exv10w2






Exhibit 10.2




EXECUTION VERSION




 

 






SECOND AMENDED AND RESTATED OMNIBUS AGREEMENT




among




HOLLY CORPORATION




HOLLY ENERGY PARTNERS, L.P.




and




CERTAIN OF THEIR RESPECTIVE SUBSIDIARIES




 

 






 









 












EXECUTION VERSION




TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	Article I	 	Definitions	 	 	2	 
	 
	 	1.1	 	Definitions	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	Article II	 	Business Opportunities	 	 	8	 
	 
	 	2.1	 	Restricted Businesses	 	 	8	 
	 
	 	2.2	 	Permitted Exceptions	 	 	8	 
	 
	 	2.3	 	Procedures	 	 	8	 
	 
	 	2.4	 	Scope of Prohibition	 	 	10	 
	 
	 	2.5	 	Enforcement	 	 	10	 
	 
	 	2.6	 	Limitation on Acquisitions of Subject Assets by Partnership Group Members	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	Article III	 	Indemnification	 	 	11	 
	 
	 	3.1	 	Environmental Indemnification	 	 	11	 
	 
	 	3.2	 	Limitations Regarding Environmental Indemnification	 	 	13	 
	 
	 	3.3	 	Right of Way Indemnification	 	 	13	 
	 
	 	3.4	 	Additional Indemnification	 	 	14	 
	 
	 	3.5	 	Indemnification Procedures	 	 	14	 
	 
	 	3.6	 	Limitation on Indemnification Obligations	 	 	16	 
	 
	 	3.7	 	Exclusion from Indemnification	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	Article IV	 	General and Administrative Expenses	 	 	16	 
	 
	 	4.1	 	General	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	Article V	 	Right of First Refusal	 	 	17	 
	 
	 	5.1	 	Holly Right of First Refusal: Prohibition on Transfer of	 	 	 	 
	 
	 	 	 	Refinery Related Assets	 	 	17	 
	 
	 	5.2	 	Procedures	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	Article VI	 	Holly Purchase Option	 	 	20	 
	 
	 	6.1	 	Option to Purchase Tulsa Transferred Assets	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	Article VII	 	Miscellaneous	 	 	20	 
	 
	 	7.1	 	Choice of Law	 	 	20	 
	 
	 	7.2	 	Arbitration Provision	 	 	20	 
	 
	 	7.3	 	Notice	 	 	21	 
	 
	 	7.4	 	Entire Agreement	 	 	22	 
	 
	 	7.5	 	Termination of Article II	 	 	22	 
	 
	 	7.6	 	Amendment or Modification	 	 	22	 
	 
	 	7.7	 	Assignment	 	 	23	 
	 
	 	7.8	 	Additional Partnership Entities	 	 	23	 
	 
	 	7.9	 	Counterparts	 	 	23	 
	 
	 	7.10	 	Severability	 	 	23	 
	 
	 	7.11	 	Further Assurances	 	 	23	 
	 
	 	7.12	 	Rights of Limited Partners	 	 	23	 
	 
	 	7.13	 	Headings	 	 	23	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.14	 	UNEV Option Agreement	 	 	23	 
	 
	 	7.15	 	Limitation of Damages	 	 	23	 







ii











 





SECOND AMENDED AND RESTATED




OMNIBUS AGREEMENT




     THIS SECOND AMENDED AND RESTATED OMNIBUS AGREEMENT is being entered into on August 1, 2009
(the “Agreement”), by and among Holly Corporation, a Delaware corporation
(“Holly”), the other Holly Entities (as defined herein) listed on the signature pages
hereto, Holly Energy Partners, L.P., a Delaware limited partnership (the “Partnership”),
and the other Partnership Entities (as defined herein) listed on the signature pages hereto, and
amends and restates in its entirety the Amended and Restated Omnibus Agreement entered into on June
1, 2009 (as amended, the “First Amended Omnibus Agreement”) among Holly, Navajo Pipeline
Co., L.P., a Delaware limited partnership (“Navajo Pipeline”), Holly Logistic Services,
L.L.C., a Delaware limited liability company (“Holly GP”), HEP Logistics Holdings, L.P., a
Delaware limited partnership (the “General Partner”), the Partnership, HEP Logistics GP,
L.L.C., a Delaware limited liability company (the “OLP GP”), and Holly Energy Partners —
Operating, L.P., a Delaware limited partnership (the “Operating Partnership”).



RECITALS:




          WHEREAS, the Parties entered into an Omnibus Agreement on July 13, 2004 (as amended, the
“Original Omnibus Agreement”) to evidence their agreement, as more fully set forth in
Article II, with respect to those business opportunities that the Holly Entities and Holly
GP would not engage in, directly or indirectly, during the term of the Original Omnibus Agreement
unless the Partnership declined to engage in any such business opportunity for its own account;




          WHEREAS, the Parties entered into the Original Omnibus Agreement to evidence their agreement,
as more fully set forth in Article III, with respect to certain indemnification obligations
of the Parties to each other;




          WHEREAS, the Parties entered into the Original Omnibus Agreement to evidence their agreement,
as more fully set forth in Article IV, with respect to the amount to be paid by the
Partnership for the general and administrative services to be performed by Holly and its Affiliates
(as defined herein) for and on behalf of the Partnership Entities and their Subsidiaries;




          WHEREAS, the Parties entered into the Original Omnibus Agreement to evidence their agreement,
as more fully set forth in Article V, with respect to Holly’s right of first refusal
relating to the Assets (as defined herein);




          WHEREAS, in connection with that certain LLC Interest Purchase Agreement dated as of June 1,
2009, by and among Holly, Navajo Pipeline and the Operating Partnership, pursuant to which Navajo
Pipeline transferred and conveyed to the Operating Partnership, and the Operating Partnership has
acquired, all of the limited liability company interests of Lovington-Artesia, L.L.C., the entity
that owns the 16” Lovington/Artesia Intermediate Pipeline (as defined herein), the Parties amended
and restated the Original Omnibus Agreement and entered into the First Amended Omnibus Agreement




1









 








          WHEREAS, in connection with that certain Asset Purchase Agreement dated as of August 1, 2009,
by and between Holly Refining & Marketing — Tulsa LLC and HEP Tulsa LLC, pursuant to which Holly
Refining & Marketing — Tulsa LLC has agreed to transfer and convey to HEP Tulsa LLC, and HEP Tulsa
LLC has agreed to acquire, the Tulsa Transferred Assets (as defined herein), the Parties desire to
amend and restate the First Amended Omnibus Agreement in its entirety as follows:




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



ARTICLE I

Definitions




     1.1 Definitions.



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



     “8” and 10” Lovington/Artesia Intermediate Pipelines” means the 8-inch pipeline
running from Lovington, New Mexico to Artesia, New Mexico and the 10-inch pipeline running from
Lovington, New Mexico to Artesia, New Mexico, each owned by Navajo Pipeline.



     “16” Lovington/Artesia Intermediate Pipeline” means the 16-inch pipeline running from
Lovington, New Mexico to Artesia, New Mexico, owned by Lovington-Artesia, L.L.C.



     “2004 Product Pipelines, Terminal and Related Assets” means the assets transferred
under the July 13, 2004 Contribution, Conveyance and Assumption Agreement at the time of the
Partnership’s initial public offering.



     “2008 Crude Pipelines, Tanks and Related Assets” means the Drop-Down Assets as defined
in the Purchase and Sale Agreement, dated February 25, 2008, by and among Holly, Navajo Pipeline,
Woods Cross Refining Company, L.L.C., a Delaware limited liability company, and Navajo Refining
Company, L.L.C., a Delaware limited liability company, as the seller parties, and the Partnership,
the Operating Partnership, HEP Woods Cross, L.L.C., a Delaware limited liability company, and HEP
Pipeline, L.L.C., a Delaware limited liability company, as the buyer parties.



     “Acquisition Proposal” is defined in Section 5.2(a).



     “Administrative Fee” is defined in Section 4.1(a).



     “Affiliate” is defined in the Partnership Agreement.



     “Agreement” is defined in the introduction 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,



2









 




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 by 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 any of the Partnership Entities, on the one hand, and any of the Holly
Entities, 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.



     “Assets” means all of the following assets conveyed, contributed, or otherwise
transferred by the Holly Entities to the Partnership Entities: (i) the 2004 Product Pipelines,
Terminal and Related Assets, (ii) the 8” and 10” Lovington/Artesia Intermediate Pipelines, (iii)
the 2008 Crude Pipelines, Tanks and Related Assets, (iv) the 16” Lovington/Artesia Intermediate
Pipeline, the (v) the Tulsa Transferred Assets.



     “Change of Control” means, with respect to any Person (the “Applicable
Person”), any of the following events: (a) any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all or substantially all of the Applicable
Person’s assets to any other Person unless immediately following such sale, lease, exchange, or
other transfer such assets are owned, directly or indirectly, by the Applicable Person; (b) the
consolidation or merger of the Applicable Person with or into another Person pursuant to a
transaction in which the outstanding Voting Securities of the Applicable Person are changed into or
exchanged for cash, securities, or other property, other than any such transaction where (i) the
outstanding Voting Securities of the Applicable Person are changed into or exchanged for Voting
Securities of the surviving Person or its parent and (ii) the holders of the Voting Securities of
the Applicable Person immediately prior to such transaction own, directly or indirectly, not less
than a majority of the Voting Securities of the surviving Person or its parent immediately after
such transaction; and (c) a “person” or “group” (within the meaning of Sections 13(d) or 14(d)(2)
of the Exchange Act) (in the case of Holly, other than a group consisting of some of all of the
current control persons of Holly), being or becoming the “beneficial owner” (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of more than 50% of all of the then outstanding Voting
Securities of the Applicable Person, except in a merger or consolidation that would not constitute
a Change of Control under clause (b) above.



     “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.



3









 





     “Claimant” is defined in Section 7.2.



     “Closing Date” means the date of the closing of the Partnership’s initial public
offering of Common Units. For purposes of Article III, Closing Date shall mean (i) with
respect to the 8” and 10” Lovington/Artesia Intermediate Pipelines, the closing date of the
purchase of the 8” and 10” Lovington/Artesia Intermediate Pipelines by a Partnership Entity, (ii)
with respect to the 2008 Crude Pipelines, Tanks and Related Assets, the effective date of the
purchase of the 2008 Crude Pipelines, Tanks and Related Assets by a Partnership Entity, (iii) with
respect to the 16” Lovington/Artesia Intermediate Pipeline, the effective date of the purchase of
all of the limited liability company interests of Lovington-Artesia, L.L.C., a Delaware limited
liability company, by a Partnership Entity, and (iv) with respect to the Tulsa Transferred Assets,
the effective date of the purchase of the Tulsa Transferred Assets by a Partnership Entity.



     “Common Units” is defined in the Partnership Agreement.



     “Contribution Agreement” means that certain Contribution, Conveyance and Assumption
Agreement, dated as of July 13, 2004, among Holly, Navajo Pipeline, Holly GP, the General Partner,
the Partnership, the OLP GP, the Operating Partnership and certain other parties, together with the
additional conveyance documents and instruments contemplated or referenced thereunder.



     “control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through ownership of voting
securities, by contract, or otherwise.



     “Covered Environmental Losses” is defined in Section 3.1.



     “Disposition Notice” is defined in Section 5.2(a).



     “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.



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



     “First Amended Omnibus Agreement” is defined in the introduction to this Agreement.



     “First ROFR Acceptance Deadline” is defined in Section 5.2(a).



     “General Partner” is defined in the introduction to this Agreement.



     “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



4









 




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.




     “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.



     “Holly” is defined in the introduction to this Agreement.



     “Holly Entities” means Holly and each other entity listed on the signature pages
hereto as Holly Entity.



     “Holly Entity” means any of the Holly Entities.



     “Holly Group” means the Holly Entities and any Person controlled, directly or
indirectly, by Holly other than the Partnership Entities.



     “Holly Group Member” means any member of the Holly Group.



     “Indemnified Party” means the Partnership Entities or the Holly Entities, as the case
may be, in their capacity as the parties entitled to indemnification in accordance with Article
III.



     “Indemnifying Party” means either the Partnership Entities or the Holly Entities, as
the case may be, in their capacity as the parties from whom indemnification may be required in
accordance with Article III, including Section 3.6.



     “Initial Tank Inspection” is defined in Section 3.1(c).



     “Initial Tank Inspection Period” is defined in Section 3.1(c).



     “Limited Partner” is defined in the Partnership Agreement.



     “Navajo Pipeline” is defined in the introduction to this Agreement.



     “Offer” is defined in Section 2.3(b)(i).



     “Offer Price” is defined in Section 5.2(a).



     “OLP GP” is defined in the introduction to this Agreement.



     “Operating Partnership” is defined in the introduction to this Agreement.



     “Original Omnibus Agreement” is defined in the recitals to this Agreement.



     “Partnership” is defined in the introduction to this Agreement.



5









 





     “Partnership Agreement” means the First Amended and Restated Agreement of Limited
Partnership of Holly Energy Partners, L.P., dated July 13, 2004, as amended by Amendment No. 1 to
the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P.,
dated February 28, 2005, as amended by Amendment No. 2 to the First Amended and Restated Agreement
of Limited Partnership of Holly Energy Partners, L.P., dated July 6, 2005, as amended by Amendment
No. 3 to the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners,
L.P., dated April 11, 2008, as such agreement is in effect on the date of this Agreement. No
amendment or modification to the Partnership Agreement subsequent to the date of this Agreement
shall be given effect for the purposes of this Agreement unless consented to by each of the
Parties.



     “Partnership Entities” means the Partnership and each other entity listed on the
signature pages hereto as a Partnership Entity.



     “Partnership Entity” means any of the Partnership Entities.



     “Partnership Group” means the Partnership Entities and any Subsidiary of any such
Person, treated as a single consolidated entity.



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



     “Party” means each of the entities listed on the signature page to this Agreement,
collectively the “Parties”.



     “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.



     “Proposed Transferee” is defined in Section 5.2(a).



     “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 the Holly Entities in the performance of similar tasks
or projects, or by the Partnership Entities in the performance of similar tasks or projects.



     “Purchase Option Agreement” has the meaning set forth in the Asset Purchase Agreement,
dated August 1, 2009, between Holly Refining & Marketing — Tulsa LLC, a Delaware limited liability
company, as the seller, and HEP Tulsa LLC, a Delaware limited liability company, as the buyer.



     “Respondent” is defined in Section 7.2.



     “Restricted Businesses” is defined in Section 2.1.



     “Retained Assets” means the pipelines, terminals and other assets and investments
owned by any of the Holly Group Members on the date of the Contribution Agreement that were not



6









 




conveyed, contributed or otherwise transferred to the Partnership Entities pursuant to the
Contribution Agreement or otherwise.




     “ROFR Acceptance Deadline” means the First ROFR Acceptance Deadline or the Second ROFR
Acceptance Deadline, as applicable.



     “Sale Assets” is defined in Section 5.2(a).



     “Second ROFR Acceptance Deadline” is defined in Section 5.2(a).



     “Subject Assets” is defined in Section 2.2(c).



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



     “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 Transferred Assets” means the Transferred Assets as defined in the Asset
Purchase Agreement, dated August 1, 2009, between Holly Refining & Marketing — Tulsa LLC, a
Delaware limited liability company, as the seller, and HEP Tulsa LLC, a Delaware limited liability
company, as the buyer.



     “Transfer” including the correlative terms “Transferring” or
“Transferred” means any direct or indirect transfer, assignment, sale, gift, pledge,
hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by
operation of law) of the Assets.



     “Transferred Tanks” is defined in Section 3.1(a)(iii).



     “Units” is defined in the Partnership Agreement.



     “Voting Securities” means securities of any class of a Person entitling the holders
thereof to vote on a regular basis in the election of members of the board of directors or other
governing body of such Person.



7









 





ARTICLE II

Business Opportunities




     2.1 Restricted Businesses. For so long as a Holly Group Member controls the Partnership, and
except as permitted by Section 2.2, Holly GP and each of the Holly Group Members shall be
prohibited from engaging in or acquiring or investing in any business having assets engaged in the
following businesses (the “Restricted Businesses”): the ownership and/or operation of crude
oil pipelines or terminals, intermediate product pipelines or terminals, refined products pipelines
or terminals, truck racks or crude oil gathering systems in the continental United States.



     2.2 Permitted Exceptions. Notwithstanding any provision of Section 2.1 to the
contrary, Holly GP and the Holly Group Members may engage in the following activities under the
following circumstances:



          (a) the ownership and/or operation of any of the Retained Assets (including replacements of
the Retained Assets);




          (b) any Restricted Business conducted by a Holly Group Member or Holly GP with the approval of
the General Partner;




          (c) the ownership and/or operation of any asset or group of related assets used in the
activities described in Section 2.1 that are acquired or constructed by a Holly Group
Member or Holly GP after the Closing Date (the “Subject Assets”) if, in the case of an
acquisition, the fair market value of the Subject Assets (as determined in good faith by the Board
of Directors of Holly), or, in the case of construction, the estimated construction cost of the
Subject Assets (as determined in good faith by the Board of Directors of Holly), is less than $5
million at the time of such acquisition or completion of construction, as the case may be;




          (d) the ownership and/or operation of any Subject Assets acquired by a Holly Group Member or
Holly GP after the Closing Date with a fair market value (as determined in good faith by the Board
of Directors of Holly) equal to or greater than $5 million at the time of the acquisition;
provided, the Partnership has been offered the opportunity to purchase the Subject Assets
in accordance with Section 2.3 and the Partnership has elected not to purchase the Subject
Assets; and




          (e) the ownership and/or operation of any Subject Assets constructed by a Holly Group Member
or Holly GP after the Closing Date with a construction cost (as determined in good faith by the
Board of Directors of Holly) equal to or greater than $5 million at the time of completion of
construction that the Partnership has been offered the opportunity to purchase in accordance with
Section 2.3 and the Partnership has elected not to purchase.




     2.3 Procedures.



          (a) In the event that Holly GP or a Holly Group Member becomes aware of an opportunity to
acquire Subject Assets with a fair market value (as determined in good faith by the Board of
Directors of Holly) equal to or greater than $5 million, then subject to Section 2.3(b),
then as soon as practicable, Holly GP or such Holly Group Member shall notify




8









 







the General Partner of such opportunity and deliver to the General Partner, or provide the General
Partner access to, all information prepared by or on behalf of, or material information submitted
or delivered to, Holly GP or such Holly Group Member relating to such potential transaction. As
soon as practicable, but in any event within 30 days after receipt of such notification and
information, the General Partner, on behalf of the Partnership, shall notify Holly GP or the Holly
Group Member that either (i) the General Partner, on behalf of the Partnership, has elected not to
cause a Partnership Group Member to pursue the opportunity to purchase the Subject Assets, or (ii)
the General Partner, on behalf of the Partnership, has elected to cause a Partnership Group Member
to pursue the opportunity to purchase the Subject Assets. If, at any time, the General Partner
abandons such opportunity (as evidenced in writing by the General Partner following the request of
Holly GP or the Holly Group Member), Holly GP or the Holly Group Member under this Section
2.3(a) may pursue such opportunity. Any Subject Assets which are permitted to be acquired by
Holly GP or a Holly Group Member must be so acquired (i) within 12 months of the later to occur of
(A) the date that Holly GP or the Holly Group Member becomes able to pursue such acquisition in
accordance with the provisions of this Section 2.3(a), and (B) the date upon which all
required governmental approvals to consummate such acquisition have been obtained, and (ii) on
terms not materially more favorable to Holly GP or the Holly Group Member than were offered to the
Partnership. If either of these conditions are not satisfied, the opportunity must be reoffered to
the Partnership in accordance with this Section 2.3(a).




          (b) Notwithstanding Section 2.3(a), in the event that (i) Holly GP or a Holly Group
Member becomes aware of an opportunity to make an acquisition that includes both Subject Assets and
assets that are not Subject Assets and the Subject Assets have a fair market value (as determined
in good faith by the Board of Directors of Holly) equal to or greater than $5 million but comprise
less than half of the fair market value (as determined in good faith by the Board of Directors of
Holly) of the total assets being considered for acquisition or (ii) Holly GP or a Holly Group
Member desires to construct Subject Assets with an estimated construction cost (as determined in
good faith by the Board of Directors of Holly) equal to or greater than $5 million, then Holly GP
or the Holly Group Member may make such acquisition without first offering the opportunity to the
Partnership or may construct such Subject Assets as long as it complies with the following
procedures:




               (i) Within 90 days after the consummation of the acquisition or the completion of construction
by Holly GP or a Holly Group Member of the Subject Assets, as the case may be, Holly GP or the
Holly Group Member shall notify the General Partner in writing of such acquisition or construction
and offer the Partnership Group the opportunity to purchase such Subject Assets in accordance with
this Section 2.3(b) (the “Offer”). The Offer shall set forth the terms relating to
the purchase of the Subject Assets and, if Holly GP or any Holly Group Member desires to utilize
the Subject Assets, the Offer will also include the commercially reasonable terms on which the
Partnership Group will provide services to Holly GP or the Holly Group Member to enable Holly GP or
the Holly Group Member to utilize the Subject Assets. As soon as practicable, but in any event
within 30 days after receipt of such written notification, the General Partner shall notify Holly
GP or the Holly Group Member in writing that either (x) the General Partner has elected not to
cause a Partnership Group Member to purchase the Subject Assets, in which event Holly GP or the
Holly Group Member shall be forever free to continue to own or operate such Subject Assets, or (y)
the General Partner has elected to cause a Partnership



9









 




Group Member to purchase the Subject Assets, in which event the following procedures shall
apply.




               (ii) If Holly GP or the Holly Group Member and the General Partner within 60 days after
receipt by the General Partner of the Offer are able to agree on the fair market value of the
Subject Assets that are subject to the Offer and the other terms of the Offer including, without
limitation, the terms, if any, on which the Partnership Group will provide services to Holly GP or
the Holly Group Member to enable it to utilize the Subject Assets, a Partnership Group Member shall
purchase the Subject Assets for the agreed upon fair market value as soon as commercially
practicable after such agreement has been reached and, if applicable, enter into an agreement with
Holly GP or the Holly Group Member to provide services in a manner consistent with the Offer.



               (iii) If Holly GP or the Holly Group Member and the General Partner are unable to agree within
60 days after receipt by the General Partner of the Offer on the fair market value of the Subject
Assets that are subject to the Offer or the other terms of the Offer including, if applicable, the
terms on which the Partnership Group will provide services to Holly GP or the Holly Group Member to
enable it to utilize the Subject Assets, Holly GP or the Holly Entity and the General Partner will
engage a mutually agreed upon investment banking firm to determine the fair market value of the
Subject Assets and/or the other terms on which the Partnership Group and Holly GP or the Holly
Group Member are unable to agree. Such investment banking firm will determine the fair market value
of the Subject Assets and/or the other terms on which the Partnership Group and Holly GP or the
Holly Group Member are unable to agree within 30 days of its engagement and furnish Holly GP or the
Holly Group Member and the General Partner its determination. The fees of the investment banking
firm will be split equally between Holly GP or the Holly Group Member and the Partnership Group.
Once the investment banking firm has submitted its determination of the fair market value of the
Subject Assets and/or the other terms on which the Partnership Group and Holly GP or the Holly
Group Member are unable to agree, the General Partner will have the right, but not the obligation,
to cause a Partnership Group Member to purchase the Subject Assets pursuant to the Offer as
modified by the determination of the investment banking firm. The Partnership Group will provide
written notice of its decision to Holly GP or the Holly Group Member within 30 days after the
investment banking firm has submitted its determination. Failure to provide such notice within
such 30-day period shall be deemed to constitute a decision not to purchase the Subject Assets. If
the General Partner elects to cause a Partnership Group Member to purchase the Subject Assets, then
the Partnership Group Member shall purchase the Subject Assets pursuant to the Offer as modified by
the determination of the investment banking firm as soon as commercially practicable after such
determination and, if applicable, enter into an agreement with Holly GP or the Holly Group Member
to provide services in a manner consistent with the Offer, as modified by the determination of the
investment banking firm, if applicable.



     2.4 Scope of Prohibition. Except as provided in this Article II and the Partnership
Agreement, Holly GP and each Holly Group Member shall be free to engage in any business activity,
including those that may be in direct competition with any Partnership Group Member.



     2.5 Enforcement. Holly GP and the Holly Group Members agree and acknowledge that the
Partnership Group does not have an adequate remedy at law for the breach by Holly GP



10









 




and the Holly Group of the covenants and agreements set forth in this Article II, and
that any breach by Holly GP or the Holly Group of the covenants and agreements set forth in this
Article II would result in irreparable injury to the Partnership Group. Holly GP and the
Holly Group Members further agree and acknowledge that any Partnership Group Member may, in
addition to the other remedies which may be available to the Partnership Group, file a suit in
equity to enjoin Holly GP and the Holly Group from such breach, and consent to the issuance of
injunctive relief under this Agreement.




     2.6 Limitation on Acquisitions of Subject Assets by Partnership Group Members.
Notwithstanding anything in this Agreement to the contrary, a Partnership Group Member who is not a
party to this Agreement is prohibited from acquiring Subject Assets. In the event the General
Partner desires a Partnership Group Member who is not a party to this Agreement to acquire any
Subject Assets, then the General Partner shall first cause such Partnership Group Member to become
a party to this Agreement.



ARTICLE III

Indemnification




     3.1 Environmental Indemnification.



          (a) Subject to Section 3.2, the Holly Entities shall indemnify, defend and hold
harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with
respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as
applicable, 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 the Partnership Entities
or any third party to the extent arising out of:




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



               (ii) any event or condition associated with ownership or operation of the Assets (including,
without limitation, the presence of Hazardous Substances on, under, about or migrating to or from
the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets
at non-Asset locations), including, without limitation, (A) 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, (B) 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 (C) the cost and expense for any
environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work;



11









 




but only to the extent that such violation complained of under Section 3.1(a)(i) or such
events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date
(collectively, “Covered Environmental Losses”); or




               (iii) the operation or ownership of any assets not transferred under this Agreement, including
but not limited to underground pipelines retained by the Seller Parties which serve the refineries
in Lovington, New Mexico, Artesia, New Mexico and Woods Cross, Utah or the tanks that are part of
the 2008 Crude Pipelines, Tanks and Related Assets (the “Transferred Tanks”) except to the
extent arising out of the negligent acts or omissions or willful misconduct of a member of the
Partnership Entities.



          (b) To the extent that a good faith claim by the Partnership Entities for indemnification
under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at
the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred
Tanks’ secondary containment, and the Holly Entities refuse to provide such indemnification, then
the burden of proof shall be on the Holly Entities to demonstrate that the events or conditions
giving rise to the claim arose after the Closing Date.




          (c) The Holly Entities shall, during the period that commences on the Closing Date and ends
five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership
Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the
“Initial Tank Inspections”) and the costs associated with the replacement of the tank
mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made
to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections;
provided, however, that (i) the Holly Entities shall not reimburse the Partnership
Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the
new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly
described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon
expiration of the Initial Tank Inspection Period, all of the obligations of the Holly Entities
pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection
Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred
Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection
originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the Holly
Entities received notice from the Partnership Entities regarding such delay at the time it
occurred.




          (d) The Partnership Entities shall indemnify, defend and hold harmless the Holly Entities 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 the Holly Entities or any third party to the
extent arising out of:




12









 








               (i) any violation or correction of violation of Environmental Laws associated with the
operation of the Assets by a Person other than a Holly Entity or ownership and operation of the
Assets by a Person other than a Holly Entity, or



               (ii) any event or condition associated with the operation of the Assets by a Person other than
a Holly Entity or ownership and operation of the Assets by a Person other than a Holly Entity
(including, but not limited to, the presence of Hazardous Substances on, under, about or migrating
to or from the Assets or the disposal or release of Hazardous Substances generated by operation of
the Assets at non-Asset locations) except, where a Holly Entity is operating an Asset, to the
extent resulting from the negligent acts or omissions or willful misconduct of such Holly Entity
including, without limitation, (A) 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, (B) 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 (C) the cost and expense for any environmental or Toxic
Tort pre-trial, trial, or appellate legal or litigation support work;


and only to the extent such violation complained of under Section 3.1(d)(i) or such events
or conditions included under Section 3.1(d)(ii) occurred after the Closing Date;
provided, however, that nothing stated above shall make the Partnership Entities
responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the
Holly Entities.




               (e) Notwithstanding anything in this Agreement to the contrary, as used in Section
3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate
Pipeline.



     3.2 Limitations Regarding Environmental Indemnification. The aggregate liability of the Holly
Entities in respect of all Covered Environmental Losses under Section 3.1(a) shall not
exceed (1) with respect to Assets other than the 2008 Crude Pipelines, Tanks and Related Assets,
$15.0 million plus an additional $2.5 million in the case of Covered Environmental Losses related
to the 8” and 10” Lovington/Artesia Intermediate Pipelines (for clarity, the first $15,000,000
million limit would apply to Covered Environmental Losses associated with the 8” and 10”
Lovington/Artesia Intermediate Pipelines and the 2004 Product Pipelines, Terminal and Related
Assets, while the limit between $15,000,000 and $17,500,00 would apply only to Covered
Environmental Losses associated with the 8” and 10” Lovington/Artesia Intermediate Pipelines) and
(2) $7.5 million in the case of Covered Environmental Losses related to the 2008 Crude Pipelines,
Tanks and Related Assets. The Holly Entities will not have any obligation under Section
3.1 with respect to any Assets until the Covered Environmental Losses of the Partnership
Entities exceed $200,000.



     3.3 Right of Way Indemnification. The Holly Entities shall indemnify, defend and hold
harmless the Partnership Entities from and against any losses, damages, liabilities, claims,
demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses
(including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and
every kind or character, known or unknown, fixed or contingent, suffered or incurred by the
Partnership Entities to the extent arising out of (a) the failure of the applicable Partnership
Entity



13









 




to be the owner of such valid and indefeasible easement rights or fee ownership interests in
and to the lands on which any pipeline or related pump station, tank farm or equipment conveyed or
contributed or otherwise Transferred (including by way of a Transfer of the ownership interest of a
Person or by operation of law) to the applicable Partnership Entity on the Closing Date is located
as of the Closing Date; (b) the failure of the applicable Partnership Entity to have the consents,
licenses and permits necessary to allow any such pipeline referred to in clause (a) of this
Section 3.3 to cross the roads, waterways, railroads and other areas upon which any such
pipeline is located as of the Closing Date; and (c) the cost of curing any condition set forth in
clause (a) or (b) above that does not allow any Asset to be operated in accordance with Prudent
Industry Practice, to the extent that the Holly Entities are notified in writing of any of the
foregoing within 10 years after the Closing Date or, solely with respect to the 2008 Crude
Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable.




     3.4 Additional Indemnification.



          (a) In addition to and not in limitation of the indemnification provided under Section
3.1(a) and Section 3.3, the Holly Entities shall indemnify, defend, and hold harmless
the Partnership Entities from and against any losses, damages, liabilities, claims, demands, causes
of action, judgments, settlements, fines, penalties, costs, and expenses (including, without
limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or
character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities
to the extent arising out of (i) events and conditions associated with the operation of the Assets
occurring before the Closing Date (other than Covered Environmental Losses which are provided for
under Section 3.1 and Section 3.2) to the extent that the Holly Entities are
notified in writing of any of the foregoing within five years after the Closing Date, (ii) all
legal actions pending against the Holly Entities on July 13, 2004, (iii) the completion of
remediation projects at the Partnership’s El Paso, Albuquerque and Mountain Home terminals that
were ongoing or scheduled as of July 13, 2004, (iv) events and conditions associated with the
Retained Assets and whether occurring before or after the Closing Date, and (v) all federal, state
and local tax liabilities attributable to the operation or ownership of the Assets prior to the
Closing Date, including any such tax liabilities of the Holly Entities that may result from the
consummation of the formation transactions for the Partnership Entities and the General Partner.




          (b) In addition to and not in limitation of the indemnification provided under Section
3.1(b) or the Partnership Agreement, the Partnership Entities shall indemnify, defend, and hold
harmless the Holly Entities from and against any losses, damages, liabilities, claims, demands,
causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without
limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or
character, known or unknown, fixed or contingent, suffered or incurred by the Holly Entities to the
extent arising out of events and conditions associated with the operation of the Assets occurring
on or after the Closing Date (other than Covered Environmental Losses which are provided for under
Section 3.1 except, where a Holly Entity is operating an Asset, to the extent resulting
from the negligent acts or omissions or willful misconduct of such Holly Entity), unless such
indemnification would not be permitted under the Partnership Agreement by reason of one of the
provisos contained in Section 7.7(a) of the Partnership Agreement.




     3.5 Indemnification Procedures.



14









 





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




          (b) The Indemnifying Party shall have the right to control all aspects of the defense of (and
any counterclaims with respect to) any claims brought against the Indemnified Party that are
covered by the indemnification under this Article III, 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.




          (c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party, with respect
to all aspects of the defense of any claims covered by the indemnification under this Article
III, 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 3.5. 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 Article III; provided, however, that the Indemnified Party
may, at its own option, cost and expense, hire and pay for counsel in connection with any such
defense. The Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party
informed as to the status of any such defense, but the Indemnifying Party shall have the right to
retain sole control over such defense.




          (d) In determining the amount of any 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




15









 







incurred by the Indemnified Party in recovering such amounts, shall reduce the amount such
Indemnified Party may recover under this Article III 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.




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




     3.6 Limitation on Indemnification Obligations.



          (a) Notwithstanding anything in this Agreement to the contrary, when referring to the
indemnification obligations of the Holly Entities in Article III, the definition of Holly
Entities shall be deemed to mean solely (i) the Holly Entity or Holly Entities that own or operate,
or owned or operated immediately prior to the transfer to the Partnership Entities, the Retained
Asset, Asset or other property in question with respect to which indemnification is sought by
reason of such Holly Entity’s or Holly Entities’ ownership or operation of the Retained Asset,
Asset or other property in question or that is responsible for causing such loss, damage, injury,
judgment, claim, cost, expense or other liability suffered or incurred by the Partnership Entities
for which it is entitled to indemnification under Article III and (ii) Holly.




          (b) Notwithstanding anything in this Agreement to the contrary, when referring to the
indemnification obligations of the Partnership Entities in Article III, the definition of
Partnership Entities shall be deemed to mean solely (i) the Partnership Entity or Partnership
Entities that own or operate, or owned or operated, the Asset or other property in Partnership
Entity’s or Partnership Group Entities’ ownership or operation of the Asset or other property in
question or that is responsible for causing such loss, damage, injury, judgment, claim, cost,
expense or other liability suffered or incurred by the Holly Entities for which they are entitled
to indemnification under Article III, (ii) the Partnership and (iii) the Operating
Partnership.




     3.7 Exclusion from Indemnification. Notwithstanding anything in this Agreement to the
contrary, as used in Article III the definition of Assets shall not include the Tulsa
Transferred Assets.



ARTICLE IV

General and Administrative Expenses




     4.1 General



          (a) The Partnership will pay Holly an administrative fee (the “Administrative Fee”) in
the amount set forth on Schedule I to this Agreement, payable in equal quarterly
installments, for the provision by Holly and its Affiliates for the Partnership Group’s benefit of
all the general and administrative services that Holly and its Affiliates have traditionally
provided in connection with the Assets including, without limitation, the general and
administrative services listed on Schedule I to this Agreement. The General Partner may
agree on behalf of the Partnership to increases in the Administrative Fee in connection with




16









 







expansions of the operations of the Partnership Group through the acquisition or construction
of new assets or businesses.




          (b) At the end of each year, the Partnership will have the right to submit to Holly a proposal
to reduce the amount of the Administrative Fee for that year if the Partnership believes, in good
faith, that the general and administrative services performed by Holly and its Affiliates for the
benefit of the Partnership Group for the year in question do not justify payment of the full
Administrative Fee for that year. If the Partnership submits such a proposal to Holly, Holly
agrees that it will negotiate in good faith with the Partnership to determine if the Administrative
Fee for that year should be reduced and, if so, by how much.




          (c) The Administrative Fee shall not include and the Partnership Group shall reimburse Holly
and its Affiliates for:




               (i) salaries of employees of Holly GP, to the extent, but only to the extent, such employees
perform services for the Partnership Group;



               (ii) the cost of employee benefits relating to employees of Holly GP, such as 401(k), pension,
and health insurance benefits, to the extent, but only to the extent, such employees perform
services for the Partnership Group; and



               (iii) all sales, use, excise, value added or similar taxes, if any, that may be applicable
from time to time in respect of the services provided by the Holly and its Affiliates to the
Partnership pursuant to Section 4.1(a).



          (d) Either Holly, on the one hand, or the Partnership, on the other hand, may terminate this
Article IV, by providing the other with written notice of its election to do so at least
six months prior to the proposed date of termination.




ARTICLE V

Right of First Refusal




     5.1 Holly Right of First Refusal: Prohibition on Transfer of Refinery Related Assets.



          (a) The Partnership Entities hereby grant to Holly a right of first refusal on any proposed
Transfer (other than a grant of a security interest to a bona fide third-party lender or a Transfer
to another Partnership Group Member) of the Assets that serve the Holly Entities’ refineries.




          (b) The Partnership Entities are prohibited from Transferring any of the Assets that serve the
Holly Entities’ refineries to a Partnership Group Member that is not a party to this Agreement. In
the event the Partnership Entities wish to Transfer any of the Assets that serve the Holly
Entities’ refineries to a Partnership Group Member that is not a party to this Agreement, they
shall first cause the proposed transferee Partnership Group Member to become a party to this
Agreement.




17









 








          (c) The Parties acknowledge that all potential Transfers of Sale Assets pursuant to this
Article V are subject to obtaining any and all required written consents of governmental
authorities and other third parties and to the terms of all existing agreements in respect of the
Sale Assets.




          (d) Notwithstanding anything in this Agreement to the contrary, as used in Article V
the definition of Assets shall not include the Tulsa Transferred Assets.




     5.2 Procedures.



          (a) If a Partnership Entity proposes to Transfer any of the Assets that serve the Holly
Entities’ refineries to any Person pursuant to a bona fide third-party offer (an “Acquisition
Proposal”), then the Partnership shall promptly give written notice (a “Disposition
Notice”) thereof to Holly. The Disposition Notice shall set forth the following information in
respect of the proposed Transfer: the name and address of the prospective acquiror (the
“Proposed Transferee”), the Assets subject to the Acquisition Proposal (the “Sale
Assets”), the purchase price offered by such Proposed Transferee (the “Offer Price”),
reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow
Holly to reasonably determine the fair market value of such non-cash consideration, the Partnership
Entities’ estimate of the fair market value of any non-cash consideration and all other material
terms and conditions of the Acquisition Proposal that are then known to the Partnership Entities.
To the extent the Proposed Transferee’s offer consists of consideration other than cash (or in
addition to cash) the Offer Price shall be deemed equal to the amount of any such cash plus the
fair market value of such non-cash consideration. In the event Holly and the Partnership Entities
agree as to the fair market value of any non-cash consideration, Holly will provide written notice
of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets
within 30 days of its receipt of the Disposition Notice (the “First ROFR Acceptance
Deadline”). Failure to provide such notice within such 30-day period shall be deemed to
constitute a decision not to purchase the Sale Assets. In the event (i) Holly’s determination of
the fair market value of any non-cash consideration described in the Disposition Notice (to be
determined by Holly within 30 days of receipt of such Disposition Notice) is less than the fair
market value of such consideration as determined by the Partnership Entities in the Disposition
Notice and (ii) Holly and the Partnership Entities are unable to mutually agree upon the fair
market value of such non-cash consideration within 30 days after Holly notifies the Partnership
Entities of its determination thereof, the Partnership Entities and Holly shall engage a
mutually-agreed-upon investment banking firm to determine the fair market value of the non-cash
consideration. Such investment banking firm shall be instructed to return its decision within 30
days after all material information is submitted thereto, which decision shall be final. The fees
of the investment banking firm will be split equally between Holly and the Partnership Entities.
Holly will provide written notice of its decision regarding the exercise of its right of first
refusal to purchase the Sale Assets to the Partnership Entities within 30 days after the investment
banking firm has submitted its determination (the “Second ROFR Acceptance Deadline”).
Failure to provide such notice within such 30-day period shall be deemed to constitute a decision
by Holly not to purchase the Sale Assets. If Holly fails to exercise a right during any applicable
period set forth in this Section 5.2(a), Holly shall be deemed to have waived its rights
with respect to such proposed disposition of the Sale Assets, but not with respect to any future
offer of Assets.




18









 








          (b) If Holly chooses to exercise its right of first refusal to purchase the Sale Assets under
Section 5.2(a), Holly and the Partnership Entities shall enter into a purchase and sale
agreement for the Sale Assets which shall include the following terms:




               (i) Holly will agree to deliver cash for the Offer Price (or any other consideration agreed to
by Holly and the Partnership Entities (each in their sole discretion));



               (ii) the Partnership Entities will represent that they have good and indefeasible title to the
Sale Assets, subject to all recorded and unrecorded matters and all physical conditions and other
matters in existence on the closing date for the purchase of the Sale Assets, plus any other such
matters as Holly may approve, which approval will not be unreasonably withheld. If Holly desires to
obtain any title insurance with respect to the Sale Assets, the full cost and expense of obtaining
the same (including but not limited to the cost of title examination, document duplication and
policy premium) shall be borne by Holly;



               (iii) the Partnership Entities will grant to Holly the right, exercisable at Holly’s risk and
expense, to make such surveys, tests and inspections of the Sale Assets as Holly may deem
desirable, so long as such surveys, tests or inspections do not damage the Sale Assets or interfere
with the activities of the Partnership Entities thereon and so long as Holly has furnished the
Partnership Entities with evidence that adequate liability insurance is in full force and effect;



               (iv) Holly will have the right to terminate its obligation to purchase the Sale Assets under
this Article V if the results of any searches, surveys, tests or inspections conducted
pursuant to Section 5.2(b)(ii) or Section 5.2(b)(iii) above are, in the reasonable
opinion of Holly, unsatisfactory;



               (v) the closing date for the purchase of the Sale Assets shall, unless otherwise agreed to by
Holly and the Partnership Entities, occur no later than 90 days following receipt by the
Partnership Entities of written notice by Holly of its intention to exercise its option to purchase
the Sale Assets pursuant to Section 5.2(a);



               (vi) the Partnership Entities shall execute, have acknowledged and deliver to Holly a special
warranty deed, assignment of easement, or comparable document, as appropriate, in the applicable
jurisdiction, on the closing date for the purchase of the Sale Assets constituting real property
interests conveying the Sale Assets unto Holly free and clear of all encumbrances created by the
Partnership Entities other than those set forth in Section 5.2(b)(ii) above;



               (vii) the sale of any Sale Assets shall be made on an “as is,” “where is” and “with all
faults” basis, and the instruments conveying such Sale Assets shall contain appropriate
disclaimers; and



               (viii) neither the Partnership Entities nor Holly shall have any obligation to sell or buy the
Sale Assets if any of the material consents referred to in Section 5.1(c) have not been
obtained or such sale or purchase is prohibited by Applicable Law.



19









 





          (c) Holly and the Partnership Entities shall cooperate in good faith in obtaining all
necessary governmental and other third Person approvals, waivers and consents required for the
closing. Any such closing shall be delayed, to the extent required, until the third Business Day
following the expiration of any required waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended; provided, however, that such delay shall not
exceed 120 days and, if governmental approvals and waiting periods shall not have been obtained or
expired, as the case may be, by such 120th day, then Holly shall be deemed to have waived its right
of first refusal with respect to the Sale Assets described in the Disposition Notice and thereafter
neither Holly nor the Partnership shall have any further obligation under this Article V
with respect to such Sale Assets unless such Sale Assets again become subject to this Article
V pursuant to Section 5.2(d).




          (d) If the Transfer to the Proposed Transferee is not consummated in accordance with the terms
of the Acquisition Proposal within the later of (A) 180 days after the later of the applicable ROFR
Acceptance Deadline, and (B) 10 days after the satisfaction of all governmental approval or filing
requirements, if any, the Acquisition Proposal shall be deemed to lapse, and the Partnership or
Partnership Entity may not Transfer any of the Sale Assets described in the Disposition Notice
without complying again with the provisions of this Article V if and to the extent then
applicable.




ARTICLE VI

Holly Purchase Option




     6.1 Option to Purchase Tulsa Transferred Assets. The Parties acknowledge the purchase options
and right of first refusal granted to an Affiliate of Holly with respect to the Tulsa Transferred
Assets in the Purchase Option Agreement.



ARTICLE VII

Miscellaneous




     7.1 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.



     7.2 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 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 and the Commercial Arbitration Rules or the Federal
Arbitration Act, the terms of this Section 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 30 days after
receipt of Claimant’s notice, identifying the arbitrator Respondent has appointed.



20









 




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 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 the Holly Entities,
the Partnership Entities or any of their affiliates and (ii) have not less than seven years
experience in the energy industry. The hearing will be conducted in Dallas, Texas and commence
within 30 days after the selection of the third arbitrator. The Holly Entities, the Partnership
Entities 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 the Holly Entities, the Partnership Entities or their Affiliates to the
extent that the issues raised in such disputes are related. Without the written consent of Holly,
on behalf of the Holly Entities, and the Partnership, on behalf of the Partnership Entities, no
unrelated disputes or third party disputes may be joined to an arbitration pursuant to this
Agreement.




     7.3 Notice.



          (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.




          Notices to the Holly Entities:



Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: President

Email address: president@hollycorp.com




21









 







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



Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: General Counsel

Email address: generalcounsel@hollycorp.com




          Notices to the Partnership Entities:



Holly Energy Partners, L.P.

c/o Holly Logistic Services, L.L.C.

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: Senior Vice President

Email address: SVP-HEP@hollyenergy.com



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



Holly Energy Partners, L.P.

c/o Holly Logistic Services, L.L.C.

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: General Counsel

Email address: generalcounsel@hollycorp.com




          (b) Either Party may at any time change its address for service from time to time by giving
notice to the other Party in accordance with this Section 7.3.




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



     7.5 Termination of Article II. The provisions of Article II of this Agreement may be
terminated by Holly upon a Change of Control of Holly.



     7.6 Amendment or Modification. No amendment or modification of this Agreement shall be valid
unless it is in writing and signed by the parties hereto. No waiver of any provision of this
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 hereto if each of Holly (on behalf of the Holly
Entities) and the Partnership (on behalf of the Partnership Entities) execute an amended, modified,
revised or updated exhibit or schedule, as applicable, and attach it to this Agreement. Such
amended, modified, revised or updated exhibits or schedules shall be sequentially numbered (e.g.
Exhibit A-1, Exhibit A-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



22









 




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.




     7.7 Assignment. No Party shall have the right to assign any of its rights or obligations
under this Agreement without the consent of the other Parties hereto.



     7.8 Additional Partnership Entities. In the event the General Partner desires a Partnership
Group Member who is not a party to this Agreement to acquire Subject Assets or a Partnership Entity
wishes to Transfer any of the Assets that serve the Holly Entities’ refineries to a Partnership
Group Member who is not a party to this Agreement, then the Partnership Group Member that is the
proposed acquiror of the Subject Assets or transferee of the Assets that serve the Holly Entities’
refineries may become a party to this Agreement by executing a joinder in a form reasonably
satisfactory to Holly (on behalf of the Holly Entities) and the Partnership (on behalf of the
Partnership Entities).



     7.9 Counterparts. This Agreement may be executed in any number of counterparts with the same
effect as if all signatory parties had signed the same document. All counterparts shall be
construed together and shall constitute one and the same instrument.



     7.10 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.



     7.11 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.



     7.12 Rights of Limited Partners. The provisions of this Agreement are enforceable solely by
the Parties to this Agreement, 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 this Agreement to comply with the terms of this Agreement.



     7.13 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.



     7.14 UNEV Option Agreement. The Parties acknowledge and agree that, notwithstanding anything
in this Agreement to the contrary, the terms and provisions of the Option Agreement, dated January
31, 2008, among Holly, Holly UNEV Pipeline Company, Navajo Pipeline, Holly GP, the General Partner,
the Partnership, OLP GP and the Operating Partnership remain in full force and effect.



     7.15 Limitation of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER
PROVISION OF THIS AGREEMENT AND



23









 




EXCEPT FOR CLAIMS MADE BY THIRD PARTIES WHICH SHALL NOT BE LIMITED BY THIS SECTION, THE
PARTIES AGREE THAT THE RECOVERY BY ANY PARTY, INCLUDING PURSUANT TO ARTICLE III, OF ANY
LIABILITIES, DAMAGES, COSTS OR OTHER EXPENSES SUFFERED OR INCURRED BY IT (i) AS A RESULT OF ANY
BREACH OR NONFULFILLMENT BY A PARTY OF ANY OF ITS COVENANTS, AGREEMENTS OR OTHER OBLIGATIONS UNDER
THIS AGREEMENT OR (ii) BY REASON OF OR ARISING OUT OF ANY OF THE EVENTS, CONDITIONS OR OTHER
MATTERS LISTED IN SECTIONS 3.1, 3.3 OR 3.4 WHICH THE PARTIES HAVE AGREED TO
INDEMNIFY THE OTHER PARTY AGAINST, 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 TO A
PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY UNDER SECTIONS 3.1, 3.3 OR
3.4 HEREOF, AS APPLICABLE, (y) AS A RESULT OF A THIRD PARTY CLAIM FOR SUCH INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES AGAINST SUCH INDEMNIFIED PARTY OR (z) INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES THAT ARE A RESULT OF SUCH INDEMNIFYING PARTY’S OR ITS
AFFILIATES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ON
ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OR BUSINESS INTERRUPTION OR DIMINUTION IN VALUE). FOR
PURPOSES OF THIS SECTION 7.15, “AFFILIATES” OF THE INDEMNIFYING PARTY SHALL NOT INCLUDE THE
PARTNERSHIP GROUP MEMBERS WHEN A HOLLY ENTITY IS THE INDEMNIFYING PARTY AND SHALL NOT INCLUDE THE
HOLLY GROUP MEMBERS WHEN THE INDEMNIFYING PARTY IS A PARTNERSHIP ENTITY.




[Remainder of Page Intentionally Left Blank.]




24









 










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



	 	 	 	 	 
	 	HOLLY ENTITIES:




HOLLY CORPORATION

 	 
	 	By:  	/s/ Matthew P. Clifton
 	 
	 	 	Matthew P. Clifton 	 
	 	 	Chief Executive Officer 	 
	 
	 	HOLLY REFINING & MARKETING COMPANY — WOODS CROSS
(formerly Holly Refining & Marketing Company)

 	 
	 	By:  	/s/ Matthew P. Clifton
 	 
	 	 	Matthew P. Clifton 	 
	 	 	Chief Executive Officer 	 
	 
	 	LOREFCO, INC.

 	 
	 	By:  	/s/ Matthew P. Clifton
 	 
	 	 	Matthew P. Clifton 	 
	 	 	President 	 
	 
	 	NAVAJO REFINING COMPANY, L.L.C.

(formerly Navajo Refining Company, L.P.)

 	 
	 	By:  	/s/ Matthew P. Clifton
 	 
	 	 	Matthew P. Clifton 	 
	 	 	President 	 
	 



[Signature
Page 1 of 4 to Second Amended and Restated Omnibus Agreement]




 









 








	 	 	 	 	 
	 	NAVAJO PIPELINE CO., L.P.

 	 
	 	By:  	/s/ Matthew P. Clifton
 	 
	 	 	Matthew P. Clifton 	 
	 	 	President 	 
	 
	 	WOODS CROSS REFINING COMPANY, L.L.C.

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



HOLLY ENERGY PARTNERS, L.P.

 	 
	 	By:  	HEP Logistics Holdings, L.P.
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	                        /s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HOLLY ENERGY PARTNERS — OPERATING, L.P.

 	 
	 	By:  	/s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HOLLY LOGISTIC SERVICES, L.L.C.

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



[Signature
Page 2 of 4 to Second Amended and Restated Omnibus Agreement]




 









 








	 	 	 	 	 
	 	HEP LOGISTICS HOLDINGS, L.P.

 	 
	 	By:  	/s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HEP LOGISTICS GP, L.L.C.

HEP MOUNTAIN HOME, L.L.C.

HEP PIPELINE GP, L.L.C.

HEP PIPELINE, L.L.C.

HEP REFINING GP, L.L.C.

HEP REFINING, L.L.C.

HEP WOODS CROSS, L.L.C.

LOVINGTON-ARTESIA, L.L.C.

 	 
	 	By:  	HOLLY ENERGY PARTNERS — OPERATING, L.P.
 	 
	 	 	Sole Member 	 
	 	 	 
	 	By:  	                         /s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HEP NAVAJO SOUTHERN, L.P.

 	 
	 	By:  	/s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 
	 	HEP REFINING ASSETS, L.P.

 	 
	 	By:  	HEP Refining GP, L.L.C.
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	                         /s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 



[Signature Page 3 of 4 to Second Amended and Restated Omnibus Agreement]





 









 








	 	 	 	 	 
	 	HEP PIPELINE ASSETS, LIMITED PARTNERSHIP

 	 
	 	By:  	HEP Pipeline GP, L.L.C.
 	 
	 	 	Its General Partner 	 
	 	 	 
	 	By:  	                /s/ David G. Blair
 	 
	 	 	David G. Blair 	 
	 	 	Senior Vice President 	 
	 



[Signature Page 4 of 4 to Second Amended and Restated Omnibus Agreement]




28









 








SCHEDULE I




Administrative Fee




	 	 	 	 	 
	 	 	Amount of Annual Administrative Fee
	Years beginning July 13, 2004 through
June 30, 2007
	 	$	2,000,000	 
	Years beginning July 1, 2007 through
February 29, 2008
	 	$	2,100,000	 
	Years beginning March 1, 2008
	 	$	2,300,000	 






General and Administrative Services





	 	(1)	 	executive services
	 
	 	(2)	 	finance, including treasury, and administration services
	 
	 	(3)	 	information technology services
	 
	 	(4)	 	legal services
	 
	 	(5)	 	health, safety and environmental services
	 
	 	(6)	 	human resources services






Schedule I-1