
in the Indemnifying Party’s pursuit of such claim. In the event the Indemnified Party
recovers under a contractual indemnity from a third Person outside of this Agreement, the
amount recovered, less the reasonable out-of-pocket fees and expenses incurred by the
Indemnified Party in recovering such amounts, shall reduce the amount such Indemnified Party
may recover under this Agreement and if the Indemnified Party receives any such amounts
subsequent to an indemnification payment by the Indemnifying Party in respect of such
losses, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any
payment made or expense incurred by such Indemnifying Party in connection with providing
such indemnification payment up to the amount so received by the Indemnified Party.




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



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



28









 





     (c) Survival of Indemnification. The provisions of this Section 10 shall
survive the termination of this Agreement (including any termination following the sale of the HEP
Purchased Assets).



     Section 11. Right of First Refusal. The Parties acknowledge the right of
first refusal of Holly Tulsa with respect to the Pipelines, Group 1 Tankage, Group 2 Tankage, Group
2 Loading Rack and Group 1 Loading Rack provided in the Omnibus Agreement.



     Section 12. Limitation of Damages.



     (a) NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS
AGREEMENT AND EXCEPT FOR CLAIMS MADE BY THIRD PARTIES WHICH SHALL NOT BE LIMITED BY THIS PARAGRAPH,
THE PARTIES AGREE THAT THE RECOVERY BY ANY PARTY OF ANY LIABILITIES,
DAMAGES, COSTS OR OTHER EXPENSES SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH OR
NONFULFILLMENT BY A PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS OR OTHER
OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL NOT INCLUDE OR APPLY
TO, NOR SHALL ANY PARTY BE ENTITLED TO RECOVER, ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OR
BUSINESS INTERRUPTION OR DIMINUTION IN VALUE) SUFFERED OR INCURRED BY ANY PARTY; PROVIDED,
HOWEVER, THAT SUCH RESTRICTION AND LIMITATION SHALL NOT APPLY (x) AS A RESULT OF A THIRD
PARTY CLAIM FOR SUCH INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR (y) TO INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ON ACCOUNT
OF LOST PROFITS OR OPPORTUNITIES OR BUSINESS INTERRUPTION OR DIMINUTION IN VALUE) THAT ARE A RESULT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BREACHING OR NONFULFILLING PARTY OR ITS
AFFILIATES.



     (b) Notwithstanding anything in this Agreement to the contrary and solely for the purpose of
determining which of Holly Tulsa, HEP Tulsa, or HEP Storage-Tulsa, as applicable, shall be liable
in a particular circumstance, no Party shall be liable to another Party for any loss, damage,
injury, judgment, claim, cost, expense or other liability suffered or incurred by such Party (the
“Damaged Party”) except to the extent that the Party causes such loss, damage, injury,
judgment, claim, cost, expense or other liability suffered or incurred by the Damaged Party or owns
or operates the Pipelines, Group 1 Tankage, Group 2 Tankage, Group 2 Loading Rack or Group 1
Loading Rack or other property in question responsible for causing such loss, damage, injury,
judgment, claim, cost, expense or other liability suffered or incurred by the Damaged Party.



     Section 13. Miscellaneous



     (a) Amendments and Waivers. No amendment or modification of this Agreement shall be
valid unless it is in writing and signed by the Parties. No waiver of any provision of this



First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



29









 




Agreement shall be valid unless it is in writing and signed by the Party against whom the waiver is
sought to be enforced. Any of the exhibits or schedules to this Agreement may be amended,
modified, revised or updated by the Parties if each of the Parties executes an amended, modified,
revised or updated exhibit or schedule, as applicable, and attaches it to this Agreement. Such
amended, modified, revised or updated exhibits or schedules shall be sequentially numbered (e.g.
Schedule I-1, Schedule I-2, etc.), dated and appended as an additional exhibit or schedule to this
Agreement and shall replace the prior exhibit or schedule, as applicable, in its entirety, except
as specified therein. No failure or delay in exercising any right hereunder, and no course of
conduct, shall operate as a waiver of any provision of this Agreement. No single or partial
exercise of a right hereunder shall preclude further or complete exercise of that right or any
other right hereunder.




     (b) Successors and Assigns. This Agreement shall inure to the benefit of, and shall
be binding upon, Holly Tulsa, HEP Tulsa, HEP Storage-Tulsa and their respective successors
and permitted assigns. Neither this Agreement nor any of the rights or obligations hereunder
shall be assigned without the prior written consent of Holly Tulsa (in the case of any assignment
by HEP Tulsa or HEP Storage-Tulsa) or HEP Tulsa and HEP Storage-Tulsa (in the case of any
assignment by Holly Tulsa), in each case, such consent is not to be unreasonably withheld or
delayed; provided, however, that (i) HEP Tulsa and HEP Storage-Tulsa may make such an
assignment (including a partial pro rata assignment) to an Affiliate of HEP Tulsa or HEP
Storage-Tulsa without Holly Tulsa’s consent, (ii) Holly Tulsa may make such an assignment
(including a pro rata partial assignment) to an Affiliate of Holly Tulsa without HEP Tulsa’s or HEP
Storage-Tulsa’s consent, (iii) Holly Tulsa may make a collateral assignment of their rights and
obligations hereunder, and (iv) HEP Tulsa and HEP Storage-Tulsa may make a collateral assignment of
their rights hereunder and/or grant a security interest in all or a portion of the Pipelines, Group
1 Tankage, Group 2 Tankage, Group 2 Loading Rack and Group 1 Loading Rack to a bona fide third
party lender or debt holder, or trustee or representative for any of them, without Holly Tulsa’s
consent, if such third party lender, debt holder or trustee shall have executed and delivered to
Holly Tulsa a non-disturbance agreement in such form as is reasonably satisfactory to Holly Tulsa
and such third party lender, debt holder or trustee and Holly Tulsa executes an acknowledgement of
such collateral assignment in such form as may from time to time be reasonably requested. Any
attempt to make an assignment otherwise than as permitted by the foregoing shall be null and void.
The Parties agree to require their respective successors, if any, to expressly assume, in a form of
agreement reasonably acceptable to the other Parties, their obligations under this Agreement.



     (c) Severability. If any provision of this Agreement shall be held invalid or
unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this
Agreement shall remain in full force and effect.



     (d) Choice of Law. This Agreement shall be subject to and governed by the laws of the
State of Delaware, excluding any conflicts-of-law rule or principle that might refer the
construction or interpretation of this Agreement to the laws of another state.



     (e) Arbitration Provision. Any and all Arbitrable Disputes must be resolved through
the use of binding arbitration using three arbitrators, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, as supplemented to the extent




First Amended and Pestated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



30











 





necessary to determine any procedural appeal questions by the Federal Arbitration Act (Title 9
of the United States Code). If there is any inconsistency between this Section 13(e) and
the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Section
13(e) will control the rights and obligations of the Parties. Arbitration must be initiated
within the time limits set forth in this Agreement, or if no such limits apply, then within a
reasonable time or the time period allowed by the applicable statute of limitations. Arbitration
may be initiated by a Party (“Claimant”) serving written notice on the other Party
(“Respondent”) that the Claimant elects to refer the Arbitrable Dispute to binding
arbitration. Claimant’s notice initiating binding arbitration must identify the arbitrator
Claimant has appointed. The Respondent shall respond to Claimant within thirty (30) days after
receipt of Claimant’s notice, identifying the arbitrator Respondent has appointed. If the
Respondent fails for any reason to name an arbitrator within the 30-day period, Claimant shall
petition the American Arbitration Association for appointment of an arbitrator for Respondent’s
account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days
after the second arbitrator has been appointed. The Claimant will pay the compensation and
expenses of the arbitrator named by it, and the Respondent will pay the compensation and expenses
of the arbitrator named by or for it. The costs of petitioning for the appointment of an
arbitrator, if any, shall be paid by Respondent. The Claimant and Respondent will each pay
one-half of the compensation and expenses of the third arbitrator. All arbitrators must (i) be
neutral parties who have never been officers, directors or employees of any of Holly Tulsa, HEP
Tulsa, HEP Storage-Tulsa or any of their Affiliates and (ii) have not less than seven (7) years
experience in the petroleum transportation industry. The hearing will be conducted in Dallas,
Texas and commence within thirty (30) days after the selection of the third arbitrator. Holly
Tulsa, HEP Tulsa, HEP Storage-Tulsa and the arbitrators shall proceed diligently and in good faith
in order that the award may be made as promptly as possible. Except as provided in the Federal
Arbitration Act, the decision of the arbitrators will be binding on and non-appealable by the
Parties hereto. The arbitrators shall have no right to grant or award indirect, consequential,
punitive or exemplary damages of any kind. The Arbitrable Disputes may be arbitrated in a common
proceeding along with disputes under other agreements between Holly Tulsa, HEP Tulsa, HEP
Storage-Tulsa or their Affiliates to the extent that the issues raised in such disputes are
related. Without the written consent of the Parties, no unrelated disputes or third party disputes
may be joined to an arbitration pursuant to this Agreement.




     (f) Rights of Limited Partners. The provisions of this Agreement are enforceable
solely by the Parties, and no limited partner of the Partnership shall have the right, separate and
apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to
comply with the terms of this Agreement.



     (g) Further Assurances. In connection with this Agreement and all transactions
contemplated by this Agreement, each signatory Party hereto 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.



     (h) Headings. Headings of the Sections of this Agreement are for convenience of the
Parties only and shall be given no substantive or interpretative effect whatsoever. All references
in this Agreement to Sections are to Sections of this Agreement unless otherwise stated.



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)





31









 








     (i) No Novation. This Agreement shall be considered an amendment and restatement
of the Original Tulsa East Throughput Agreement, and the Original Tulsa East Throughput Agreement
is hereby ratified, approved and confirmed in every respect, except as amended hereby. This
Agreement is not intended to constitute a novation of the Original Tulsa East Throughput Agreement
and all of the obligations owing by the Parties under the Original Tulsa East Throughput Agreement
shall continue (from and after the date of this Agreement, as amended hereby).



     Section 14. Guarantee by Holly



     (a) Payment and Performance Guaranty. Holly unconditionally, absolutely, continually
and irrevocably guarantees, as principal and not as surety, to HEP Tulsa and HEP Storage-Tulsa the
punctual and complete payment in full when due of all amounts due from Holly Tulsa under the
Agreement (collectively, the “Holly Tulsa Payment Obligations”). Holly agrees that HEP
Tulsa and HEP Storage-Tulsa shall be entitled to enforce directly against Holly any of the Holly
Tulsa Payment Obligations.



     (b) Guaranty Absolute. Holly hereby guarantees that the Holly Tulsa Payment
Obligations will be paid strictly in accordance with the terms of the Agreement. The obligations
of Holly under this Agreement constitute a present and continuing guaranty of payment, and not of
collection or collectability. The liability of Holly under this Agreement shall be absolute,
unconditional, present, continuing and irrevocable irrespective of:




     (i) any assignment or other transfer of the Agreement or any of the rights thereunder
of HEP Tulsa or HEP Storage-Tulsa;




     (ii) any amendment, waiver, renewal, extension or release of or any consent to or
departure from or other action or inaction related to the Agreement;




     (iii) any acceptance by HEP Tulsa or HEP Storage-Tulsa of partial payment or
performance from Holly Tulsa;




     (iv) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Holly Tulsa or any action
taken with respect to the Agreement by any trustee or receiver, or by any court, in any such
proceeding;




     (v) any absence of any notice to, or knowledge of, Holly, of the existence or
occurrence of any of the matters or events set forth in the foregoing subsections (i)
through (iv); or




     (vi) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, a guarantor.



     The obligations of Holly hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff, counterclaim,



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)






32









 








recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Holly Tulsa Payment Obligations or otherwise.




     (c) Waiver. Holly hereby waives promptness, diligence, all setoffs, presentments,
protests and notice of acceptance and any other notice relating to any of the Holly Tulsa Payment
Obligations and any requirement for HEP Tulsa or HEP Storage-Tulsa to protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust any right or take
any action against Holly Tulsa, any other entity or any collateral.



     (d) Subrogation Waiver. Holly agrees that for so long as there is a current or
ongoing default or breach of this Agreement by Holly Tulsa, Holly shall not have any rights (direct
or indirect) of subrogation, contribution, reimbursement, indemnification or other rights of
payment or recovery from Holly Tulsa for any payments made by Holly under this Section 14,
and Holly hereby irrevocably waives and releases, absolutely and unconditionally, any such rights
of subrogation, contribution, reimbursement, indemnification and other rights of payment or
recovery it may now have or hereafter acquire against Holly Tulsa during any period of default or
breach of this Agreement by Holly Tulsa until such time as there is no current or ongoing default
or breach of this Agreement by Holly Tulsa.



     (e) Reinstatement. The obligations of Holly under this Section 14 shall
continue to be effective or shall be reinstated, as the case may be, if at any time any payment of
any of the Holly Tulsa Payment Obligations is rescinded or must otherwise be returned to Holly
Tulsa or any other entity, upon the insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation or reorganization of Holly Tulsa or such other entity, or for any other reason, all as
though such payment had not been made.



     (f) Continuing Guaranty. This Section 14 is a continuing guaranty and shall
(i) remain in full force and effect until the first to occur of the indefeasible payment in full of
all of the Holly Tulsa Payment Obligations, (ii) be binding upon Holly, its successors and assigns
and (iii) inure to the benefit of and be enforceable by HEP Tulsa, HEP Storage-Tulsa and their
respective successors, transferees and assigns.



     (g) No Duty to Pursue Others. It shall not be necessary for HEP Tulsa or HEP
Storage-Tulsa (and Holly hereby waives any rights which Holly may have to require HEP Tulsa or HEP
Storage-Tulsa), in order to enforce such payment by Holly, first to (i) institute suit or exhaust
its remedies against Holly Tulsa or others liable on the Holly Tulsa Payment Obligations or any
other person, (ii) enforce HEP Tulsa’s and HEP Storage-Tulsa’s rights against any other guarantors
of the Holly Tulsa Payment Obligations, (iii) join Holly Tulsa or any others liable on the Holly
Tulsa Payment Obligations in any action seeking to enforce this Section 14, (iv) exhaust
any remedies available to HEP Tulsa and HEP Storage-Tulsa against any security which
shall ever have been given to secure the Holly Tulsa Payment Obligations, or (v) resort to any
other means of obtaining payment of the Holly Tulsa Payment Obligations.



     Section 15. Guarantee by the Partnership and Operating Partnership.



     (a) Payment and Performance Guaranty. Each of the Partnership and the Operating
Partnership unconditionally, absolutely, continually and irrevocably guarantees, as principal and



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)





33









 








not as surety, to Holly Tulsa the punctual and complete payment in full when due of all
amounts due from HEP Tulsa and HEP Storage-Tulsa under the Agreement (collectively, the “HEP
Tulsa Payment Obligations”). Each of the Partnership and the Operating Partnership agrees that
Holly Tulsa shall be entitled to enforce directly against the Partnership and the Operating
Partnership any of the HEP Tulsa Payment Obligations.




     (b) Guaranty Absolute. Each of the Partnership and the Operating Partnership hereby
guarantees that the HEP Tulsa Payment Obligations will be paid strictly in accordance with the
terms of the Agreement. The obligations of each of the Partnership and the Operating Partnership
under this Agreement constitute a present and continuing guaranty of payment, and not of collection
or collectability. The liability of each of the Partnership and the Operating Partnership under
this Agreement shall be absolute, unconditional, present, continuing and irrevocable irrespective
of:




     (i) any assignment or other transfer of the Agreement or any of the rights thereunder
of Holly Tulsa;




     (ii) any amendment, waiver, renewal, extension or release of or any consent to or
departure from or other action or inaction related to the Agreement;




     (iii) any acceptance by Holly Tulsa of partial payment or performance from HEP Tulsa or
HEP Storage-Tulsa;




     (iv) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment,
dissolution, liquidation or other like proceeding relating to HEP Storage-Tulsa or any
action taken with respect to the Agreement by any trustee or receiver, or by any court, in
any such proceeding;




     (v) any absence of any notice to, or knowledge of, the Partnership or the Operating
Partnership, of the existence or occurrence of any of the matters or events set forth in the
foregoing subsections (i) through (iv); or




     (vi) any other circumstance which might otherwise constitute a defense available to, or
a discharge of, a guarantor.



     The obligations of each of the Partnership and the Operating Partnership hereunder shall not
be subject to any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to
any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the HEP Tulsa Payment Obligations or otherwise.



     (c) Waiver. Each of the Partnership and the Operating Partnership hereby waives
promptness, diligence, all setoffs, presentments, protests and notice of acceptance and any other
notice relating to any of the HEP Tulsa Payment Obligations and any requirement for Holly Tulsa to
protect, secure, perfect or insure any security interest or lien or any property subject thereto or
exhaust any right or take any action against HEP Tulsa or HEP Storage-Tulsa, any other entity or
any collateral.



First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)






34









 








     (d) Subrogation Waiver. Each of the Partnership and the Operating Partnership
agrees that for so long as there is a current or ongoing default or breach of this Agreement by HEP
Tulsa or HEP Storage-Tulsa, the Partnership and the Operating Partnership shall not have any rights
(direct or indirect) of subrogation, contribution, reimbursement, indemnification or other rights
of payment or recovery from HEP Tulsa or HEP Storage-Tulsa for any payments made by the Partnership
or the Operating Partnership under this Section 15, and each of the Partnership and the
Operating Partnership hereby irrevocably waives and releases, absolutely and unconditionally, any
such rights of subrogation, contribution, reimbursement, indemnification and other rights of
payment or recovery it may now have or hereafter acquire against HEP Tulsa or HEP Storage-Tulsa
during any period of default or breach of this Agreement by HEP Tulsa or HEP Storage-Tulsa until
such time as there is no current or ongoing default or breach of this Agreement by HEP Tulsa or HEP
Storage-Tulsa.



     (e) Reinstatement. The obligations of the Partnership and the Operating Partnership
under this Section 15 shall continue to be effective or shall be reinstated, as the case
may be, if at any time any payment of any of the HEP Tulsa Payment Obligations is rescinded or must
otherwise be returned to HEP Tulsa, HEP Storage-Tulsa or any other entity, upon the insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation or reorganization of HEP Tulsa, HEP
Storage-Tulsa or such other entity, or for any other reason, all as though such payment had not
been made.



     (f) Continuing Guaranty. This Section 15 is a continuing guaranty and shall
(i) remain in full force and effect until the first to occur of the indefeasible payment in full of
all of the HEP Tulsa Payment Obligations, (ii) be binding upon the Partnership, the Operating
Partnership, and each of their respective successors and assigns and (iii) inure to the benefit of
and be enforceable by Holly Tulsa and their respective successors, transferees and assigns.



     (g) No Duty to Pursue Others. It shall not be necessary for Holly Tulsa (and each of
the Partnership and the Operating Partnership hereby waives any rights which the Partnership or the
Operating Partnership, as applicable, may have to require Holly Tulsa), in order to enforce such
payment by the Partnership or the Operating Partnership, first to (i) institute suit or exhaust its
remedies against HEP Tulsa or HEP Storage-Tulsa or others liable on the HEP Tulsa Payment
Obligations or any other person, (ii) enforce Holly Tulsa’ rights against any other guarantors of
the HEP Tulsa Payment Obligations, (iii) join HEP Tulsa, HEP Storage-Tulsa or any others
liable on the HEP Tulsa Payment Obligations in any action seeking to enforce this Section
15, (iv) exhaust any remedies available to Holly Tulsa against any security which shall ever
have been given to secure the HEP Tulsa Payment Obligations, or (v) resort to any other means of
obtaining payment of the HEP Tulsa Payment Obligations.



[Remainder of page intentionally left blank. Signature pages follow.]




First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)



35









 





     IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as of the date
first written above.



	 	 	 	 	 
	 	HEP TULSA:





HEP TULSA LLC

 	 
	 	By:  	/s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HEP STORAGE-TULSA:





HOLLY ENERGY STORAGE-TULSA LLC

 	 
	 	By:  	/s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	President 	 
	 
	 	HOLLY TULSA:





HOLLY REFINING & MARKETING

— TULSA LLC

 	 
	 	By:  	/s/ David L. Lamp
 	 
	 	 	David L. Lamp 	 
	 	 	President 	 
	 



ACKNOWLEDGED AND AGREED

FOR PURPOSES OF Section 9(b)

AND Section 14:




HOLLY CORPORATION




	 	 	 	 	 
	 	 	 
	By:  	/s/ David L. Lamp
 	 
	 	David L. Lamp 	 
	 	President 	 
	 



Signature Page 1 of 2

First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)




 









 








ACKNOWLEDGED AND AGREED

FOR PURPOSES OF Section 9(b)

AND Section 15:




HOLLY ENERGY PARTNERS, L.P.




	 	 	 
	By:

	 	HEP Logistics Holdings, L.P.,
	 

	 	its General Partner
	 
	 	 
	By:

	 	Holly Logistic Services, L.L.C.,
	 

	 	its General Partner






	 	 	 	 	 
	 	 	 
	By:  	/s/ David G. Blair
 	 
	 	David G. Blair 	 
	 	President 	 
	 



ACKNOWLEDGED AND AGREED

FOR PURPOSES OF Section 15:




HOLLY ENERGY PARTNERS-OPERATING, L.P.




	 	 	 	 	 
	 	 	 
	By:  	/s/ David G. Blair
 	 
	 	David G. Blair 	 
	 	Senior Vice President 	 
	 



Signature Page 2 of 2

First Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East)





 











 





SCHEDULE I




PIPELINE TARIFF



Pipeline Tariff




$0.10 per barrel











Schedule I-1









 








SCHEDULE II




GROUP 1 TANKAGE TARIFFS



Group 1 Tankage Base Tariff




$0.30 per barrel




Group 1 Tankage Incentive Tariff




$0.10 per barrel




Group 1 Tankage Excess Tariff




$0.22 per barrel











Schedule II-1









 








SCHEDULE III




GROUP 1 LOADING RACK TARIFF



Loading Rack Tariff




$0.30 per barrel










Schedule III-1









 








SCHEDULE IV




GROUP 1 ASSETS ASSUMED OPEX



Assumed OPEX




$1,702,000.00








Schedule IV-1









 








SCHEDULE V




GROUP 2 TANKAGE TARIFFS



Group 2 Tankage Base Tariff




$0.40 per barrel




Group 2 Tankage Incentive Tariff




$0.10 per barrel




Group 2 Tankage Excess Tariff




$0.22 per barrel








Schedule V-1









 








SCHEDULE VI




GROUP 2 LOADING RACK TARIFF



Group 2 Loading Rack Tariff




$0.35 per barrel










Schedule VI-1









 








SCHEDULE VII




GROUP 2 ASSETS ASSUMED OPEX



Group 2 Assets Assumed OPEX




$1,050,000








Schedule VII-1









 








EXHIBIT A




GROUP 1 TANKAGE



	 	 	 	 	 	 	 	 	 
	TANK ID	 	REFINED PRODUCT	 	CAPACITY (BBLS)	 
	 	10	 	 	ULSD #2 (XT)
	 	 	37,500	 
	 	11	 	 	ULSD #2 (XT)
	 	 	37,500	 
	 	102	 	 	Kerosene
	 	 	37,500	 
	 	103	 	 	Kerosene
	 	 	37,500	 
	 	104	 	 	ULSD #2 (XT)
	 	 	37,500	 
	 	110	 	 	ULSD #1
	 	 	37,500	 
	 	111	 	 	Kerosene
	 	 	37,500	 
	 	115A	 	 	ULSD #2 (XT)
	 	 	151,000	 
	 	115B	 	 	ULSD #2 (XT)
	 	 	151,000	 
	 	116	 	 	Kerosene
	 	 	37,500	 
	 	117	 	 	ULSD #2 (XT)
	 	 	63,000	 
	 	450	 	 	Premium Unleaded
	 	 	12,000	 
	 	451	 	 	USLD #2 (XT)
	 	 	12,000	 
	 	452	 	 	USLD #2 (XT)
	 	 	12,000	 
	 	464	 	 	Unleaded Regular
	 	 	80,000	 
	 	465	 	 	Unleaded Regular
	 	 	74,000	 
	 	466	 	 	Unleaded Regular
	 	 	80,000	 
	 	467	 	 	Unleaded Regular
	 	 	80,000	 
	 	470	 	 	Unleaded Regular
	 	 	80,000	 
	 	472	 	 	Unleaded Regular
	 	 	151,000	 
	 	473	 	 	Premium Unleaded (ST)
	 	 	80,000	 
	 	601	 	 	Unleaded Regular
	 	 	19,000	 
	 	602	 	 	Premium Unleaded (ST)
	 	 	10,000	 
	 	603	 	 	USLD #2 (XT)
	 	 	2,000	 
	 	605	 	 	Ethanol
	 	 	5,000	 
	 	606	 	 	Empty
	 	 	500	 






Exhibit A






 









 








EXHIBIT B




GROUP 2 TANKAGE



	 	 	 	 	 	 	 	 	 
	TANK ID	 	CURRENT SERVICE	 	CAPACITY (BBLS)
	 	1	 	 	Crude

	 	 	130,000	 
	 	2	 	 	Crude

	 	 	131,000	 
	 	3	 	 	Crude

	 	 	130,000	 
	 	8	 	 	Crude

	 	 	130,000	 
	 	123	 	 	CSO

	 	 	37,500	 
	 	471	 	 	Unleaded Gasoline

	 	 	80,000	 
	 	107	 	 	Flux/Asphalt

	 	 	131,000	 
	 	108	 	 	Flux/Asphalt

	 	 	37,500	 
	 	109	 	 	Flux/Asphalt

	 	 	37,500	 
	 	125	 	 	Flux/Asphalt

	 	 	37,500	 
	 	131	 	 	Flux/Asphalt

	 	 	37,500	 
	 	442	 	 	Gasoline blendstock

	 	 	11,700	 
	 	445	 	 	Gasoline blendstock

	 	 	11,700	 
	 	446	 	 	Gasoline blendstock

	 	 	11,700	 
	 	447	 	 	Gasoline blendstock

	 	 	11,700	 
	 	460	 	 	LSR

	 	 	80,000	 
	 	461	 	 	LSR

	 	 	80,000	 
	 	17	 	 	FCCU LCO

	 	 	37,500	 
	 	114	 	 	Raw Diesel

	 	 	131,000	 
	 	9	 	 	Raw gas oil

	 	 	130,000	 
	 	15	 	 	Raw gas oil

	 	 	130,000	 
	 	16	 	 	Raw gas oil-Sour

	 	 	151,078	 
	 	6	 	 	Raw naphtha

	 	 	54,000	 
	 	4	 	 	Scanfiner feed

	 	 	120,566	 
	 	40	 	 	Raw gas oil

	 	 	6,100	 
	 	41	 	 	CSO

	 	 	3,900	 
	 	34	 	 	Truck loading-64/22 asphalt

	 	 	11,700	 
	 	36	 	 	Truck loading-58/28 asphalt

	 	 	11,500	 
	 	124	 	 	Flux/Asphalt

	 	 	37,500	 
	 	18	 	 	Slop

	 	 	37,500	 
	 	31	 	 	Slop

	 	 	15,000	 
	 	7	 	 	Naptha

	 	 	64,000	 
	 	14	 	 	Naptha

	 	 	55,000	 






Exhibit B