Exhibit 10.28






Exhibit 10.28




AMENDMENT TO

TULSA EQUIPMENT AND THROUGHPUT AGREEMENT




This Amendment to Tulsa Equipment and Throughput Agreement is being entered into on December
9, 2010 (this “Amendment”), by and between Holly Refining & Marketing -Tulsa LLC, a
Delaware corporation (“Tulsa Refining”), and HEP Tulsa LLC, a Delaware limited liability
company (“HEP Tulsa”), and is an amendment to the Tulsa Equipment and Throughput Agreement
by and between such parties dated August 1, 2009 (the “Original Throughput Agreement”).
Holly Corporation, a Delaware corporation (“Holly”), as well as Holly Energy Partners,
L.P., a Delaware limited partnership (“HEP”), are also executing this Amendment for the
sole purpose of acknowledging and agreeing to the Amendment as guarantors under the Original
Throughput Agreement, as amended hereby. Capitalized terms used herein but not otherwise defined
herein shall have the meanings given to them in the Original Throughput Agreement.



RECITALS:




WHEREAS, the parties to this Amendment desire to amend the Original Throughput Agreement to
add Holly as a guarantor of the Tulsa Refining Payment Obligations (as defined below).



NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties to this Amendment hereby agree as follows:



1. The Original Throughput Agreement is hereby amended by replacing each and every reference
in the Original Throughput Agreement to “Holly Corporation” with a reference to “Holly”.



2. Section 1 of the Original Throughput Agreement is hereby amended by adding the following
definitions:




“Holly” means Holly Corporation, a Delaware corporation.




“Tulsa Refining Payment Obligations” has the meaning set
forth in Section l5(a).



3. The Original Throughput Agreement is hereby amended by adding a new Section 15 immediately
following Section 14 to read in its entirety as follows:




“Section 15. Guarantee bv Holly




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


 


 









 






(b) Guaranty Absolute. Holly hereby guarantees that the Tulsa Refining
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;




(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 of partial payment or performance from Tulsa
Refining;




(iv) any bankruptcy, insolvency, reorganization, arrangement, composition,
adjustment, dissolution, liquidation or other like proceeding relating to Tulsa
Refining 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, recoupment or termination whatsoever by reason of
the invalidity, illegality or unenforceability of the Tulsa Refining 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 Tulsa Refining Payment Obligations and any requirement for HEP 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 Tulsa Refining, 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 Tulsa Refining, Holly
shall not have any rights (direct or indirect) of subrogation, contribution,
reimbursement, indemnification or other rights of payment or recovery from Tulsa
Refining for any payments made by Holly under this Section 15, 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 Tulsa Refining
during any period of default or breach of this Agreement by Tulsa Refining until
such time as there is no current or ongoing default or breach of this Agreement by
Tulsa Refining.




(e) Reinstatement. The obligations of Holly 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 Tulsa Refining Payment Obligations is
rescinded or must otherwise be returned to Tulsa Refining or any other entity, upon
the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation or
reorganization of Tulsa Refining 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 foil force and effect until the first to occur of
the indefeasible payment in foil of all of the Tulsa Refining Payment Obligations,
(ii) be binding upon Holly, its successors and assigns and (iii) inure to the
benefit of and be enforceable by HEP Tulsa and its successors, transferees and
assigns.




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



4. Except as amended hereby, all of the terms and conditions of the Original Throughput
Agreement shall remain in foil force and effect. The “Miscellaneous” provisions set forth in
Sections 13(b), 13(c), 13(d), 13(e), 13(g) and
13(h) of the Original Throughput Agreement are hereby incorporated herein by reference.



[Remainder of Page Intentionally Left Blank]



 


 









 





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



	 	 	 	 	 
	 	HOLLY REFINING & MARKETING

— TULSA LLC

 	 
	 	By:  	/s/ David L. Lamp
 	 
	 	 	Name:  	David L. Lamp 	 
	 	 	Title:  	President 	 
	 
	 	HEP TULSA LLC

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



ACKNOWLEDGED AND AGREED:




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
 

Name: David G. Blair
	 	 
	 

	 	Title:   President	 	 
	 
	 	 	 	 
	HOLLY CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/ David L. Lamp	 	 
	 

	 	 	 
	 

	 	Name: David L. Lamp	 	 
	 

	 	Title:   President	 	 






Signature Page to

Amendment to Tulsa Equipment and Throughput Agreement