UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): October 21, 2015 (October 16, 2015)
HOLLYFRONTIER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 001-03876 | 75-1056913 | ||
(State of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
2828 N. Harwood, Suite 1300, Dallas, Texas 75201
(Address of Principal Executive Offices)
(214) 871-3555
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement |
Assignment and Assumption Agreement
On October 16, 2015, HollyFrontier Refining & Marketing LLC ( HFRM ), Navajo Refining Company, L.L.C. ( Navajo ), Holly Refining & Marketing Tulsa LLC ( Holly Tulsa ), Frontier Refining LLC ( Frontier Refining ), and Frontier El Dorado Refining LLC ( FEDR ), each of which are wholly owned subsidiaries of HollyFrontier Corporation ( HollyFrontier ), entered into an Assignment and Assumption of Agreements (the Assignment ), to be effective as of January 1, 2015. Pursuant to the Assignment, (a) Navajo assigned to HFRM its respective right, title and interest in, to and under that certain Loading Rack Throughput Agreement (Lovington), dated as of March 31, 2010, (b) Holly Tulsa assigned to HFRM its respective right, title and interest in, to and under that certain Second Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East), dated as of August 31, 2011, (c) Frontier Refining assigned to HFRM its respective right, title and interest in, to and under that certain First Amended and Restated Tankage, Loading Rack and Crude Oil Receiving Throughput Agreement (Cheyenne), dated as of January 11, 2012, and (d) FEDR assigned to HFRM its respective right, title and interest in, to and under that certain Second Amended and Restated Pipeline Delivery, Tankage and Loading Rack Throughput Agreement (El Dorado), dated as of January 7, 2014.
The description of the Assignment herein is qualified by reference to the copy of the Assignment, filed as Exhibit 10.1 to this report, which is incorporated by reference into this report in its entirety.
Master Throughput Agreement
On October 16, 2015, HFRM and Holly Energy Partners-Operating, L.P. ( HEP Operating ), a wholly owned subsidiary of Holly Energy Partners, L.P. (the Partnership ), entered into a Master Throughput Agreement (the Master Throughput Agreement ), to be effective January 1, 2015. HollyFrontier controls the general partner of the Partnership.
The Master Throughput Agreement amends and restates several prior throughput agreements between HFRM and HEP Operating or their affiliates (the Prior Throughput Agreements ) in order to consolidate the Prior Throughput Agreements. The Master Throughput Agreement also contains immaterial changes to the terms of the Prior Throughput Agreements.
El Dorado Crude Tank Storage Arrangement
In addition, pursuant to the Master Throughput Agreement, HEP Operating has agreed to make available to HFRM on an exclusive basis at least 140,000 barrels per day ( bpd ) capacity in nine crude tanks (the HFRM Tanks ) at its subsidiarys El Dorado, Kansas crude tank farm (the El Dorado Crude Tank Storage Arrangement ). HFRM will pay HEP Operating a tariff of $0.091 for each barrel of crude oil received by pipeline at the tankage up to 140,000 bpd and $0.01 for each barrel in excess of such amount, with a guaranteed minimum commitment of 140,000 bpd. The tariffs are subject to adjustment, including an adjustment equal to changes in the Producers Price Index-Commodities-Finished Goods ( PPI-FG ), produced by the U.S. Department of Labor, Bureaus of Labor Statistics; provided, that the PPI-FG adjustment may not be less than 1% in any given year and the PPI-FG adjustment may not exceed 3% in any given year.
The El Dorado Crude Tank Storage Arrangement has a term of 10 years from March 6, 2015 to March 6, 2025. HFRM has a right of first refusal to any available working capacity in the HFRM Tanks and the tanks leased to Jayhawk Pipeline, L.L.C. ( Jayhawk ) following the expiration of Jayhawks lease of the tanks. In the event that Jayhawks lease expires or is otherwise terminated or cancelled for any reason and the tanks leased to Jayhawk are not leased within a reasonable time to a third party, HEP Operating agrees to make the working capacity of such tanks available for HFRMs exclusive use, and HFRM agrees to increase the minimum throughput commitment by an amount equal to the monthly storage fee that Jayhawk paid to HEP Operating during the last 12 months of Jayhawks lease, divided by the working capacity of the tankage lease to Jayhawk, and the minimum working capacity for the El Dorado Crude Tank Storage Arrangement shall be increased by an amount equal to two-thirds (2/3) of the working capacity of such tankage.
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HollyFrontier will guarantee the obligations of HFRM under the El Dorado Crude Tank Storage Arrangement, and the Partnership will guarantee the obligations of the Operating Partnership.
El Dorado and Cheyenne New Tanks
In addition, the Master Throughput Agreement covers new storage tank assets constructed at the El Dorado refinery in El Dorado, Kansas and at the Cheyenne refinery in Cheyenne, Wyoming (collectively, the New Tanks ) and provides for the construction of additional new storage tank assets at both locations. The Master Throughput Agreement amends the base tariff applicable to tankage throughput such that, subject to certain adjustments, HFRM will pay HEP Operating a tankage base tariff (per barrel) for the use of tankage up to 154,000 bpd (at the El Dorado refinery) and 45,100 bpd (at the Cheyenne refinery) of refined products, liquid petroleum gases, intermediate products and heavy products equal to the current tankage base tariff per barrel plus an additional per barrel amount based on the final construction costs of the new storage tank assets. No amendments were made to the tankage incentive tariff or the guaranteed minimum throughput for the El Dorado refinery or the Cheyenne refinery. Furthermore, no amendments were made to the receiving assets tariffs, pipeline delivery tariffs or the loading rack tariffs, as applicable, for the El Dorado refinery or the Cheyenne refinery.
The description of the Master Throughput Agreement herein is qualified by reference to the copy of the Master Throughput Agreement, filed as Exhibit 10.2 to this report, which is incorporated by reference into this report in its entirety.
Construction Payment Agreement
On October 16, 2015, HEP Refining, L.L.C. ( HEP Refining ), a wholly owned subsidiary of the Partnership, and HFRM, entered into a Construction Payment Agreement (the Construction Agreement ), to be effective as of November 1, 2014.
Pursuant to the Construction Agreement, HEP Refining has constructed a railroad track siding consisting of approximately 8,300 track feet of siding (rail storage), two mainline switches and three industry switches (the Track ) on land situated at or near the railway station of Artesia, County of Eddy, New Mexico. HEP Refining has agreed to lease the Track to HFRM, and HFRM has agreed to reimburse HEP Refining for costs incurred by HEP Refining in constructing the Track.
The description of the Construction Agreement herein is qualified by reference to the copy of the Construction Agreement, filed as Exhibit 10.3 to this report, which is incorporated by reference into this report in its entirety.
Twelfth Amended and Restated Omnibus Agreement
On October 16, 2015, HollyFrontier and the Partnership and certain of their respective subsidiaries entered into a Twelfth Amended and Restated Omnibus Agreement (the Twelfth Amended Omnibus Agreement ), to be effective as of January 1, 2015. The Twelfth Amended Omnibus Agreement amends and restates the Eleventh Amended and Restated Omnibus Agreement, dated as of March 12, 2015 ( Eleventh Amended Omnibus Agreement ), which was previously filed as an exhibit to HollyFrontiers Current Report on Form 8-K dated March 16, 2015, to, among other things, subject the HFRM Tanks, the New Tanks and the Track to HollyFrontiers right of first refusal to purchase the Partnerships assets that serve HollyFrontiers refineries. In addition, the Twelfth Amended Omnibus Agreement includes a waiver of subrogation by the Partnership for property loss claims and clarifies that indemnity obligations between HollyFrontier and its subsidiaries, on the one hand, and the Partnership and its subsidiaries, on the other hand, are based on each partys respective acts and omissions that gave rise to the claim. The Twelfth Amended Omnibus Agreement also contains immaterial changes to the terms of the Eleventh Amended Omnibus Agreement. The Eleventh Amended Omnibus Agreement remains in full force and effect with respect to any event, act or omission occurring before January 1, 2015.
The description of the Twelfth Amended Omnibus Agreement herein is qualified by reference to the copy of the Twelfth Amended Omnibus Agreement, filed as Exhibit 10.4 to this report, which is incorporated by reference into this report in its entirety.
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Secondment Agreement
On October 16, 2015, Holly Logistic Services, L.L.C. ( Holly GP ), the general partner of the general partner of the Partnership, HEP Operating, Cheyenne Logistics LLC ( Cheyenne Logistics ), a wholly owned subsidiary of the Partnership, El Dorado Logistics LLC ( El Dorado Logistics and, together with Holly GP, HEP Operating and Cheyenne Logistics, the Partnership Group ), a wholly owned subsidiary of the Partnership, Frontier Refining, FEDR, HollyFrontier Payroll Services, Inc. ( HPS and, together with Frontier Refining and FEDR, the HollyFrontier Group ), a wholly owned subsidiary of HollyFrontier, entered into a Services and Secondment Agreement (the Services and Secondment Agreement ), to be effective as of January 1, 2015. Pursuant to the Services and Secondment Agreement, the HollyFrontier Group will second certain of its employees to the Partnership Group for the purposes of performing operational, maintenance and management activities with respect to certain of the Partnership Groups terminalling, transportation and storage assets at the El Dorado refinery in El Dorado, Kansas and the Cheyenne refinery in Cheyenne, Wyoming. During their period of secondment, the seconded employees will be under the management and supervision of the Partnership Group.
The Partnership Group will reimburse the applicable HollyFrontier Group member for all necessary and reasonable costs and expenses incurred by such HollyFrontier Group member with respect to the seconded employees, including their wages and benefits, based on either the percentage of time such seconded employee provides services to the Partnership Group or (b) time such seconded employee actually spends providing services to the Partnership Group.
The Services and Secondment Agreement continues until the earlier of (a) the mutual agreement of the parties thereto to terminate the Services and Secondment Agreement or (b) the termination of the then-current Omnibus Agreement. In addition, the applicable parties may terminate specific services provided under the Services and Secondment Agreement in the event the throughput arrangement related to the assets for which such services are performed or provided is terminated in accordance with its terms. Furthermore, the parties may terminate the agreement in certain circumstances related to default by the other party, bankruptcy of the other party, or a change in control of the Partnership Group, as further described in the Services and Secondment Agreement.
The description of the Services and Secondment Agreement herein is qualified by reference to the copy of the Services and Secondment Agreement, filed as Exhibit 10.5 to this report, which is incorporated by reference into this report in its entirety.
Master Lease and Access Agreement
On October 16, 2015, FEDR, Frontier Refining, Holly Tulsa, Holly Refining & Marketing Company Woods Cross LLC, a wholly owned subsidiary of HollyFrontier, Navajo, El Dorado Logistics, Cheyenne Logistics, HEP Tulsa LLC, a wholly owned subsidiary of the Partnership, HEP Woods Cross, L.L.C., a wholly owned subsidiary of the Partnership, and HEP Pipeline, L.L.C., a wholly owned subsidiary of the Partnership, entered into a Master Lease and Access Agreement (the Master Lease and Access Agreement ), to be effective as of January 1, 2015.
The Master Lease and Access Agreement amends and restates several prior lease and access agreements between a HollyFrontier subsidiary, on the one hand, and a Partnership subsidiary on the other hand (the Prior Lease and Access Agreements ) in order to consolidate the Prior Lease and Access Agreements. The Master Lease and Access Agreement also contains immaterial changes to the terms of the Prior Lease and Access Agreements.
The description of the Master Lease and Access Agreement herein is qualified by reference to the copy of the Master Lease and Access Agreement, filed as Exhibit 10.6 to this report, which is incorporated by reference into this report in its entirety.
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Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits |
Exhibit
|
Description |
|
10.1 | Assignment and Assumption of Agreements dated as of October 16, 2015 by and between HollyFrontier Refining & Marketing LLC, Navajo Refining Company, L.L.C., Holly Refining & Marketing Tulsa LLC, Frontier Refining LLC and Frontier El Dorado Refining LLC | |
10.2 | Master Throughput Agreement dated as of October 16, 2015 by and between HollyFrontier Refining & Marketing LLC and Holly Energy Partners-Operating L.P. | |
10.3 | Construction Payment Agreement dated as of October 16, 2015 by and between HEP Refining, L.L.C. and HollyFrontier Refining & Marketing LLC | |
10.4 | Twelfth Amended and Restated Omnibus Agreement dated October 16, 2015 by and among HollyFrontier Corporation, Holly Energy Partners, L.P. and certain of their respective subsidiaries | |
10.5 | Services and Secondment Agreement dated as of October 16, 2015 by and among Holly Logistic Services, L.L.C., Holly Energy Partners-Operating L.P., Cheyenne Logistics LLC, El Dorado Logistics LLC, HollyFrontier Payroll Services, Inc., Frontier Refining LLC and Frontier El Dorado Refining LLC | |
10.6 | Master Lease and Access Agreement dated as of October 16, 2015 by and among Frontier El Dorado Refining LLC, Frontier Refining LLC, Holly Refining & Marketing Tulsa LLC, Holly Refining & Marketing Company Woods Cross LLC, Navajo Refining Company, L.L.C., El Dorado Logistics LLC, Cheyenne Logistics LLC, HEP Tulsa LLC, HEP Woods Cross, L.L.C. and HEP Pipeline, L.L.C. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
HOLLYFRONTIER CORPORATION | ||
By: |
/s/ Douglas S. Aron |
|
Name: | Douglas S. Aron | |
Title: | Executive Vice President and Chief Financial Officer |
Date: October 21, 2015
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EXHIBIT INDEX
Exhibit No. |
Description |
|
10.1 | Assignment and Assumption of Agreements dated as of October 16, 2015 by and between HollyFrontier Refining & Marketing LLC, Navajo Refining Company, L.L.C., Holly Refining & Marketing Tulsa LLC, Frontier Refining LLC and Frontier El Dorado Refining LLC | |
10.2 | Master Throughput Agreement dated as of October 16, 2015 by and between HollyFrontier Refining & Marketing LLC and Holly Energy Partners-Operating L.P. | |
10.3 | Construction Payment Agreement dated as of October 16, 2015 by and between HEP Refining, L.L.C. and HollyFrontier Refining & Marketing LLC | |
10.4 | Twelfth Amended and Restated Omnibus Agreement dated October 16, 2015 by and among HollyFrontier Corporation, Holly Energy Partners, L.P. and certain of their respective subsidiaries | |
10.5 | Services and Secondment Agreement dated as of October 16, 2015 by and among Holly Logistic Services, L.L.C., Holly Energy Partners-Operating L.P., Cheyenne Logistics LLC, El Dorado Logistics LLC, HollyFrontier Payroll Services, Inc., Frontier Refining LLC and Frontier El Dorado Refining LLC | |
10.6 | Master Lease and Access Agreement dated as of October 16, 2015 by and among Frontier El Dorado Refining LLC, Frontier Refining LLC, Holly Refining & Marketing Tulsa LLC, Holly Refining & Marketing Company Woods Cross LLC, Navajo Refining Company, L.L.C., El Dorado Logistics LLC, Cheyenne Logistics LLC, HEP Tulsa LLC, HEP Woods Cross, L.L.C. and HEP Pipeline, L.L.C. |
7
Exhibit 10.1
EXECUTION VERSION
ASSIGNMENT AND ASSUMPTION OF THROUGHPUT AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF THROUGHPUT AGREEMENTS (this Assignment ) is made and entered into on this 16th day of October, 2015 to be effective as of 12:01 a.m. Central Time on January 1, 2015 (the Effective Time ), by and among HOLLYFRONTIER REFINING & MARKETING LLC, a Delaware limited liability company ( Assignee ), on the one hand, and NAVAJO REFINING COMPANY, L.L.C., a Delaware limited liability company ( Navajo ), HOLLY REFINING & MARKETING TULSA LLC, a Delaware limited liability company ( HRM-Tulsa ) FRONTIER REFINING LLC, a Delaware limited liability company ( Frontier Refining ), and FRONTIER EL DORADO REFINING LLC, a Delaware limited liability company ( Frontier El Dorado ; with Navajo, HRM-Tulsa and Frontier Refining, collectively, the Assignors ), on the other hand, with reference to the following facts:
Recitals:
A. In connection with that certain Loading Rack Throughput Agreement (Lovington), dated as of March 31, 2010 (the Lovington Agreement ), between Navajo and HEP Operating (as successor in interest to Holly Energy Storage-Lovington LLC), HEP Operating agreed, among other things, to provide certain loading services for Navajo with respect to a certain Loading Rack, as defined therein.
B. In connection with that Second Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East), dated as of August 31, 2011 (the Tulsa East Agreement ), between HRM-Tulsa and HEP Operating (as successor in interest to HEP Tulsa LLC), HEP Operating agreed, among other things, to provide certain transportation, storage and loading services to HRM-Tulsa with respect to certain Group 1 Assets, Group 2 Assets and Interconnecting Pipelines, as defined therein.
C. In connection with that certain First Amended and Restated Tankage, Loading Rack and Crude Oil Receiving Throughput Agreement (Cheyenne), dated as of January 11, 2012 (the Cheyenne Agreement ) between Frontier Refining and HEP Operating (as successor in interest to Cheyenne Logistics LLC), HEP Operating agreed, among other things, to provide certain storage and loading services to Frontier Refining with respect to the Cheyenne Assets, as defined therein.
D. In connection with that certain Second Amended and Restated Pipeline Delivery, Tankage and Loading Rack Throughput Agreement (El Dorado), dated as of January 7, 2014 (the El Dorado Agreement ) between Frontier El Dorado and HEP Operating (as successor in interest to El Dorado Logistics LLC), HEP Operating agreed, among other things, to provide certain transportation, storage and loading services to Frontier El Dorado with respect to the El Dorado Assets, as defined therein.
E. As used herein, the term Agreements means the Lovington Agreement, Tulsa East Agreement, Cheyenne Agreement and the El Dorado Agreement.
F. Each of the Assignors desire to assign to Assignee, as of the Effective Time, all of their respective right, title and interest in, to and under the Agreements, and Assignee desires to receive from Assignors such assignment and to assume each and all of the obligations of Assignors under the Agreement to be performed following the Effective Time.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignors and Assignee hereby agree as follows:
1. Recitals . The Recitals set forth above are hereby incorporated herein and made a part of this Agreement by reference.
2. Assignment . Assignors hereby assign and transfer to Assignee all of their respective right, title and interest in, to and under the Agreements, effective as of the Effective Time.
3. Assumption . Assignee hereby accepts such assignment, and assumes and agrees to be solely responsible for the payment, performance and discharge when due of all liabilities and obligations of Assignors arising under the Agreements from and after the Effective Time.
4. Guaranties by HollyFrontier . HollyFrontier Corporation ( HollyFrontier ) hereby acknowledges and agrees that for purposes of (a) Sections 8(b) and 12 of the Lovington Agreement, (b) Sections 9(b) and 14 of the Tulsa East Agreement, (c) Sections 9(d) and 14 of the Cheyenne Agreement, and (d) Sections 9(b) and 14 of the El Dorado Agreement, HollyFrontiers obligations will continue after Effective Time, and following the Effective Time such guarantee shall apply to and include the obligations assigned hereunder to and assumed hereunder by Assignee.
5. Further Assurances . Each party hereto covenants and agrees that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each party hereto will execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.
6. Binding Effect . This Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
7. Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, without reference to the principles of conflicts of laws or any other principle that could result in the application of the laws of any other jurisdiction.
8. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
9. Captions . The captions section numbers in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
[Signatures to follow]
2
IN WITNESS WHEREOF, the foregoing parties have caused this Assignment to be executed by their duly authorized representatives to be effective as of the Effective Time.
ASSIGNORS : | ||||||||
N AVAJO R EFINING C OMPANY , L.L.C. | ||||||||
H OLLY R EFINING & M ARKETING - T ULSA LLC | ||||||||
F RONTIER R EFINING LLC | ||||||||
F RONTIER E L D ORADO R EFINING LLC | ||||||||
By: |
/s/ Michael C. Jennings |
|||||||
Name: | Michael C. Jennings | |||||||
Title: | Chief Executive Officer and President | |||||||
ASSIGNEE : | ||||||||
H OLLY F RONTIER R EFINING & M ARKETING LLC | ||||||||
By: |
/s/ George J. Damiris |
|||||||
Name: | George J. Damiris | |||||||
Its: | Executive Vice President and Chief Operating Officer | |||||||
ACKNOWLEDGED AND AGREED | ||||||||
FOR PURPOSES OF SECTION 4 : | ||||||||
H OLLY F RONTIER C ORPORATION | ||||||||
By: |
/s/ Michael C. Jennings |
|||||||
Name: | Michael C. Jennings | |||||||
Its: | Chief Executive Officer and President |
[ Signature Page to Assignment and Assumption Agreement ]
Exhibit 10.2
EXECUTION VERSION
MASTER THROUGHPUT AGREEMENT
(including Tankage and Loading Racks)
by and between
HOLLYFRONTIER REFINING & MARKETING LLC
and
HOLLY ENERGY PARTNERS-OPERATING, L.P.
Effective as of January 1, 2015
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS |
2 | |||||
1.1 |
D EFINITIONS | 2 | ||||
1.2 |
I NTERPRETATION | 2 | ||||
ARTICLE 2 AGREEMENT TO USE SERVICES | 2 | |||||
2.1 |
I NTENT | 2 | ||||
2.2 |
M INIMUM R EVENUE C OMMITMENTS | 2 | ||||
2.3 |
M EASUREMENT OF S HIPPED V OLUMES | 3 | ||||
2.4 |
V OLUMETRIC G AINS AND L OSSES ; L INE F ILL ; H IGH -API O IL S URCHARGE | 3 | ||||
2.5 |
O BLIGATIONS OF HEP O PERATING | 3 | ||||
2.6 |
D RAG R EDUCING A GENTS AND A DDITIVES | 4 | ||||
2.7 |
C HANGE IN THE D IRECTION ; P RODUCT S ERVICE OR O RIGINATION AND D ESTINATION OF THE P IPELINE S YSTEM | 4 | ||||
2.8 |
N OTIFICATION OF U TILIZATION | 5 | ||||
2.9 |
S CHEDULING AND A CCEPTING M OVEMENT | 5 | ||||
2.10 |
T AXES | 5 | ||||
2.11 |
T IMING OF P AYMENTS | 5 | ||||
2.12 |
I NCREASES IN T ARIFF R ATES | 5 | ||||
2.13 |
R EMOVAL OF T ANK FROM S ERVICE | 5 | ||||
2.14 |
N O G UARANTEED M INIMUM | 5 | ||||
ARTICLE 3 AGREEMENT TO REMAIN SHIPPER | 6 | |||||
ARTICLE 4 NOTIFICATION OF REFINERY SHUT-DOWN OR RECONFIGURATION | 6 | |||||
ARTICLE 5 FORCE MAJEURE | 6 | |||||
ARTICLE 6 AGREEMENT NOT TO CHALLENGE PIPELINE TARIFFS | 6 | |||||
ARTICLE 7 EFFECTIVENESS AND TERM | 7 | |||||
ARTICLE 8 RIGHT TO ENTER INTO A NEW AGREEMENT | 7 | |||||
8.1 |
N EGOTIATION P URSUANT TO W RITTEN N OTICE | 7 | ||||
8.2 |
N EGOTIATION IN THE A BSENCE OF W RITTEN N OTICE | 8 | ||||
ARTICLE 9 NOTICES | 8 | |||||
ARTICLE 10 DEFICIENCY PAYMENTS | 8 | |||||
10.1 |
D EFICIENCY N OTICE ; D EFICIENCY P AYMENTS | 8 | ||||
10.2 |
D ISPUTED D EFICIENCY N OTICES | 8 | ||||
10.3 |
P AYMENT OF A MOUNTS N O L ONGER D ISPUTED | 9 | ||||
10.4 |
C ONTRACT Q UARTERS I NDEPENDENT | 9 | ||||
ARTICLE 11 RIGHT OF FIRST REFUSAL | 9 | |||||
ARTICLE 12 INDEMNITY; LIMITATION OF DAMAGES | 9 | |||||
12.1 |
I NDEMNITY ; L IMITATION OF L IABILITY | 9 | ||||
12.2 |
S URVIVAL | 9 | ||||
ARTICLE 13 MISCELLANEOUS | 9 | |||||
13.1 |
A MENDMENTS AND W AIVERS | 9 |
i
13.2 |
S UCCESSORS AND A SSIGNS | 10 | ||||
13.3 |
S EVERABILITY | 10 | ||||
13.4 |
C HOICE OF L AW | 10 | ||||
13.5 |
R IGHTS OF L IMITED P ARTNERS | 10 | ||||
13.6 |
F URTHER A SSURANCES | 10 | ||||
13.7 |
H EADINGS | 10 | ||||
ARTICLE 14 GUARANTEE BY HOLLYFRONTIER |
11 | |||||
14.1 |
P AYMENT G UARANTY | 11 | ||||
14.2 |
G UARANTY A BSOLUTE | 11 | ||||
14.3 |
W AIVER | 11 | ||||
14.4 |
S UBROGATION W AIVER | 11 | ||||
14.5 |
R EINSTATEMENT | 12 | ||||
14.6 |
C ONTINUING G UARANTY | 12 | ||||
14.7 |
N O D UTY TO P URSUE O THERS | 12 | ||||
ARTICLE 15 GUARANTEE BY THE PARTNERSHIP |
12 | |||||
15.1 |
P AYMENT AND P ERFORMANCE G UARANTY | 12 | ||||
15.2 |
G UARANTY A BSOLUTE | 12 | ||||
15.3 |
W AIVER | 13 | ||||
15.4 |
S UBROGATION W AIVER | 13 | ||||
15.5 |
R EINSTATEMENT | 13 | ||||
15.6 |
C ONTINUING G UARANTY | 13 | ||||
15.7 |
N O D UTY TO P URSUE O THERS | 14 |
EXHIBITS
Exhibit A | | Definitions | ||
Exhibit B | | Interpretation | ||
Exhibit C | | Applicable Assets, Product, Minimum Capacity Commitment, Tariffs, Tariff | ||
Adjustments and Applicable Terms | ||||
Exhibit D | | Measurement of Shipped Volumes | ||
Exhibit E | - | Volumetric Gains and Losses; Line Fill; High-API Oil Surcharge | ||
Exhibit F | - | Increases in Tariff Rates as a Result of Changes in Applicable Law | ||
Exhibit G | - | Special Provisions: Malaga Pipeline System | ||
Exhibit G-1 | - | Map of Pipeline System and Pipeline System Capacity by Segment | ||
Exhibit G-2 | | Construction Projects | ||
Exhibit G-3 | | Devon Lease Connections | ||
Exhibit H | | Special Provisions: El Dorado Assets | ||
Exhibit H-1 | - | El Dorado Loading Rack | ||
Exhibit H-2 | | El Dorado Tankage | ||
Exhibit H-3 | | Specifications for New Tank | ||
Exhibit I | - | Special Provisions: Cheyenne Assets | ||
Exhibit I-1 | - | Cheyenne Loading Rack | ||
Exhibit I-2 | - | Cheyenne Receiving Assets | ||
Exhibit I-3 | | Cheyenne Tankage | ||
Exhibit I-4 | | Specification for New Tanks | ||
Exhibit J | | Special Provisions: Tulsa East Assets |
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Exhibit J-1 | - | Tulsa Group 1 Loading Rack | ||
Exhibit J-2 | - | Tulsa Group 1 Pipeline | ||
Exhibit J-3 | | Tulsa Group 1 Tankage | ||
Exhibit J-4 | | Tulsa Group 2 Loading Rack | ||
Exhibit J-5 | | Tulsa Group 2 Tankage | ||
Exhibit K | | Special Provisions: El Dorado Crude Tank Farm Assets | ||
Exhibit K-1 | | El Dorado Crude Tankage and Jayhawk Tankage | ||
Exhibit K-2 | | El Dorado Terminal Quality Specifications |
iii
MASTER THROUGHPUT AGREEMENT
This Master Throughput Agreement (this Agreement ) is dated as of October 16, 2015, to be effective as of the Effective Time (as defined below) by and between HOLLYFRONTIER REFINING & MARKETING LLC ( HFRM ) and HOLLY ENERGY PARTNERS-OPERATING, L.P. ( HEP Operating ). Each of HFRM and HEP Operating are collectively referred to herein as the Parties .
RECITALS:
A. In connection with that certain Pipeline Throughput Agreement (Roadrunner), dated as of December 1, 2009, between HFRM (as successor in interest to Navajo Refining Company, L.L.C. ( Navajo )) and HEP Operating, HEP Operating agreed to provide certain transportation services for Navajo on the Roadrunner Pipeline, as defined below.
B. In connection with that certain Loading Rack Throughput Agreement (Lovington), dated as of March 31, 2010, between HFRM (as successor in interest to Navajo) and HEP Operating (as successor in interest to Holly Energy Storage-Lovington LLC), HEP Operating agreed to provide certain loading services for Navajo with respect to the Lovington Loading Rack, as defined below.
C. In connection with that Second Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East), dated as of August 31, 2011, between HFRM (as successor in interest to Holly Refining and Marketing-Tulsa LLC) and HEP Operating (as successor in interest to HEP Tulsa LLC and Holly Energy Storage - Tulsa LLC), HEP Operating agreed to provide certain transportation, storage and loading services to HFRM with respect to the Tulsa Interconnecting Pipelines, as defined below.
D. In connection with that certain First Amended and Restated Tankage, Loading Rack and Crude Oil Receiving Throughput Agreement (Cheyenne), dated as of January 11, 2012 between HFRM (as successor in interest to Frontier Refining LLC) and HEP Operating (as successor in interest to Cheyenne Logistics LLC), HEP Operating agreed to provide certain storage and loading services to HFRM with respect to the Cheyenne Assets, as defined below.
E. In connection with that certain Second Amended and Restated Pipeline Delivery, Tankage and Loading Rack Throughput Agreement (El Dorado), dated as of January 7, 2014 between HFRM (as successor in interest to Frontier El Dorado Refining LLC) and HEP Operating (as successor in interest to El Dorado Logistics LLC), HEP Operating agreed to provide certain transportation, storage and loading services to HFRM with respect to the El Dorado Assets, as defined below.
F. In connection with that certain Amended and Restated Transportation Services Agreement (Malaga), dated September 26, 2014, between HFRM and HEP Operating, HEP Operating agreed to provide certain transportation services to HFRM with respect to the Malaga Pipeline System, as defined below.
G. HEP Operating owns certain other pipelines, tankage and other assets which it desires to utilize to provide transportation, storage and loading services for HFRM.
H. The Parties desire to enter into a master agreement pursuant to which HEP Operating will provide certain transportation, storage and loading services to HFRM with respect to the Applicable Assets, as defined below, from and after the Effective Time, and from and after the Effective Time such services will no longer be provided pursuant to the Prior Agreements.
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NOW, THEREFORE, in consideration of the covenants and obligations contained herein, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 Definitions . Capitalized terms used throughout this Agreement and not otherwise defined herein shall have the meanings set forth on Exhibit A .
1.2 Interpretation . Matters relating to the interpretation of this Agreement are set forth on Exhibit B .
ARTICLE 2
AGREEMENT TO USE SERVICES
2.1 Intent . The Parties intend to be strictly bound by the terms set forth in this Agreement, which sets forth revenues to HEP Operating to be paid by HFRM, and requires HEP Operating to provide certain transportation, storage and loading services to HFRM. The principal objective of HEP Operating is for HFRM to meet or exceed its obligations with respect to the Minimum Revenue Commitment. The principal objective of HFRM is for HEP Operating to provide services to HFRM in a manner that enables HFRM to transport, store and/or load Products on, in or at the Applicable Assets. It is the Parties further intent that the terms and provisions of this Agreement shall be effective and govern from and after the Effective Time. Any matter first arising prior to the Effective Time shall be governed by the respective agreement relating thereto referenced in the Recitals.
2.2 Minimum Revenue Commitments . During the Applicable Term and subject to the terms and conditions of this Agreement, HFRM agrees as follows:
(a) Capacity and Revenue Commitment . Subject to Article 4 , HFRM shall pay HEP Operating Applicable Tariffs for use of the Applicable Assets and associated services as provided herein that result in the payment of an amount that will satisfy the Minimum Revenue Commitment in exchange for HEP Operating providing HFRM a minimum capacity in each of the Applicable Assets equal to the Minimum Capacity Commitment. The Minimum Revenue Commitment shall be the aggregate sum of the revenue to HEP Operating for each Contract Quarter determined by multiplying the Minimum Throughput Commitment for each Applicable Asset for such Contract Quarter, by the Base Tariff for such Applicable Asset in effect for such Contract Quarter. The Minimum Capacity Commitment means the amount set forth on Exhibit B for each Applicable Asset.
(b) Applicable Tariffs . HFRM will pay the Applicable Base Tariffs for all quantities of Product transported, stored or loaded at, on or through the Applicable Assets in each Contract Quarter during the Applicable Term up to and including the Applicable Incentive Tariff Threshold for such Applicable Asset set forth on Exhibit C , shall pay the Applicable Incentive Tariff for quantities in excess of the Incentive Tariff Threshold and, if applicable, shall pay the Excess Tariff for the Applicable Asset for quantities in excess of the Excess Tariff Threshold.
(c) Adjustment of Applicable Tariffs . The Applicable Tariffs shall be adjusted in the manner set forth on Exhibit C . To evidence the Parties agreement to each adjusted Applicable Tariff, the Parties may, but shall not be required to, execute an amended, modified, revised or updated Exhibit C and attach it to this Agreement. If executed, such amended, modified, revised or updated Exhibit C shall be sequentially numbered ( e.g . Exhibit C-1 , Exhibit C-2 , etc .), dated and appended as an additional exhibit to this Agreement and shall replace the prior version of Exhibit C in its entirety, after its date of effectiveness.
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(d) Reduction for Non-Force Majeure Operational Difficulties . If HFRM is unable to transport, store and/or load on, in or at any Applicable Asset the volumes of Products required to meet the Minimum Revenue Commitment for such Applicable Asset for a particular Contract Quarter as a result of HEP Operatings operational difficulties, prorationing, or the inability to provide sufficient capacity for the Minimum Throughput Commitment, then the Minimum Revenue Commitment applicable to the Contract Quarter during which HFRM is unable to transport, store and/or load such volumes of Products will be reduced by an amount equal to: (A) the volume of Products that HFRM was unable to transport, store and/or load on, in or at such Applicable Assets (but not to exceed the Minimum Throughput Commitment), as a result of HEP Operatings operational difficulties, prorationing or inability to provide sufficient capacity on the Applicable Assets to achieve the Minimum Throughput Commitment, multiplied by (B) the applicable Base Tariff. This Section 2.2(d) shall not apply in the event HEP Operating gives notice of a Force Majeure event in accordance with the terms of the Omnibus Agreement, in which case the Minimum Revenue Commitment shall be suspended to the extent contemplated in Article IX of the Omnibus Agreement.
(e) Pro-Rationing for Partial Periods . Notwithstanding the other portions of this Section 2.2 , in the event that the Effective Time is any date other than the first day of a Contract Quarter, then the Minimum Revenue Commitment, Minimum Throughput Commitment, and any applicable Incentive Tariffs for the initial partial Contract Quarter shall be prorated based upon the number of days actually in such partial Contract Quarter. Similarly, notwithstanding the other portions of this Section 2.2 if the end of the Applicable Term is on a day other than the last day of a Contract Quarter, then the Minimum Revenue Commitment, Minimum Throughput Commitment, and any applicable Incentive Tariff for the final partial Contract Quarter shall be prorated based upon the number of days actually in such partial Contract Quarter and the initial Contract Quarter.
2.3 Measurement of Shipped Volumes . Matters with respect to the measurement of shipped volumes are set forth on Exhibit D .
2.4 Volumetric Gains and Losses; Line Fill; High-API Oil Surcharge . Matters with respect to volumetric gains and losses, line fill and high-API oil surcharges are set forth on Exhibit E .
2.5 Obligations of HEP Operating . During the Applicable Term and subject to the terms and conditions of this Agreement, HEP Operating agrees to:
(a) own or lease, operate and maintain (directly or through a Subsidiary) the Applicable Assets and all related assets necessary to handle the applicable Products from HFRM;
(b) make available for HFRMs use the capacity of the Applicable Assets of at least the Minimum Capacity Commitment;
(c) provide the services required under this Agreement and perform all operations relating to the Applicable Assets, including tank gauging, tank maintenance, loading trucks, interaction with third party pipelines and customer interface for access agreements (as applicable) and performance of all operations and maintenance for the Applicable Assets;
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(d) maintain adequate property and liability insurance covering the Applicable Assets and any related assets owned by HEP Operating or its affiliates and necessary for the operation of the Applicable Assets; and
(e) at the request of HFRM, and subject in any case to any applicable common carrier proration duties and commitments to other third-party shippers, use commercially reasonable efforts to transport, store and/or load on the Applicable Assets for HFRM each month during the Applicable Term the quantity of Products that HFRM designates from time to time, but in no event less than the Minimum Capacity Commitment.
Notwithstanding the first sentence of this Section 2.5 , subject to the dispute resolution provisions of the Omnibus Agreement and with respect to the Tulsa Applicable Assets, the Tulsa Purchase Agreements, HEP Operating or its Affiliate is free to sell any of its assets, including any Applicable Assets, and HFRM is free to merge with another entity and to sell all of its assets or equity to another entity at any time.
2.6 Drag Reducing Agents and Additives . If HEP Operating determines that adding drag reducing agents ( DRA ) to the Products is reasonably required to move the Products in the quantities necessary to meet HFRMs schedule or as may be otherwise be required to safely move such quantities of Products or that additives should be used in the operation of the Applicable Assets, HEP Operating shall provide HFRM with an analysis of the proposed cost and benefits thereof. In the event that HFRM agrees to use such additives as proposed by HEP Operating, HFRM shall reimburse HEP Operating for the costs of adding any DRA or additives. If HEP Operating reasonably determines that additives or chemicals must be added to any of the pipelines included in the Applicable Assets to prevent or control internal corrosion of the pipe, then HFRM shall reimburse HEP Operating for the direct cost of the chemical and associated injection equipment.
2.7 Change in the Direction; Product Service or Origination and Destination of the Pipeline System . Without HFRMs prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), HEP Operating shall not (i) reverse the direction of flow of any Pipeline; (ii) change, alter or modify the Product service of any Pipeline; or (iii) change, alter or modify the origination or destination of any Pipeline; provided , however , that HEP Operating may take any necessary emergency action to prevent or remedy a release of Products from a Pipeline without obtaining the consent required by this Section 2.7 . HFRM shall have the right to reverse the direction of flow of any segment of a Pipeline where it is the sole shipper of Products if, in each case, HFRM agrees to (1) reimburse HEP Operating for the additional costs and expenses incurred by HEP Operating as a result of such change in direction (both to reverse and re-reverse); (2) reimburse HEP Operating for all costs arising out of HEP Operatings inability to perform under any transportation service contract due to the reversal of the direction of flow of the Pipeline; and (3) pay the Applicable Tariffs in accordance with this Agreement, for any such flow reversal. With respect to the Malaga Pipeline System, the foregoing shall apply regardless of whether the Product shipped in such manner reaches an injection point for the Centurion Pipeline or Plains Pipeline. HEP Operating shall not acquire any right, title or interest in the Products, and all title to and ownership of the Products while the same is in the possession of HEP Operating shall be and shall remain exclusively in HFRM. HEP Operating shall not represent itself to any third party as the owner of any of the Products and shall hold the same in trust for HFRM. HFRM shall advise HEP Operating in writing of any change in Product ownership while in the Applicable Assets. If any of HFRMs Product is sold, exchanged, or otherwise changes ownership while in the Applicable Assets, HFRM shall nonetheless be responsible for the terms and conditions of this Agreement the same as if Products had been owned by HFRM.
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2.8 Notification of Utilization . Upon request by HEP Operating, HFRM will provide to HEP Operating written notification of HFRMs reasonable good faith estimate of its anticipated future utilization of the Applicable Assets as soon as reasonably practicable after receiving such request.
2.9 Scheduling and Accepting Movement . HEP Operating will use its reasonable commercial efforts to schedule movement and accept movements of Products in a manner that is consistent with the historical dealings between the Parties and their Affiliates, as such dealings may change from time to time.
2.10 Taxes . HFRM will pay all taxes, import duties, license fees and other charges by any Governmental Authority levied on or with respect to the Products handled by HFRM for transportation, storage and/or loading by HEP Operating. Should either 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 2.10 the proper Party shall promptly reimburse the other Party therefor.
2.11 Timing of Payments . HFRM will make payments to HEP Operating by electronic payment with immediately available funds on a monthly basis during the Applicable Term with respect to services rendered or reimbursable costs or expenses incurred by HEP Operating under this Agreement in the prior month. Payments not received by HEP Operating on or prior to the tenth day following the invoice date will accrue interest at the Prime Rate from the applicable payment date until paid.
2.12 Increases in Tariff Rates . If new Applicable Laws are enacted that require HEP Operating to make capital expenditures with respect to the Applicable Assets, HEP Operating may amend the Applicable Tariffs in the manner set forth in Exhibit F , in order to recover HEP Operatings cost of complying with such new Applicable Laws (as determined in good faith and including a reasonable return). HFRM and HEP Operating shall use their reasonable commercial efforts to comply with such new Applicable Laws, and shall negotiate in good faith to mitigate the impact of such new Applicable Laws and to determine the amount of the new Applicable Tariff rates. If HFRM and HEP Operating are unable to agree on the amount of the new Applicable Tariff rates that HEP Operating will charge, such Applicable Tariff rates will be resolved in the manner provided for in the Omnibus Agreement. Any other applicable exhibit to this Agreement will be updated, amended or revised, as applicable, in accordance with this Agreement to reflect any changes in Applicable Tariff rates established in accordance with this Section 2.12 .
2.13 Removal of Tank from Service . The Parties agree that if a tank included in the Applicable Assets is removed from service, then HEP Operating will not be required to utilize, operate or maintain such tank or provide the services required under this Agreement with respect to such tank (and there will be no adjustment to the applicable Minimum Revenue Commitment). The Parties acknowledge that provisions relating to the inspection, repair and maintenance of tanks included in the Applicable Assets are set forth in the Master Lease and Access Agreement, and such provisions are in addition to, and not in substitution of, the terms set forth in this Section 2.13 .
2.14 No Guaranteed Minimum . Notwithstanding anything to the contrary set forth in this Agreement, there is no requirement that HFRM deliver any minimum quantity of Product for transport, storage, handling or loading on, over or in the Applicable Assets, it being understood that HFRMs obligation for failing to ship, store or load sufficient quantities of Product to satisfy the Minimum Revenue Commitment is to make Deficiency Payments as provided in Article 10 .
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ARTICLE 3
AGREEMENT TO REMAIN SHIPPER
With respect to any Product that is transported, stored or loaded in connection with any of the Applicable Assets by HFRM, HFRM agrees that it will continue acting in the capacity of the shipper of any such Product for its own account at all times that such Product is being transported, stored, handled or loaded in the Applicable Assets.
ARTICLE 4
NOTIFICATION OF REFINERY SHUT-DOWN OR RECONFIGURATION
If a Refinery shuts down or the Refinery owner reconfigures the Refinery or any portion of the Refinery (excluding planned maintenance turnarounds) and HFRM reasonably believes in good faith that such shut down or reconfiguration will jeopardize its ability to satisfy its applicable Minimum Revenue Commitments under this Agreement, then within 90 days of the delivery of the written notice of the planned shut down or reconfiguration, HFRM shall (A) propose a new Minimum Revenue Commitment under this Agreement, as applicable, such that the ratio of the new applicable Minimum Revenue Commitment under this Agreement over the anticipated production level following the shut down or reconfiguration will be approximately equal to the ratio of the original applicable Minimum Revenue Commitment under this Agreement over the original production level and (B) propose the date on which the new Minimum Revenue Commitment under this Agreement shall take effect. Unless objected to by HEP Operating within 60 days of receipt by HEP Operating of such proposal, such new Minimum Revenue Commitment under this Agreement shall become effective as of the date proposed by HFRM. To the extent that HEP Operating does not agree with HFRMs proposal, any changes in HFRMs obligations under this Agreement, or the date on which such changes will take effect, will be determined pursuant to the dispute resolution provisions of the Omnibus Agreement. Any applicable exhibit to this Agreement will be updated, amended or revised, as applicable, in accordance with this Agreement to reflect any change in the applicable Minimum Revenue Commitment under this Agreement agreed to in accordance with this Section 4.1 .
ARTICLE 5
FORCE MAJEURE
The rights and obligations of the Parties upon the occurrence of an event of Force Majeure will be determined in the manner set forth in the Omnibus Agreement; provided that (a) any suspension of the obligations of the Parties under this Agreement as a result of an event of Force Majeure shall extend the Applicable Term (to the extent so affected) for a period equivalent to the duration of the inability set forth in the Force Majeure Notice, (b) HFRM will be required to pay any amounts accrued and due under this Agreement at the time of the Force Majeure event, and (c) if a Force Majeure event prevents either Party from performing substantially all of their respective obligations under this Agreement relating to a group of Applicable Assets for a period of more than one (1) year, this Agreement may be terminated as to such Applicable Assets (but not as to unaffected Applicable Assets) by either Party providing written notice thereof to the other Party.
ARTICLE 6
AGREEMENT NOT TO CHALLENGE PIPELINE TARIFFS
HFRM agrees to any tariff rate changes for Pipelines in accordance with this Agreement. HFRM 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
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forum, tariffs (including joint tariffs) of HEP Operating (or its Affiliates) that HEP Operating (or its Affiliate) has filed or may file containing rates, rules or regulations that are in effect at any time during the Applicable Term and regulate the transportation of the Products on any Pipelines, 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 HEP Operating or its Affiliate has made or may make at any time during the Applicable Term to change tariffs (including joint tariffs) for transportation of Products on any Pipelines, in each case so long as such tariffs, regulatory filings or rates changed do not conflict with the terms of this Agreement.
ARTICLE 7
EFFECTIVENESS AND APPLICABLE TERM
This Agreement shall be effective as to each group of Applicable Assets as of the Effective Time as set forth on Exhibit C and shall terminate with respect to each group of Applicable Assets as set forth on Exhibit C , unless extended by written mutual agreement of the Parties or as set forth in Article 8 (each, the Applicable Term ). The Party desiring to extend this Agreement with respect to any group of Applicable Assets pursuant to this Article 7 shall provide prior written notice to the other Party 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 of the Applicable Term or ten (10) days after receipt of a written request from the other Party (which request may be delivered no earlier than twelve (12) months prior to the date of termination of the Applicable Term) to provide any such notice or lose such right.
ARTICLE 8
RIGHT TO ENTER INTO A NEW AGREEMENT
8.1. Negotiation Pursuant to Written Notice . In the event that HFRM provides prior written notice to HEP Operating of the desire of HFRM to extend this Agreement for a specific group of Applicable Assets by written mutual agreement of the Parties pursuant to Article 7 , the Parties shall negotiate in good faith to extend this Agreement by written mutual agreement with respect to such specific group of Applicable Assets, but, if such negotiations fail to produce a written mutual agreement for extension by a date six months prior to the termination date for such group of Applicable Assets, then HEP Operating shall have the right to negotiate to enter into one or more throughput, tankage or transportation services agreements for HFRMs Minimum Capacity Commitment for such Applicable Assets 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 for such group of Applicable Assets, HFRM will have the right to enter into a new throughput, tankage or transportation services or transportation services agreement with HEP Operating with respect to its Minimum Capacity Commitment on the date of termination on commercial terms that substantially match the terms upon which HEP Operating proposes to enter into an agreement with a third party for similar services with respect to all or a material portion of such capacity of such group of Applicable Assets. In such circumstances, HEP Operating shall give HFRM at least forty-five (45) days prior written notice of any proposed new throughput agreement with a third party, and such notice shall inform HFRM of the fee schedules, tariffs, duration and any other material terms of the proposed third party agreement. HFRM shall have forty-five (45) days following receipt of such notice to agree to the terms specified in the notice or HFRM shall lose the rights specified by this Section 8.1 with respect to the capacity that is the subject of such notice.
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8.2. Negotiation in the Absence of Written Notice . In the event that HFRM fails to provide prior written notice to HEP Operating of the desire of HFRM to extend this Agreement for a specific group of Applicable Assets by written mutual agreement of the Parties pursuant to Article 7 , HEP Operating shall have the right, during the period from the date of HFRMs failure to provide written notice pursuant to Article 7 to the date of termination of this Agreement, to negotiate to enter into one or more throughput, tankage or transportation services agreements for HFRMs Minimum Capacity Commitment for the such group of Applicable Assets with one or more third parties to begin after the date of termination; provided, however , that at any time during the twelve (12) months prior to the expiration of the Applicable Term, HFRM will have the right to enter into a new throughput, tankage agreement with HEP Operating with respect to its existing Minimum Capacity Commitment at such time on commercial terms that substantially match the terms upon which HEP Operating proposes to enter into an agreement with a third party for similar services with respect to all or a material portion of such capacity on such group of Applicable Assets. In such circumstances, HEP Operating shall give HFRM forty-five (45) days prior written notice of any proposed new agreement with a third party, and such notice shall inform HFRM of the fee schedules, tariffs, duration and any other material terms of the proposed third party agreement and HFRM shall have forty-five (45) days following receipt of such notice to agree to the terms specified in the notice or HFRM shall lose the rights specified by this Section 8.2 with respect to the capacity that is the subject of such notice.
ARTICLE 9
NOTICES
Any notice or other communication given under this Agreement shall be in writing and shall be provided in the manner set forth in the Omnibus Agreement.
ARTICLE 10
DEFICIENCY PAYMENTS
10.1 Deficiency Notice; Deficiency Payments . As soon as practicable following the end of each Contract Quarter under this Agreement, HEP Operating shall deliver to HFRM a written notice (the Deficiency Notice ) detailing any failure of HFRM to meet any of the Minimum Revenue Commitments set forth on Exhibit C ; provided, however , that HFRMs obligations pursuant to the Minimum Revenue Commitment shall be assessed on a quarterly basis for the purposes of this Article 10 . Notwithstanding the previous sentence, any deficiency owed by HFRM due to its failure to satisfy any Minimum Revenue Commitment, if any, set forth on Exhibit C , as to any Applicable Asset for a Contract Quarter shall be offset by any revenue owed to HEP Operating in excess of any Minimum Revenue Commitment for such Contract Quarter set forth on Exhibit C from any other Applicable Asset at the same location. The Deficiency Notice shall (i) specify in reasonable detail the nature of any deficiency and (ii) specify the approximate dollar amount that HEP Operating believes would have been paid by HFRM to HEP Operating if HFRM had complied with its Minimum Revenue Commitment obligations pursuant to this Agreement (the Deficiency Payment ). HFRM shall pay the Deficiency Payment to HEP Operating upon the later of: (A) ten (10) days after their receipt of the Deficiency Notice and (B) thirty (30) days following the end of the related Contract Quarter.
10.2 Disputed Deficiency Notices . If HFRM disagrees with the Deficiency Notice, then, following the payment of the undisputed portion of the Deficiency Payment to HEP Operating, if any, HFRM shall send written notice thereof regarding the disputed portion of the Deficiency Payment to HEP Operating. Thereafter, a senior officer of HollyFrontier (on behalf of HFRM) and a senior officer of the Partnership (on behalf of HEP Operating) 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 faith to attempt to resolve any differences that they may have with respect to matters specified in
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the Deficiency Notice. During the 30-day period following the payment of the Deficiency Payment, HFRM shall have access to the working papers of HEP Operating relating to the Deficiency Notice. If such differences are not resolved within thirty (30) days following HFRMs receipt of the Deficiency Notice, HFRM and HEP Operating shall, within forty-five (45) days following HFRMs receipt of the Deficiency Notice, submit any and all matters which remain in dispute and which were properly included in the Deficiency Notice to dispute resolution in accordance with the Omnibus Agreement.
10.3 Payment of Amounts No Longer Disputed . If it is finally determined pursuant to this Article 10 that HFRM is required to pay any or all of the disputed portion of the Deficiency Payment, HFRM shall promptly pay such amount to HEP Operating, together with interest thereon at the Prime Rate, in immediately available funds.
10.4 Contract Quarters Independent . The fact that HFRM has exceeded or fallen short of the Minimum Revenue Commitment with respect to any Contract Quarter shall not be considered in determining whether HFRM meets, exceeds or falls short of the Minimum Revenue Commitment with respect to any other Contract Quarter, and the amount of any such excess or shortfall shall not be counted towards or against the Minimum Revenue Commitment with respect to any other Contract Quarter.
ARTICLE 11
RIGHT OF FIRST REFUSAL
The Parties acknowledge the right of first refusal of HollyFrontier with respect to the Applicable Assets other than the Tulsa Assets as provided in the Omnibus Agreement, and the right of first refusal of HollyFrontier with respect to the Tulsa Assets as provided in the Tulsa Purchase Agreements.
ARTICLE 12
INDEMNITY; LIMITATION OF DAMAGES
12.1 Indemnity; Limitation of Liability . The Parties acknowledge and agree that the provisions relating to indemnity and limitation of liability are set forth in the Omnibus Agreement. Notwithstanding anything in this Agreement or the Omnibus Agreement to the contrary and solely for the purpose of determining which of HFRM or HEP Operating shall be liable in a particular circumstance, neither HFRM or HEP Operating shall be liable to the other Party for any loss, damage, injury, judgment, claim, cost, expense or other liability suffered or incurred (collectively, Damages ) by such Party except to the extent set forth in the Omnibus Agreement and to the extent that HFRM or HEP Operating causes such Damages or owns or operates the assets or other property in question responsible for causing such Damages.
12.2 Survival . The provisions of this Article 12 shall survive the termination of this Agreement.
ARTICLE 13
MISCELLANEOUS
13.1 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 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 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, and attaches it to this Agreement. Such amended, modified, revised or updated exhibits shall be sequentially numbered ( e.g.
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Exhibit A-1 , Exhibit A-2 , etc .), dated and appended as an additional exhibit to this Agreement and shall replace the prior exhibit, in its entirety, after its date of effectiveness, 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.
13.2 Successors and Assigns . This Agreement shall inure to the benefit of, and shall be binding upon, the Parties 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 HFRM (in the case of any assignment by HEP Operating) or HEP Operating (in the case of any assignment by HFRM), in each case, such consent is not to be unreasonably withheld or delayed; provided , however , that (i) HEP Operating may make such an assignment (including a partial pro rata assignment) to an Affiliate of HEP Operating without HFRMs consent, (ii) HFRM may make such an assignment (including a pro rata partial assignment) to an Affiliate of HFRM without HEP Operatings consent, (iii) HFRM may make a collateral assignment of its rights and obligations hereunder and/or grant a security interest in its rights and obligations hereunder, and HEP Operating shall execute an acknowledgement of such collateral assignment in such form as may from time-to-time be reasonably requested, and (iv) HEP Operating may make a collateral assignment of its rights hereunder and/or grant a security interest in its rights and obligations hereunder to a bona fide third party lender or debt holder, or trustee or representative for any of them, without HFRMs consent, if such third party lender, debt holder or trustee shall have executed and delivered to HFRM a non-disturbance agreement in such form as is reasonably satisfactory to HFRM and such third party lender, debt holder or trustee, and HFRM 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
13.7 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.
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ARTICLE 14
GUARANTEE BY HOLLYFRONTIER
14.1 Payment Guaranty . HollyFrontier unconditionally, absolutely, continually and irrevocably guarantees, as principal and not as surety, to HEP Operating the punctual and complete payment in full when due of all amounts due from HFRM under this Agreement (collectively, the HFRM Payment Obligations ). HollyFrontier agrees that HEP Operating shall be entitled to enforce directly against HollyFrontier any of the HFRM Payment Obligations.
14.2 Guaranty Absolute . HollyFrontier hereby guarantees that the HFRM Payment Obligations will be paid strictly in accordance with the terms of the Agreement. The obligations of HollyFrontier under this Agreement constitute a present and continuing guaranty of payment, and not of collection or collectability. The liability of HollyFrontier under this Agreement shall be absolute, unconditional, present, continuing and irrevocable irrespective of:
(a) any assignment or other transfer of this Agreement or any of the rights thereunder of HEP Operating;
(b) any amendment, waiver, renewal, extension or release of or any consent to or departure from or other action or inaction related to this Agreement;
(c) any acceptance by HEP Operating of partial payment or performance from HFRM;
(d) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment, dissolution, liquidation or other like proceeding relating to HFRM or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding;
(e) any absence of any notice to, or knowledge of, HollyFrontier, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (i) through (iv); or
(f) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a guarantor.
The obligations of HollyFrontier 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 HFRM Payment Obligations or otherwise.
14.3 Waiver . HollyFrontier hereby waives promptness, diligence, all setoffs, presentments, protests and notice of acceptance and any other notice relating to any of the HFRM Payment Obligations and any requirement for HEP Operating 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 HFRM, any other entity or any collateral.
14.4 Subrogation Waiver . HollyFrontier agrees that for so long as there is a current or ongoing default or breach of this Agreement by HFRM, HollyFrontier shall not have any rights (direct or
11
indirect) of subrogation, contribution, reimbursement, indemnification or other rights of payment or recovery from HFRM for any payments made by HollyFrontier under this Article 14 , and HollyFrontier 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 HFRM during any period of default or breach of this Agreement by HFRM until such time as there is no current or ongoing default or breach of this Agreement by HFRM.
14.5 Reinstatement . The obligations of HollyFrontier under this Article 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 HFRM Payment Obligations is rescinded or must otherwise be returned to HFRM or any other entity, upon the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation or reorganization of HFRM or such other entity, or for any other reason, all as though such payment had not been made.
14.6 Continuing Guaranty . This Article 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 HFRM Payment Obligations, (ii) be binding upon HollyFrontier, its successors and assigns and (iii) inure to the benefit of and be enforceable by HEP Operating and its respective successors, transferees and assigns.
14.7 No Duty to Pursue Others . It shall not be necessary for HEP Operating (and HollyFrontier hereby waives any rights which HollyFrontier may have to require HEP Operating), in order to enforce such payment by HollyFrontier, first to (i) institute suit or exhaust its remedies against HFRM or others liable on the HFRM Payment Obligations or any other person, (ii) enforce HEP Operatings rights against any other guarantors of the HFRM Payment Obligations, (iii) join HFRM or any others liable on the HFRM Payment Obligations in any action seeking to enforce this Article 14 , (iv) exhaust any remedies available to HEP Operating against any security which shall ever have been given to secure the HFRM Payment Obligations, or (v) resort to any other means of obtaining payment of the HFRM Payment Obligations.
ARTICLE 15
GUARANTEE BY THE PARTNERSHIP
15.1 Payment and Performance Guaranty . The Partnership unconditionally, absolutely, continually and irrevocably guarantees, as principal and not as surety, to HFRM the punctual and complete payment in full when due of all amounts due from HEP Operating under this Agreement (collectively, the HEP Operating Payment Obligations ) and the punctual and complete performance of all other obligations of HEP Operating under this Agreement (collectively, the HEP Operating Performance Obligations , together with the HEP Operating Payment Obligations, the HEP Operating Obligations ). The Partnership agrees that HFRM shall be entitled to enforce directly against the Partnership any of the HEP Operating Obligations.
15.2 Guaranty Absolute . The Partnership hereby guarantees that the HEP Operating Payment Obligations will be paid, and the HEP Performance Obligations will be performed, strictly in accordance with the terms of this Agreement. The obligations of the Partnership under this Agreement constitute a present and continuing guaranty of payment and performance, and not of collection or collectability. The liability of the Partnership under this Agreement shall be absolute, unconditional, present, continuing and irrevocable irrespective of:
(a) any assignment or other transfer of this Agreement or any of the rights thereunder of HFRM;
12
(b) any amendment, waiver, renewal, extension or release of or any consent to or departure from or other action or inaction related to this Agreement;
(c) any acceptance by HFRM of partial payment or performance from HEP Operating;
(d) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment, dissolution, liquidation or other like proceeding relating to HEP Operating or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding;
(e) any absence of any notice to, or knowledge of, the Partnership, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (i) through (iv); or
(f) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a guarantor.
The obligations of the 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 Operating Obligations or otherwise.
15.3 Waiver . The Partnership hereby waives promptness, diligence, all setoffs, presentments, protests and notice of acceptance and any other notice relating to any of the HEP Operating Payment Obligations and any requirement for HFRM 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 Operating, any other entity or any collateral.
15.4 Subrogation Waiver . The Partnership agrees that for so long as there is a current or ongoing default or breach of this Agreement by HEP Operating, the Partnership shall not have any rights (direct or indirect) of subrogation, contribution, reimbursement, indemnification or other rights of payment or recovery from HEP Operating for any payments made by the Partnership under this Article 15 , and each of the 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 Operating during any period of default or breach of this Agreement by HEP Operating until such time as there is no current or ongoing default or breach of this Agreement by HEP Operating.
15.5 Reinstatement . The obligations of the Partnership under this Article 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 Operating Payment Obligations is rescinded or must otherwise be returned to HEP Operating or any other entity, upon the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation or reorganization of HEP Operating or such other entity, or for any other reason, all as though such payment had not been made.
15.6 Continuing Guaranty . This Article 15 is a continuing guaranty and shall (i) remain in full force and effect until the first to occur of the indefeasible payment and/or performance in full of all of the HEP Operating Payment Obligations, (ii) be binding upon the Partnership and each of its respective successors and assigns and (iii) inure to the benefit of and be enforceable by HFRM and their respective successors, transferees and assigns.
13
15.7 No Duty to Pursue Others . It shall not be necessary for HFRM (and the Partnership hereby waives any rights which the Partnership may have to require HFRM), in order to enforce such payment by the Partnership, first to (i) institute suit or exhaust its remedies against HEP Operating or others liable on the HEP Operating Obligations or any other person, (ii) enforce HFRMs rights against any other guarantors of the HEP Operating Obligations, (iii) join HEP Operating or any others liable on the HEP Operating Obligations in any action seeking to enforce this Article 15 , (iv) exhaust any remedies available to HFRM against any security which shall ever have been given to secure the HEP Operating Obligations, or (v) resort to any other means of obtaining payment of the HEP Operating Obligations.
[Remainder of page intentionally left blank. Signature pages follow.]
14
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as of the date first written above to be effective as of the Effective Time.
HEP OPERATING: | ||
Holly Energy Partners-Operating, L.P. | ||
By: |
/s/ Bruce R. Shaw |
|
Bruce R. Shaw | ||
President | ||
HFRM: | ||
HollyFrontier Refining & Marketing LLC | ||
By: |
/s/ Michael C. Jennings |
|
Michael C. Jennings | ||
Chief Executive Officer and President |
[Signature Page 1 of 2 to the Master Throughput Agreement]
ACKNOWLEDGED AND AGREED | ||
FOR PURPOSES OF Section 10.2 | ||
AND Article 14 : | ||
HOLLYFRONTIER CORPORATION | ||
By: |
/s/ Michael C. Jennings |
|
Michael C. Jennings | ||
Chief Executive Officer and President | ||
ACKNOWLEDGED AND AGREED | ||
FOR PURPOSES OF Section 10.2 | ||
AND Article 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/ Bruce R. Shaw |
|
Bruce R. Shaw | ||
President |
[Signature Page 2 of 2 to the Master Throughput Agreement]
Exhibit A
to
Master Throughput Agreement
Definitions
Actual Construction Costs has the meaning set forth in Exhibit C .
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, HFRM, on the one hand, and HEP Operating, on the other hand, shall not be considered affiliates of each other.
Agreement has the meaning set forth in the preamble to this Agreement.
API means the American Petroleum Institute.
API 653 means the Above Ground Storage Tank Inspector Program issued by the API as API Standard 653, as amended and supplemented from time to time.
API Gravity means the API index of specific gravity of a liquid petroleum expressed as degrees, as such index would be calculated on the date hereof.
Applicable Asset means each of the Cheyenne Assets, El Dorado Assets, Lovington Loading Rack, Malaga Pipeline System, Roadrunner Pipeline, Tulsa Assets and El Dorado Crude Tank Farm Assets individually; and Applicable Assets means all of the foregoing assets, collectively.
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.
Applicable Tariff means the Base Tariff and, to the extent applicable, the Incentive Tariff.
Applicable Term has the meaning set forth in Article 7 .
ASTM means ASTM International.
Barrel means 42 Gallons.
Exhibit A-1
Base Tariff means the Base Tariff applicable to the quantity of Product transported, stored or loaded in connection with an Applicable Asset as set forth on Exhibit C , as such Base Tariff may be adjusted pursuant to the terms of this Agreement.
bpd means Barrels per day.
Business Day means any day other than Saturday, Sunday or other day upon which commercial banks in Dallas, Texas are authorized by law to close.
Centurion Pipeline means that certain 10 pipeline system operated by Centurion Pipeline L.P. and originating from Centurions Artesia Station located within Township 18S and Range 27E, approximately 1 mile south of HEP Operatings Abo Station.
Cheyenne Assets means the Cheyenne Receiving Assets, Cheyenne Loading Rack and the Cheyenne Tankage.
Cheyenne Loading Rack means the refined products truck loading rack and the two (2) propane loading spots located at the Refinery and more specifically described in Exhibit I-1 attached hereto.
Cheyenne Receiving Assets means the pipelines set forth on Exhibit I-2 .
Cheyenne RCRA Order means the administrative order set forth in Exhibit I .
Cheyenne Tankage means the tanks set forth on Exhibit I-3 .
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.
Closing Date has the meaning for each Applicable Asset set forth in the Omnibus Agreement.
Construction Projects has the meaning set forth in Article 2 .
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.
Crude Agreement means the Third Amended and Restated Crude Pipelines and Tankage Agreement, dated as of March 12, 2015, by and among HFRM, HEP Operating and certain other Affiliates of HFRM and HEP Operating.
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, Refined Products, naphtha, gas oil, LEF (lube extraction feedstocks) or any other refined products.
Deficiency Notice has the meaning set forth in Section 10.1 .
Exhibit A-2
Deficiency Payment has the meaning set forth in Section 10.1 .
Devon means Devon Energy Production Company, L.P., and its Affiliates .
Devon Lease Connections has the meaning set forth in Exhibit G-3 .
DRA has the meaning set forth in Section 2.6 .
Effective Time means 12:01 a.m., Dallas, Texas time, on January 1, 2015.
El Dorado Assets means the El Dorado Loading Rack and the El Dorado Tankage.
El Dorado Crude Tank Farm Assets means the El Dorado Delivery Lines and the El Dorado Crude Tankage.
El Dorado Crude Tank Farm Consideration Period has the meaning set forth in Exhibit K .
El Dorado Crude Tank Farm Quality Specifications has the meaning set forth in Exhibit K .
El Dorado Crude Tankage means the tankage identified on Exhibit K-1 .
El Dorado Delivery Lines has the meaning set forth in Exhibit K .
El Dorado Minimum Working Capacity has the meaning set forth in Exhibit K .
El Dorado Quality Specifications means those specifications set forth in Exhibit K-2 .
El Dorado Terminal means the tank farm owned by HEP Operating and located in El Dorado, Kansas.
El Dorado Loading Rack means the Refined Products truck loading rack and the propane loading rack located at the El Dorado Refinery and more specifically described on Exhibit H-1 .
El Dorado Tankage means the tanks set forth on Exhibit H-2 .
Environmental Law has the meaning set forth in the Omnibus Agreement.
Excess Tariff Threshold has the meaning set forth in Exhibit C .
Exercise Notice has the meaning set forth in Exhibit F .
FERC Oil Pipeline Index has the meaning set forth in Section 3(a)(iii)(B) .
Final Construction Cost has the meaning set forth in Exhibit I .
Force Majeure has the meaning set forth in the Omnibus Agreement.
Force Majeure Notice has the meaning set forth in the Omnibus Agreement.
Gallon means a United States gallon of two hundred thirty-one (231) cubic inches of liquid at sixty degrees (60°) Fahrenheit, and at the equivalent vapor pressure of the liquid.
Exhibit A-3
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.
Heavy Products means fuel oil, asphalt, coker feed, vacuum tower bottoms, atmospheric tower bottoms, pitch or roofing flux.
HEP Operating has the meaning set forth in the Preamble.
HEP Operating Payment Obligations has the meaning set forth in Section 15.1 .
HFRM has the meaning set forth in the Preamble.
HFRM Payment Obligations has the meaning set forth in Section 14.1 .
High-API Surcharge has the meaning set forth in Section 2.4 .
HollyFrontier means HollyFrontier Corporation, a Delaware corporation.
Holly Tulsa means Holly Refining & Marketing Tulsa LLC.
Incentive Tariff means the Incentive Tariff applicable to the quantity of Product transported, stored or loaded in connection with an Applicable Asset as set forth on Exhibit C , as such Incentive Tariff may be adjusted pursuant to the terms of this Agreement.
Intermediate Products means non-finished intermediate products, including high sulfur diesel fuel for DHT feed, jet fuel, naphtha for reformer feed, gas oil or LEF for FCC feed, reformate, light straight run, hydrogen, fuel gas and sour fuel gas.
Jayhawk means Jayhawk Pipeline, L.L.C. (or its successors to the Jayhawk Tankage).
Jayhawk Lease means the lease between HEP-Operating and Jayhawk for the Jayhawk Tankage in existence as of the commencement of the Applicable Term.
Jayhawk Tankage means the tankage identified in Exhibit K-1 .
Lovington Loading Rack means that certain asphalt loading rack located at the Lovington, New Mexico refinery.
LPG Products means propane, refinery grade propylene, normal butane and isobutane.
Malaga Capacity Estimate has the meaning set forth in Exhibit G .
Malaga Commencement Date means the date on which, in the reasonable opinion of HEP Operating, the Malaga Pipeline System is available for service and operating as expected in delivering Crude Oil, which date has been specified in written notice from HEP Operating to HFRM at least 60 days prior to the Malaga Commencement Date; provided, however , that if the Malaga Pipeline System is, in the discretion of HEP Operating, substantially complete, then the parties may agree in writing to a commencement date prior to the Malaga Pipeline System being fully completed.
Exhibit A-4
Malaga Construction Projects has the meaning set forth in Exhibit G .
Malaga Exercise Notice has the meaning set forth in Exhibit G .
Malaga Initial Period means the period beginning on the Malaga Commencement Date through and including final day of the 20 th full Contract Quarter following the Malaga Commencement Date.
Malaga Pipeline System means the pipeline systems (a) extending from the (i) Whites City Road Station to the HEP Operating Artesia Station, from (ii) Devon Parkway field to the Millman Station and the HEP Operating Artesia Station, (iii) HEP Operating Artesia Station to the Beeson Station, (iv) the Beeson Station to the Anderson Ranch Pipeline, (v) Devon Hackberry field to the Beeson Station, and (v) Beeson Station to the Plains Pipeline, including in each case all related lease connection pipelines, storage facilities, crude oil gathering tanks, and truck off-loading facilities, as depicted on Exhibit G-1 (Map of Pipeline System and Pipeline System Capacity by Segment), and (b) with the volume capacities as set forth on Exhibit G-1 , described on Exhibit G-2 (Construction Projects) and described on Exhibit G-3 (Devon Lease Connections).
Master Lease and Access Agreement means that certain Master Lease and Access Agreement dated as of the date hereof among certain of the Affiliates of HEP Operating and the owners of the Refineries.
Minimum Capacity Commitment has the meaning set forth in Section 2.2(a) .
Minimum Revenue Commitment has the meaning set forth in Section 2.2(a) .
Minimum Throughput Commitment means the quantity of Product to be transported, stored or loaded in connection with an Applicable Asset, as set forth on Exhibit C , as such amount may be adjusted pursuant to the terms of this Agreement.
MSCFD means thousands of cubic feet per day.
MVP Pipeline has the meaning set forth in Exhibit K .
Navajo has the meaning set forth in the Preamble.
New Tank means the new petroleum products storage tankage to be added to the Applicable Assets as identified on Exhibits H and I .
New Tank Commencement Date means, with respect to each New Tank, the first day of the calendar month after the date on which, in the reasonable opinion of HEP Operating, such New Tank is mechanically complete, available for service and operating as expected in storing the Product for which such New Tank was designed, which date has been specified in written notice from HEP Operating to HFRM at least 30 days prior to such date.
Omnibus Agreement means the Twelfth Amended and Restated Omnibus Agreement, dated as of the date hereof.
Osage Pipeline has the meaning set forth in Exhibit K .
Parties has the meaning set forth in the Preamble.
Partnership means Holly Energy Partners, L.P., a Delaware limited partnership.
Exhibit A-5
Party has the meaning set forth in the Preamble.
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.
Pipelines means the Malaga Pipeline System, Roadrunner Pipeline, the Tulsa Pipelines, the Tulsa Interconnecting Pipelines, and the El Dorado Delivery Lines, and any other pipeline included in the Applicable Assets.
Plains Pipeline means that certain 16 diameter pipeline operated by Plains All American Pipeline, L. P. and located in Lea County, New Mexico and which crosses the HEP Anderson Ranch gathering system in Township 18 South, Range 32 East.
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.
Prior Agreements means those agreements set forth in Recitals A through F. For the avoidance of doubt, Prior Agreements do not include the following agreements (as amended, modified or supplemented and in effect from time to time): (a) Amended and Restated Intermediate Pipelines Agreement dated June 1, 2009, (b) Tulsa Equipment and Throughput Agreement dated August 1, 2009, (c) Amended and Restated Refined Product Pipelines and Terminals Agreement effective February 1, 2009, (d) Second Amended and Restated Throughput Agreement effective June 1, 2013, (e) Third Amended and Restated Crude Pipelines and Tankage Agreement dated March 12, 2015, and (f) Unloading and Blending Services Agreement (Artesia) dated March 12, 2015.
Products has the meaning set forth in Exhibit C .
Qualified Third-Party Throughput has the meaning set forth in Exhibit C .
Red Rock Pipeline has the meaning set forth in Exhibit K .
Refined Products means gasoline, kerosene, ethanol and diesel fuel.
Refinery means the Lovington, New Mexico refinery owned by Navajo; the El Dorado, Kansas refinery owned by Frontier El Dorado; the Cheyenne, Wyoming refinery owned by Frontier Refining; and the Tulsa, Oklahoma refinery owned by Holly Tulsa.
Roadrunner Pipeline means that certain 16 crude oil pipeline extending approximately 65 miles from the Slaughter station to Lovington, New Mexico.
Subsequent Year has the meaning set forth in Exhibit G .
Subsidiary means with respect to any Person (the Owner ), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporations or other Persons board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interest having such power only upon the happening of a contingency that has not occurred), are held by the Owner or one or more of its Subsidiaries.
Exhibit A-6
Surcharge Tariff has the meaning set forth in Exhibit C .
SUS means Saybolt Universal Seconds as specified by ASTM Standard D2161-10, as amended, supplemented or replaced from time to time.
Tulsa Assets means the Tulsa Group 1 Tankage, Tulsa Group 1 Loading Rack, Tulsa Group 1 Pipeline, Tulsa Group 2 Tankage, Tulsa Group 2 Loading Rack and the Tulsa Interconnecting Pipelines.
Tulsa East Refinery means the refinery owned by Holly Tulsa and located at 905 West 25 th Street, Tulsa, Oklahoma 74107.
Tulsa Group 1 Purchase Agreement means that certain Asset Sale and Purchase Agreement dated as of October 1, 2009 by and among Holly Tulsa, HEP Tulsa LLC and Holly Energy Storage Tulsa.
Tulsa Group 1 Loading Rack means the gas oil, asphalt and propane truck loading racks located at the Tulsa West Refinery and more specifically described in Exhibit J-1 attached hereto.
Tulsa Group 1 Tankage means the tankage identified in Exhibit J-3 attached hereto.
Tulsa Group 2 Purchase Agreement means that certain LLC Interest Purchase Agreement dated as of March 31, 2010 by and between HEP Tulsa LLC, Lea Refining Company, and Holly Tulsa.
Tulsa Group 2 Tankage means the tankage identified in Exhibit J-5 .
Tulsa Group 2 Loading Rack means the rail loading rack located at the Tulsa West Refinery and more specifically described in Exhibit J-4 .
Tulsa Interconnecting Pipelines means the following pipelines between the Tulsa East Refinery and the Tulsa West Refinery: 1) the 12 inch raw gas oil/diesel line (the Distillate Interconnecting Pipeline ), 2) the 12 inch naphtha/gasoline component line (the Gasoline Interconnecting Pipeline ), 3) the 12 inch refinery fuel gas line (the Refinery Fuel Gas Interconnecting Pipeline ), 4) the 8 inch hydrogen line (the Hydrogen Interconnecting Pipeline ), and 5) the 10 inch refinery sour fuel gas line (the Refinery Sour Fuel Gas Interconnecting Pipeline ) including delivery facilities from the Tulsa West Refinery and receipt facilities at the Tulsa East Refinery for the Distillate and Gasoline Interconnecting Pipelines, but not for the Refinery Fuel Gas, Hydrogen, and Refinery Sour Fuel Gas Interconnecting Pipelines.
Tulsa Group 1 Pipeline means those two (2) product delivery lines extending from the Group 1 Tankage to interconnection points with the Magellan pipeline as more specifically described in Exhibit J-2 attached hereto.
Tulsa Purchase Agreements means the Tulsa Group 1 Purchase Agreement and the Tulsa Group 2 Purchase Agreement.
Tulsa West Refinery means the refinery owned by Holly Tulsa located at 1700 S. Union, Tulsa, Oklahoma.
Working Capacity has the meaning set forth in Exhibit K .
Exhibit A-7
Exhibit B
to
Master Throughput Agreement
Interpretation
As used in this Agreement, unless a clear contrary intention appears:
(a) any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa, and any reference to a gender includes the other gender;
(b) the words hereof, herein, and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(c) any reference to Articles, Sections and Exhibits are, unless otherwise stated, references to Articles, Sections and Exhibits of or to this Agreement and references in any Section or definition to any clause means such clause of such Section or definition. The headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation;
(d) reference to any agreement (including this Agreement), document or instrument means such agreement, document, or instrument as amended, modified or supplemented and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Agreement;
(e) the Exhibits hereto form an integral part of this Agreement and are equally binding therewith. Any reference to this Agreement shall include such Exhibits;
(f) references to a Person shall include any permitted assignee or successor to such Party in accordance with this Agreement and reference to a Person in a particular capacity excludes such Person in any other capacity;
(g) if any period is referred to in this Agreement by way of reference to a number of days, the days shall be calculated exclusively of the first and inclusively of the last day unless the last day falls on a day that is not a Business Day in which case the last day shall be the next succeeding Business Day;
(h) the use of or is not intended to be exclusive unless explicitly indicated otherwise;
(i) references to $ or to dollars shall mean the lawful currency of the United States of America; and
(j) the words includes, including, or any derivation thereof shall mean including without limitation or including, but not limited to.
Exhibit B-1
Exhibit C
to
Master Throughput Agreement
Applicable Assets, Product, Minimum Capacity Commitment, Tariffs, Tariff Adjustments and Applicable Terms
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term (all times are Dallas, TX time) |
||||||||||||
Malaga Pipeline System |
Pipelines | Crude Oil | 40,000 bpd 1 | 40,000 bpd 2 | $0.5334/bbl 2 | 40,000 bpd 2 | $0.3137/bbl | | FERC Adjustment | | July 1, 2015 | 12:01 a.m. on June 1, 2013 to Sept. 1, 2024 (the Malaga Commencement Date ) |
1 | As may be adjusted pursuant to Exhibit G . |
2 | During the first five years of the Applicable Term, following the Malaga Commencement Date, HFRM shall pay HEP Operating an extra surcharge per barrel (the Surcharge Tariff ). The Surcharge Tariff for each Contract Quarter is equal to: |
Actual Construction Costs $38,500,000
Minimum Pipeline Throughput × 365 × 5
where Actual Construction Costs means the actual, reasonable and necessary costs, or as otherwise approved in writing by HFRM, incurred by HEP Operating to construct the Malaga Construction Projects and the Devon Lease Connections; provided, however, that the numerator of the formula for calculating the Surcharge Tariff (Actual Construction Costs $38,500,000) shall not exceed $13,500,000 such that the maximum value for such numerator shall be $13,500,000. At the end of each Contract Quarter during the first five years of the Applicable Term, following the Malaga Commencement Date, HFRM shall pay HEP Operating an amount for each Contract Quarter determined by multiplying the Minimum Throughput Commitment for the Malaga Pipeline System for such Contract Quarter, by the Surcharge Tariff. The Surcharge Tariff is in addition to the Applicable Tariff to be paid by HFRM.
Exhibit C-1
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term (all times are Dallas, TX time) |
||||||||||||
El Dorado Assets |
Pipelines |
Refined Products
LPG Products,
Intermediate Products
Heavy Products |
120,000 bpd of aggregate delivery capacity from the Tankage | 120,000 bpd of Intermediate and Refined Product | $0.1625/bbl | 132,000 bpd of Intermediate and Refined Product | $0.0758/bbl | | PPI Adjustment | 3% in any calendar year (applicable to each individual tariff) | July 1, 2012 | 12:01 a.m. on Nov. 1, 2011 to 12:01 a.m. on Oct. 31, 2026; provided that with respect to (a) El Dorado Tank No. 643, the Applicable Term is 12:01 a.m. on February 4, 2014 to 12:01 a.m. on February 4, 2029, and (b) the New Tanks at the El Dorado Refinery, the Applicable Term shall be from 12:01 a.m. on the New Tank Commencement Date for such New Tank to the date occurring fifteen (15) years thereafter. | ||||||||||||
Tankage | 140,000 bpd of aggregate capacity in the Tankage | 140,000 bpd of Products | $0.4742/bbl 3 , 4 | 154,000 bpd of Products | $0.2167/bbl | | ||||||||||||||||||
Loading Rack | 20,000 bpd | 20,000 bpd | $0.2708/bbl | | | |
3 | From and after the New Tank Commencement Date established pursuant to Exhibit H , if any, the Tankage Base Tariff shall be increased by an amount per barrel equal to: |
Final Construction Cost
0.9 × 8.1928 × Minimum Tankage Throughput × 365
For example, if the Final Construction Costs = $1,500,000, the per barrel increase in the Tankage Base Tariff would be calculated as follows:
$1,500,000/(0.9 × 8.1928 × 140,000 × 365) = $0.0040.
4 | Reflects reduction in throughput fee effective January 1, 2015 as a result of the secondment arrangement at the El Dorado refinery. |
Exhibit C-2
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term (all times are Dallas, TX time) |
||||||||||||
Cheyenne Assets |
Cheyenne Receiving Assets | Crude Oil | 41,000 bpd | 46,000 bpd | $0.3251/bbl | 50,600 bpd | $0.1517/bbl | | PPI Adjustment | 3% in any calendar year (applicable to each individual tariff) 4 | July 1, 2012 | 12:01 a.m. on Nov. 1, 2011 to 12:01 a.m. on Oct. 31, 2026; provided that with respect to (a) Cheyenne New Tank Nos. 117, the Applicable Term shall be from 12:01 a.m. on December 4, 2014 to 12:01 a.m. on December 4, 2029, and (b) any New Tanks at the Cheyenne Refinery, the Applicable Term is 12:01 a.m. on the New Tank Commencement Date for each such New Tank to the date occurring fifteen (15) years thereafter. | ||||||||||||
Cheyenne Tankage | 46,000 bpd | 41,000 bpd | $0.4142 /bbl 5 | 45,100 bpd | $0.2167/bbl | | ||||||||||||||||||
Cheyenne Loading Rack | 41,000 bpd | $0.2708/bbl | None | | |
5 | Reflects reduction in throughput fee effective January 1, 2015 as a result of the secondment arrangement at the Cheyenne refinery. |
Exhibit C-3
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term (all times are Dallas, TX time) |
||||||||||||
Tulsa East Assets |
Tulsa Pipelines
|
Refined Products
|
60,000 bpd
|
60,000 bpd
|
$0.1116/bbl
|
|
|
PPI Adjustment | 3% in any calendar year (applicable to each individual tariff) | July 1, 2011 | 11:59 p.m. on Mar. 31, 2010 to 12:01 a.m. on Dec. 1, 2024 | |||||||||||||
Tulsa Group 1 Tankage |
Various | 1,362,550 bbls | 80,000 bpd | $0.3839/bbl | Each throughput barrel over the Minimum Throughput Commitment but less than or equal to the Excess Tariff Threshold | $0.1116/bbl | $0.2455/bbl (over 120,000 bpd of Refined Products, in the aggregate on average for each Contract Quarter) | |||||||||||||||||
Tulsa Group 1
Loading Rack |
Various
|
26,000 bpd
|
26,000 bpd
|
$0.3348/bbl
|
|
|
|
|||||||||||||||||
Tulsa Group 2 Tankage
|
Various
|
2,122,644 bbl
|
90,000 bpd
|
$0.4605/bbl
|
Each throughput barrel over the Minimum Throughput Commitment but less than or equal to the Excess Tariff Thresshold
|
$0.1116/bbl
|
$0.2455/bbl (over 120,000 bpd of Refined Products, in the aggregate on average for each Contract Quarter)
|
|||||||||||||||||
Tulsa Group 2 Loading Rack |
1,800 bpd | 1,800 bpd | $0.3906/bbl | | | | ||||||||||||||||||
Exhibit C-4
Applicable Assets |
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term
(all times are Dallas,
|
||||||||||||
Tulsa Interconnect-ing Pipelines 6 |
Distillate Interconnect-ing Pipeline 45,000 bpd (maximum)
|
45,000 bpd | $0.2267/bbl (to 45,000 bpd in the aggregate, on average for each Contract Quarter) | Over 45,000 bpd and less than or equal to 65,000 bpd | $0.0758/bbl | $0.0541/bbl (over 65,000 bpd of Refined Products, in the aggregate on average for each Contract Quarter) | ||||||||||||||||||
Gasoline Interconnect-ing Pipeline 45,000 bpd (maximum) | 45,000 bpd of Intermediate Products shipped between the Tulsa East Refinery and the Tulsa West Refinery via the Interconnecting Pipelines (excluding the Distillate Interconnecting Pipeline and the Tulsa Pipelines | |||||||||||||||||||||||
Hydrogen Interconnect-ing Pipeline 10,000 MSCFD of hydrogen (maximum) |
64,000 MSCFD |
$0.3906/ MSCF/day |
| | |
6 | The Minimum Interconnecting Pipeline Revenue Commitment shall be an amount of revenue to HEP Operating for each Contract Quarter determined by adding: 1) the Minimum Interconnecting Pipeline Liquid Throughput multiplied by the Interconnecting Pipeline Liquid Tariff, and 2) the Minimum Interconnecting Pipeline Gas Throughput multiplied by the Interconnecting Pipeline Gas Tariff. |
Exhibit C-5
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term
(all times are Dallas,
|
||||||||||||
10,000 MSCFD of hydrogen (maximum) | ||||||||||||||||||||||||
Refinery Fuel Gas Interconnect-ing Pipeline 32,000 MSCFD of refinery fuel gas (maximum) |
||||||||||||||||||||||||
Refinery Sour Fuel Gas Interconnecting Pipeline 22,000 MSCFD of refinery sour fuel gas (maximum) | ||||||||||||||||||||||||
Lovington Assets |
Lovington Loading Rack | Asphalt and any other petroleum or petroleum based or derived products | 4,000 bpd | 4,000 bpd | $0.3906/bbl | | | PPI Adjustment 4 | 3% in any calendar year | July 1, 2011 | 11:59 p.m. on Mar. 31, 2010 to 12:01 a.m. on Mar. 31, 2025 |
Exhibit C-6
Applicable
|
Type of Applicable Asset |
Product |
Minimum Capacity Commitment (aggregate capacity unless otherwise noted) |
Minimum Throughput Commitment (in the aggregate, on average, for each Contract Quarter) |
Base Tariff (applicable to all movements below the Incentive Tariff Threshold) |
Incentive Tariff Threshold (in the aggregate, on average, for each Contract Quarter) |
Incentive
(applicable to all movements at or above
the
|
Excess
|
Tariff
|
Tariff
|
Tariff
|
Applicable Term (all times are Dallas, TX time) |
||||||||||||
Roadrunner Assets |
Pipelines | Crude Oil | 40,000 bpd | 40,000 bpd 7 | $0.7174/bbl | Each throughput barrel over the Minimum Throughput Commitment | $0.3757/bbl 8 | | PPI Adjustment | 3% plus 1 ⁄ 2 of the PPI increase in excess of 3% for such calendar year. | July 1, 2011 | 12:01 a.m. on Dec. 1, 2009 to 12:01 a.m. on Dec. 1, 2024 | ||||||||||||
El Dorado Crude Tankage |
Tankage | Crude Oil; Intermediate Products | 140,000 bpd | 140,000 bpd | $0.091/bbl | Each throughput barrel over the Minimum Throughput Commitment | $0.01/bbl | | PPI Adjustment | Subject to 1% minimum / 3% cap 9 | July 1, 2016 | 12:01 a.m. on March 6, 2015 to 12:01 a.m. on March 6, 2025 |
7 | In the event that any third party transports Crude Oil on the Roadrunner Pipeline for ultimate delivery to HollyFrontier or any of its Subsidiaries and such third party pays throughput fees equal to or greater than the then-current base tariff for each such barrel of Crude Oil transported on the Roadrunner Pipeline for ultimate delivery to HollyFrontier or any of its Subsidiaries ( Qualified Third-Party Throughput ), then revenues paid to HEP Operating by such third party for such Qualified Third-Party Throughput shall be credited towards the Minimum Revenue Commitment hereunder for the Roadrunner Pipeline. |
8 | If the average throughput for any Contract Quarter (including Qualified Third-Party Throughput) exceeds the Minimum Pipeline Throughput attributable to such Contract Quarter, then for each throughput barrel in excess of the Minimum Pipeline Throughput, HFRM shall pay HEP Operating throughput fees in the amount of the Pipeline Incentive Tariff. |
9 | For the avoidance of doubt, if the change in PPI in any year is less than one percent (1%) it will be rounded up to one percent (1%) and if the change in PPI in any year is greater than three percent (3%) it will be rounded down to three percent (3%). |
Exhibit C-7
Applicable Tariff Adjustments
FERC Adjustment :
Each Applicable Tariff shall be adjusted on July 1 of each index year during the Applicable Term by an amount equal to the percentage change, if any, between the two (2) immediately preceding index years, in the Federal Energy Regulation Commission Oil Pipeline Index (the FERC Oil Pipeline Index ); provided , however , that if the percentage change, if any, between the two (2) immediately preceding index years in the FERC Oil Pipeline Index is negative, then there will be no change to the Applicable Tariffs.
PPI Adjustment :
Each Applicable Tariff shall be adjusted on July 1 of each calendar year 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. The series ID is WPUSOP3000 as June 1, 2011 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 tariff.
Index no longer Published
If the either index is no longer published, the Parties shall negotiate in good faith to agree on a new index (as applicable) that gives comparable protection against inflation or deflation, and the same method of adjustment for increases or decreases in the new index shall be used to calculate increases or decreases in the tariffs. If the Parties are unable to agree, a new index will be determined in accordance with the dispute resolution provisions set forth in the Omnibus Agreement, and the same method of adjustment for increases or decreases in the new index shall be used to calculate increases or decreases in the tariffs.
Exhibit C-8
Exhibit D
to
Master Throughput Agreement
Measurement of Shipped Volumes
Applicable Asset |
Type of Applicable Asset |
Measurement of Volumes |
||
Malaga Pipeline System | Pipelines |
Quantities shipped on the Malaga Pipeline System shall be determined by measuring unique barrels of Crude Oil (either by counting barrels or calculating barrels based on available meter data) shipped on the following origin and destination pairings: Whites City Road Station to HEP Artesia Station Whites City Road Station to Beeson Station Whites City Road Station to Plains Pipeline Bisti Connection HEP Artesia Station to Beeson Station HEP Artesia Station to Plains Pipeline Bisti Connection Beeson Station to Plains Pipeline Bisti Connection
The origin and destination pairings listed above utilize the following segments of the Pipeline System: Whites City Road Station to HEP Artesia Station (8-inch) HEP Artesia Station to Beeson Station (8-inch) Beeson Station to Plains Pipeline Bisti Connection (12-inch)
Shipments on any other segments of the Malaga Pipeline System will be charged the then-current tariff and fees under the Crude Agreement.
For the avoidance of doubt, a barrel shipped on multiple segments of the Malaga Pipeline System shall only be counted as one barrel in satisfaction of the Minimum Throughput Commitment and shall not count as a separate barrel on each such segment. For example, a barrel shipped from Whites City Road Station to the Plains Pipeline Bisti Connection shall count as one barrel in satisfaction of the Minimum Throughput Commitment, and not as three barrels since it flows on three segments of the Malaga Pipeline System. |
||
El Dorado Assets | Pipelines |
Pipeline delivery throughput shall be determined by the shipments of Products by pipeline (and not over the Loading Racks) from the El Dorado Refinery.
|
||
Tankage |
Tankage throughput shall be determined by the sum of Products shipped from the El Dorado Refinery but not including shipments of coke and sulfur. For the avoidance of doubt, no Tankage throughput fees shall be paid for movements of Products within the El Dorado Refinery.
|
|||
Loading Rack |
The Loading Rack Tariff will be paid for all quantities of Products or other materials loaded at the Loading Racks or the asphalt loading rack and any Products or other materials shipped using the weight scales.
|
|||
Cheyenne Assets | Cheyenne Receiving Assets |
Crude Oil throughput shall be determined by the total shipments of Crude Oil by pipeline, truck and rail received at the Cheyenne Refinery.
|
||
Cheyenne Tankage |
Tankage throughput shall be determined by the sum of Products shipped by the Refinery but not including shipments of coke and sulfur. For the avoidance of doubt, no Tankage throughput fees shall be paid for movements of Products within the Cheyenne Refinery.
|
|||
Cheyenne Loading Rack |
The Applicable Tariff for the Loading Rack will be paid for (A) all quantities of Products shipped out of the Cheyenne Refinery by pipeline or asphalt loading racks, and (B) all quantities of Products, Crude Oil and any other materials (such as coke and sulfur) loaded at the Loading Racks or the weight scales.
|
|||
Tulsa East Assets | Pipelines | Pipeline throughput will be determined by the quantities of Refined Product shipped on the Tulsa Pipelines. |
Exhibit D-1
Group 1 Tankage
|
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. Any streams moved internally within the Tulsa East Refinery will not be included in determining the volumes for any Minimum Revenue Commitment for the Group 1 Tankage. 1
|
|||
Group 1 Loading Rack
|
The Group 1 Loading Rack Tariff will be paid for all quantities of Products loaded at the Group 1 Loading Rack.
|
|||
Group 2 Tankage
|
Group 2 Tankage throughput shall be determined by the sum of pipeline quantities of Crude Oil and Intermediate Products received at the Tulsa East Refinery, including Crude Oil and Intermediate Products received at the Tulsa East Refinery from the Tulsa West Refinery. Any streams moved internally within the Tulsa East Refinery will not be included in determining the volumes for any Minimum Revenue Commitment for the Group 2 Tankage. Any Refined Products received from the Tulsa West Refinery or moved out of the Tulsa East Refinery will not be included in determining the volumes for the Minimum Revenue Commitment for the Group 2 Tankage. 1
|
|||
Group 2 Loading Rack
|
The Group 2 Loading Rack Tariff will be paid for all quantities of Products loaded at the Group 2 Loading Rack.
|
|||
Interconnecting Pipelines
|
The Interconnecting Pipeline Gas Throughput shall be determined by the sum of pipeline quantities of Intermediate Products shipped between the Tulsa East Refinery and the Tulsa West Refinery via the Hydrogen Interconnecting Pipeline, Refinery Fuel Gas Interconnecting Pipeline, and Refinery Sour Fuel Gas Interconnecting Pipeline. The Interconnecting Pipeline Liquid Throughput shall be determined by the sum of pipeline quantities of Intermediate Products shipped between the Tulsa East Refinery and the Tulsa West Refinery via the Gasoline Interconnecting Pipeline and Distillate Interconnecting Pipeline.
|
|||
Lovington Assets |
Loading Rack
|
The Loading Rack Tariff will be paid for all quantities of Products loaded at the Lovington Loading Rack.
|
||
Roadrunner Assets |
N/A
|
N/A | ||
El Dorado Crude Tank Farm Assets | El Dorado Crude Tankage |
El Dorado Tankage throughput shall be determined by the sum of the pipeline quantities of Product received at the El Dorado Crude Tankage, based on custody transfer meters. For avoidance of doubt, no throughput fees shall be paid for movements of Products among the El Dorado Crude Tankage.
|
1 | For the avoidance of doubt, any high sulfur diesel fuel that HFRM may transport from the Tulsa West Refinery through the Group 1 Tankage or Group 2 Tankage for processing in the Tulsa East Refinerys distillate hydrotreater shall be subject to the Group 2 Tankage Applicable Tariffs, and the resulting ultra low sulfur diesel fuel produced from the high sulfur diesel fuel and then shipped from the Tulsa East Refinery via either the Tulsa Pipelines or the loading rack located at the Tulsa East Refinery shall be subject to the applicable Group 1 Tankage Applicable Tariffs. |
Exhibit D-2
Exhibit E
to
Master Throughput Agreement
Volumetric Gains; Losses; Line Fill; High-API Oil Surcharge
Applicable Assets |
Volumetric Gains and Losses |
Line Fill |
High-API Oil Surcharge |
|||
Malaga Pipeline System | HFRM shall, during the Applicable Term, (i) absorb all volumetric gains in the Malaga Pipeline System, and (ii) be responsible for all volumetric losses in the Malaga Pipeline System up to a maximum of 0.5%. HEP Operating shall be responsible for all volumetric losses in excess of 0.5% in the Malaga Pipeline System during the Applicable Term. Volumetric gains and losses shall be calculated and measured in a manner consistent with how and when gains and losses are calculated in the Crude Agreement. | HFRM shall be responsible for line fill by pipeline segment in accordance with HEP Operatings policies for each segment as published on the Partnerships website from time to time. | In the event HFRM desires to ship Crude Oil on the Malaga Pipeline System with an API Gravity in excess of 50 degrees, HEP Operating may, in its sole discretion, (i) refuse to ship such Crude Oil, or (ii) ship such Crude Oil and charge HFRM a surcharge (the High-API Surcharge ) equal to the increased expenses (or lower revenues) or capital costs, as a direct result thereof, as agreed upon by the Parties. If the Parties are unable to agree upon the High-API Surcharge, the High-API Surcharge will be determined pursuant to the dispute resolution provisions of the Omnibus Agreement. Any amounts paid by HFRM as a High-API Surcharge shall not count toward satisfaction of any Minimum Revenue Commitment. | |||
El Dorado Assets | | | | |||
Cheyenne Assets | HFRM shall, during the Applicable Term, (i) absorb all volumetric gains in the Cheyenne Receiving Assets, and (ii) be responsible for all volumetric losses in the Cheyenne Receiving Assets up to a maximum of 0.5%. HEP Operating shall, during the Applicable Term, be responsible for all volumetric losses in excess of 0.5% in the Cheyenne Receiving Assets. Gains and losses will be calculated for each Contract Quarter and offset against each other. | |
|
Exhibit E-1
Applicable Assets |
Volumetric Gains and Losses |
Line Fill |
High-API Oil Surcharge |
|||
Tulsa East Assets | HFRM shall, during the Applicable Term, (i) absorb all volumetric gains in the Tulsa Pipelines, and (ii) be responsible for all volumetric losses in the Tulsa Pipelines up to a maximum of 0.5%. HEP Tulsa shall, during the Applicable Term, be responsible for all volumetric losses in excess of 0.5% in the Tulsa Pipelines. Gains and losses will be calculated for each Contract Quarter and offset against each other. | | | |||
Lovington Assets | | | | |||
Roadrunner Assets | HFRM shall, during the Applicable Term, (i) absorb all volumetric gains in the Roadrunner Pipeline, and (ii) be responsible for all volumetric losses in the Roadrunner Pipeline up to a maximum of 0.5%. HEP Operating shall, during the Applicable Term, be responsible for all volumetric losses in excess of 0.5% in the Roadrunner Pipeline. Gains and losses will be calculated for each Contract Quarter and offset against each other. | | | |||
El Dorado Crude Tank Farm Assets | | | |
Exhibit E-2
Exhibit F
to
Master Throughput Agreement
Increases in Tariff Rates as a Result of Changes in Applicable Law
Applicable Assets |
Types of Tariffs that may be increased (as applicable) |
Threshold |
||
Malaga Pipeline System |
Pipeline Base Tariff Pipeline Incentive Tariff |
None | ||
El Dorado Assets |
Pipeline Base Tariff Tankage Base Tariff Loading Rack Base Tariff |
No Base Tariff may be amended until HEP Operating has made capital expenditures of $1,000,000 in the aggregate with respect to the El Dorado Assets in order to comply with new Applicable Laws.
Thereafter, HEP Operating may amend the applicable Base Tariff to recover its full cost of complying with the new Applicable Laws and such recovery shall not be limited to amounts in excess of $1,000,000. |
||
Cheyenne Assets |
Cheyenne Receiving Assets Base Tariff Cheyenne Tankage Base Tariff Cheyenne Loading Rack Base Tariff |
No Base Tariff may be amended until HEP Operating has made capital expenditures of $1,000,000 in the aggregate with respect to the Cheyenne Assets in order to comply with new Applicable Laws.
Thereafter, HEP Operating may amend the applicable Base Tariff to recover its full cost of complying with such new Applicable Laws and such recovery shall not be limited to amounts in excess of $1,000,000. |
||
Tulsa East Assets |
Tulsa Pipelines Base Tariff Tulsa Group 1 Tankage Base Tariff Tulsa Group 1 Loading Rack Tariff Tulsa Group 2 Tankage Base Tariff Tulsa Group 2 Loading Rack Tariff |
Base Tariff may not be amended until HEP Operating has made capital expenditures of $2,000,000 in the aggregate with respect to the Applicable Assets (excluding the Interconnecting Pipelines) in order to comply with new Applicable Laws.
|
||
Tulsa Interconnecting Pipeline Base Tariff | Base Tariff may not be amended until HEP Operating has made capital expenditures of $1,000,000 in the aggregate with respect to the Interconnecting Pipelines in order to comply with new Applicable Laws. | |||
Lovington Assets | Base Tariff | Base Tariff may not be amended until HEP Operating has made capital expenditures of $500,000 in the aggregate with respect to the Lovington Loading Rack in order to comply with new Applicable Laws. |
Exhibit F-1
Applicable Assets |
||||
Roadrunner Assets |
Pipeline Base Tariff | Base Tariff may not be amended until HEP Operating has made capital expenditures of $1,000,000 in the aggregate with respect to the Roadrunner Pipeline in order to comply with new Applicable Laws. | ||
El Dorado Crude Tank Farm Assets |
Base Tariff |
No Base Tariff may be amended until HEP Operating has made capital expenditures of $1,000,000 in the aggregate with respect to the El Dorado Crude Tank Farm Assets in order to comply with new Applicable Laws.
Thereafter, HEP Operating may amend the applicable Base Tariff to recover its full cost of complying with the new Applicable Laws and such recovery shall not be limited to amounts in excess of $1,000,000. |
Exhibit F-2
Exhibit G
to
Master Throughput Agreement
Special Provisions: Malaga Pipeline System
1. Construction Projects . HEP Operating agrees to use commercially reasonable efforts to (i) complete the construction projects set forth on Exhibit G-2 and (ii) build the 25 lease connections listed on Exhibit G-3 (the Devon Lease Connections and, together with the construction projects set forth on Exhibit G-2 , the Malaga Construction Projects ). With respect to Item 4 listed on Exhibit G-2 , HFRM shall reimburse HEP Operating 100% of the actual costs and expenses of those Malaga Construction Projects. HEP Operating shall bear the costs of constructing all of the other Malaga Construction Projects listed on Exhibit G-2 and Exhibit G-3 , other than Item 4 on Exhibit G-3 .
2. Option to Increase Minimum Capacity Commitment Following the Malaga Initial Period . At the end of the Malaga Initial Period and once-a-year thereafter during the Applicable Term, HFRM shall have the option to increase (but not decrease) the Minimum Capacity Commitment for the Malaga Pipeline System applicable to the remainder of the Applicable Term, which option may be exercised as follows:
2.1 Malaga Capacity Estimate . HFRM may initiate the process by which it will exercise its option by delivering to HEP Operating a written request for a statement of HEP Operatings good faith estimate of the total uncommitted pipeline capacity for the Malaga Pipeline System that will be available for the remaining Applicable Term (a Malaga Capacity Estimate ), which request must be made, (i) in the case of the election available at the end of the Malaga Initial Applicable Period, no later than the one hundred twentieth (120 th ) day before the end of the Malaga Initial Period, and (ii) in the case of the election available at the end of each twelve (12) month period following the end of the Malaga Initial Period (each a Subsequent Year ), the one-hundred twentieth (120) day before the end of such Subsequent Year.
2.2 Response to Request for Malaga Capacity Estimate . HEP Operating must respond to each request with a written Malaga Capacity Estimate within ten (10) days of HEP Operatings receipt of such request.
2.3 Malaga Exercise Notice . To exercise its option, HFRM must provide HEP Operating a written notice of exercise (an Malaga Exercise Notice ) no later than ninety (90) days prior to the end of the Malaga Initial Period or Subsequent Year (as applicable), which Malaga Exercise Notice must contain the amount (stated in bpd) by which HFRM desires to increase the Minimum Capacity Commitment for the Malaga Pipeline System for the next occurring Subsequent Year and the remainder of the Applicable Term. The amount of increase for which HFRM may exercise this option may not exceed the available uncommitted pipeline capacity for the Malaga Pipeline System as stated in the Malaga Capacity Estimate. If no written Malaga Exercise Notice is received by such ninetieth (90 th ) day, then HFRM will be deemed to have waived its option, though such waiver shall not preclude HFRM from exercising its option in Subsequent Years according the process set forth in this Section 2 .
2.4 Increase in Minimum Capacity Commitment and Minimum Throughput Commitment . If HFRM timely exercises its option at the end of the Malaga Initial Period or a Subsequent Year in accordance with this Section 2 , then, with respect to the next Subsequent Year and the remainder of the Applicable Term thereafter:
(a) the Minimum Capacity Commitment for the Malaga Pipeline System shall be increased by the amount specified in the Malaga Exercise Notice; and
Exhibit G
(b) the Minimum Throughput Commitment shall be increased by an amount equal to the increase in the Minimum Capacity Commitment for the Malaga Pipeline System.
For example, if HFRM exercises its option at the end of the Malaga Initial Period to increase the Minimum Capacity Commitment for the Malaga Pipeline System from 40,000 bpd to 50,000 bpd (a 25% increase), then the Minimum Throughput Commitment shall be increased to equal 50,000 bpd (a 25% increase). This will have the effect of increasing the Minimum Pipeline Revenue Commitment by the operation of Section 2.2(a) of the Agreement.
3. Third Party Shipping . During the Malaga Initial Period, HFRM shall have the exclusive right to utilize the entire capacity of the Malaga Pipeline System. After the end of the Malaga Initial Period, if HEP Operating contracts with third parties to ship Crude Oil on the Malaga Pipeline System thereafter during the Applicable Term, subject to the terms of this Agreement, then HEP Operating may not charge any such third party transportation services fees, throughput fees, or other fees that are equal to or less on a per barrel basis (taking into account all applicable incentive tariffs and surcharges) than those charged to HFRM under this Agreement unless such third party agrees to minimum volume and revenue commitments equal to or in excess of those to which HFRM is subject hereunder. In the event that a third party with whom HEP has contracted agrees to minimum volume and revenue commitments that are equal to those to which HFRM is subject hereunder, and the transportation services fees, throughput fees, or other fees are less on a per barrel basis (taking into account all applicable incentive tariffs and surcharges) than those charged to HFRM under this Agreement, then the tariff rates charged to HFRM under this Agreement shall be automatically reduced to be equal to such third party tariff rates.
4. Storage . In addition, following the Malaga Commencement Date, HEP Operating agrees, for no additional fees, to provide storage services of up to 70,000 barrels with regard to Crude Oil shipped using the Malaga Pipeline System (30,000 barrels at the Whites City Road Station and 40,000 barrels at the Beeson Station) and provide limited in-tank Crude Oil blending services when operationally feasible at the HEP Operating Artesia Station to the specifications of HFRM, as such specifications may be adjusted from time to time.
5. Additional Applicable Tariff . The Parties hereby acknowledge that the Applicable Tariffs are in addition to tariffs applicable to volumes shipped on the Devon Lease Connections pursuant to the Crude Agreement.
Exhibit G
Exhibit G-1
to
Master Throughput Agreement
Map of Pipeline System and Pipeline System Capacity by Segment
See attached
Exhibit G-1
Exhibit G-1
Exhibit G-2
to
Master Throughput Agreement
Construction Projects
1. | Whites City Road Station |
a. | Build station at the intersection of the idle 8 pipe and Whites City County Road (coordinates _32.064421 Lat _104.135759_ Long). This station should include 30,000 barrels of tankage for crude to be injected into the 8 headed north. The amount of property to be leased or purchased will be sufficient to install up to 5 crude truck off-loading LACTS and their associated tanks. |
2. | HEP Artesia Station |
a. | Reactivate 8 Malaga Pipeline from the Whites City Road Station to the existing 30,000 barrel tank at HEP Artesia Station. |
b. | Build connecting 8 line between the reactivated 8 Malaga Pipeline and HEP Artesia Station for receipts of sweet crude originating from the Whites City Road Station. |
c. | Tie-in Millman Station and Devon Parkway sweet crude deliveries into the HEP Artesia Station 30,000 barrel tank, i.e., Devon Parkway barrels will be connected into and delivered to the Artesia Station tank. |
d. | Sweet crude oil deliveries out of HEP Artesia Station tank will be connected for delivery to Abo station. |
e. | Build 6 connecting pipeline approximately 6 miles to receive sweet barrels from the Devon Parkway into existing Millman System. |
f. | Build additional truck off loading facility at HEP Artesia Station. |
g. | Build 8 11-mile pipeline from HEP Artesia Station to Beeson Station. |
3. | HEP Beeson Station and Bisti Delivery |
a. | Build approximately 40,000 barrels of tankage at Beeson Station to receive sweet crude. |
b. | Build 6 pipeline (approximately 12 miles) to receive sweet barrels from the Devon Hackberry field. |
c. | Build connection from Anderson Ranch gathering system to the Devon Hackberry to Beeson Station connecting pipeline. This connection will be made to deliver sweet barrels through the Anderson Ranch pipe and deliver into the tank at the Beeson Station. |
d. | Install pumping capacity necessary for delivery into Plains Pipeline at Bisti (to deliver at a rate of up to 80,000 bpd). |
Exhibit G-1
e. | Build 12 12-mile pipeline from Beeson Station to Plains Pipeline System connection at Bisti. |
4. | Build NM sweet truck off-loading station at Whites City Road Station.* |
* | HEP Operating will manage and construct (4) above and be reimbursed by HFRM for the costs of managing and constructing (4). HEP Operating will at all times be the owner of (4), including during the period of construction. |
Exhibit G-2
Exhibit G-3
to
Master Throughput Agreement
Devon Lease Connections
Battery Name |
Field Name |
Location |
Status |
|||
Diamond | Parkway | 32.6519528 N 104.0701295 W | Producing | |||
Emerald | Parkway | 32.6525348 N 104.1045269 W | Producing | |||
Beryl | Parkway | 32.6109502 N 104.0829194 W | Producing | |||
Onyx | Parkway | 32.638176 N 104.093915 W | Producing | |||
Coral | Parkway | 32.6253952 N 104.0745216 W | Producing | |||
Turquoise | Parkway | 32.6365513 N 104.0701851 W | Producing | |||
Agate | Parkway | 32.6520074 N 104.0873003 W | Producing | |||
Jasper | Parkway | 32.623619 N 104.090791 W | Producing | |||
Beetle Juice 19 Fed #1H | Hackberry | 32° 39 7.41 N 103° 54 4.05 W | Producing | |||
Beetle Juice 19 Fed #3H | Hackberry | 32° 39 9.054 N 103° 54 43.471 W | Producing | |||
Capella 14 Fed #1H | Hackberry | 32° 40 0.638 N 103° 50 4.152 W | Producing | |||
Strawberry 7 Fed #2 | Hackberry | 32° 40 43 N 103° 54 20.8 W | Producing | |||
Strawberry 7 Fed #4 | Hackberry | 32° 40 6.93 N 103° 54 4.28 W | Producing | |||
Sirius 17 Fed #1H | Hackberry | 32° 39 59.165 N 103° 54 2.605 W | Producing | |||
Sirius 17 Fed #2H | Hackberry | 32° 39 47.98 N 103° 53 2.44 W | Producing | |||
Sirius 17 Fed #3H | Hackberry | 32° 39 30.98 N 103° 53 56.18 W | Producing | |||
Arcturus 18 Fed #1H | Hackberry | 32° 39 59.66 N 103° 54 2.607 W | Producing | |||
Arcturus 18 Fed #3H | Hackberry | 32° 39 23.058 103° 54 57.028 W | Producing | |||
Rigel 20 Fed Com #1H | Hackberry | 32° 39 7.185 N 103° 53 56.214 W | Producing | |||
Rigel 20 Fed Com #3H | Hackberry | 32° 38 36.881 N 103° 53 56.099 W | Producing | |||
Regulus 26 Fed #1 | Hackberry | 32° 63 76.832 N 103° 83 24.245 W | Producing | |||
Spica 25 Fed #1 | Hackberry | 32° 63 76.834 N 103° 83 22.620 W | Producing | |||
Vega 29 Fed Com #1 | Hackberry | 32° 63 77.726 N 103° 88 57.377 W | Producing | |||
Serene Sisters 25 Fed #1H | Hackberry | 32° 43 31.099 N 103° 49 3.506 W | Producing | |||
Serene Sisters 25 Fed #3H | Hackberry | 32° 42 42.721 N 103° 49 32.488 W | Producing |
Exhibit G-3
Exhibit H
to
Master Throughput Agreement
Special Provisions: El Dorado Assets
1. Change of Service . Subject to (i) any Applicable Law and (ii) technical specifications of the El Dorado Tankage, HFRM may request that HEP Operating change the service of any of the El Dorado Tankage from storage of one Product to storage of a different Product. If HEP Operating agrees to such request, HFRM shall indemnify and hold HEP Operating harmless from and against all costs and expenses associated with any such changing of service including costs of complying with any Applicable Law affecting such change of service.
2. Construction of New Tank . HEP Operating shall, or shall cause its Affiliate to, use its commercially reasonable efforts to construct a New Tank at the El Dorado Refinery in accordance with the specifications set forth on Exhibit H-3 . If HEP Operating or its Affiliate should fail to complete the New Tank is not completed or if the New Tank Commencement Date does not occur for the New Tank for a reason related to the fault of HEP Operating or its Affiliate or a matter that is within or under the control of HEP Operating or its Affiliate, HEP Operating shall bear all costs, liabilities and expenses with respect to such incomplete New Tank, and if HEP Operating or its Affiliate should fail to complete the New Tank or if the New Tank Commencement Date does not occur for the New Tank for any other reason, HFRM shall reimburse HEP Operating or its Affiliate for all costs, liabilities and expenses incurred by HEP Operating or its Affiliate with respect to such incomplete New Tank. Promptly following the New Tank Commencement Date, HEP Operating will deliver a written certification to HFRM certifying the final aggregate construction costs for the New Tank (the Final Construction Cost ). Additionally, promptly following the New Tank Commencement Date, the Parties shall execute an amended Exhibit H-2 reflecting the addition of the New Tank and attach it to this Agreement. Such amended Exhibit H-2 shall be numbered Exhibit H-2.1 , dated and appended as an additional schedule to this Agreement and shall replace the prior version of Exhibit H-2 in its entirety after its date of effectiveness.
Exhibit H
Exhibit H-1
to
Master Throughput Agreement
El Dorado Loading Rack
The Refined Products Truck Loading Rack and the Propane Truck Loading Rack transferred to El Dorado Logistics pursuant to that certain Conveyance, Assignment and Bill of Sale (El Dorado), dated effective as of October 25, 2011, by and between Frontier El Dorado and El Dorado Logistics.
Exhibit H-1
Exhibit H-2
to
Master Throughput Agreement
El Dorado Tankage
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS |
||
1 |
Naptha | 2,885 | ||
2 |
Naptha | 2,885 | ||
3 |
ULSD | 40,425 | ||
15 |
ULSD | 12,422 | ||
16 |
Light Slop | 28,880 | ||
17 |
Gasoline | 92,740 | ||
18 |
Gasoline | 88,600 | ||
19 |
Gasoline | 90,733 | ||
20 |
Finish Gasoline | 17,961 | ||
21 |
ULSD | 120,639 | ||
23 |
ULSD | 113,182 | ||
24 |
ULSD | 119,269 | ||
25 |
Av Jet | 65,117 | ||
29 |
CRU1 Feed | 33,723 | ||
30 |
CRU2 Feed | 39,417 | ||
31 |
ULSD | 23,792 | ||
32 |
Finish Gasoline | 74,847 | ||
64 |
Gasoline | 17,961 | ||
65 |
Gasoline | 17,941 | ||
66 |
Naptha | 22,582 | ||
75 |
ULS k | 24,938 | ||
78 |
ULS k | 9,226 | ||
127 |
Heavy Slop | 20,504 | ||
652 |
Sour Distilate | 90,000 | ||
642 |
HTU2 Chg. | 78,511 | ||
134 |
HTU2 Chg. | 76,492 | ||
649 |
HTU4 CHg. | 100,000 | ||
137 |
Gas Oil/Sour diesel | 191,899 | ||
138 |
Gas Oil | 194,091 | ||
139 |
Gas Oil | 74,792 | ||
142 |
Gas Oil | 191,563 | ||
143 |
Gas Oil | 191,570 | ||
159 |
Slurry | 9,778 | ||
167 |
Slurry | 8,908 | ||
650 |
ULSD Dock | 36,000 | ||
178 |
Coke Charge/Swing Tank | 80,000 | ||
192 |
Idled | 8,908 |
Exhibit H-2
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS |
||
212 | Coker Chg. | 76,524 | ||
213 | Asphalt | 77,675 | ||
215 | AV Jet | 67,529 | ||
216 | Alkylate | 72,618 | ||
218 | Gas Oil | 77,675 | ||
219 | Reformate | 71,466 | ||
220 | Swing Tank | 71,495 | ||
221 | Gasoline Swing | 71,508 | ||
222 | Gasoline Swing | 71,509 | ||
223 | Reformate | 72,893 | ||
224 | Jet Fuel | 71,534 | ||
225 | HTU1 Chg, kerosene | 28,882 | ||
226 | Finish Gasoline | 27,679 | ||
227 | Natural Gasoline | 27,701 | ||
230 | Diesel (RAM) | 4,780 | ||
231 | Light Cycle (RAM) | 1,923 | ||
243 | Toluene | 11,300 | ||
244 | Toluene | 10,175 | ||
250 | FCCU Gasoline | 75,354 | ||
251 | FCCU Gasoline | 75,968 | ||
252 | FCCU Gasoline | 75,968 | ||
253 | Natural Gasoline | 74,653 | ||
254 | Isomerate | 19,318 | ||
255 | Isomerate | 19,318 | ||
256 | TEL Wash | 950 | ||
447 | Finish Gasoline | 17,730 | ||
448 | Gasoline | 16,109 | ||
453 | Ethanol | 5,121 | ||
457 | HTU3 Chg, LSR | 32,690 | ||
458 | Isomerate | 32,690 | ||
490 | ULSD | 116,094 | ||
600 | Propane | 625 | ||
601 | Propane | 625 | ||
602 | Propane | 625 | ||
603 | Propane | 625 | ||
604 | Propane | 625 | ||
605 | Propane | 625 | ||
606 | Propane | 625 | ||
607 | Propane | 625 | ||
608 | Propane | 625 | ||
609 | Propane | 625 | ||
610 | Propane | 625 | ||
611 | Propane | 625 |
Exhibit H-2
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS |
||
612 | Propane | 625 | ||
613 | Propane | 625 | ||
614 | Propane | 625 | ||
615 | Propane | 625 | ||
616 | Propane | 625 | ||
617 | Propane | 625 | ||
618 | Propane | 625 | ||
619 | Propane | 625 | ||
620 | Propane | 575 | ||
621 | Propane | 100 | ||
640 | Asphalt | 66,859 | ||
641 | Biodiesel | 6,813 | ||
643 | Sour distillate | 90,600 | ||
647 | Asphalt | 76,600 |
Exhibit H-2
Exhibit H-3
to
Master Throughput Agreement
Specifications for New Tank
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
651 | Heavy Atmospheric Gas Oil (GASO) | 32,000 |
Exhibit H-3
Exhibit I
to
Master Throughput Agreement
Special Provisions: Cheyenne Assets
1. Change of Service . Subject to (i) any Applicable Law and (ii) technical specifications of the Cheyenne Tankage, HFRM may request that HEP Operating change the service of any of the Cheyenne Tankage from storage of one Product to storage of a different Product. If HEP Operating agrees to such request, HFRM shall indemnify and hold HEP Operating harmless from and against all costs and expenses associated with any such changing of service including costs of complying with any Applicable Law affecting such change of service.
2. Construction of New Tank . HEP Operating shall, or shall cause its Affiliate to, use its commercially reasonable efforts to construct a New Tank at the Cheyenne Refinery in accordance with the specifications set forth on Exhibit I-3 . If HEP Operating or its Affiliate should fail to complete the New Tank is not completed or if the New Tank Commencement Date does not occur for the New Tank for a reason related to the fault of HEP Operating or its Affiliate or a matter that is within or under the control of HEP Operating or its Affiliate, HEP Operating shall bear all costs, liabilities and expenses with respect to such incomplete New Tank, and if HEP Operating or its Affiliate should fail to complete the New Tank or if the New Tank Commencement Date does not occur for the New Tank for any other reason, HFRM shall reimburse HEP Operating or its Affiliate for all costs, liabilities and expenses incurred by HEP Operating or its Affiliate with respect to such incomplete New Tank. Promptly following the New Tank Commencement Date, HEP Operating will deliver a written certification to HFRM certifying the final aggregate construction costs for the New Tank (the Final Construction Cost ). Additionally, promptly following the New Tank Commencement Date, the Parties shall execute an amended Exhibit I-2 reflecting the addition of the New Tank and attach it to this Agreement. Such amended Exhibit I-2 shall be numbered Exhibit I-2.1 , dated and appended as an additional schedule to this Agreement and shall replace the prior version of Exhibit I-2 in its entirety after its date of effectiveness.
Exhibit I
Exhibit I-1
to
Master Throughput Agreement
Cheyenne Loading Rack
The Refined Products Truck Loading Rack, including the Vapor Recovery Unit and the two (2) Propane Loading Spots transferred to Cheyenne Logistics pursuant to that certain Conveyance, Assignment and Bill of Sale (Cheyenne), dated effective as of October 25, 2011, by and between Frontier Cheyenne and Cheyenne Logistics.
Exhibit I-1
Exhibit I-2
to
Master Throughput Agreement
Cheyenne Receiving Assets
The four (4) Crude Oil LACTS Units, the Crude Oil Receiving Pipeline, and the petroleum storage tanks listed below under Petroleum Storage Tanks transferred to Cheyenne Logistics pursuant to that certain Conveyance, Assignment and Bill of Sale (Cheyenne), dated effective as of October 25, 2011, by and between Frontier Cheyenne and Cheyenne Logistics.
Petroleum Storage Tanks:
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL
|
||
2-036 | Recovered Oil / Crude slop | 5,056 | ||
2-063 | Crude HSR | 10,096 | ||
2-067 | Crude LSR | 10,093 | ||
2-072 | Crude | 80,581 | ||
2-073 | Crude | 80,551 | ||
2-074 | Crude | 79,766 |
Exhibit I-2
Exhibit I-3
to
Master Throughput Agreement
Cheyenne Tankage
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS |
||
1-107 | Intermediate Distillate | 69,942 | ||
1-013 | Coker Distillate | 1,914 | ||
1-014 | Low Sul. Diesel | 24,677 | ||
1-015 | No Lead Gas | 24,677 | ||
1-016 | Ethanol | 2,564 | ||
1-017 | Prem. No Lead Gas | 5,034 | ||
1-020 | FCC Slurry Oil | 5,018 | ||
1-021 | Sweet Naphtha / VRU | 9,867 | ||
1-027 | Slop Oil | 4,000 | ||
1-028 | BioDiesel | 5,179 | ||
1-029 | Coker Gas Oil | 10,709 | ||
1-032 | Diesel | 10,124 | ||
1-033 | Coker Distillate | 10,342 | ||
1-040 | FCC Slurry Oil | 10,121 | ||
1-048 | Coker Distillate | 1,341 | ||
1-049 | Coker Distillate | 1,341 | ||
1-050 | Vacuum Bottoms | 67,428 | ||
1-051 | Slurry | 24,938 | ||
1-052 | PG 58-28 (Asphalt) | 72,017 | ||
1-053 | FCCU Slurry | 13,506 | ||
1-054 | FCCU Slurry | 24,938 | ||
1-055 | PG 58-28 (Asphalt) | 54,499 | ||
1-056 | Coker feed tank | 61,709 | ||
1-058 | Coker Gas Oil | 10,493 | ||
1-090 | PG 64-22 (Asphalt) | 55,954 | ||
1-091 | PG 58-28 (Asphalt) | 55,954 | ||
1-093 | PG 64-22 (Asphalt) | 2,602 | ||
1-094 | PG 64-22 (Asphalt) | 2,602 | ||
1-095 | PG 64-22 (Asphalt) | 2,602 | ||
1-106 | Naptha | 120,000 | ||
1-108 | Distillate | 107,000 | ||
1-117 | Vacuum Bottoms | 69,942 | ||
2-015 | Diesel | 28,870 | ||
2-016 | Diesel | 28,046 | ||
2-017 | UC Crack (LCO / Coker Distillate) | 28,562 | ||
2-020 | Gas Oil | 10,746 |
Exhibit I-3
TANK ID NUMBER |
CURRENT SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS |
||
2-021 | Gas Oil | 10,746 | ||
2-022 | UC Crack (LCO / Coker Distillate) | 9,731 | ||
2-023 | Coker Gas Oil | 10,583 | ||
2-028 | Cat Gas Oil | 80,153 | ||
2-034 | Reformate | 23,234 | ||
2-035 | Alkylate | 24,190 | ||
2-060 | Burner/Distillate | 9,846 | ||
2-061 | Sweet Naphtha | 10,096 | ||
2-062 | Naptha | 9,970 | ||
2-070 | Sub Grade No Lead Gas | 32,608 | ||
2-071 | Premium No Lead Gas | 32,612 | ||
2-075 | Finished NL gasoline | 80,278 | ||
2-100 | LSR/LSG | 41,978 | ||
2-101 | Diesel | 42,051 | ||
2-102 | No Lead Gas | 80,278 | ||
2-104 | Reformate | 54,749 | ||
2-105 | Cat Gas Oil | 54,954 |
Exhibit I-3
Exhibit I-4
to
Master Throughput Agreement
Specifications for New Tank
TANK ID NUMBER |
CURRENT
|
NOMINAL CAPACITY, BBLS | ||
2-118 |
Light Straight Run | 40,609 | ||
2-119 |
FCCU Cat Gas | 40,609 | ||
2-161 |
Finished Diesel | 40,485 |
Exhibit I-4
Exhibit J
to
Master Throughput Agreement
Special Provisions: Tulsa East Assets
1. Change of Tankage Service . Subject to (i) any Applicable Law and (ii) technical specifications of the Tulsa Group 1 Tankage or the Tulsa Group 2 Tankage, HFRM may request that HEP Operating change the service of any of the Tulsa Group 1 Tankage or the Tulsa Group 2 Tankage from storage of one Product to storage of a different Product; provided, however , that HFRM shall indemnify and hold HEP Operating harmless from and against all costs and expenses associated with any such changing of service including costs of complying with any Applicable Law affecting such change of service.
2. Change of Interconnecting Pipeline Service . Subject to (i) any Applicable Law, (ii) technical specifications of the Tulsa Interconnecting Pipelines, and (iii) right-of-way and license agreements, HFRM may request that HEP Operating change the service of any of the Interconnecting Pipelines; provided, however, that HFRM shall indemnify and hold HEP Operating harmless from and against all costs and expenses associated with any such changing of service including costs of complying with any Applicable Law affecting such change of service.
Exhibit J
Exhibit J-1
to
Master Throughput Agreement
Tulsa Group 1 Loading Rack
The Propane Truck Loading Rack, Asphalt Truck Loading Rack and Gas Oil Truck Loading Rack transferred to HEP Tulsa LLC pursuant to that certain Bill of Sale, Assignment and Assumption Agreement, dated December 1, 2009, by and between Sinclair Tulsa Refining Company and HEP Tulsa LLC.
Exhibit J-1
Exhibit J-2
to
Master Throughput Agreement
Tulsa Group 1 Pipeline
The two Product Delivery Pipelines transferred to HEP Tulsa LLC pursuant to that certain Bill of Sale, Assignment and Assumption Agreement, dated December 1, 2009, by and between Sinclair Tulsa Refining Company and HEP Tulsa LLC.
Exhibit J-2
Exhibit J-3
to
Master Throughput Agreement
Tulsa 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 | ||
104A | ULSD #2 (XT) | 37,500 | ||
110 | ULSD #1 | 37,500 | ||
111 | Kerosene | 37,500 | ||
115 | ULSD #2 (XT) | 150,421 | ||
215 | ULSD #2 (XT) | 150,421 | ||
116 | Kerosene | 37,500 | ||
117 | ULSD #2 (XT) | 63,300 | ||
450A | Premium Unleaded | 12,574 | ||
451 | USLD #2 (XT) | 11,700 | ||
452A | USLD #2 (XT) | 12,000 | ||
464A | Unleaded Regular | 73,000 | ||
465 | Unleaded Regular | 79,320 | ||
466 | Unleaded Regular | 79,320 | ||
467A | Unleaded Regular | 73,000 | ||
470A | Unleaded Regular | 151,020 | ||
472 | Unleaded Regular | 151,000 | ||
473A | Premium Unleaded (ST) | 151,020 | ||
601 | Unleaded Regular | 18,634 | ||
602 | Premium Unleaded (ST) | 10,743 | ||
603 | USLD #2 (XT) | 2,000 | ||
605 | Ethanol | 3,528 | ||
606 | Empty | 500 |
Exhibit J-3
Exhibit J-4
to
Master Throughput Agreement
Tulsa Group 2 Loading Rack
The Rail Loading Rack transferred to HEP Tulsa LLC pursuant to that certain Conveyance, Assignment and Bill of Sale, dated March 31, 2010, by and between Holly Refining & Marketing Tulsa LLC and HEP Tulsa LLC.
Exhibit J-4
Exhibit J-5
to
Master Throughput Agreement
Tulsa Group 2 Tankage
TANK ID |
CURRENT SERVICE |
CAPACITY (BBLS) | ||
1 |
Crude | 130,450 | ||
2 |
Crude | 130,000 | ||
3 |
Crude | 116,579 | ||
8 |
Crude | 130,233 | ||
123 |
CSO | 37,500 | ||
471 |
Unleaded Gasoline | 71,371 | ||
107A |
Flux/Asphalt | 55,954 | ||
108A |
Flux/Asphalt | 37,500 | ||
109 |
Flux/Asphalt | 37,500 | ||
125 |
Flux/Asphalt | 37,500 | ||
131 |
Flux/Asphalt | 37,500 | ||
442 |
Gasoline blendstock | 11,700 | ||
445A |
Gasoline blendstock | 32,787 | ||
446 |
Gasoline blendstock | 11,700 | ||
444A |
Gasoline blendstock | 32,832 | ||
460 |
LSR | 80,000 | ||
461A |
LSR | 80,000 | ||
17 |
FCCU LCO | 37,500 | ||
114 |
Raw Diesel | 131,000 | ||
9 |
Raw gas oil | 150,260 | ||
15 |
Raw gas oil | 130,000 | ||
16 |
Raw gas oil-Sour | 151,078 | ||
6A |
Raw naphtha | 69,082 | ||
4 |
Scanfiner feed | 120,566 | ||
40 |
Raw gas oil | 5,734 | ||
41 |
CSO | 4,032 | ||
34 |
Truck loading-64/22 asphalt | 11,798 | ||
36A |
Truck loading-58/28 asphalt | 11,500 | ||
124A |
Flux/Asphalt | 37,500 | ||
18A |
Slop | 37,500 | ||
31 |
Slop | 15,000 | ||
7A |
Naptha | 69,082 | ||
14 |
Naptha | 55,000 |
Exhibit J-5
Exhibit K
to
Master Throughput Agreement
Special Provisions: El Dorado Crude Tank Farm Assets
1. | El Dorado Terminal Operation . HEP Operating will use commercially reasonable efforts to maintain the El Dorado Terminals current connections to the pipelines owned and operated by (a) Osage Pipe Line Company, LLC (the Osage Pipeline ), (b) Rose Rock Midstream, L.P. (the Rose Rock Pipeline ), and (c) MV Purchasing, LLC (the MVP Pipeline ), but shall not be required to expend additional monies in connection therewith unless agreed separately in writing with HFRM. HFRM may request HEP Operating to connect the El Dorado Crude Tankage to new pipelines, whether owned by third parties or by HFRM, subject to HEP Operatings approval of such connections and the engineering standards related to such; HEP Operating will not unreasonably withhold such approval. If HEP Operating approves any new connection requested by HFRM, HFRM will reimburse HEP Operating the actual expenses incurred by HEP Operating that are associated with such connection, plus an administrative charge of fifteen percent (15%). In addition, the Minimum Throughput Commitment will be increased to account for any additional expense HEP Operating bears in connection with ongoing operating expenses associated with such requested pipeline connection. Any HEP Operating expenditures requested by HFRM beyond pipeline connections will be negotiated separately. |
2. | Tank Use . HEP Operating shall make available to HFRM on an exclusive basis the shell capacity, minimum and maximum capacities, and working capacity for the El Dorado Crude Tankage. HEP Operating will make at least two (2) of such tanks available for blending services at all times during the Applicable Term. HEP Operating and HFRM will work together to assign minimum and maximum capacities of each tank within sixty (60) days following the commencement of the Applicable Term. These minimum and maximum capacities will be set to allow the most working capacity available to HFRM within reasonable industry practices. The minimum and maximum capacity for each tank will be used to determine the working capacity of each tank (calculated by subtracting the minimum capacity from the maximum capacity for each Tank) (the Working Capacity ). Once the Working Capacity is agreed upon, HEP may assign, in its sole discretion, new maximum and minimum capacities to each tank if required to allow for safe operation. If HEP determines it is necessary to reduce the aggregate Working Capacity to less than 650,000 Barrels (as such volume may be adjusted pursuant to Section 4 of this Exhibit K (the El Dorado Minimum Working Capacity ), the Minimum Throughput Commitment will be reduced proportionately. HFRM may deliver or have delivered Product into the El Dorado Crude Tankage from the El Dorado Refinery, the Osage Pipeline, the Rose Rock Pipeline or the MVP Pipeline. HFRM agrees not to deliver to the Terminal any Products which fail to meet the El Dorado Quality Specifications, or which would in any way be injurious to the El Dorado Crude Tankage, or that may not lawfully be handled in the Tankage. HFRM shall be responsible for and pay for all damages resulting from handling of any Products by HFRM, its designee, or its consignee; provided, however, so long as the Products meet the El Dorado Quality Specifications, HFRM shall not be responsible for damages arising from the negligence or willful misconduct of HEP, its agents, employees or contractors or from ordinary wear and tear. |
3. |
Terminal Maintenance, Changes, or Installations . HEP Operating shall make the El Dorado Crude Tankage available for HFRMs exclusive use except for times at which a tank must be taken out of service for routine maintenance, in which event HEP Operating will use commercially reasonable efforts to minimize the duration of the outage. HEP Operating may take |
Exhibit K
more than one tank out of service due to unplanned maintenance, environmental, or operational occurrences and may schedule more than one tank out of service if the duration is minimal (i.e. less than 1 week for seal inspection or mixer repair on top of an API 653 of another tank), but HEP Operating will not schedule more than one tank out of service for extended overlapping periods (e.g., two API 653s at the same time overlapping 1+ weeks). HEP Operating will provide HFRM written notice at least forty-five (45) days prior to any scheduled maintenance, changes or installations affecting the El Dorado Crude Tankage. In the event HEP Operating cannot provide any or all of the services during any maintenance, changes or installations within the El Dorado Terminal, or if such maintenance, changes or installations causes HEP Operating to take any tank out of service and HEP Operating does not provide a substitute tank in the place of such tank, the Minimum Throughput Commitment shall be reduced by the Working Capacity of such out-of-service tank for the duration of such outage. |
4. | Right of First Refusal . HEP Operating may not lease or pledge or commit to provide any storage services with respect to the El Dorado Crude Tankage or the Jayhawk Tankage (after the expiration of the Jayhawk Lease) at the El Dorado Terminal to a third party unless HEP Operating first offers to HFRM the exclusive right to use the Working Capacity of such tanks on substantially the same terms as HEP Operating has previously negotiated with a third party in arms-length negotiations. HFRM will have thirty (30) days (the El Dorado Crude Tank Farm Consideration Period ) to consider the option to utilize such Working Capacity and to provide notice to HEP Operating of its election to accept or decline such Working Capacity. If HFRM has not notified HEP Operating within 30 days, then HEP Operating may proceed to enter into an agreement with the third party for such Working Capacity; provided, however, that if HEP Operating does not enter into an agreement with the third party within sixty (60) days following HFRMs notice to decline or the expiration of the El Dorado Crude Tank Farm Consideration Period, then HFRMs rights under this Section 4 will apply to any subsequent bona fide third party offer to HEP Operating regarding such Working Capacity. |
5. | Jayhawk Tankage . In the event that the Jayhawk Lease expires or is otherwise terminated or cancelled for any reason and the Jayhawk Tankage are not leased within a reasonable time (not to exceed sixty 60) days) to a third party as contemplated by Section 4 of this Exhibit K , HEP Operating agrees to make the Working Capacity of the Jayhawk Tankage available for HFRMs exclusive use, and HFRM agrees to increase the Minimum Throughput Commitment by an amount equal to (a) the monthly storage fee that Jayhawk paid to HEP Operating during the last 12 months of the Jayhawk Lease, divided b y the Working Capacity of the Jayhawk Tankage, and the El Dorado Minimum Working Capacity shall be increased by an amount equal to two-thirds (2/3) of the Working Capacity of such Jayhawk Tankage. HFRMs use of the Jayhawk Tankage will be added to this Agreement as an amendment with all terms and conditions being consistent with this Agreement, and thereafter the term El Dorado Crude Tankage as used herein shall include the Jayhawk Tankage. |
6. | Right to Refuse. HEP Operating reserves the right to refuse receipt of any Product into the El Dorado Terminal, alternatively route such Product to another location, or take other appropriate action in regards to such Product if Product does not meet the El Dorado Quality Specifications. HFRM, if requested in writing, will provide HEP Operating with notice setting forth the quantity, quality, and specifications of Product to be delivered a minimum of four (4) hours prior to any delivery to the El Dorado Terminal. Any reasonable costs incurred by HEP Operating in connection with addressing or handling HFRMs Product that does not meet the El Dorado Quality Specifications shall be borne by HFRM. |
Exhibit K
7. | Terminal Damage or Destruction. If any part of the El Dorado Terminal or the El Dorado Crude Tankage are damaged or destroyed by fire or other casualty, HEP Operating shall have the discretion to reduce receipts into and deliveries out of the El Dorado Terminal and to allocate any remaining El Dorado Terminal capacity and throughput fairly and reasonably among various customers utilizing terminalling services at the El Dorado Terminal. HEP Operating may, but shall not be obligated to, repair or replace such damaged or destroyed terminal facilities or Tanks. |
8. | Delivery Lines . The El Dorado Crude Tankage is connected to the El Dorado Refinery by two 16 delivery lines, together with associated piping necessary for Product movements into and out of the El Dorado Crude Tankage (the El Dorado Delivery Lines ). HEP Operating will operate the El Dorado Delivery Lines for HFRMs exclusive use. HEP Operating will operate one of the 16 El Dorado Delivery Lines for Product movements from the El Dorado Crude Tankage to the El Dorado Refinery with a capacity to deliver (a) 130,000 bpd based on a maximum viscosity of 350 SUS at 60 degrees Fahrenheit when operating only one El Dorado Delivery Line, and (b) 165,000 bpd based on a maximum viscosity of 350 SUS at 60 degrees Fahrenheit when operating both El Dorado Delivery Lines. HEP Operating will operate the other 16 El Dorado Delivery Line for bidirectional use. HEP Operating will maintain the El Dorado Delivery Lines to gravity feed Product to the El Dorado Refinery or, upon request of HFRM, to pump Product to the El Dorado Refinery at a pressure of at least 25 psig (when operating one El Dorado Delivery Line) and 50 psig (when operating both El Dorado Delivery Lines), as measured at the El Dorado Refinery receipt point. HEP Operating will maintain at least two (2) full-sized pumps for this service and will operate the pumps at HFRMs request. |
9. | Products Testing . At HFRMs request and upon HEP Operatings approval, such approval not to be unreasonably withheld, delayed or conditioned, HEP Operating shall provide sampling and testing services for HFRMs Products at the El Dorado Terminal. All fees for Product testing shall be billed to HFRM at HEP Operatings actual cost. |
Exhibit K
Exhibit K-1
to
Master Throughput Agreement
El Dorado Crude Tankage and Jayhawk Tankage
1. | El Dorado Crude Tankage : |
Tank ID Number |
Current Service/Product |
Nominal Capacity, BBLs | ||
4150 | Crude | 80,000 | ||
4153 | Crude | 80,000 | ||
4154 | Crude | 80,000 | ||
4155 | Crude | 125,000 | ||
4156 | Crude | 125,000 | ||
4157 | Crude | 125,000 | ||
4158 | Crude | 125,000 | ||
4159 | Crude | 125,000 | ||
4160 | Crude | 125,000 |
2. | Jayhawk Tankage : |
Tank ID Number |
Current Service/Product |
Nominal Capacity, BBLs | ||
4151 | Crude | 80,000 | ||
4152 | Crude | 80,000 |
Exhibit K-1
Exhibit K-2
to
Master Throughput Agreement
El Dorado Terminal Quality Specifications
Petroleum liquid that has a true vapor pressure equal to or greater than 1.5 psia but not greater than 11.1 psia.
Exhibit K-2
Exhibit 10.3
EXECUTION VERSION
CONSTRUCTION PAYMENT AGREEMENT
(Artesia Rail Yard)
BETWEEN
HEP REFINING, L.L.C.
AND
HOLLYFRONTIER REFINING AND MARKETING LLC
with an Effective Date of
November 1, 2014
TABLE OF CONTENTS
Page No. | ||||||
ARTICLE I DEFINITIONS AND CONSTRUCTION |
1 | |||||
1.1 |
Certain Defined Terms |
1 | ||||
1.2 |
Interpretation |
1 | ||||
ARTICLE II CONSTRUCTION OF TRACK; REIMBURSEMENT FOR TRACK CONSTRUCTION |
1 | |||||
2.1 |
Construction of Track |
1 | ||||
2.2 |
Reimbursement for Track Construction |
2 | ||||
2.3 |
Adjustment for Annual Payment Amount |
2 | ||||
2.4 |
Place of Payment |
2 | ||||
2.5 |
Early Termination |
2 | ||||
ARTICLE III DEFAULTS; REMEDIES; TERMINATION |
2 | |||||
3.1 |
Default by HFRM |
2 | ||||
3.2 |
HEPs Remedies |
3 | ||||
3.3 |
Default by HEP |
3 | ||||
3.4 |
HFRMs Remedies |
3 | ||||
ARTICLE IV GUARANTEE |
4 | |||||
4.1 |
Guarantee by HollyFrontier |
4 | ||||
4.2 |
Guaranty Absolute |
4 | ||||
4.3 |
Waiver |
4 | ||||
4.4 |
Subrogation Waiver |
4 | ||||
4.5 |
Reinstatement |
5 | ||||
4.6 |
Continuing Guaranty |
5 | ||||
4.7 |
No Duty to Pursue Others |
5 | ||||
ARTICLE V GENERAL PROVISIONS |
5 | |||||
5.1 |
Assignment Prohibition |
5 | ||||
5.2 |
Severability |
5 | ||||
5.3 |
Time of Essence |
5 | ||||
5.4 |
Captions |
5 | ||||
5.5 |
Entire Agreement; Amendment |
5 | ||||
5.6 |
Schedules and Exhibits |
5 | ||||
5.7 |
Notices |
6 | ||||
5.8 |
Waivers |
7 | ||||
5.9 |
No Partnership |
7 | ||||
5.10 |
No Third Party Beneficiaries |
7 | ||||
5.11 |
Mutual Cooperation; Further Assurances |
7 | ||||
5.12 |
Binding Effect |
7 | ||||
5.13 |
Choice of Law |
7 | ||||
5.14 |
Survival |
8 |
SCHEDULES
Schedules | ||||
Schedule 2.2 |
| Calculation of Annual Payment Amount | ||
Schedule 2.5 |
| Calculation of Early Termination Payment Amount |
ii
CONSTRUCTION PAYMENT AGREEMENT
(Artesia Rail Yard)
THIS CONSTRUCTION PAYMENT AGREEMENT (this Agreement ) is made and entered as of October 16, 2015 into to be effective as of the 1 st day of November, 2014 (the Effective Date ), between HEP REFINING, L.L.C., a Delaware limited liability company (herein called HEP ), and HOLLYFRONTIER REFINING & MARKETING LLC, a Delaware limited liability company (herein called HFRM ). HEP and HFRM are referred to individually as a Party and collectively as the Parties .
RECITALS :
A. HFRM has subleased from HEP certain land situated at or near the railway station of Artesia, County of Eddy, New Mexico (the Land ) pursuant to a certain Sublease Agreement dated to be effective as of November 1, 2014 (the Ground Sublease ).
B. Pursuant to Section 7.1 of the Ground Sublease, HEP has constructed on the Land a railroad track siding consisting of approximately 8,300 track feet of siding (rail storage), two mainline switches and three industry switches (the Track ), which is owned by HEP. As used herein, the term Track does not include (i) the Land and (ii) the Additional Improvements.
C. HEP has agreed to lease the Track to HFRM pursuant to a certain Track Lease Agreement dated to be effective as of November 1, 2014 (the Track Lease ).
D. HFRM has agreed to reimburse HEP in the amount of $4,194,014 (the Track Construction Cost ) for costs incurred by HEP in constructing the Track, subject to the terms and conditions set forth in this Agreement.
AGREEMENT :
NOW, THEREFORE, for and in consideration of covenants, obligations and undertakings of the Parties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, HEP and HFRM covenant and agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Certain Defined Terms . Unless the context otherwise requires, capitalized terms used in this Agreement shall have the respective meanings set forth in Appendix A hereto.
1.2 Interpretation . Interpretation matters are set forth in Appendix B hereto.
ARTICLE II
CONSTRUCTION OF TRACK; REIMBURSEMENT FOR TRACK CONSTRUCTION
2.1 Construction of Track . HEP represents and warrants that HEP designed, fabricated, constructed, installed and tested the Track in accordance with applicable law, all applicable requirements of the Ground Sublease, and current and generally accepted industry practices, and pursuant to drawings and specifications previously approved by HFRM.
2.2 Reimbursement for Track Construction . As payment to HEP for the Track Construction Cost, during each Contract Year during the Term HFRM shall pay to HEP the Track Construction Cost divided by 9.2, as such amount may be adjusted pursuant to Section 2.2 (the Annual Payment Amount ). The Annual Payment Amount shall be paid in equal quarterly payments (each, a Quarterly Payment ) on or before the last day of each Contract Quarter during the Term, with the first such payment being due ten (10) business days after the date this Agreement is signed by both Parties.
2.3 Adjustment of Annual Payment Amount . The Annual Payment Amount shall be adjusted on the first day of each Contract Year, commencing in 2015, by an amount equal to the annual change in the PPI rounded to four decimal places; provided, however, that (a) the cumulative annual percentage increase in the Annual Payment Amount during the term of this Agreement shall not exceed three percent (3%), and (b) Annual Payment Amount, as adjusted, shall not be decreased below the Annual Payment Amount applicable as of the Commencement Date. 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). The formula for determining adjustments in the Annual Payment Amount is set forth on Schedule 2.3 .
2.4 Place of Payment . The Quarterly Payments shall be payable in lawful money of the United States of America at HEPs address set forth in Section 5.7 . The Annual Payment Amount shall be paid without any claim on the part of HFRM for diminution, setoff or abatement and nothing shall suspend, abate or reduce any Annual Payment Amount to be paid hereunder, except as expressly provided herein.
2.5 Early Termination . In the event the Track Lease is terminated prior to its Expiration Date (as defined therein) for reasons other than the fault or breach of HEP pursuant to the Track Lease or Railroad Lease (as defined in the Track Lease), then, as HEPs exclusive remedy hereunder, HFRM shall pay to HEP and HEP shall accept, an amount sufficient to reimburse HEP for the remaining unamortized amount of the Track Construction Cost (the Early Termination Amount ), such amount to be calculated as provided in Schedule 2.5 and paid to HEP within thirty (30) days of the date of such early termination. The Early Termination Amount shall not be payable to HEP in the event the Track Lease is terminated prior to its Expiration Date due to the fault or breach of HEP under the Track Lease or the Railroad Lease (as defined in the Track Lease). The rights and obligations set forth in this Section 2.5 shall survive any termination of the Track Lease or this Agreement.
ARTICLE III
DEFAULTS; REMEDIES; TERMINATION
3.1 Default by HFRM . The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by HFRM:
(a) The failure by HFRM to make when due any payment of a Quarterly Payment or any other payment required to be made by HFRM hereunder, if such failure continues for a period of 90 days following written notice from HEP;
(b) The failure by HFRM to observe or perform any of the other covenants, conditions or provisions of this Agreement to be observed or performed by HFRM, if such failure continues for a period of thirty (30) days following written notice from HEP of such failure; provided, however, if a reasonable time to cure such default would exceed thirty (30) days, HFRM shall not be in default so long as HFRM begins to cure such default within thirty (30) days of receiving written notice from HEP and thereafter completes the curing of such default within reasonable period of time (under the circumstances) following the receipt of such written notice from HEP; or
2
(c) The occurrence of any Bankruptcy Event.
3.2 HEPs Remedies .
(a) In the event of any such material default under or material breach of the terms of this Agreement by HFRM, HEP may, at HEPs option, at any time thereafter that such default or breach remains uncured, without further notice or demand, terminate this Agreement and pursue all of its rights and remedies available under law or in equity, including, but not limited to, the remedies provided for in Section 2.5 .
(b) If, by the terms of this Agreement, HFRM is required to do or perform any act or to pay any sum to a Third Party, and fails or refuses to do so, HEP, after thirty (30) days written notice to HFRM, without waiving any other right or remedy hereunder for such default, may do or perform such act, at HFRMs expense, or pay such sum for and on behalf of HFRM, and the amounts so expended by HEP shall be repayable on demand, and bear interest from the date expended by HEP until paid at a rate equal to an interest rate equal to the Prime Rate as published in The Wall Street Journal , Southwest Edition, in its listing of Money Rates plus two percent (2%) (the Default Rate ). Past due payments required hereunder shall bear interest from maturity until paid at the Default Rate.
3.3 Default by HEP . The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by HEP:
(a) The failure by HEP to observe or perform any of the other covenants, conditions or provisions of this Agreement to be observed or performed by HEP, if such failure continues for a period of 30 days following written notice from HFRM; provided, however, if a reasonable time to cure such default would exceed thirty (30) days, HEP shall not be in default so long as HEP begins to cure such default within thirty (30) days of receiving written notice from HFRM and thereafter completes the curing of such default within a reasonable period of time following the receipt of such written notice from HFRM; or
(b) The occurrence of a Bankruptcy Event.
3.4 HFRMs Remedies . In the event of any such material default under or material breach of the terms of this Agreement by HEP, HFRM may, at HFRMs option, at any time thereafter that such default or breach remains uncured, after ten days prior written notice to HFRM, perform any act that HEP is required to do or perform any act or to pay any sum to a Third Party, at HEPs expense (to the extent the terms of this Agreement require such performance at HEPs expense) or pay such sum for and on behalf of HEP, and the amounts so expended by HFRM shall be repayable on demand, and bear interest from the date expended by HFRM until paid at the Default Rate. HFRM may, at HFRMs option, deduct any such amounts so expended by HFRM from the Quarterly Payment(s) and any other amounts owed hereunder and any such action on the part of HFRM shall be in addition to any other remedy that may be available to HFRM for default or breach of contract, or otherwise, including the right of setoff
3
ARTICLE IV
GUARANTEES
4.1 Guarantee by HollyFrontier . HollyFrontier Corporation, a Delaware corporation ( HollyFrontier ) unconditionally, absolutely, continually and irrevocably guarantees, as principal and not as surety, to HEP the punctual and complete payment in full when due of all amounts due from HFRM under this Agreement (collectively, the HFRM Payment Obligations ). HollyFrontier agrees that HEP shall be entitled to enforce directly against HollyFrontier any of the HFRM Payment Obligations.
4.2 Guaranty Absolute . HollyFrontier hereby guarantees that the HFRM Payment Obligations will be paid strictly in accordance with the terms of the Agreement. The obligations of HollyFrontier under this Agreement constitute a present and continuing guaranty of payment, and not of collection or collectability. The liability of HollyFrontier under this Agreement shall be absolute, unconditional, present, continuing and irrevocable irrespective of:
(a) any assignment or other transfer of this Agreement or any of the rights thereunder of HEP;
(b) any amendment, waiver, renewal, extension or release of or any consent to or departure from or other action or inaction related to this Agreement;
(c) any acceptance by HEP of partial payment or performance from HFRM;
(d) any bankruptcy, insolvency, reorganization, arrangement, composition, adjustment, dissolution, liquidation or other like proceeding relating to HFRM or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding;
(e) any absence of any notice to, or knowledge of, HollyFrontier, of the existence or occurrence of any of the matters or events set forth in the foregoing subsections (a) through (d); or
(f) any other circumstance which might otherwise constitute a defense available to, or a discharge of, a guarantor.
The obligations of HollyFrontier 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 HFRM Payment Obligations or otherwise.
4.3 Waiver . HollyFrontier hereby waives promptness, diligence, all setoffs, presentments, protests and notice of acceptance and any other notice relating to any of the HFRM Payment Obligations and any requirement for HEP 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 HFRM, any other entity or any collateral.
4.4 Subrogation Waiver . HollyFrontier agrees that for so long as there is a current or ongoing default or breach of this Agreement by HFRM, HollyFrontier shall not have any rights (direct or indirect) of subrogation, contribution, reimbursement, indemnification or other rights of payment or recovery from HFRM for any payments made by HollyFrontier under this Article IV , and HollyFrontier
4
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 HFRM during any period of default or breach of this Agreement by HFRM until such time as there is no current or ongoing default or breach of this Agreement by HFRM.
4.5 Reinstatement . The obligations of HollyFrontier under this Article IV shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the HFRM Payment Obligations is rescinded or must otherwise be returned to HFRM or any other entity, upon the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation or reorganization of HFRM or such other entity, or for any other reason, all as though such payment had not been made.
4.6 Continuing Guaranty . This Article IV 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 HFRM Payment Obligations, (ii) be binding upon HollyFrontier, its successors and assigns and (iii) inure to the benefit of and be enforceable by HEP and its respective successors, transferees and assigns.
4.7 No Duty to Pursue Others . It shall not be necessary for HEP (and HollyFrontier hereby waives any rights which HollyFrontier may have to require HEP), in order to enforce such payment by HollyFrontier, first to (i) institute suit or exhaust its remedies against HFRM or others liable on the HFRM Payment Obligations or any other person, (ii) enforce HEPs rights against any other guarantors of the HFRM Payment Obligations, (iii) join HFRM or any others liable on the HFRM Payment Obligations in any action seeking to enforce this Article IV , (iv) exhaust any remedies available to HEP against any security which shall ever have been given to secure the HFRM Payment Obligations, or (v) resort to any other means of obtaining payment of the HFRM Payment Obligations.
ARTICLE V
GENERAL PROVISIONS
5.1 Assignment Prohibition . HFRM shall not, either voluntarily or by operation of law, assign, transfer, mortgage, encumber, pledge or hypothecate this Agreement or HFRMs interest in this Agreement, in whole or in part, without the prior written consent of HEP, which shall not be unreasonably withheld.
5.2 Severability . The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof.
5.3 Time of Essence . Time is of the essence in the performance of all obligations hereunder.
5.4 Captions . The headings to Articles, Sections and other subdivisions of this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement.
5.5 Entire Agreement; Amendment . This Agreement, including the exhibits and schedules attached hereto, constitutes the entire agreement and understanding between the parties hereto with respect to the reimbursement of HEP by HFRM for the Track Construction Cost, and supersedes all prior and contemporaneous agreements and undertakings of the parties, in connection herewith. This Agreement may be modified in writing only, signed by the parties in interest at the time of modification.
5.6 Schedules and Exhibits . All schedules and exhibits hereto which are referred to herein are hereby made a part hereof and incorporated herein by such reference.
5
5.7 Notices . 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 HEP:
HEP Refining, L.L.C.
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: President
Email address: president-hep@hollyenergy.com
with a copy, which shall not constitute notice, but is required in order to give proper notice, to:
HEP Refining, L.L.C.
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: General Counsel
Email address: general.counsel@hollyenergy.com
Notices to HFRM:
HollyFrontier Refining & Marketing LLC
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: President
Email address: president@hollyfrontier.com
with a copy, which shall not constitute notice, but is required in order to give proper notice, to:
HollyFrontier Refining & Marketing LLC
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: General Counsel
Email address: generalcounsel@hollyfrontier.com
6
Notices to HollyFrontier:
HollyFrontier Corporation
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: President
Email address: president@hollyfrontier.com
with a copy, which shall not constitute notice, but is required in order to give proper notice, to:
HollyFrontier Corporation
2828 N. Harwood Street, Suite 1300
Dallas, Texas 75201
Attn: General Counsel
Email address: generalcounsel@hollyfrontier.com
Any Party or HollyFrontier may at any time change its address for service from time to time by giving notice to the other Parties and HollyFrontier in accordance with this Section 5.7 .
5.8 Waivers . No waiver or waivers of any breach or default or any breaches or defaults by either Party of any term, condition or liability of or performance by the other party of any duty or obligation hereunder shall be deemed or construed to be a waiver or waivers of subsequent breaches or defaults of any kind, character or description under any circumstance. The acceptance of a Quarterly Payment hereunder by HEP shall not be a waiver of any preceding breach by HFRM of any provision hereof, other than the failure of HFRM to pay the particular Quarterly Payment so accepted, regardless of HEPs knowledge of such preceding breach at the time of acceptance of such Quarterly Payment.
5.9 No Partnership . The relationship between HEP and HFRM at all times shall remain solely that of landlord and tenant and shall not be deemed a partnership or joint venture.
5.10 No Third Party Beneficiaries . Subject to the provisions of Section 5.12 hereof, this Agreement inures to the sole and exclusive benefit of HEP and HFRM, their respective Affiliates, successors, legal representatives and assigns, and confers no benefit on any Third Party.
5.11 Mutual Cooperation; Further Assurances . Upon request by either Party from time to time during the Term, each Party hereto agrees to execute and deliver all such other and additional instruments, notices and other documents and do all such other acts and things as may be reasonably necessary to carry out the purposes of this Agreement and to more fully assure the Parties rights and interests provided for hereunder.
5.12 Binding Effect . Subject to the provisions of Article IV , and except as herein otherwise expressly provided, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
5.13 Choice of Law . The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might require the application of laws of another jurisdiction.
7
5.14 Survival . All obligations of HEP and HFRM that shall have accrued under this Agreement prior to the expiration or earlier termination hereof shall survive such expiration or termination to the extent the same remain unsatisfied as of the expiration or earlier termination of this Agreement. HEP and HFRM further expressly agree that all provisions of this Agreement which contemplate performance after the expiration or earlier termination hereof shall survive such expiration or earlier termination of this Agreement.
[Remainder of Page Intentionally Left Blank]
8
The parties hereto have executed this Agreement to be effective as of the Effective Date.
HEP: | ||||||
HEP REFINING, L.L.C., a Delaware limited liability company |
||||||
By: |
/s/ Bruce R. Shaw |
|||||
Name: | Bruce R. Shaw | |||||
Title: | President | |||||
HFRM: | ||||||
HOLLYFRONTIER REFINING & MARKETING LLC, a Delaware limited liability company | ||||||
By: |
/s/ Michael C. Jennings |
|||||
Name: | Michael C. Jennings | |||||
Title: | CEO and President |
ACKNOWLEDGEMENT AND AGREEMENT
HollyFrontier Corporation hereby agrees solely to the provisions of Article IV of the foregoing Agreement.
HOLLYFRONTIER CORPORATION, | ||||||
a Delaware corporation | ||||||
By: |
/s/ Michael C. Jennings |
|||||
Name: | Michael C. Jennings | |||||
Title: | CEO and President |
9
APPENDIX A
TO
CONSTRUCTION PAYMENT AGREEMENT
Defined Terms
Affiliates 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, the Holly Entities, on the one hand, and the HEP Entities, on the other hand, shall not be considered affiliates of each other.
Bankruptcy Event means, in relation to any Party, (i) the making of a general assignment for the benefit of creditors by such Party; (ii) the entering into of any arrangement or composition with creditors as a result of insolvency (other than for the purposes of a solvent reconstruction or amalgamation); (iii) the institution by such Party of proceedings (a) seeking to adjudicate such Party as bankrupt or insolvent or seeking protection or relief from creditors, or (b) seeking liquidation, winding up, or rearrangement, reorganization or adjustment of such Party or its debts (other than for purposes of a solvent reconstruction or amalgamation), or (c) seeking the entry of an order for the appointment of a receiver, trustee or other similar official for such Party or for all or a substantial part of such Partys assets; or (iv) the institution of any proceeding of the type described in (iii) above against such Party, which proceeding shall not have been dismissed within ninety (90) days following its institution.
Contract Quarter means a three-month period that commences on July 1, October 1, January 1, or April 1, and ends on September 30, December 31, March 31 or June 30, respectively, except that the initial Contract Quarter shall commence on the Effective Date and end on December 31, 2014.
Contract Year means a year that commences on July 1 and ends on the last day of June, except that the initial Contract Year shall commence on the Effective Date.
Expiration Date means October 31, 2039.
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.
Person means any individual or entity, including any partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, unincorporated organization or Governmental Authority (or any department, agency or political subdivision thereof).
PPI means the Producers Price Index Finished Good Index.
Appendix A
Railroad means BNSF Railway Company, a Delaware corporation.
Substantial Completion means the stage in the construction of the Track when the Track is sufficiently complete in accordance with the drawings and specifications so that HFRM can occupy and utilize the Track for its intended purpose pursuant to the Track Lease.
Term means the period commencing on 12:01 a.m. of the Commencement Date and expiring at midnight on the Expiration Date.
Third Party shall mean a Person which is not (a) HEP or an Affiliate of HEP, (b) HFRM or an Affiliate of HFRM or (c) a Person that, after the signing of this Agreement becomes a successor entity of HEP, HFRM or any of their respective Affiliates. An employee of HEP or HFRM shall not be deemed an Affiliate.
In addition, the following terms have the meanings given to them in the Sections indicated in the following table:
Term |
Section |
|
Agreement |
Recitals | |
Annual Payment Amount |
Section 2.2 | |
Default Rate |
Section 3.2(b) | |
Early Termination Amount |
Section 2.5 | |
Effective Date |
Preface | |
HEP |
Preface | |
HFRM |
Preface | |
HFRM Payment Obligations |
Section 6.1 | |
HollyFrontier |
Section 6.1 | |
Party and Parties |
Preface | |
Quarterly Payment |
Section 2.2 | |
Track |
Recitals | |
Track Construction Cost |
Recitals | |
Track Lease |
Recitals |
Appendix A
APPENDIX B
TO
CONSTRUCTION PAYMENT AGREEMENT
Interpretation
As used in this Agreement, unless a clear contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) reference to any Person includes such Persons successors and assigns but, in the case of a Party, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity;
(c) reference to any agreement (including this Agreement), document or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Agreement;
(d) reference to any Section means such Section of this Agreement, and references in any Section or definition to any clause means such clause of such Section or definition;
(e) hereunder, hereof, hereto and words of similar import will be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof or thereof;
(f) including (and with correlative meaning include) means including without limiting the generality of any description preceding such term; and
(g) relative to the determination of any period of time, from means from and including, to means to but excluding and through means through and including.
Appendix B
SCHEDULE 2.3
CALCULATION OF ADJUSTMENTS TO ANNUAL PAYMENT AMOUNT
ARTESIA RAIL SIDING PPI FORMULA TABLE
Example
Beginning of Year [x] |
APA ($) |
PPI Data point |
PPI change |
APA w/
cumulative
|
PPI 3% max |
APA w/ cumulative 3% max |
||||||
1 |
455,871 | 100.0 | n/a | n/a | ||||||||
2 |
469,547 | 104.0 | 4.00% | 474,106 | 103.0 | 469,547 | ||||||
3 |
478,665 | 105.0 | 0.96% | 478,665 | 106.1 | 483,634 | ||||||
4 |
494,620 | 108.5 | 3.33% | 494,620 | 109.3 | 498,143 | ||||||
5 |
513,087 | 113.0 | 4.15% | 515,134 | 112.6 | 513,087 | ||||||
6 |
524,252 | 115.0 | 1.77% | 524,252 | 115.9 | 528,480 | ||||||
7 |
544,334 | 120.0 | 4.35% | 547,045 | 119.4 | 544,334 | ||||||
8 |
549,325 | 120.5 | 0.42% | 549,325 | 123.0 | 560,664 | ||||||
9 |
565,280 | 124.0 | 2.90% | 565,280 | 126.7 | 577,484 | ||||||
10 |
594,808 | 135.0 | 8.87% | 615,426 | 130.5 | 594,808 | ||||||
11 |
612,653 | 136.0 | 0.74% | 619,985 | 134.4 | 612,653 | ||||||
12 |
624,543 | 137.0 | 0.74% | 624,543 | 138.4 | 631,032 | ||||||
13 |
629,102 | 138.0 | 0.73% | 629,102 | 142.6 | 649,963 | ||||||
14 |
633,661 | 139.0 | 0.72% | 633,661 | 146.9 | 669,462 | ||||||
15 |
642,778 | 141.0 | 1.44% | 642,778 | 151.3 | 689,546 | ||||||
16 |
661,013 | 145.0 | 2.84% | 661,013 | 155.8 | 710,232 | ||||||
17 |
683,807 | 150.0 | 3.45% | 683,807 | 160.5 | 731,539 | ||||||
18 |
729,394 | 160.0 | 6.67% | 729,394 | 165.3 | 753,485 | ||||||
19 |
776,090 | 175.0 | 9.38% | 797,774 | 170.2 | 776,090 | ||||||
20 |
799,373 | 176.0 | 0.57% | 802,333 | 175.4 | 799,373 | ||||||
21 |
797,774 | 175.0 | -0.57% | 797,774 | 180.6 | 823,354 | ||||||
22 | 829,685 | 182.0 | 4.00% | 829,685 | 186.0 | 848,055 | ||||||
23 |
857,038 | 188.0 | 3.30% | 857,038 | 191.6 | 873,496 | ||||||
24 |
888,949 | 195.0 | 3.72% | 888,949 | 197.4 | 899,701 | ||||||
25 |
911,742 | 200.0 | 2.56% | 911,742 | 203.3 | 926,692 |
APA in Year 1 = $4,194,014 divided by 9.2
SCHEDULE 2.5
CALCULATION OF EARLY TERMINATION AMOUNT
The Early Termination Amount equals the number of years left in the Term of this Agreement multiplied by the adjusted Annual Payment Amount (the APA ) (as calculated pursuant to Section 2.3 and Schedule 2.3 of this Agreement) for the year that the early termination occurs.
Example of the calculation of the Early Termination Amount :
If the APA in Year 8 is $560,664 and early termination occurs in Year 8, then the Early Termination Amount equals:
(25-8) x Annual Payment Amount in Year 8 = 17 x $560,664 = $9,531,288
ARTESIA RAIL SIDING PPI FORMULA TABLE
Early Termination Example
Beginning of Year [x] |
APA ($) |
PPI Data point |
PPI change |
APA w/ cumulative PPI change |
PPI 3% max |
APA w/ cumulative 3% max |
||||||
1 |
455,871 | 100.0 | n/a | n/a | ||||||||
2 |
469,547 | 104.0 | 4.00% | 474,106 | 103.0 | 469,547 | ||||||
3 |
478,665 | 105.0 | 0.96% | 478,665 | 106.1 | 483,634 | ||||||
4 |
494,620 | 108.5 | 3.33% | 494,620 | 109.3 | 498,143 | ||||||
5 |
513,087 | 113.0 | 4.15% | 515,134 | 112.6 | 513,087 | ||||||
6 |
524,252 | 115.0 | 1.77% | 524,252 | 115.9 | 528,480 | ||||||
7 |
544,334 | 120.0 | 4.35% | 547,045 | 119.4 | 544,334 | ||||||
8 |
549,325 | 120.5 | 0.42% | 549,325 | 123.0 | 560,664 | ||||||
9 |
565,280 | 124.0 | 2.90% | 565,280 | 126.7 | 577,484 | ||||||
10 |
3,255,450 |
Exhibit 10.4
EXECUTION VERSION
TWELFTH AMENDED AND RESTATED OMNIBUS AGREEMENT
among
HOLLYFRONTIER CORPORATION,
HOLLY ENERGY PARTNERS, L.P.
and
CERTAIN OF THEIR RESPECTIVE SUBSIDIARIES
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS AND INTERPRETATIONS |
2 | |||||
1.1 |
D EFINITIONS |
2 | ||||
1.2 |
I NTERPRETATION |
2 | ||||
ARTICLE II BUSINESS OPPORTUNITIES |
2 | |||||
2.1 |
R ESTRICTED B USINESSES |
2 | ||||
2.2 |
P ERMITTED E XCEPTIONS |
3 | ||||
2.3 |
R IGHT OF O FFER |
3 | ||||
2.4 |
P ROCEDURE FOR O FFERING A CQUIRED OR C ONSTRUCTED A SSETS TO HEP |
4 | ||||
2.5 |
S COPE OF P ROHIBITION |
5 | ||||
2.6 |
E NFORCEMENT |
5 | ||||
2.7 |
L IMITATION ON A CQUISITIONS OF P ERMITTED A SSETS BY HEP G ROUP M EMBERS |
5 | ||||
2.8 |
T ERMINATION OF A RTICLE II |
5 | ||||
ARTICLE III INDEMNIFICATION |
6 | |||||
3.1 |
C ONDITIONS OF I NDEMNIFICATION BY THE HFC E NTITIES |
6 | ||||
3.2 |
I NDEMNIFICATION BY THE HFC E NTITIES |
6 | ||||
3.3 |
C ONDITIONS OF I NDEMNIFICATION BY HEP E NTITIES |
8 | ||||
3.4 |
I NDEMNIFICATION BY HEP E NTITIES |
8 | ||||
3.5 |
M UTUAL G ENERAL I NDEMNITY |
8 | ||||
3.6 |
E XCLUSIONS FROM I NDEMNITY FOR P OST -C LOSING D ATE C LAIMS |
9 | ||||
3.7 |
I NDEMNIFICATION P ROCEDURES |
9 | ||||
3.8 |
L IMITATION ON I NDEMNIFICATION O BLIGATIONS |
11 | ||||
3.9 |
W AIVER OF S UBROGATION |
11 | ||||
ARTICLE IV GENERAL AND ADMINISTRATIVE EXPENSES |
12 | |||||
4.1 |
G ENERAL |
12 | ||||
ARTICLE V RIGHT OF FIRST REFUSAL |
13 | |||||
5.1 |
HFC R IGHT OF F IRST R EFUSAL : P ROHIBITION ON F URTHER T RANSFER OF T RANSFERRED A SSETS |
13 | ||||
5.2 |
P ROCEDURES |
13 | ||||
ARTICLE VI HFC PURCHASE OPTION |
16 | |||||
6.1 |
O PTION TO P URCHASE T ULSA T RANSFERRED A SSETS |
16 | ||||
ARTICLE VII API INSPECTIONS |
16 | |||||
7.1 |
API I NSPECTIONS |
16 | ||||
ARTICLE VIII DISPUTE RESOLUTION |
17 | |||||
8.1 |
D ISPUTE R ESOLUTION |
17 | ||||
8.2 |
A RBITRATION |
17 | ||||
8.3 |
C ONFLICT |
18 | ||||
ARTICLE IX FORCE MAJEURE |
18 | |||||
9.1 |
F ORCE M AJEURE |
18 | ||||
ARTICLE X MISCELLANEOUS |
19 | |||||
10.1 |
C HOICE OF L AW |
19 | ||||
10.2 |
N OTICES |
19 | ||||
10.3 |
E NTIRE A GREEMENT |
20 |
i
10.4 |
A MENDMENT OR M ODIFICATION |
20 | ||||
10.5 |
A SSIGNMENT |
20 | ||||
10.6 |
C OUNTERPARTS |
20 | ||||
10.7 |
S EVERABILITY |
20 | ||||
10.8 |
F URTHER A SSURANCES |
20 | ||||
10.9 |
R IGHTS OF L IMITED P ARTNERS |
20 | ||||
10.10 |
H EADINGS |
21 | ||||
10.11 |
L IMITATION OF D AMAGES |
21 | ||||
10.12 |
N ATURE OF THE R ELATIONSHIP |
21 |
EXHIBITS | ||||||
Exhibit A |
- |
Omnibus Agreement Amendments |
||||
Exhibit B |
- |
Definitions |
||||
Exhibit C |
- |
Interpretation |
||||
Exhibit D |
- |
Asset Identification Summary |
||||
Exhibit E |
- |
Administrative Fee |
ii
TWELFTH AMENDED AND RESTATED
OMNIBUS AGREEMENT
THIS TWELFTH AMENDED AND RESTATED OMNIBUS AGREEMENT (this Agreement ) is being entered into as of October 16, 2015, to be effective as of January 1, 2015 (the Effective Date ), by and among the following entities (all Delaware limited liability companies unless otherwise noted):
HollyFrontier Corporation, a Delaware corporation ( HFC ), and its Affiliates listed below (singularly, HFC Entity ; and with HFC collectively, the HFC Entities ):
Frontier El Dorado Refining LLC ( Frontier El Dorado )
Frontier Refining LLC ( Frontier Cheyenne )
Holly Refining & Marketing Tulsa LLC ( Holly Tulsa )
Holly Refining & Marketing Company Woods Cross LLC ( Holly Woods Cross )
Navajo Pipeline Co., L.P., a Delaware limited partnership ( Navajo Pipeline )
Navajo Refining Company, L.L.C. (Navajo)
AND
Holly Energy Partners, L.P., a Delaware limited partnership ( HEP ), and its Affiliates listed below (singularly, HEP Entity ; and with HEP collectively, the HEP Entities ):
Cheyenne Logistics LLC ( Cheyenne Logistics )
El Dorado Logistics LLC ( El Dorado Logistics )
HEP El Dorado LLC ( HEP El Dorado )
HEP Logistics GP, L.L.C. (the OLP GP )
HEP Logistics Holdings, L.P., a Delaware limited partnership (the General Partner )
HEP Mountain Home, L.L.C.
HEP Navajo Southern, L.P., a Delaware limited partnership
HEP Pipeline Assets, Limited Partnership, a Delaware limited partnership
HEP Pipeline GP, L.L.C.
HEP Pipeline, L.L.C. ( HEP Pipeline )
HEP Refining Assets, L.P., a Delaware limited partnership
HEP Refining GP, L.L.C.
HEP Refining, L.L.C. ( HEP Refining )
HEP Tulsa LLC ( HEP Tulsa )
HEP UNEV Holdings LLC ( HEP UNEV )
HEP UNEV Pipeline LLC
HEP Woods Cross, L.L.C.
1
Holly Energy Partners Operating, L.P., a Delaware limited partnership (the Operating Partnership )
Holly Energy Storage - Lovington LLC
Holly Logistic Services, L.L.C. ( Holly GP ),
Lovington-Artesia, L.L.C.
Roadrunner Pipeline, L.L.C. ( Roadrunner )
This Agreement amends and restates in its entirety the Eleventh Amended Omnibus Agreement among certain of the HFC Entities and certain of the HEP Entities which were signatories thereto.
RECITALS:
WHEREAS, the Parties entered into an Omnibus Agreement on July 13, 2004 (as amended, the Original Omnibus Agreement ) to evidence their agreement with respect to various administrative, indemnity and other obligations, which agreement has been further amended and restated as set forth on Exhibit A , resulting in the Eleventh Amended and Restated Omnibus Agreement.
WHEREAS, the Parties desire to amend and restate the Eleventh Amended and Restated Omnibus Agreement as provided herein in order to, among other things, consolidate terms from various other agreements between the parties and to clarify terms as more particularly set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the covenants, conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 Definitions . Capitalized terms used throughout this Agreement and not otherwise defined herein shall have the meanings set forth on Exhibit B .
1.2 Interpretation . Matters relating to the interpretation of this Agreement are set forth on Exhibit C .
ARTICLE II
BUSINESS OPPORTUNITIES
2.1 Restricted Businesses . For so long as a HFC Group Member owns a controlling interest in the general partner of HEP, and except as permitted by Section 2.2 , Holly GP and each HFC Group Member shall be prohibited from engaging in or acquiring a controlling interest in or operating any business having assets or operations engaged in the Restricted Businesses.
2
2.2 Permitted Exceptions . Notwithstanding any provision of Section 2.1 to the contrary, Holly GP and the HFC 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 Businesses conducted by a HFC Group Member and Holly GP with the approval of the General Partner; |
(c) | the ownership and/or operation of Restricted Businesses by an HFC Entity or Holly GP in its capacity as general partner of HEP or its general partner; |
(d) | the ownership and/or operation of any asset or group of related assets used in the Restricted Business that are acquired or constructed by a HFC Group Member or Holly GP after the Closing Date (the Permitted Assets ), the fair market value of which (as determined in good faith by the Board of Directors of HFC) is as follows: |
(i) | less than $5 million at the time of such acquisition or good faith estimate of construction costs, as the case may be; or |
(ii) | equal to or greater than $5 million at the time of the acquisition or good faith estimate of construction costs; provided, HEP has been offered the opportunity to purchase the Permitted Assets in accordance with Section 2.3 and HEP has elected not to purchase the Permitted Assets; |
(e) | the ownership of the UNEV Profits Interest; and |
(f) | the ownership of limited or any general partnership interests in HEP. |
2.3 Right of Offer .
(a) | If Holly GP or a HFC Group Member becomes aware of an opportunity to acquire Permitted Assets with a fair market value (as determined in good faith by the Board of Directors of HFC) equal to or greater than $5 million, then, subject to Section 2.3(c) , as soon as practicable, Holly GP or such HFC Group Member shall notify HEP of such opportunity and deliver to HEP, or provide HEP access to all information prepared by or on behalf of, or material information submitted or delivered to, Holly GP or such HFC 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, HEP shall notify Holly GP or the HFC Group Member that it has either elected: |
(i) | not to cause a HEP Group Member to pursue the opportunity to purchase the Permitted Assets, or |
(ii) | to cause a HEP Group Member to pursue the opportunity to purchase the Permitted Assets, in which case the applicable Parties shall follow the procedures in Section 2.4 . |
3
(b) | If, at any time, HEP abandons such opportunity (as evidenced in writing by HEP to the HFC Group Member), Holly GP or the HFC Group Member may pursue such opportunity. Any Permitted Assets which are permitted to be acquired by Holly GP or a HFC Group Member must be so acquired: |
(i) | within 12 months of the later to occur of (A) the date that Holly GP or the HFC Group Member becomes able to pursue such acquisition in accordance with the provisions of this Section 2.3 , 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 HFC Group Member than were offered to HEP. |
If either of these conditions are not satisfied, the opportunity must be reoffered to HEP in accordance with this Section 2.3(b) .
(c) | Notwithstanding Section 2.3(a) , if Holly GP or a HFC Group Member (i) becomes aware of an opportunity to make an acquisition that includes Permitted Assets and assets that are not Permitted Assets, and the Permitted Assets have a fair market value (as determined in good faith by the Board of Directors of HFC) 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 HFC) of the total assets being considered for acquisition, or (ii) desire to construct Permitted Assets with an estimated construction cost (as determined in good faith by the Board of Directors of HFC) equal to or greater than $5 million, then in either case, Holly GP or the HFC Group Member may make such acquisition without first offering the opportunity to HEP or may construct such Permitted Assets as long as it complies with the procedures set forth below in Section 2.4 . |
2.4 Procedure for Offering Acquired or Constructed Assets to HEP .
(a) | Within 180 days after the consummation of the acquisition or the completion of construction by Holly GP or a HFC Group Member of the Permitted Assets, as the case may be, Holly GP or the HFC Group Member shall notify HEP in writing of such acquisition or construction and offer HEP the opportunity to purchase such Permitted Assets (the Offer ). The Offer shall set forth the terms relating to the purchase of the Permitted Assets, and, if Holly GP or any HFC Group Member desires to utilize the Permitted Assets, the Offer will also include (i) the commercially reasonable terms on which the HEP Group will provide services to Holly GP or the HFC Group Member to enable Holly GP or the HFC Group Member to utilize the Permitted Assets and (ii) the terms of any service agreements, leases or access agreements to be provided to HEP by Holly GP or the HFC Group relating to such assets. As soon as practicable, but in any event within 30 days after receipt of such written notification, HEP shall notify Holly GP or the HFC Group Member in writing that HEP has elected (i) not to cause a HEP Group Member to purchase the Permitted Assets, in which event Holly GP or the HFC Group Member shall be forever free to continue to own or operate such Permitted Assets, or (ii) to cause a HEP Group Member to purchase the Permitted Assets, in which event Section 2.4(b) and Section 2.4(c) shall apply. |
(b) |
If within 60 days after receipt by HEP of the Offer, Holly GP or the HFC Group Member and HEP are able to agree on the fair market value of the subject Permitted Assets and the other terms of the Offer including, the terms, if any, on which the HEP Group will provide services to Holly GP or the HFC Group Member to enable it to utilize the Permitted Assets, a HEP Group Member shall |
4
purchase the Permitted Assets for the agreed upon fair market value as soon as commercially practicable after such agreement has been reached and, if required by the Offer or otherwise agreed, enter into an agreement with Holly GP or the HFC Group Member to provide services in a manner consistent with the Offer. |
(c) | If Holly GP or the HFC Group Member and HEP are unable to agree within 60 days after receipt by HEP of the Offer on the fair market value of the subject Permitted Assets and/or the other terms of the Offer, Holly GP or the HFC Entity, on the one hand, and HEP, on the other hand, will engage a mutually agreed upon investment banking firm to determine the disputed terms. Such investment banking firm will determine the disputed terms within 30 days of its engagement and furnish Holly GP or the HFC Group Member, on the one hand, and HEP, on the other hand, its determination. The fees of the investment banking firm will be split equally between Holly GP or the HFC Group Member, on the one hand, and HEP, on the other hand. Once the investment banking firm has submitted its determination of the disputed terms, HEP will have the right, but not the obligation, to cause a HEP Group Member to purchase the Permitted Assets pursuant to the Offer as modified by the determination of the investment banking firm. HEP will provide written notice of its decision to Holly GP or the HFC 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 Permitted Assets. If HEP elects to cause a HEP Group Member to purchase the Permitted Assets, then the HEP Group Member shall purchase the Permitted 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 HFC Group Member to provide services in a manner consistent with the Offer, as modified by the determination of the investment banking firm, if applicable. |
2.5 Scope of Prohibition . Except as provided in this Article II and the Partnership Agreement, Holly GP and each HFC Group Member shall be free to engage in any business activity, including those that may be in direct competition with any HEP Group Member.
2.6 Enforcement . Holly GP and the HFC Group Members agree and acknowledge that the HEP Group does not have an adequate remedy at law for the breach by Holly GP and the HFC Group of the covenants and agreements set forth in this Article II , and that any breach by Holly GP and the HFC Group of the covenants and agreements set forth in this Article II would result in irreparable injury to the HEP Group. Holly GP and the HFC Group Members further agree and acknowledge that any HEP Group Member may, in addition to the other remedies that may be available to the HEP Group, file a suit in equity to enjoin Holly GP and the HFC Group from such breach and hereby consent to the issuance of injunctive relief under this Agreement.
2.7 Limitation on Acquisitions of Permitted Assets by HEP Group Members . Notwithstanding anything in this Agreement to the contrary, a HEP Group Member who is not a party to this Agreement is prohibited from acquiring Permitted Assets. In the event HEP desires a HEP Group Member who is not a party to this Agreement to acquire any Permitted Assets, then the General Partner shall first cause such HEP Group Member to become a party to this Agreement.
2.8 Termination of Article II . The provisions of this Article II may be terminated by HFC upon a Change of Control of HFC.
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ARTICLE III
INDEMNIFICATION
3.1 Conditions of Indemnification by the HFC Entities . All indemnities set forth in Section 3.2 are subject to the following conditions:
(a) | Except for the indemnity in Sections 3.2(a)(ii) , (vii) and (viii) , indemnities apply only to the Transferred Assets and only until the expiration date, if any, related to each such Transferred Asset shown in column (b) on Exhibit D . |
(b) | The aggregate liability of the HFC Entities for all Covered Environmental Losses under Section 3.2(a) shall not exceed the amounts shown in column (b) on Exhibit D . The liability limits are exhausted on an aggregate basis and do not represent separate individual limits for each location, it being understood that a Claim in one location may exhaust liability limits for multiple locations. |
(c) | Except for the indemnity in Sections 3.2(a)(vii) and (viii) , indemnities in Section 3.2 apply only to the extent that such events or conditions occurred before the Closing Date. |
3.2 Indemnification by the HFC Entities .
(a) | Subject to Section 3.1 , the HFC Entities shall indemnify, defend and hold harmless the HEP Entities from and against any Liability or Claim incurred by the HEP Entities or any Third Party to the extent arising out of: |
(i) | the Covered Environmental Losses relating to the Transferred Assets to the extent caused by the acts or omissions of an HFC Entity; |
(ii) | the ownership or operation by HFC and its Affiliates of any asset not constituting part of the Transferred Assets, except to the extent arising out of the negligent acts or omissions or willful misconduct of HEP or any of its Affiliates; |
(iii) | the failure of the applicable HEP Entity to be the owner of valid and indefeasible easement rights or fee ownership for 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 HEP Entity on the applicable Closing Date; |
(iv) | the failure of the applicable HEP Entity to have the consents, licenses and permits necessary to allow any such Transferred Assets referred to in Section 3.2(c) to cross the roads, waterways, railroads and other areas upon which any such Transferred Assets are located as of the Closing Date; |
(v) | the cost of curing any condition set forth in clauses (iii) or (iv) above to the extent such conditions do not allow any Transferred Asset to be operated in accordance with Prudent Industry Practice; |
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(vi) | the following: |
(A) | events and conditions associated with the operation of the Transferred Assets before the Closing Date (other than Covered Environmental Losses which are provided for under Section 3.2(a)(i) and events and conditions covered by Section 3.4 ); |
(B) | all legal actions pending against the HFC Entities on July 13, 2004; |
(C) | the completion of remediation projects at the respective HEP Entitys El Paso, Albuquerque and Mountain Home terminals that were ongoing or scheduled as of July 13, 2004; |
(D) | events and conditions associated with the Retained Assets and whether occurring before or after the Closing Date; and |
(E) | all federal, state and local tax liabilities attributable to the operation or ownership of the Transferred Assets prior to the applicable Closing Date, including any such tax liabilities of the HFC Entities that may result from the consummation of the formation transactions for the HEP Entities and the General Partner; |
(vii) | the operation by HEP and its Affiliates of any assets owned by HFC or any of its Affiliates, except to the extent arising out of the gross negligence or willful misconduct of HEP or any of its Affiliates; and |
(viii) | Any failure to perform any covenant or agreement made or undertaken by HFC or its Affiliates in the (A) Master Lease and Access Agreement, or the exercise by HFC or its Affiliates of any rights and obligations under Section 2.2(b) thereof; or (B) Services and Secondment Agreement; except in either case to the extent arising out of the willful misconduct or negligence (standard negligence or gross negligence) of HEP or any of its Affiliates. |
(b) | The indemnities provided for in Section 3.2(a)(i) through (v) shall only apply if the HFC Entities are notified in writing of any of the foregoing prior to the applicable expiration date listed in column (b) on Exhibit D . |
(c) | The indemnities provided for in Section 3.2(a)(vi) shall only apply if to the extent that the HFC Entities are notified in writing of any of the following events and conditions within five years after the applicable Closing Date. |
(d) | Notwithstanding anything in this Agreement to the contrary, because HEP has been involved since the inception with the following Transferred Assets, as used in this Section 3.2 , the definition of Transferred Assets shall not include the 16 Lovington/Artesia Intermediate Pipeline, the Beeson Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines, and the UNEV Pipeline. |
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(e) | To the extent that a good faith Claim by the HEP Entities for indemnification under Section 3.2(a) 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 HFC Entities refuse to provide such indemnification, then the burden of proof shall be on the HFC Entities to demonstrate that the events or conditions giving rise to the Claim arose after the Closing Date. |
3.3 Conditions of Indemnification by the HEP Entities . The indemnities set forth in Section 3.4 apply only to the extent that such events or conditions occurred on or after the applicable Closing Date, if any.
3.4 Indemnification by the HEP Entities .
(a) | Subject to Section 3.3 , the HEP Entities shall indemnify, defend and hold harmless the HFC Entities from and against any Liability or Claim suffered or incurred by the HFC Entities or any Third Party to the extent arising from: |
(i) | the Covered Environmental Losses associated with operation of (A) the Other Assets, and (B) the Transferred Assets by a Person (other than a HFC Entity or ownership and operation of the Transferred Assets by a Person other than a HFC Entity); and |
(ii) | operation by HEP and HEPs Affiliates of any asset owned by HFC or any of HFCs Affiliates but only to the extent caused by the gross negligence or willful misconduct of any of the HEP Entities; or |
(iii) | Any failure to perform any covenant or agreement made or undertaken by any HEP or its Affiliates in the (A) Master Lease and Access Agreement, or the exercise by HEP or its Affiliates of any rights and obligations under Section 2.2(b) thereof; or (B) Services and Secondment Agreement; except in either case to the extent arising out of the willful misconduct or negligence (standard negligence or gross negligence) of HFC or any of its Affiliates. |
(b) | Nothing set forth in Section 3.4(a) shall make the HEP Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the HFC Entities. |
3.5 Mutual General Indemnity . Following the applicable Closing Dates, the HFC Entities and the HEP Entities, respectively, agree to indemnify, protect, defend and hold harmless each other from and against any and all Liabilities and Claims based upon, in connection with, relating to or arising out of their respective actions or inactions in connection with the operation of the Indemnifying Partys respective assets or any failure to comply with any Applicable Laws; in any case of or by any Indemnifying Party or its subcontractors, suppliers, materialmen, employees, agents, successors and assigns, or other persons directly or indirectly employed by them, including the following:
(a) | any injury to or death of any Person or the damage to or theft, destruction, loss or loss of use of, any property; or |
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(b) | the failure to perform any covenant or agreement made or undertaken by the applicable Party in agreements with any of the other Parties. |
3.6 Exclusions from Indemnity for Post-Closing Date Claims . NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, FOR ANY LIABLITIES OR CLAIMS ARISING OUT OF EVENTS OCCURRING AFTER AN APPLICABLE CLOSING DATE:
(a) | EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3.2(a)(vii) , THE INDEMNIFICATION OBLIGATIONS HEREIN SHALL NOT EXTEND TO THE PROPORTIONATE AMOUNT OF ANY SUCH LIABILITY OR CLAIM CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE OR ITS AGENTS OR EMPLOYEES. |
(b) | No statute, rule or regulation that precludes an injured party from bringing an action against a fellow employee or employer shall preclude a Party from seeking and obtaining a judicial determination of the fault or negligence of such Persons. |
(c) | Each Party shall be responsible for any insurance deductibles or self-insured retention arising out of any Liability or Claim to the extent such Liability or Claim arises out of the negligence or willful misconduct of such Party, except to the extent the subrogation waiver provided for in Section 3.9 applies to such Liability or Claim. |
3.7 Indemnification Procedures .
(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, 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, 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 making available to the Indemnifying Party any employees of the Indemnified Party. |
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(d) | In no event shall the obligation of the Indemnified Party to cooperate with the Indemnifying Party as set forth in Section 3.7(c) 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. |
(e) | In connection with the indemnities in this Article III , Indemnifying Party: |
(i) | agrees to use reasonable efforts to minimize the impact thereof on the operations of the Indemnified Party; |
(ii) | agrees to enter into a joint defense agreement with Indemnifying Party in order to allow communication by counsel if Indemnified Party elects to involve separate counsel; and |
(iii) | agrees to maintain the confidentiality of all files, records, and other information furnished by the Indemnified Party pursuant to this Section 3.8 . |
(f) | The amounts for which an Indemnified Party is entitled to indemnification under this Article III shall be reduced by the net amounts recovered by the Indemnified Party pursuant to contractual indemnities from any Third Party (other than pursuant to insurance policies that are not required to include a waiver of subrogation pursuant to Section 3.9 ) after deducting the reasonable unreimbursed out-of-pocket fees and expenses incurred by the Indemnified Party in recovering such amounts (the Net Recovery ). If the Indemnified Party receives a Net Recovery subsequent to an indemnification payment by the Indemnifying Party under this Article III , 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 Net Recovery. An Indemnified Party shall be obligated to pursue all contractual indemnities (including insurance claims) that such Indemnified Party has with any Third Party, provided, however, if the Indemnified Partys 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, making its relevant books, records, officers, information and testimony reasonably available to the Indemnifying Party) in the Indemnifying Partys pursuit of such claim. |
(g) | For avoidance of doubt, no Claim may be asserted pursuant to Section 3.2 or Section 3.4 following the applicable expiration of the indemnity related to such Claim; provided that any Claim asserted in writing prior to the expiration date of such indemnity that is the basis for such Claim shall survive until such Claim is finally resolved and satisfied. The date on which notification of a Claim for indemnification is received by the Indemnifying Party shall determine whether such Claim is timely made. |
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3.8 Limitation on Indemnification Obligations .
(a) | Notwithstanding anything in this Agreement to the contrary, when referring to the indemnification obligations of the HFC Entities in Article III , the definition of HFC Entities shall be deemed to mean solely (i) the HFC Entity or HFC Entities that own or operate, or owned or operated immediately prior to the transfer to the HEP Entities, the Retained Asset, Transferred Asset or other property in question with respect to which indemnification is sought by reason of such HFC Entitys or HFC Entities ownership or operation of the Retained Asset, Transferred 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 HEP Entities for which it is entitled to indemnification under Article III and (ii) HFC. |
(b) | Notwithstanding anything in this Agreement to the contrary, when referring to the indemnification obligations of the HEP Entities in Article III , the definition of HEP Entities shall be deemed to mean solely (i) the HEP Entity or HEP Entities that own or operate, or previously owned or operated, the Transferred 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 HFC Entities for which they are entitled to indemnification under Article III , (ii) HEP and (iii) Operating Partnership. |
(c) | For the avoidance of doubt, any indemnification obligations of the HFC Entities in Article III with respect to any indemnifiable losses incurred by or attributable to the UNEV Pipeline shall be (i) limited to an amount that is the product of (x) the amount of such losses, multiplied by (y) HEP UNEVs direct or indirect percentage ownership interest in the UNEV Pipeline at the time such losses were incurred and (ii) payable to, for the benefit of and recoverable solely by HEP UNEV or any HEP Entity designated by HEP UNEV (and not by UNEV Pipeline, LLC). |
3.9 Subrogation; Waiver of Subrogation . To the extent that any of the HFC Entities or HEP Entities in fact receive full indemnification payments pursuant to Section 3.2(a)(viii) or Section 3.4(a)(iii) hereof, as the case may be, the HFC Entity or HEP Entity paying such Claim shall be subrogated to the receiving partys rights with respect to the transaction or event requiring or giving rise to such indemnity. Notwithstanding the foregoing, each of the HFC Entities and the HEP Entities, hereby waives and releases, and shall cause their respective insurers, to waive and release, all rights against each other and any of their respective contractors, subsidiaries, consultants, agents and employees for loss or damages to any of the Transferred Assets to the extent of fire and other hazards covered by property insurance applicable to the property to which such loss or damage occurs, except such rights as they have to proceeds of such insurance. For the purposes of this Section 3.9 , all deductibles shall be considered insured losses. Without limiting the foregoing, all of the Parties policies of property insurance for the Transferred Assets shall be endorsed to provide a complete waiver for the benefit of the other Parties and their Affiliates of (i) any right of recovery which the insurer may have or acquire against the other Parties or any of its Affiliates, or its or their employees, officers or directors for payments made or to be made under such policies and (ii) any lien or right of subrogation which the insurer may have or acquire for payments made or to be made to any person or entity who asserts a Claim against such other Parties or any of its Affiliates, or its or their employees, officers or directors. The releases and waivers of subrogation set forth above in this paragraph shall apply notwithstanding any obligation of a Party to indemnify the other Party for the Claim(s) at issue.
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ARTICLE IV
GENERAL AND ADMINISTRATIVE EXPENSES
4.1 General .
(a) | The Operating Partnership will pay HFC an administrative fee (the Administrative Fee ) in the amount set forth on Exhibit E , payable in equal quarterly installments, for the provision by HFC and its Affiliates for the HEP Groups benefit of all the general and administrative services that HFC and its Affiliates provide, including, the general and administrative services listed on Exhibit E . |
(b) | HEP and HFC shall also periodically assess and increase the Administrative Fee in connection with expansions of the operations of the HEP Group through the acquisition or construction of new assets or businesses. |
(c) | At the end of each year, HEP will have the right to submit to HFC a proposal to reduce the amount of the Administrative Fee for that year if HEP believes in good faith that the general and administrative services performed by HFC and its Affiliates for the benefit of the HEP Group for the year in question do not justify payment of the full Administrative Fee for that year. If HEP submits such a proposal to HFC, HFC agrees that it will negotiate in good faith with HEP to determine if the Administrative Fee for that year should be reduced and, if so, the amount of such reduction. |
(d) | The Administrative Fee shall not include and the HEP Group shall reimburse HFC and its Affiliates for: |
(i) | salaries of employees of HFC or its Affiliates, to the extent, but only to the extent, such employees perform services for the HEP Group; |
(ii) | the cost of employee benefits relating to employees of HFC or its Affiliates, such as 401(k), pension, and health insurance benefits, to the extent, but only to the extent, such employees perform services for the HEP Group and have not been paid by HEP pursuant to the Master Site Services Agreement and the Services and Secondment Agreement; |
(iii) | any amounts payable under the Master Site Services Agreement and the Services and Secondment Agreement; |
(iv) | 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 HFC and its Affiliates to HEP pursuant to Section 4.1(a) ; and |
(v) | all premiums for insurance policies carried for and on behalf of HEP. |
(e) | Either HFC, on the one hand, or HEP, 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. |
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ARTICLE V
RIGHT OF FIRST REFUSAL
5.1 HFC Right of First Refusal: Prohibition on Transfer .
(a) | The HEP Entities hereby grant to HFC 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 HEP Group Member) of any of the Assets. |
(b) | The HEP Entities are prohibited from Transferring any of the Assets to a HEP Group Member that is not a party to this Agreement. In the event the HEP Entities desire to Transfer any of the Assets to a HEP Group Member that is not a Party to this Agreement, they shall first cause the proposed transferee HEP Group Member to become a Party to this Agreement. |
(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 or the UNEV Pipeline, but shall expressly include the equity interests of UNEV Pipeline, LLC then owned directly or indirectly by the HEP Entities. |
5.2 Procedures .
(a) | If a HEP Entity proposes to Transfer any of the Assets to any Person pursuant to a bona fide third-party offer (an Acquisition Proposal ), then HEP shall promptly give written notice (a Disposition Notice ) thereof to HFC. The Disposition Notice shall set forth the following information in respect of the proposed Transfer: |
(i) | the name and address of the prospective acquiror (the Proposed Transferee ); |
(ii) | the Assets subject to the Acquisition Proposal (the Sale Assets ); |
(iii) | the purchase price offered by such Proposed Transferee (the Offer Price ); |
(iv) | reasonable detail concerning any non-cash portion of the proposed consideration, if any, to allow HFC to reasonably determine the fair market value of such non-cash consideration; |
(v) | the HEP Entities estimate of the fair market value of any non-cash consideration; and |
(vi) | all other material terms and conditions of the Acquisition Proposal that are then known to the HEP Entities. |
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(b) | To the extent the Acquisition Proposal 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 HFC and the HEP Entities agree as to the fair market value of any non-cash consideration, HFC 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. |
(c) | In the event (i) HFCs determination of the fair market value of any non-cash consideration described in the Disposition Notice (to be determined by HFC within 30 days of receipt of such Disposition Notice) is less than the fair market value of such consideration as determined by the HEP Entities in the Disposition Notice and (ii) HFC and the HEP Entities are unable to mutually agree upon the fair market value of such non-cash consideration within 30 days after HFC notifies the HEP Entities of its determination thereof, the HEP Entities and HFC 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 HFC and the HEP Entities. HFC will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the Sale Assets to the HEP 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 HFC not to purchase the Sale Assets. |
(d) | If HFC fails to exercise a right during any applicable period set forth in this Section 5.2 , HFC 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 such Sale Assets. |
(e) | If HFC chooses to exercise its right of first refusal to purchase the Sale Assets under Sections 5.1(a) and 5.2(c) , HFC and the HEP Entities shall enter into a purchase and sale agreement for the Sale Assets which shall include the following terms: |
(i) | HFC will agree to deliver cash for the Offer Price (or any other consideration agreed to by HFC and the HEP Entities (each in their sole discretion)); |
(ii) | the HEP Entities will represent that they have good, indefeasible and unencumbered 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 Sale Assets, plus any other reasonable and customary matters and such matters as HFC may approve, which approval will not be unreasonably withheld. If HFC desires to obtain any title insurance with respect to the Sale Assets, the full cost and expense of obtaining the same (including the cost of title examination, document duplication and policy premium) shall be borne by HFC; |
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(iii) | the HEP Entities will grant to HFC the right, exercisable at HFCs risk and expense, to conduct such surveys, tests and inspections of the Sale Assets as HFC may deem desirable, so long as such surveys, tests or inspections do not damage the Sale Assets or interfere with the activities of the HEP Entities thereon and so long as HFC has furnished the HEP Entities with evidence that adequate liability insurance is in full force and effect; |
(iv) | HFC 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(e)(ii) or Section 5.2(e)(iii) above are, in the reasonable opinion of HFC, unsatisfactory; |
(v) | the closing date for the purchase of the Sale Assets shall, unless otherwise agreed to by HFC and the HEP Entities, occur no later than 90 days following receipt by the HEP Entities of written notice by HFC of its intention to exercise its option to purchase the Sale Assets pursuant to Section 5.2(b) or (c) ; |
(vi) | the HEP Entities shall execute, have acknowledged and deliver to HFC 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 HFC free and clear of all encumbrances created by the HEP Entities other than those set forth in Section 5.2(e)(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 HEP Entities nor HFC 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. |
(f) | HFC and the HEP Entities shall cooperate in good faith in obtaining all necessary governmental and other Third Party 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 HFC 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 HFC nor HEP 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(g) . |
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(g) | If the Transfer to the Proposed Transferee is not consummated in accordance with the terms of the Acquisition Proposal within the later of (i) 180 days after the later of the applicable ROFR Acceptance Deadline, and (ii) 10 days after the satisfaction of all governmental approval or filing requirements, if any, the Acquisition Proposal shall be deemed to lapse, and the HEP Entities 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
HFC 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 HFC with respect to the Tulsa Transferred Assets in the Purchase Option Agreement.
ARTICLE VII
API INSPECTIONS
7.1 API Inspections . With respect only to the 2008 Tanks, the applicable HFC Entity that sold the particular tank(s) to the applicable HEP Entity shall, during the period that commences on the applicable Closing Date and ends five (5) years thereafter (the Initial Tank Inspection Period ) reimburse the applicable HEP Entity 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 2008 Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that
(a) | such HFC Entity shall not reimburse such HEP Entity with respect to the relocated crude oil Tank 437 in the Artesia refinery complex or the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the Purchase and Sale Agreement referenced in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and |
(b) | upon expiration of the Initial Tank Inspection Period, all of the obligations of the applicable HFC Entity pursuant to this Article VII shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that |
(i) | inaccessibility of the 2008 Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be performed during the Initial Tank Inspection Period, and |
(ii) | the applicable HFC Entity received notice from the applicable HEP Entity regarding such delay at the time it occurred. |
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ARTICLE VIII
DISPUTE RESOLUTION
8.1 Dispute Resolution .
(a) | Any Arbitrable Dispute arising out of or in connection with this Agreement, including any question regarding the existence, validity or termination of this Agreement, shall be exclusively resolved in accordance with this Article VIII . |
(b) | In the event of a Arbitrable Dispute between an HFC Entity and an HEP Entity, the HFC Entity and the HEP Entity shall, within ten (10) days of a written request by either of them to the other, meet in good faith to resolve such Arbitrable Dispute in a meeting that includes individuals with authority to resolve the Arbitrable Dispute at such meeting. |
(c) | If the HFC Entity and the HEP Entity are unable to resolve the Arbitrable Dispute within ten (10) days after submission of such Arbitrable Dispute as provided in Section 8.1(b), either the HFC Entity or the HEP Entity may submit the matter to arbitration in accordance with the terms of Section 8.2 below. |
(d) | Pending resolution of any Arbitrable Dispute between the HFC Entity and the HEP Entity, the HFC Entity and the HEP Entity shall continue to perform in good faith their respective obligations under this Agreement based upon the last agreed performance demonstrated prior to the Arbitrable Dispute. |
(e) | Resolution of any Arbitrable Dispute between the HFC Entity and the HEP Entity involving payment of money by either the HFC Entity and the HEP Entity to the other shall include payment of interest at the Prime Rate from the original due date of such amount. |
(f) | Each of the HFC Entity and the HEP Entity shall, in addition to all rights provided herein or provided by Law, be entitled to the remedies of specific performance and injunction to enforce its rights hereunder. |
8.2 Arbitration . 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, as amended from time to time).
(a) | Arbitration must be initiated within the time limits set forth in this Agreement, or if no such limits apply, then within the time period allowed by the applicable statute of limitations. Arbitration may be initiated by either party ( Claimant ) by delivering written notice to the other ( Respondent ) that the Claimant elects to refer the Arbitrable Dispute to binding arbitration. Claimants notice initiating binding arbitration must identify the arbitrator Claimant has appointed. The Respondent shall respond to Claimant within thirty (30) days after receipt of Claimants 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 Respondents account. The two arbitrators so chosen shall select a third arbitrator within thirty (30) days after the second arbitrator has been appointed. |
17
(b) | The hearing will be conducted in Dallas, Texas and commence within thirty (30) days after the selection of the third arbitrator. The parties 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 Claimant and Respondent. |
(c) | 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 Claimant and Respondent will each pay one-half of the compensation and expenses of the third arbitrator. |
(d) | All arbitrators must (i) be neutral parties who have never been officers, directors or employees of any of the Parties or any of their Affiliates and who have not provided consulting services (directly or indirectly) for at least three (3) years prior to their appointment and (ii) have at least seven (7) years experience in the petroleum transportation industry. |
(e) | The arbitrators shall have no right to grant or award indirect, consequential, punitive or exemplary damages of any kind. |
(f) | The Arbitrable Disputes may be arbitrated in a common proceeding along with disputes under other agreements between the Claimant and Respondent to the extent that the issues raised in such disputes are related. Without the written consent of the Claimant and Respondent, no unrelated disputes (including those with Affiliates of either Claimant or Respondent) or Third Party disputes may be joined to an arbitration pursuant to this Agreement. |
8.3 Conflict . If there is any inconsistency between this Article VIII and the Commercial Arbitration Rules or the Federal Arbitration Act, the terms of this Article VIII will control the rights and obligations of the parties seeking arbitration.
ARTICLE IX
FORCE MAJEURE
9.1 Force Majeure . In the event of any Party being rendered unable, wholly or in part, by a Force Majeure event from performing its obligations under any of the Master Agreements, Services and Secondment Agreement or 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 relied on ( Force Majeure Notice ) to the other affected Party(ies), the obligations of the Parties, so far are they are affected by the Force Majeure event, shall be suspended during the continuance of any inability so caused. The cause of the Force Majeure event shall, as far as possible, be remedied with all reasonable dispatch, except that no 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.
18
ARTICLE X
MISCELLANEOUS
10.1 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.
10.2 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: |
Notices to the HFC Entities:
HollyFrontier Corporation
2828 N. Harwood, Suite 1300
Dallas, Texas 75201
Attention: President
Email address: president@hollyfrontier.com
with a copy, which shall not constitute notice, but is required in order to give proper notice, to:
HollyFrontier Corporation
2828 N. Harwood, Suite 1300
Dallas, Texas 75201
Attention: General Counsel
Email address: general.counsel@hollyfrontier.com
Notices to the HEP Entities:
Holly Energy Partners, L.P.
c/o Holly Logistic Services, L.L.C.
2828 N. Harwood, Suite 1300
Dallas, Texas 75201
Attention: President
Email address: president-HEP@hollyenergy.com
19
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.
2828 N. Harwood, Suite 1300
Dallas, Texas 75201
Attention: General Counsel
Email address: general.counsel@hollyenergy.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 10.2 . |
10.3 Entire Agreement . This Agreement, together with the other agreements and instruments referred to herein, constitutes the entire agreement of the Parties relating to the matters contained herein, superseding as of the Effective Date all prior contracts or agreements (including the Original Omnibus Agreement), whether oral or written, relating to the matters contained herein. For avoidance of doubt the Eleventh Amended Omnibus Agreement shall remain in full force and effect with respect to any event, act or omission occurring before the Effective Date.
10.4 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 to this Agreement may be amended, modified, revised or updated by the Parties hereto if each of HFC (on behalf of the HFC Entities) and HEP (on behalf of the HEP 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 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 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.
10.5 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.
10.6 Counterparts . This Agreement may be executed in any number of paper or electronic counterparts with the same effect as if all signatory parties had signed the same document. All such counterparts shall be construed together and shall constitute one and the same agreement.
10.7 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.
10.8 Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each 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.
10.9 Rights of Limited Partners . The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner (as defined in the Partnership Agreement) of HEP
20
shall have the right, separate and apart from HEP, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement. There are no Third Party beneficiaries to this Agreement.
10.10 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.
10.11 Limitation of Damages . N OTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER PROVISION OF THIS AGREEMENT AND 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 A RTICLE III , OF ANY LIABILITIES , DAMAGES , COSTS OR OTHER EXPENSES ( 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 3.2 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 , 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 :
( X ) AS A RESULT OF A THIRD PARTY CLAIM FOR SUCH INDIRECT , CONSEQUENTIAL , EXEMPLARY OR PUNITIVE DAMAGES ,
( Y ) FOR CLAIMS THAT ARE COVERED BY INSURANCE AND ANY RELATED DEDUCTIBLES , OR
( Z ) FOR INDIRECT , CONSEQUENTIAL , EXEMPLARY OR PUNITIVE DAMAGES ( INCLUDING LIABILITIES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OR BUSINESS INTERRUPTION OR DIMINUTION IN VALUE ) THAT ARE A RESULT OF SUCH INDEMNIFYING P ARTY S OR ITS AFFILIATES GROSS NEGLIGENCE OR WILLFUL MISCONDUCT .
As used in this Section 10.11 , Affiliates of the Indemnifying Party shall not include the HEP Group Members when a HFC Entity is the Indemnifying Party and shall not include the HFC Group Members when the Indemnifying Party is a HEP Entity.
10.12 Nature of the Relationship . Notwithstanding the foregoing, nothing in this Agreement and no actions taken by the Parties shall constitute a partnership, joint venture, association or other co-operative entity among the Parties or authorize either Party to represent or contract on behalf of the other Party.
[Remainder of Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date.
HFC ENTITIES: | ||
H OLLY F RONTIER C ORPORATION | ||
F RONTIER E L D ORADO R EFINING LLC | ||
F RONTIER R EFINING LLC | ||
H OLLY R EFINING & M ARKETING C OMPANY W OODS C ROSS LLC | ||
H OLLY R EFINING & M ARKETING - T ULSA LLC | ||
N AVAJO P IPELINE C O ., L.P. | ||
N AVAJO R EFINING C OMPANY , L.L.C. | ||
By: |
/s/ Michael C. Jennings |
|
Name: | Michael C. Jennings | |
Title: | Chief Executive Officer and President |
HEP ENTITIES: | ||||
H OLLY E NERGY P ARTNERS , L.P. | ||||
By: | HEP Logistics Holdings, L.P. | |||
Its General Partner | ||||
By: | Holly Logistic Services, L.L.C. | |||
Its General Partner | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President |
[Signature Page 1 of 3 to Twelfth Amended and Restated Omnibus Agreement]
C HEYENNE L OGISTICS LLC | ||||
HEP L OGISTICS GP, L.L.C. | ||||
HEP T ULSA LLC | ||||
E L D ORADO L OGISTICS LLC | ||||
HEP UNEV H OLDINGS LLC | ||||
HEP UNEV P IPELINE LLC | ||||
H OLLY E NERGY S TORAGE L OVINGTON LLC | ||||
H OLLY E NERGY P ARTNERS O PERATING , L.P. | ||||
H OLLY L OGISTIC S ERVICES , L.L.C. | ||||
R OADRUNNER P IPELINE , L.L.C. | ||||
HEP E L D ORADO LLC | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President | |||
HEP L OGISTICS H OLDINGS , L.P. | ||||
By: | Holly Logistic Services, L.L.C, | |||
Its General Partner | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President | |||
HEP M OUNTAIN H OME , L.L.C. | ||||
HEP P IPELINE GP, L.L.C. | ||||
HEP P IPELINE , L.L.C. | ||||
HEP R EFINING GP, L.L.C. | ||||
HEP R EFINING , L.L.C. | ||||
HEP W OODS C ROSS , L.L.C. | ||||
L OVINGTON -A RTESIA , L.L.C. | ||||
By: | HOLLY ENERGY PARTNERS | |||
OPERATING, L.P. | ||||
Sole Member | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President |
[Signature Page 2 of 3 to Twelfth Amended and Restated Omnibus Agreement]
HEP N AVAJO S OUTHERN , L.P. | ||||
HEP P IPELINE A SSETS , L IMITED P ARTNERSHIP | ||||
By: | HEP Pipeline GP, L.L.C. | |||
Its General Partner | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President | |||
HEP R EFINING A SSETS , L.P. | ||||
By: | HEP Refining GP, L.L.C. | |||
Its General Partner | ||||
By: |
/s/ Bruce R. Shaw |
|||
Name: | Bruce R. Shaw | |||
Title: | President |
[Signature Page 3 of 3 to Twelfth Amended and Restated Omnibus Agreement]
Exhibit A
to
Twelfth Amended and Restated Omnibus Agreement
Omnibus Agreement Amendments
Agreement |
Effective Date |
Reason for Amendment |
||
Original Omnibus Agreement |
July 13, 2004 | n/a | ||
First Amended and Restated Omnibus Agreement |
June 1, 2009 | 16 Lovington/Artesia Intermediate Pipeline Purchase Agreement | ||
Second Amended and Restated Omnibus Agreement |
August 1, 2009 | Tulsa West (Sunoco) Asset Purchase Agreement | ||
Third Amended and Restated Omnibus Agreement |
October 19, 2009 |
(i) Tulsa East (Sinclair) Purchase Agreement (ii) Beeson Pipeline Purchase Agreement, and (iii) Roadrunner Pipeline Purchase Agreement |
||
Fourth Amended and Restated Omnibus Agreement |
March 31, 2010, | LLC Interest Purchase Agreement for certain Tulsa East Assets | ||
Fifth Amended and Restated Omnibus Agreement |
August 31, 2011 | Tulsa Throughput Agreement | ||
Sixth Amended and Restated Omnibus Agreement |
November 1, 2011 | LLC Interest Purchase Agreement for Cheyenne Assets and El Dorado Assets | ||
Seventh Amended and Restated Omnibus Agreement |
July 12, 2012 | UNEV LLC Interest Purchase Agreement | ||
Eighth Amended and Restated Omnibus Agreement |
June 1, 2013 | Malaga Throughput Agreement | ||
Ninth Amended and Restated Omnibus Agreement |
January 7, 2014 | Amended and Restated El Dorado Throughput Agreement for the El Dorado New Tank No. 647 | ||
Tenth Amended and Restated Omnibus Agreement |
September 26, 2014 | Amended and Restated Malaga Throughput Agreement | ||
Eleventh Amended and Restated Omnibus Agreement |
January 1, 2015 | Unloading and Blending Services Agreement (Artesia) and Third Amended and Restated Crude Pipelines and Tankage Agreement (Beeson to Lovington System Expansion) |
A-1
Exhibit B
to
Twelfth Amended and Restated Omnibus Agreement
Definitions
8 and 10 Lovington/Artesia Intermediate Pipelines means the 8-inch pipeline and the 10-inch pipeline, each running from Lovington, New Mexico to Artesia, New Mexico and owned by HEP 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.
16 Lovington/Artesia Intermediate Pipeline Purchase Agreement means that certain LLC Interest Purchase Agreement dated as of June 1, 2009, by and among HFC, Navajo Pipeline and the Operating Partnership, pursuant to which Navajo Pipeline transferred and conveyed to the Operating Partnership, and the Operating Partnership acquired, all of the limited liability company interests of Lovington-Artesia, L.L.C., the entity that owns the 16 Lovington/Artesia Intermediate Pipeline.
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 HEPs 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 HFC, Navajo Pipeline, Woods Cross Refining Company, L.L.C., a Delaware limited liability company, and Navajo, as the seller parties, and HEP, the Operating Partnership, HEP Woods Cross, L.L.C., a Delaware limited liability company, and HEP Pipeline, as the buyer parties.
2008 Tanks means the Transferred Tanks included in the 2008 Crude Pipelines, Tanks and Related Assets.
Acquisition Proposal is defined in Section 5.2(a) .
Additional Lovington Assets means the Transferred Lovington Assets as defined in the March 2010 Drop Down LLC Interest Purchase Agreement.
Additional Tulsa East Assets means the Transferred Tulsa East Assets as defined in the March 2010 Drop Down LLC Interest Purchase Agreement.
Administrative Fee is defined in Section 4.1(a) .
Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control means the possession, direct or indirect, 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.
Agreement is defined in the introduction to this Agreement.
B-1
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 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, 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 HEP Entities, on the one hand, and any of the HFC Entities, on the other hand, arising out of or relating to this Agreement, the Master Agreements, or the Services and Secondment Agreement, or the alleged breach hereof and thereof, or in any way relating to the subject matter of this Agreement, the Master Agreements, or the Services and Secondment 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.
Artesia Blending Facility means the two tanks and related equipment for the unloading and blending of ethanol and biodiesel at the refined product truck rack located at the refinery owned by Navajo in Artesia, New Mexico.
Artesia Rail Sublease Agreement means that certain Sublease Agreement effective as of November 1, 2014 by and between HEP Refining and HFRM, pursuant to which HEP Refining agreed to sublease to HFRM, and HFRM agreed to sublease from HEP Refining, the BNSF Land.
Artesia Rail Yard Facility means (a) the railroad track siding consisting of approximately 8,300 track feet of siding (rail storage) and two mainline switches and three industry switches located on certain land leased by HFRM from the Operating Partnership pursuant to the Artesia Track Lease Agreement, and (b) HEP Refinings leasehold interest, as tenant, under the BNSF Lease, and (c) HEP Refinings leasehold interest, as landlord, under the Rail Yard Sublease Agreement.
Artesia Track Agreement means that certain Track Lease Agreement effective as of November 1, 2014 by and between HEP Refining and HFRM, pursuant to which HEP Refining agreed to lease to HFRM, and HFRM agreed to lease from HEP Refining, the Artesia Rail Yard Facility.
Assets means the Transferred Assets and the Other Assets, collectively.
Beeson Pipeline means the 8 crude oil pipeline extending from Beeson station to Lovington, New Mexico, owned by HEP Pipeline.
Beeson Pipeline Purchase Agreement means that certain Asset Purchase Agreement dated as of December 1, 2009, by and among HFC, Navajo Pipeline and HEP Pipeline, pursuant to which Navajo Pipeline agreed to transfer and convey to HEP Pipeline, and HEP Pipeline agreed to acquire, the Beeson Pipeline.
Beeson to Lovington System Expansion means the following project undertaken by HEP Pipeline: the installation of a larger pump at the Beeson station and the replacement of five miles of existing 8-inch pipeline with 10-inch pipeline beginning at the Beeson station end of the Beeson Pipeline.
B-2
BNSF Land means the land located in Eddy County, New Mexico leased to HEP Refining pursuant to the BNSF Lease.
BNSF Lease means that certain Lease of Land Including New Track Construction dated to be effective as of February 14, 2014, pursuant to which HEP Reining agreed to lease from BNSF Railway Company the BNSF Land.
Business Day means any day other than Saturday, Sunday or other day upon which commercial banks in Dallas, Texas are authorized by law to close.
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 Persons 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 a 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 Securities Exchange Act of 1934, as amended) (in the case of HFC, other than a group consisting of some of all of the current control persons of HFC), being or becoming the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended) 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.
Cheyenne Assets is defined in the November 2011 Frontier Drop Down LLC Interest Purchase Agreement.
Cheyenne Logistics is defined in the introduction to this Agreement.
Cheyenne New Tank means petroleum storage tank no. 117 located at the Cheyenne Refinery Complex.
Claim means any existing or threatened future claim, demand, suit, judgment, settlement, action, investigation, proceeding, governmental action, cause of action, claims, demands, causes of action, suits, judgments, settlements, fines, penalties, costs, and expenses (including court costs and reasonable attorneys and experts fees) of any kind or character (in each case, whether civil, criminal, investigative
B-3
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 of any and every kind or character, known or unknown, fixed, contingent or suffered.
Claimant is defined in Section 8.2(a).
Closing Date means
(a) for all sections other than Articles III and VII , July 13, 2004, the date of the closing of HEPs initial public offering, and
(b) for purposes of Articles III and VII , Closing Date means, with respect to a group of assets, the effective date of the purchase of such assets or the stock, partnership interests or membership interests of the entity that directly or indirectly owns such assets, by a HEP Entity (such Closing Date being shown in Exhibit D , column (a)).
Contribution Agreement means that certain Contribution, Conveyance and Assumption Agreement, dated as of July 13, 2004, among HFC, Navajo Pipeline, the General Partner, HEP, 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 means Environmental Claims to the extent arising from:
(a) | any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or |
(b) | any event or condition associated with ownership or operation of the Assets (including, the presence of Hazardous Substances on, under, about or migrating from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at any non-Asset locations), including: |
(i) | 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; |
(ii) | 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 |
(iii) | the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work. |
Disposition Notice is defined in Section 5.2(a) .
Effective Date is defined in the introduction to this Agreement.
B-4
Eighth Amended Omnibus Agreement is defined on Exhibit A .
El Dorado Assets is defined in the November 2011 Frontier Drop Down LLC Interest Purchase Agreement.
El Dorado Logistics is defined in the introduction to this Agreement.
El Dorado New Tanks means (a) petroleum products storage tank no. 647 located at the El Dorado Refinery Complex, and (b) petroleum products storage tank no. 643 located at the El Dorado Refinery Complex.
El Dorado Terminal means that certain petroleum products tank farm located in El Dorado Kansas, and more particularly described in the El Dorado Membership Purchase Agreement, as such terminal may be modified, expanded or upgraded from time to time.
El Dorado Membership Purchase Agreement means that certain Membership Interest Purchase Agreement dated as of March 6, 2015 by and between El Dorado Logistics and Rimrock Midstream, LLC.
El Dorado Throughput Agreement means that certain Second Amended and Restated Pipeline Delivery, Tankage and Loading Rack Throughput Agreement (El Dorado), dated as of January 7, 2014, and effective as of November 1, 2011, by and between Frontier El Dorado and El Dorado Logistics LLC, pursuant to which El Dorado Logistics LLC constructed new storage tank assets.
Eleventh Amended Omnibus Agreement is defined on Exhibit A .
Environmental Claims means environmental and Toxic Tort Liabilities and Claims of any and every kind or character, known or unknown, fixed or contingent.
Environmental Costs means (i) 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, (ii) 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 (iii) the cost and expense for any Environmental Claim, including pre-trial, trial, or appellate legal or litigation support work.
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 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.
Fifth Amended Omnibus Agreement is defined on Exhibit A .
First Amended Omnibus Agreement is defined on Exhibit A .
First ROFR Acceptance Deadline is defined in Section 5.2(b) .
B-5
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars (whether or not an official declaration is made thereof), terrorist attacks, blockades, insurrections, riots, epidemics, landslides, lightening, earthquakes, fires, hurricanes, storms, floods, washouts, freezeoffs, arrests, the order of any Governmental Authority having jurisdiction while the same is in force and effect, civil disturbances, explosions, breakage, accident to machinery, equipment, storage tanks or lines of pipe, repairs, maintenance, inability to obtain or unavoidable delay in obtaining permits, 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 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
Fourth Amended Omnibus Agreement is defined on Exhibit A .
Frontier Cheyenne is defined in the introduction to this Agreement.
Frontier El Dorado is defined in the introduction to this Agreement.
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 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, 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.
HEP is defined in the introduction to this Agreement.
HEP El Dorado is defined in the introduction to this Agreement.
HEP Entities is defined in the introduction to this Agreement.
HEP Entity means any of the HEP Entities.
HEP Group means the HEP Entities and any Subsidiary of any such Person, all of which are treated as a single consolidated entity for purposes of this Agreement.
HEP Group Member means any member of the HEP Group.
HEP Pipeline is defined in the introduction to this Agreement.
HEP Refining is defined in the introduction to this Agreement.
B-6
HEP Tulsa is defined in the introduction to this Agreement.
HEP UNEV is defined in the introduction to this Agreement.
HFC is defined in the introduction to this Agreement.
HFC Group means the HFC Entities and any Person controlled, directly or indirectly, by HFC other than the HEP Entities.
HFC Group Member means any member of the HFC Group.
HFRM means HollyFrontier Refining & Marketing, L.L.C.
Holly GP is defined in the introduction to this Agreement.
Holly Tulsa is defined in the introduction to this Agreement.
Holly Woods Cross is defined in the introduction to this Agreement.
Indemnified Claims means losses, damages, liabilities, Claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, court costs and reasonable attorneys and experts fees) of any and every kind or character.
Indemnified Party means all or part of either the HEP Entities or the HFC Entities, as the case may be, in their capacity as the parties entitled to indemnification in accordance with Article III .
Indemnifying Party means all or part of either the HEP Entities or the HFC Entities, as the case may be, in their capacity as the parties from whom indemnification may be required in accordance with Article III .
Initial Tank Inspections is defined in Section 7.1.
Initial Tank Inspection Period is defined in Section 7.1
Liability means with respect to any Person, any economic losses (including, diminution in value and lost profits suffered by third parties to the extent an Indemnified Party is required to pay for such damages), damages, injuries (including, personal injury and death), liabilities, of any and every kind or character, known or unknown, fixed, contingent or suffered.
Limited Partner is defined in the Partnership Agreement.
Malaga Pipeline System means the Pipeline System, as such term is defined in the Malaga TSA.
Malaga TSA means that certain Amended and Restated Transportation Services Agreement (Malaga) dated as of September 26, 2014 by and between HFRM and Operating Partnership, pursuant to which Operating Partnership provides certain transportation services for HFRM on the Malaga Pipeline System, as such agreement may be amended, modified or replaced from time to time.
March 2010 Drop Down LLC Interest Purchase Agreement means that certain LLC Interest Purchase Agreement dated as of March 31, 2010, by and among HFC, Lea Refining Company, Holly Tulsa, HEP Refining and HEP Tulsa, pursuant to which HFC, Lea Refining Company and Holly Tulsa agreed to transfer and convey to HEP Refining and HEP Tulsa the Additional Tulsa East Assets and the Additional Lovington Assets.
B-7
Master Agreements means the Master Lease and Access Agreement, Master Site Services Agreement and Master Throughput Agreement.
Master Lease and Access Agreement means that certain Master Lease and Access Agreement dated as of the date hereof among certain of the HEP Entities and the Refinery Owners.
Master Site Services Agreement means that certain Master Site Services Agreement dated as of the date hereof among certain of the HEP Entities and the Refinery Owners.
Master Throughput Agreement means that certain Master Throughput Agreement dated as of the date hereof between the Operating Partnership and HFRM.
Navajo is defined in the introduction to this Agreement.
Navajo Pipeline is defined in the introduction to this Agreement.
Net Recovery is defined in Section 3.7(f) .
Ninth Amended Omnibus Agreement is defined on Exhibit A .
November 2011 Frontier Drop Down LLC Interest Purchase Agreement means that certain LLC Interest Purchase Agreement effective as of November 1, 2011, by and among HFC, Frontier Cheyenne, Frontier El Dorado, the Operating Partnership and HEP, pursuant to which Frontier Cheyenne and Frontier El Dorado agreed sell to the Operating Partnership the entities that own the Cheyenne Assets and the El Dorado Assets.
Offer is defined in Section 2.4(a)
Offer Price is defined in Section 5.2(a)(iii) .
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.
Other Assets means those assets owned by a HEP Entity that serve the Refineries and were not conveyed, contributed, or otherwise transferred, directly or indirectly by the HFC Entities to the HEP Entities, as indicated in column (a) of Exhibit D, Part 2 ; provided, that for the purposes of Section 3.2 , Other Assets shall not include that certain 8 pipeline extending 50 miles from the White City Station that was formerly used as a refined products pipeline and that was conveyed to the HEP Entities as part of the 2004 Product Pipelines, Terminal and Related Assets.
B-8
Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P. dated as of July 13, 2004 as amended or supplemented by the following:
Agreement |
Effective Date |
|
Amendment No. 1 to the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P. |
February 28, 2005 | |
Amendment No. 2 to the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P. |
July 6, 2005 | |
Amendment No. 3 to the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P. |
April 11, 2008 | |
Limited Partial Waiver of Incentive Distribution Rights |
July 12, 2012 | |
Amendment No. 4 to the First Amended and Restated Agreement of Limited Partnership of Holly Energy Partners, L.P. |
January 16, 2013 |
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.
Party means any one of the entities listed on the signature page to this Agreement, collectively the Parties .
Permitted Assets is defined in Section 2.2(d).
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.
Post-Closing Covered Environmental Losses means, to the extent such violation, event or condition occurred after the Closing Date:
(a) | any violation or correction of violation of Environmental Laws associated with the operation of the Transferred Assets by a Person other than a HFC Entity or ownership and operation of the Transferred Assets by a Person other than a HFC Entity, or |
(b) | any event or condition associated with the ownership and/or operation of the Transferred Assets by a Person other than a HFC Entity (including the presence of Hazardous Substances on, under, about or migrating to or from the Transferred Assets or the disposal or release of Hazardous Substances generated by operation of the Transferred Assets) including, the Environmental Costs; |
provided, however, that nothing stated above shall make the HEP Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by any of the HFC Entities.
B-9
Pre-Closing Covered Environmental Losses means, to the extent such violation, event or condition occurred before the Closing Date:
(a) | any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Transferred Assets by a Person other than a HEP Entity or ownership and operation of the Transferred Assets by a Person other than a HEP Entity, or |
(b) | any event or condition associated with ownership and/or operation of the Transferred Assets by a Person other than a HEP Entity (including, the presence of Hazardous Substances on, under, about or migrating to or from the Transferred Assets or the disposal or release of Hazardous Substances generated by operation of the Transferred Assets), including, the Environmental Costs. |
provided, however, that nothing stated above shall make the HFC Entities responsible for any pre-Closing Date negligent actions omissions or willful misconduct by any of the HEP Entities.
Proposed Transferee is defined in Section 5.2(a)(i) .
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 HFC Entities in the performance of similar tasks or projects, or by the HEP 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 Tulsa, as the seller, and HEP Tulsa, as the buyer.
Refinery or Refineries means each of the Refinery Complexes identified in the Master Lease and Access Agreement.
Refinery Owners means each of the HFC Entities that own one or more of the Refineries.
Respondent is defined in Section 8.2(a).
Restricted Business or Restricted Businesses means the ownership or operation of crude oil pipelines or terminals, intermediate petroleum product pipelines or terminals, refined petroleum products pipelines, terminals, truck racks or crude oil gathering systems in the continental United States.
Retained Assets means the pipelines, terminals and other assets and investments owned by any HFC Group Member on the date of the Contribution Agreement that were not conveyed, contributed or otherwise transferred to the HEP Entities pursuant to the Contribution Agreement or otherwise.
Roadrunner is defined in the introduction to this Agreement.
Roadrunner Pipeline means 16 crude oil pipeline extending from Slaughter station in Texas to Lovington, New Mexico owned by Roadrunner.
Roadrunner Pipeline Purchase Agreement means that certain LLC Interest Purchase Agreement dated as of December 1, 2009 by and among Navajo Pipeline and the Operating Partnership, pursuant to which the Operating Partnership acquired, all of the outstanding limited liability company interests of Roadrunner, the entity that owns the Roadrunner Pipeline.
B-10
ROFR Acceptance Deadline means the First ROFR Acceptance Deadline or the Second ROFR Acceptance Deadline, as applicable, both as defined in Section 5.2(b) and (c) .
Sale Assets is defined in Section 5.2(a)(ii) .
Second Amended Omnibus Agreement is defined on Exhibit A .
Second ROFR Acceptance Deadline is defined in Section 5.2(c).
Services and Secondment Agreement means that certain Services and Secondment Agreement dated as of the date hereof, by and among Holly GP, the Operating Partnership, Cheyenne Logistics, El Dorado Logistics, HollyFrontier Payroll Services, Inc., a Delaware corporation, Frontier Cheyenne and Frontier El Dorado.
Seventh Amended Omnibus Agreement is defined on Exhibit A .
Sinclair means Sinclair Tulsa Refining Company.
Sinclair Purchase Agreement means that certain Asset Sale and Purchase Agreement dated as of October 19, 2009, by and among Holly Tulsa, HEP Tulsa and Sinclair, pursuant to which HEP Tulsa acquired the Sinclair Transferred Assets.
Sinclair Transferred Assets means the HEP Tulsa Assets as defined in the Sinclair Purchase Agreement.
Sixth Amended Omnibus Agreement is defined on Exhibit A .
Tenth Amended Omnibus Agreement is defined on Exhibit A .
Third Amended Omnibus Agreement is defined on Exhibit A .
Third Party means a Person which is not (a) HEP or an Affiliate of HEP, (b) HFC or an affiliate of HFC, (c) a Person that, after the signing of this Agreement becomes a successor entity of HEP, HFC or any of their respective Affiliates. An employee of HFC or HEP shall not be deemed an Affiliate.
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.
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 Assets means all of the assets conveyed, contributed, or otherwise transferred, directly or indirectly (including by transfer or sale of the entity that owns such assets or the entity that owns the interests in the entity that owns such assets) that serve the Refineries, by the HFC Entities to the HEP Entities, as indicated in column (a) of Exhibit D, Part 1 ; provided that for the purposes of Section 3.2 , the term Transferred Assets shall include that certain 8 pipeline extending 50 miles from the White City Station that was formerly used as a refined products pipeline and that was conveyed to the HEP Entities as part of the 2004 Product Pipelines, Terminal and Related Assets.
B-11
Transferred Tanks means the tanks included in the Assets, as indicated in column (h) of Exhibit D .
Tulsa Interconnecting Pipelines means the Interconnecting Pipelines as defined in the Tulsa Throughput Agreement.
Tulsa Purchase Agreement means that certain Asset Purchase Agreement dated as of August 1, 2009, by and between Holly Tulsa and HEP Tulsa, pursuant to which Holly Tulsa transferred and conveyed to HEP Tulsa, and HEP Tulsa acquired, the Tulsa Transferred Assets.
Tulsa Throughput Agreement means that certain Second Amended and Restated Pipelines, Tankage and Loading Rack Throughput Agreement (Tulsa East), dated as of August 31, 2011, pursuant to which HEP Tulsa agreed to provide transportation services to Holly Tulsa with respect to the Tulsa Interconnecting Pipelines.
Tulsa Transferred Assets means the Transferred Assets as defined in the Tulsa Purchase Agreement.
UNEV LLC Interest Purchase Agreement means that certain LLC Interest Purchase Agreement dated as of July 12, 2012, by and among HFC, HEP UNEV and HEP, pursuant to which HFC agreed to sell to HEP UNEV the entity that owns 75% of all of the issued and outstanding membership interests of UNEV Pipeline, LLC, the entity that owns the UNEV Pipeline.
UNEV Pipeline means, collectively, an approximately 400 mile, 12-inch refined products pipeline currently running from Woods Cross, Utah to Las Vegas, Nevada, related products terminals in or near Cedar City, Utah and Las Vegas, Nevada and other related assets owned by UNEV Pipeline, LLC.
UNEV Profits Interest means the membership interest in HEP UNEV held directly or indirectly by HFC.
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.
B-12
Exhibit C
to
Twelfth Amended and Restated Omnibus Agreement
Interpretation
As used in this Agreement, unless a clear contrary intention appears:
(a) any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa, and any reference to a gender includes the other gender;
(b) the words hereof, herein, and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(c) any reference to Articles, Sections and Exhibits are, unless otherwise stated, references to Articles, Sections and Exhibits of or to this Agreement and references in any Section or definition to any clause means such clause of such Section or definition. The headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation;
(d) reference to any agreement (including this Agreement), document or instrument means such agreement, document, or instrument as amended, modified or supplemented and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Agreement;
(e) the Exhibits hereto form an integral part of this Agreement and are equally binding therewith. Any reference to this Agreement shall include such Exhibits;
(f) references to a Person shall include any permitted assignee or successor to such Party in accordance with this Agreement and reference to a Person in a particular capacity excludes such Person in any other capacity;
(g) if any period is referred to in this Agreement by way of reference to a number of days, the days shall be calculated exclusively of the first and inclusively of the last day unless the last day falls on a day that is not a Business Day in which case the last day shall be the next succeeding Business Day;
(h) the use of or is not intended to be exclusive unless explicitly indicated otherwise;
(i) references to $ or to dollars shall mean the lawful currency of the United States of America; and
(j) the words includes, including, or any derivation thereof shall mean including without limitation or including, but not limited to.
C-1
Exhibit D
to
Twelfth Amended and Restated Omnibus Agreement
Asset Indemnification Summary
Part 1: Transferred Assets:
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) | (h) | |||||||
TRANSFERRED
ASSET AND
|
HFC ENVIRONMENTAL (Expiration Date) |
HEP ENVIRONMENTAL |
RIGHT-OF-WAY |
ADDITIONAL
|
OPERATIONAL INDEMNITY |
RIGHT OF
FIRST REFUSAL |
INCLUDES
TRANSFERRED TANKS |
|||||||
Indemnity from HFC to HEP for Pre-Closing Covered Environmental Losses under Section 3.2(a) / Aggregate cap on HFC environmental indemnity in Section 3.1(b) (expiration date of indemnity) |
Indemnity from HEP to HFC for Post-Closing Covered Environmental Losses under Section 3.4(a) |
Right-of-Way Indemnity under Sections 3.2(a)(iii) and 3.2(a)(iv) (expiration date of indemnity) |
Additional Indemnities under Section 3.2(a)(vi) (expiration date of indemnity) 1 |
Additional Indemnities under Section 3.5 |
Right
of First Refusal under Article V |
|||||||||
2004 Product Pipelines, Terminal and Related Assets (July 13, 2004) |
$15,000,000 (July 13, 2014) |
ü |
ü (July 13, 2014) |
ü (July 13, 2009) |
ü | ü | No | |||||||
8 and 10 Lovington/Artesia Intermediate Pipelines (June 1, 2009) |
$17,500,000 (June 1, 2019) |
ü |
ü (June 1, 2019) |
ü (June 1, 2014) |
ü | ü | No |
1 | Notification of Claim must be provided prior to date noted. |
D-1
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) |
(h) |
|||||||
TRANSFERRED
ASSET AND
|
HFC
(Expiration Date) |
HEP
|
RIGHT-OF-WAY |
ADDITIONAL
|
OPERATIONAL INDEMNITY |
RIGHT OF
FIRST
|
INCLUDES
|
|||||||
2008 Crude Pipelines, Tanks and Related Assets (March 1, 2008) |
$7,500,000 (March 1, 2023) |
ü |
ü (March 1, 2023) |
ü (March 1, 2013) |
ü | ü | Yes | |||||||
16 Lovington/Artesia Intermediate Pipeline (June 1, 2009) |
None | ü |
ü (June 1, 2019) |
ü (June 1, 2014) |
ü | ü | No | |||||||
Tulsa Transferred Assets (August 1, 2009) |
None | None | None | None | None | None 2 | No | |||||||
Beeson Pipeline (December 1, 2009) |
None | ü |
ü (December 1, 2019) |
ü (December 1, 2014) |
ü | ü | No | |||||||
Roadrunner Pipeline (December 1, 2009) |
None | ü |
ü (December 1, 2019) |
ü (December 1, 2014) |
ü | ü | No | |||||||
Additional Lovington Assets (March 31, 2010) |
$15,000,000 (March 31, 2020) |
ü |
ü (March 31, 2020) |
ü (March 31, 2015) |
ü | ü | No | |||||||
Additional Tulsa East Assets (March 31, 2010) |
None 3 | None | None | None | None | ü | No |
2 | Right of first refusal granted to an Affiliate of HFC with respect to the Tulsa Transferred Assets is contained in the Purchase Option Agreement. |
3 | Environmental indemnity provided among certain of the HFC Entities and HEP Entities is contained in the Tulsa Throughput Agreement. |
D-2
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) |
(h) |
|||||||
TRANSFERRED ASSET AND CLOSING DATE |
HFC
(Expiration Date) |
HEP
|
RIGHT-OF-WAY |
ADDITIONAL
|
OPERATIONAL INDEMNITY |
RIGHT OF
FIRST
|
INCLUDES
|
|||||||
Sinclair Transferred Assets (October 19, 2009) |
None | None | None | None | None | ü | Yes | |||||||
Tulsa Interconnecting Pipelines (August 31, 2011) |
None | ü | (August 31, 2021) | (August 31, 2016) | ü | ü | No | |||||||
Cheyenne Assets (November 1, 2011) |
$15,000,000 (November 1, 2021) |
ü |
ü (November 1, 2021) |
ü (November 1, 2016) |
ü | ü | Yes | |||||||
El Dorado Assets (November 1, 2011) |
$15,000,000 (November 1, 2021) |
ü |
ü (November 1, 2021) |
ü (November 1, 2016) |
ü | ü | Yes | |||||||
UNEV Pipeline (July 12, 2012) |
None | ü |
ü (July 12, 2022) |
ü (July 12, 2017) |
ü | None 4 | No |
4 | However, the right of first refusal includes the equity interests of UNEV Pipeline, LLC then owned directly or indirectly by the HEP Entities. |
D-3
Part 2: Other Assets:
(a) |
(b) |
(c) |
(d) |
(e) |
(f) |
(g) |
(h) |
|||||||
OTHER
ASSET AND
|
HFC ENVIRONMENTAL (Expiration Date) |
HEP ENVIRONMENTAL |
RIGHT-OF-WAY |
ADDITIONAL
|
OPERATIONAL INDEMNITY |
RIGHT OF
FIRST
|
INCLUDES
|
|||||||
Indemnity from HFC to HEP for Pre-Closing Covered Environmental Losses under Section 3.2(a) / Aggregate cap on HFC environmental indemnity in Section 3.1(b) (expiration date of indemnity) |
Indemnity from HEP to HFC for Post-Closing Covered Environmental Losses under Section 3.4(a) |
Right-of-Way Indemnity under Sections 3.2(a)(iii) and 3.2(a)(iv) (expiration date of indemnity) |
Additional Indemnities under Section 3.2(a)(vi)(A) (expiration date of indemnity) 1 |
Additional Indemnities under Section 3.5 | Right of First Refusal under Article V | |||||||||
Malaga Pipeline System (July 16, 2013, as amended by that certain Amended and Restated Transportation Services Agreement dated September 26, 2014) |
None 5 | ü | None | None | ü | ü | No | |||||||
El Dorado New Tank (Tank 647) (January 7, 2014) |
None | ü |
ü (January 7, 2024) |
None | ü | ü | No | |||||||
Artesia Railyard Facility (November 1, 2014) |
None | ü | None | None | ü | ü | No | |||||||
El Dorado Terminal (March 6, 2015) |
None | ü | None | None | ü | ü | No |
5 | However, Section 3.1(a) covers the 8 pipeline extending 50 miles from White City Station that was formerly used as a refined products pipeline that was conveyed to HEP as part of the 2004 Product Pipelines, Terminal and Related Assets. |
D-4
Beeson to Lovington System Expansion (March 12, 2015) | None | ü | None | None | ü | ü | No | |||||||
Artesia Blending Facility (March 12, 2015) | None | ü |
ü (March 12, 2025) |
None | ü | ü | No | |||||||
Cheyenne New Tank (Tank 117) (December 4, 2014) |
None | ü |
ü (December 4, 2029) |
None | ü | ü | No | |||||||
El Dorado New Tank (Tank 643) (February 4, 2014) |
None | ü |
ü (February 4, 2029) |
None | ü | ü | No |
D-5
Exhibit E
to
Twelfth Amended and Restated Omnibus Agreement
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 from and after March 1, 2008 through December 1, 2014 |
$ | 2,300,000 | ||
Years beginning January 1, 2015 |
$ | 2,380,500 |
General and Administrative Services
(1) | executive services |
(2) | finance, including treasury, and administration services |
(3) | information technology services |
(4) | legal services |
(5) | corporate health, safety and environmental services |
(6) | human resources services |
(7) | procurement |
E-1
Exhibit 10.5
EXECUTION VERSION
SERVICES AND SECONDMENT AGREEMENT
Effective as of January 1, 2015
TABLE OF CONTENTS
ARTICLE I DEFINED TERMS |
1 | |||||
S ECTION 1.01 |
D EFINED T ERMS | 1 | ||||
S ECTION 1.02 |
T ERMS G ENERALLY | 1 | ||||
ARTICLE II SERVICES |
2 | |||||
S ECTION 2.01 |
HEP S ECONDED E MPLOYEES | 2 | ||||
S ECTION 2.02 |
P ERSONNEL AND S ECONDMENT | 2 | ||||
S ECTION 2.03 |
T ERMINATION OF S ECONDMENT | 2 | ||||
S ECTION 2.04 |
S UPERVISION | 3 | ||||
S ECTION 2.05 |
B ENEFIT P LANS | 3 | ||||
ARTICLE III FINANCIAL ACCOUNTING AND BILLING PRACTICES |
3 | |||||
S ECTION 3.01 |
A CCOUNTING | 3 | ||||
S ECTION 3.02 |
C OMPENSATION | 4 | ||||
S ECTION 3.03 |
B ILLING P RACTICES | 4 | ||||
S ECTION 3.04 |
R ECORDS AND A UDIT R IGHTS | 4 | ||||
S ECTION 3.05 |
N OTIFICATION OF S ECONDMENT | 4 | ||||
ARTICLE IV SAFETY AND COMPLIANCE WITH LAWS |
5 | |||||
ARTICLE V RELATIONSHIP OF THE PARTIES |
5 | |||||
ARTICLE VI LIABILITY STANDARD AND INDEMNIFICATION |
5 | |||||
S ECTION 6.01 |
L IMITATION OF L IABILITY ; I NDEMNIFICATION | 5 | ||||
S ECTION 6.02 |
S URVIVAL | 5 | ||||
ARTICLE VII INSURANCE |
6 | |||||
S ECTION 7.01 |
I NSURANCE | 6 | ||||
S ECTION 7.02 |
C OST R EIMBURSEMENT | 6 | ||||
S ECTION 7.03 |
R EQUIRED C ONTRACTOR C OVERAGE | 6 | ||||
ARTICLE VIII TERM AND TERMINATION |
6 | |||||
S ECTION 8.01 |
T ERM | 6 | ||||
S ECTION 8.02 |
T ERMINATION BY THE P ARTNERSHIP G ROUP | 7 | ||||
S ECTION 8.03 |
T ERMINATION BY THE H OLLY F RONTIER P ARTIES | 7 | ||||
S ECTION 8.04 |
R IGHT OF T ERMINATION BY E ITHER P ARTY | 7 | ||||
S ECTION 8.05 |
E FFECT OF T ERMINATION | 7 | ||||
ARTICLE IX NOTICES |
7 | |||||
ARTICLE X APPLICABLE LAW |
7 | |||||
ARTICLE XI DISPUTES BETWEEN THE PARTIES |
8 | |||||
S ECTION 11.01 |
D ISPUTE R ESOLUTION | 8 | ||||
S ECTION 11.02 |
P ERFORMANCE D URING D ISPUTES | 8 | ||||
ARTICLE XII GENERAL PROVISIONS |
8 | |||||
S ECTION 12.01 |
A SSIGNABILITY | 8 | ||||
S ECTION 12.02 |
F URTHER A SSURANCES | 8 | ||||
S ECTION 12.03 |
C OMPLIANCE WITH L AWS | 8 | ||||
S ECTION 12.04 |
S EVERABILITY | 8 | ||||
S ECTION 12.05 |
W AIVER | 8 |
i
S ECTION 12.06 |
E NTIRE A GREEMENT | 8 | ||||
S ECTION 12.07 |
A MENDMENT | 8 | ||||
S ECTION 12.08 |
C OUNTERPARTS | 9 | ||||
S ECTION 12.09 |
C ONSTRUCTION | 9 | ||||
S ECTION 12.10 |
H EADINGS | 9 | ||||
S ECTION 12.11 |
E XHIBITS | 9 | ||||
S ECTION 12.12 |
B INDING E FFECT | 9 | ||||
S ECTION 12.13 |
C OOPERATION | 9 | ||||
S ECTION 12.14 |
N O T HIRD P ARTY B ENEFICIARIES | 9 |
EXHIBITS | ||||
Exhibit A |
|
Defined Terms |
||
Exhibit B |
|
Interpretation |
||
Exhibit C |
|
Services |
||
Exhibit D |
|
Accounting Procedures |
ii
SERVICES AND SECONDMENT AGREEMENT
This SERVICES AND SECONDMENT AGREEMENT (this Agreement ) is made and entered into as of the 16th day of October, 2015, to be effective as of January 1, 2015, by and between HOLLY LOGISTICS SERVICES , L.L.C ., a Delaware limited liability company ( Holly GP ), HOLLY ENERGY PARTNERS OPERATING, L.P. , a Delaware limited partnership ( Partnership ), CHEYENNE LOGISTICS LLC , a Delaware limited liability company ( Cheyenne Logistics ), EL DORADO LOGISTICS LLC , a Delaware limited liability company ( El Dorado Logistics and, together with Holly GP, Partnership and Cheyenne Logistics, the Partnership Group ), HOLLYFRONTIER PAYROLL SERVICES, INC. , a Delaware corporation ( HPS ), FRONTIER REFINING LLC , a Delaware limited liability company ( Frontier Refining ), and FRONTIER EL DORADO REFINING LLC , a Delaware limited liability company ( Frontier El Dorado and, together with HPS and Frontier Refining, the HollyFrontier Group ).
W I T N E S S E T H:
WHEREAS , Holly GP, as the general partner of the general partner of Holly Energy Partners, L.P., a Delaware limited partnership ( HEP ), manages HEP and HEP and its subsidiaries (together with Holly GP, the HEP Entities ) own or operate petroleum product and crude pipelines and terminal, tankage and loading rack facilities;
WHEREAS , the Partnership Group Members have agreed to provide terminalling, transportation and storage services to Frontier Refining and Frontier El Dorado pursuant to a certain Master Throughput Agreement;
WHEREAS, the HollyFrontier Group Members have experience and expertise in the maintenance and operation of certain terminalling, transportation and storage assets and the environmental reporting related thereto and can provide or make available to the Partnership Group, personnel, and other resources necessary to perform maintenance, operations and management functions with respect to assets that are owned or leased (in whole or in part) by any Partnership Group Member, or with respect to which any Partnership Group Member has the right or obligation to operate and/or maintain; and
WHEREAS, the Partnership Group and the HollyFrontier Group desire that the HollyFrontier Group provide maintenance, operations and management resources to the Partnership Group in accordance with the terms and conditions of this Agreement, and in connection therewith, that the HollyFrontier Group second certain of their personnel to the Partnership Group.
NOW , THEREFORE , for and in consideration of the foregoing, the covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Partnership Group and the HollyFrontier Group, the Partnership Group and the HollyFrontier Group hereby agree as follows:
ARTICLE I
Defined Terms
Section 1.01 Defined Terms . Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings set forth on Exhibit A .
Section 1.02 Terms Generally . Matters relating to the interpretation of this Agreement are set forth on Exhibit B .
ARTICLE II
Services
Section 2.01 HEP Seconded Employees . Subject to the terms and conditions of this Agreement, the HollyFrontier Group agrees to second certain of its employees to the Partnership Group, and the Partnership Group agrees to accept the secondment of such employees (the Secondment ) for the purposes of performing operational, maintenance and management activities related to the Assets that are described on Exhibit C and such other services related to the Assets as the Parties may agree upon in writing from time to time (collectively, the Services ). Each such employee who the HollyFrontier Group seconds to the Partnership Group shall, during the period (and only during the period) that such employee is providing Services to the Partnership Group under this Agreement (the Period of Secondment ), be referred to individually herein as an HEP Seconded Employee and, collectively, as the HEP Seconded Employees . For the avoidance of doubt, the Parties acknowledge that the HEP Seconded Employees will, during the Period of Secondment, be called upon to perform Services for both the applicable Partnership Group Members and the applicable HollyFrontier Group Members, and the Parties intend that such HEP Seconded Employees shall only be seconded to the Partnership Group during those times the HEP Seconded Employees are performing services for the Partnership Group hereunder.
Section 2.02 Personnel and Secondment .
(a) The HollyFrontier Group will provide, or cause to be provided, to the Partnership Group such suitably qualified and experienced HEP Seconded Employees and such other Persons (including consultants and professionals, and service or other organizations) as the HollyFrontier Group is reasonably able to make available to the Partnership Group. The Partnership Group will have the right to approve such HEP Seconded Employees and such other Persons. The HollyFrontier Group does not warrant that the HEP Seconded Employees will permit the Partnership Group to achieve any specific results. Subject to the HollyFrontier Groups right to be reimbursed for such expenses in accordance with the Accounting Procedures, each HollyFrontier Group Member shall pay all expenses incurred by it in connection with the retention of the HEP Seconded Employees and such other Persons, including, but not limited to, the HEP Seconded Employee Expenses, as defined in Exhibit D . Any such HEP Seconded Employees and other Persons retained by any HollyFrontier Group Member may include employees covered by a collective bargaining agreement, in which case the Secondment will be subject to the terms and conditions of any such agreement. The HollyFrontier Group shall have the sole and exclusive right to negotiate the terms and conditions of any labor or other agreements with the unions to which such employees belong.
(b) The HEP Seconded Employees will remain at all times employees of the applicable HollyFrontier Group Member, but, will, at all times during the Period of Secondment, work under the direct management, supervision, direction and control of the applicable Partnership Group Member. HEP Seconded Employees shall have no authority or apparent authority to act on behalf of the HollyFrontier Group during the Period of Secondment.
Section 2.03 Termination of Secondment. The applicable HollyFrontier Group Members retain the right to terminate the Secondment of any HEP Seconded Employee for any reason at any time or to hire, discipline or discharge the HEP Seconded Employees with respect to their employment with the HollyFrontier Group. The applicable Partnership Group Member will have the right to terminate the secondment to it of any HEP Seconded Employee for any reason at any time, upon prior written notice to the HollyFrontier Group, but at no time will the Partnership Group have the right to terminate any HEP Seconded Employees employment by the HollyFrontier Group. Upon the termination of the Secondment of any HEP Seconded Employee, such HEP Seconded Employee will cease performing Services for the Partnership Group and will no longer be subject to the direction by the Partnership Group of the HEP Seconded Employees day-to-day activities.
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Section 2.04 Supervision .
(a) During the Period of Secondment, the Partnership Group shall be ultimately and fully responsible for the daily work assignments of the HEP Seconded Employees during those times that the HEP Seconded Employees are performing services for the Partnership Group hereunder, including supervision of their day-to-day work activities and performance consistent with the job functions associated with the Services. In the course and scope of performing any HEP Seconded Employees job functions for the Partnership Group, the HEP Seconded Employee, will report into the Partnership Groups management structure, and will be under the direct management, supervision, direction and control of the applicable Partnership Group Member with respect to such HEP Seconded Employees day-to-day activities.
(b) Those active employees whose titles reflect that they serve as supervisors or managers and who are called upon to oversee the work of HEP Seconded Employees related to the Assets or to provide management support on behalf of the Partnership Group are designated by the Partnership Group as supervisors to act on the behalf of the Partnership Group in supervising the HEP Seconded Employees pursuant to Section 2.04(a) above. Any HEP Seconded Employee so designated will be acting on the behalf of the Partnership Group when supervising the work of the HEP Seconded Employees or when they are otherwise providing management or executive support on behalf of the Partnership Group.
(c) Holly GP shall at all times be ultimately and fully responsible for the daily work assignments of persons employed by Frontier El Dorado and Frontier Refining (and HPS as agent for Frontier El Dorado and Frontier Refining under Section 3504 of the Internal Revenue Code) dedicated to performing services on behalf of the HEP Entities, including supervision of their day-to-day work activities and performance. In the course and scope of performing any HEP Seconded Employees job functions for the HEP Entities, the HEP Seconded Employee will be integrated into the organization of the HEP Entities, will report into the HEP Entities management structure, and will be under the direct management, supervision, direction and control of the applicable HEP Entity with respect to such HEP Employees day-to-day activities. The positions in the HEP Entities to be filled by HEP Seconded Employees are set forth on Exhibit E-1 and Exhibit E-2 .
Section 2.05 Benefit Plans. The Partnership Group shall not be a participating employer in any benefit plan of any HollyFrontier Group Member. The HollyFrontier Group shall remain solely responsible for all obligations and liabilities arising with respect to any benefit plans relating to any HEP Seconded Employees and the Partnership Group shall not assume any benefit plan or have any obligations or liabilities arising thereunder, in each case except for costs properly chargeable to the Partnership Group.
ARTICLE III
Financial Accounting and Billing Practices
Section 3.01 Accounting . Each HollyFrontier Group Member shall keep a full and complete account of all costs and expenses incurred by it with respect to the HEP Seconded Employees in connection with the performance and provision of the Services hereunder in the manner set forth on Exhibit D hereto (the Accounting Procedures ).
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Section 3.02 Compensation . Each HollyFrontier Group Member shall be fully reimbursed by the applicable Partnership Group Member for all necessary and reasonable costs and expenses incurred by such HollyFrontier Group Member with respect to the HEP Seconded Employees in connection with the provision of the Services to the Partnership Group at the rates and in the manner set forth in the Accounting Procedures. It is understood that the Partnership Group shall be liable for HEP Seconded Employee Expenses to the extent, and only to the extent, they are attributable to the Period of Secondment.
Section 3.03 Billing Practices . The Partnership Group shall pay, and the HollyFrontier Group shall receive, as full and complete compensation with respect to the HEP Seconded Employees in connection with the performance of the Services hereunder, the sum of the amounts becoming due as described in the Accounting Procedures. For each calendar month during the Period of Secondment, payment by the applicable Partnership Group Member shall be made no later than the tenth Business Day of the immediately following calendar month. As long as the HollyFrontier Group Members are Affiliates of the Partnership Group Members, the HollyFrontier Group and the Partnership Group may settle the Partnership Groups financial obligations to the HollyFrontier Group through the HollyFrontier Groups normal intercompany settlement processes.
Section 3.04 Records and Audit Rights . The HollyFrontier Group shall maintain a true and correct set of records pertaining to the HEP Seconded Employees and all activities relating to the performance of the HollyFrontier Group hereunder and all transactions related thereto. The HollyFrontier Group further agrees to retain all such records for a period of time not less than two (2) years following the end of the calendar year in which the applicable Services were performed. The Partnership Group, or its authorized representative or representatives, shall have the right during any HollyFrontier Group Members normal business hours to audit, copy and inspect, at the Partnership Group Members sole cost and expense, any and all records of such HollyFrontier Group Member relating to its performance of its obligations hereunder (but not any other books and records of such HollyFrontier Group Member). Audits shall not be commenced more than once by the Partnership Group during each calendar year and shall be completed within a reasonable time frame not to exceed ten (10) days. The Partnership Group may request information from the HollyFrontier Groups books and records relating to the HollyFrontier Groups obligations hereunder from time to time and such requests shall not constitute an audit for that calendar year. The Partnership Group shall have two (2) years after the end of a calendar year during which to conduct an audit of any HollyFrontier Group Members books and records for such calendar year, and any Claim arising out of or based in whole or in part on the information produced or obtained by the performance of any such audit must be made, if at all, within such two (2) year period or shall be deemed waived.
Section 3.05 Notification of Secondment . At least annually, Holly GP shall notify the HEP Seconded Employees of their respective duties and obligations as HEP Seconded Employees, including but not limited to, (i) when working on assets of the HEP Entities, HEP Seconded Employees should only take direction from HEP employees or HEP Seconded Employees; (ii) questions regarding operations, tasks and similar matters while working on assets of the HEP Entities should only be directed to HEP employees or HEP Seconded Employees; (iii) decisions regarding flows into a tank should only be made while performing services for the HEP Entities; (iv) documentation required at the time working on assets of the HEP Entities should be prepared in the name of the applicable HEP Entity; (v) performance evaluation for the HEP Seconded Employees will be completed in part by the HEP Entities and in part by the HollyFrontier Group.
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ARTICLE IV
Safety and Compliance with Laws
The Parties will abide by, at a minimum, the safety requirements promulgated by the Parties from time to time with respect to the HEP Seconded Employees, the Services and the Assets and in compliance with Applicable Laws and any applicable collective bargaining agreement. Without limiting the foregoing, the parties agree that the Partnership Group and the HollyFrontier Group jointly shall develop, adopt, and enforce a written workplace and accident plan and injury reduction program that satisfies the requirements of Applicable Law and Prudent Industry Practice and post the workplace accident and injury reduction plan at each work site at which the HEP Seconded Employees perform work. The Partnership Group shall be responsible, during any Period of Secondment, for ensuring that all applicable federal, state and local laws prohibiting harassment, discrimination or retaliation in the workplace are adhered to and followed with respect to any HEP Seconded Employee. The Parties agree to disclose, and cooperate in the investigation of, any complaint of harassment, discrimination or retaliation made to either Party by an HEP Seconded Employee in connection with any Secondment.
ARTICLE V
Relationship of the Parties
This Agreement shall not in any manner limit the Parties in carrying on their respective separate businesses or operations or impose upon any Party a fiduciary duty vis-à-vis the other Party. Nothing in this Agreement and no actions taken by the HollyFrontier Group or the Partnership Group shall constitute a partnership, joint venture, association or other co-operative entity among the HollyFrontier Group and the Partnership Group. No Party shall have the right or authority to negotiate, conclude or execute any contract or legal document with any third person in the name of other Party; to assume, create, or incur any liability of any kind, express or implied, against or in the name of any of the other Party; or to otherwise act as the representative of the other Party, unless expressly authorized in writing by the other Party.
ARTICLE VI
Liability Standard and Indemnification
Section 6.01 Limitation of Liability; Indemnification . The Parties acknowledge and agree that the provisions relating to Force Majeure, indemnity and limitation of liability set forth in the Omnibus Agreement shall apply and be in full force and effect with respect to this Agreement. Notwithstanding anything in this Agreement or the Omnibus Agreement to the contrary and solely for the purpose of determining which of the HollyFrontier Group Members or Partnership Group Members shall be liable in a particular circumstance, neither a HollyFrontier Group Member nor a Partnership Group Member shall be liable to another Party for any loss, damage, injury, judgment, claim, cost, expense or other liability suffered or incurred (collectively, Damages ) by such Party except to the extent provided for in the Omnibus Agreement and to the extent that the HollyFrontier Group Member or Partnership Group Member causes such Damages or owns or operates the assets or other property in question responsible for causing such Damages. In no event shall any HollyFrontier Group Member have any liability to another HollyFrontier Group Member, or shall any Partnership Group Member have any liability to another Partnership Group Member, for Damages, regardless of how caused or under any theory of recovery.
Section 6.02 Survival . The provisions of this Article VI shall survive the termination of this Agreement.
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ARTICLE VII
Insurance
Section 7.01 Insurance .
(a) The HollyFrontier Group shall at all times during the term of this Agreement procure and maintain workers compensation insurance or similar insurance, including all such insurance as may be required by all Applicable Laws. The HollyFrontier Group shall at all times during the term of this Agreement cause each Partnership Group Member and their respective subsidiaries to be an additional named insured on such workers compensation or similar insurance policies; provided that the Partnership Group shall be considered an employer solely for the purposes of its status as a dual, joint- or co-employer under the relevant workers compensation regime. Each HollyFrontier Group Member shall cause its workers compensation and employers liability insurers to waive their rights of subrogation against the Partnership Group. The compensation paid by any Partnership Group Member to the HollyFrontier Group includes amounts intended for the purchase of the workers compensation coverage required by this paragraph. The HollyFrontier Group shall provide to each Partnership Group Member a certification or other evidence of its compliance with this paragraph.
(b) The HollyFrontier Group may elect to self-insure all or any part of the insurance requirements set forth in Section 7.01(a) above to the extent allowed by Applicable Law. If the HollyFrontier Group elects to self-insure, then the HollyFrontier Group shall respond to any insurance claim, with regard to waiving rights of subrogation against the Partnership Group, in the same manner as a commercial market insurance policy that waived subrogation rights against the Partnership Group would have responded to such insurance claim.
Section 7.02 Cost Reimbursement . Insurance as required in Section 7.01 hereof shall be a reimbursable cost pursuant to the Accounting Procedures.
Section 7.03 Required Contractor Coverage . The HollyFrontier Group shall require all contractors and subcontractors employed by them in performing and/or providing Services hereunder to procure and maintain: (i) workers compensation insurance or similar insurance, including all such insurance as may be required by Applicable Laws; (ii) employers liability insurance; (iii) commercial general liability insurance; and (iv) any other insurance that may be necessary or advisable, in each case, in amounts and with such terms as are reasonable and consistent with industry practice and as may be specified in writing by the Partnership Group. Further, the HollyFrontier Group shall require such contractors and subcontractors to cause their workers compensation and employers liability insurance insurers to waive their rights of subrogation against the Partnership Group, and to name the Partnership Group as an additional insured under any commercial general liability and or other appropriate insurance policies carried by such contractors and subcontractors.
ARTICLE VIII
Term and Termination
Section 8.01 Term . Unless terminated in accordance with Section 8.02 , Section 8.03 or Section 8.04 below, this Agreement shall commence on the date hereof and continue until the earlier of (a) the mutual agreement of the Parties to terminate this Agreement or (b) the termination of the Omnibus Agreement. In addition, the applicable Parties may terminate specific Services provided under this Agreement in the event the Throughput Agreement related to the Assets for which such Services are performed or provided is terminated in accordance with its terms.
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Section 8.02 Termination by the Partnership Group . The applicable Partnership Group Member shall have the right to terminate this Agreement immediately upon the Bankruptcy of the applicable HollyFrontier Group Member; provided that such Partnership Group Member shall deliver to such HollyFrontier Group Member notice of any such termination, which shall include a reasonably detailed description of the basis therefor. Any specific Service may be terminated by a Partnership Group Member in accordance with Section 3.05 or upon thirty (30) days prior written notice to the applicable HollyFrontier Group Member.
Section 8.03 Termination by the HollyFrontier Parties . The applicable HollyFrontier Group Member shall have the right to terminate this Agreement or any Services provided hereunder: (i) immediately upon the Bankruptcy of the applicable Partnership Group Member or (ii) on thirty (30) days prior written notice upon the occurrence of a Change of Control of the applicable Partnership Group Member. Notwithstanding the foregoing, if the Partnership ceases to Control, directly or indirectly, any Partnership Group Member, then the HollyFrontier Group shall have the right to terminate this Agreement with respect to any Services provided to such Partnership Group Member.
Section 8.04 Right of Termination by Either Party . Any Party may terminate this Agreement upon prior written notice to the other Party if the other Party is in Material Default of any of its obligations under this Agreement; and
(a) the non-defaulting Party gives prior written notice of such Material Default to the defaulting Party, which notice shall set forth in reasonable detail the facts and circumstances of such Material Default; and
(b) the defaulting Party fails to cure the Material Default within twenty (20) Business Days from receipt by the defaulting Party of the written notice.
Section 8.05 Effect of Termination . The termination of this Agreement shall not relieve any Party of its obligations to pay amounts of money due hereunder which accrued prior to such termination. Upon termination, the applicable HollyFrontier Group Member shall promptly make available for review and copying by the applicable Partnership Group Member its then existing books and records relating to the Assets.
ARTICLE IX
Notices
Any notice or other communication given under this Agreement shall be in writing and shall be delivered in accordance with the requirements for notices set forth in the Omnibus Agreement.
ARTICLE X
Applicable Law
REGARDLESS OF THE PLACE OF CONTRACTING, PLACE(S) OF PERFORMANCE, OR OTHERWISE, THE PROVISIONS OF THIS AGREEMENT AND ALL AMENDMENTS, MODIFICATIONS, ALTERATIONS OR SUPPLEMENTS HERETO SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WHERE THE SERVICES ARE PERFORMED, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OR ANY OTHER PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR INTERPRETATION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.
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ARTICLE XI
Disputes Between the Parties
Section 11.01 Dispute Resolution . Subject to Article VIII, any Dispute arising out of or in connection with this Agreement, including any question regarding the existence, validity or termination of this Agreement, shall be exclusively resolved in accordance with Article VIII of the Omnibus Agreement.
Section 11.02 Performance During Disputes . Pending resolution of any Dispute between the Parties, the Parties shall continue to perform in good faith their respective obligations under this Agreement based upon the last agreed performance demonstrated prior to the Dispute.
ARTICLE XII
General Provisions
Section 12.01 Assignability . This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns; provided , however , that neither this Agreement nor any of the rights, benefits or obligations hereunder shall be assigned, by operation of applicable law or otherwise, by any Party without the prior written consent of the other Parties, which consent shall not be unreasonably withheld; provided, however that each Party may assign its rights and obligations hereunder to an Affiliate without the consent of any other Party. Except as provided for herein, nothing in this Agreement is intended to confer any rights, benefits or obligations upon any Person other than the Parties and their permitted respective successors and assigns.
Section 12.02 Further Assurances . The Parties shall execute such additional documents and shall cause such additional actions to be taken as may be required or, in the judgment of any Party, be necessary or desirable, to effect or evidence the provisions of this Agreement and the transactions contemplated hereby.
Section 12.03 Compliance with Laws . This Agreement is in all respects subject to all Applicable Laws. The Parties shall at all times comply with all Applicable Laws in the performance of this Agreement.
Section 12.04 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Applicable Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party hereto. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 12.05 Waiver . To be effective, any waiver of any right under this Agreement must be in writing and signed by a duly authorized officer or representative of the Party bound thereby.
Section 12.06 Entire Agreement . This Agreement, together with all the Exhibits attached hereto, constitutes the entire agreement of the Parties with respect to the subject matter hereof as applicable to such Party and supersedes all prior agreements and undertakings, both written and oral, between any of the Parties with respect to the subject matter hereof.
Section 12.07 Amendment . This Agreement may not be amended or modified except by an instrument in writing signed by, or on behalf of, each of the Parties hereto.
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Section 12.08 Counterparts . This Agreement may be executed in one or more counterparts, and by the Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
Section 12.09 Construction . The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring a Party by virtue of the authorship of any of the provisions of this Agreement.
Section 12.10 Headings . The Article and Section headings used in this Agreement have been inserted only for convenience to facilitate reference and they shall not be determinative in construing the meaning, interpretation or application of any Article or Section.
Section 12.11 Exhibits . The Exhibits referred to herein are attached hereto and by this reference are incorporated herein and made a part hereof. In the event there is any conflict between this Agreement and an Exhibit, the provisions of this Agreement shall be deemed controlling.
Section 12.12 Binding Effect . This Agreement will be binding upon, and will inure to the benefit of, the Parties and their respective successors, permitted assigns and legal representatives.
Section 12.13 Cooperation . The Parties acknowledge that they are entering into a long-term arrangement in which the cooperation of the parties will be required. If, during the term of this Agreement, changes in the operations, facilities or methods of any HollyFrontier Group Member or any Partnership Group Member will materially benefit one of them without detriment to the other, the Parties commit to each other to make reasonable efforts to cooperate and assist each other.
Section 12.14 No Third Party Beneficiaries . No Person not a Party to this Agreement will have any rights under this Agreement as a third party beneficiary or otherwise, including, without limitation, any HEP Seconded Employee. In furtherance but not in limitation of the foregoing: (i) nothing in this Agreement shall be deemed to provide any HEP Seconded Employee with a right to continued Secondment or employment; and (ii) nothing in this Agreement shall be deemed to constitute an amendment to any benefit plan or limit in any way the right of the Parties to amend, modify or terminate, in whole or in part, any benefit plan which may be in effect from time to time.
[Signature page follows.]
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IN WITNESS WHEREOF , the Parties have caused this Agreement to be signed by their duly authorized officers as of the date first set forth above.
HOLLYFRONTIER GROUP: | ||
HOLLYFRONTIER PAYROLL SERVICES, INC. | ||
FRONTIER REFINING LLC | ||
FRONTIER EL DORADO REFINING LLC | ||
By: |
/s/ Michael C. Jennings |
|
Name: | Michael C. Jennings | |
Title: | CEO and President | |
PARTNERSHIP GROUP: | ||
HOLLY LOGISTIC SERVICES, L.L.C. | ||
HOLLY ENERGY PARTNERS OPERATING, L.P. | ||
CHEYENNE LOGISTICS LLC | ||
EL DORADO LOGISTICS LLC | ||
By: |
/s/ Bruce R. Shaw |
|
Name: | Bruce R. Shaw | |
Title: | President |
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Exhibit A
to
Services and Secondment Agreement
Defined Terms
Accounting Procedures has the meaning set forth in Section 3.01 .
Affiliate has the meaning set forth in the Partnership Agreement.
Agreement has the meaning set forth in the Preamble.
Allocation Methodology has the meaning set forth in Exhibit D .
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 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.
Assets means the Cheyenne Assets and the El Dorado Assets, collectively, and such assets as are identified on Exhibit C , as amended from time to time.
Bankruptcy means, with respect to any Person, that: (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar applicable law, or has any such petition filed or commenced against it which is not withdrawn or dismissed within thirty (30) Days, (ii) makes a general assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced) or (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets which is not withdrawn or dismissed within thirty (30) Days.
Business Day means any day except for Saturday, Sunday or a legal holiday in the State of Texas.
Change of Control has the meaning set forth in the Omnibus Agreement.
Cheyenne Assets means the terminalling, transportation and storage assets located at the Cheyenne Refinery and identified on Exhibit C .
Cheyenne Logistics has the meaning set forth in the Preamble.
Cheyenne Refinery means that certain petroleum refinery owned by Frontier Refining in Cheyenne, Wyoming.
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,
A-1
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.
Control has the meaning set forth in the Omnibus Agreement.
Damages has the meaning set forth in Section 6.01 .
Dispute means any dispute or difference that arises between two or more Parties in connection with or arising out of this Agreement (including, any dispute as to the termination or invalidity of this Agreement or any provision of it).
El Dorado Assets means the terminalling, transportation and storage assets located at the El Dorado Refinery and identified on Exhibit C .
El Dorado Logistics has the meaning set forth in the Preamble.
El Dorado Refinery means that certain petroleum refinery owned by Frontier El Dorado in El Dorado, Kansas.
Force Majeure has the meaning set forth in the Omnibus Agreement.
Frontier El Dorado has the meaning set forth in the Preamble.
Frontier Refining has the meaning set forth in the Preamble.
GAAP means United States generally accepted accounting principles.
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.
HEP has the meaning set forth in the Recitals.
HEP Entity has the meaning set forth in the Recitals.
HEP Seconded Employee Expenses has the meaning set forth in Exhibit D .
HEP Seconded Employees has the meaning set forth in Section 2.01 .
HollyFrontier Group has the meaning set forth in the Preamble.
HollyFrontier Group Member means any member of the HollyFrontier Group.
Holly GP has the meaning set forth in the Preamble.
HPS has the meaning set forth in the Preamble.
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Master Site Services Agreement means that certain Master Site Services Agreement dated as of the date hereof between the HollyFrontier Group, and certain of their Affiliates, and Cheyenne Logistics and El Dorado Logistics and certain of their Affiliates.
Material Default means: (i) the failure of a Party to pay the applicable Party any money payable by that Party within ten (10) Business Days after demand therefor, except a failure related to a bona fide business dispute about the amount of such payment or the liability for such payment, or (ii) the failure of a Party to perform its material obligations under this Agreement, which is not cured to the reasonable satisfaction of the applicable other Party within thirty (30) days after the date the Party receives notice that such obligation has not been performed, except when excused by Force Majeure or by some other provision of this Agreement, and except a failure related to a bona fide dispute about any obligation.
Omnibus Agreement shall mean the Twelfth Amended and Restated Omnibus Agreement, dated as of January 1, 2015, as may be further amended from time to time, by and among HollyFrontier Corporation, a Delaware corporation, the other Holly Entities (as defined in the Omnibus Agreement and listed on the signature pages thereto), Holly Energy Partners, L.P., a Delaware limited partnership, and the other Partnership Entities (as defined in the Omnibus Agreement and listed on the signature pages thereto), as the same may be amended, modified or supplemented from time to time.
Parties means the Partnership Group and the HollyFrontier Group, collectively.
Partnership has the meaning set forth in the Preamble.
Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of HEP, dated as of July 13, 2004, as amended and as may be further amended from time to time, by and among HEP Logistics Holdings, L.P., a Delaware limited partnership, and Holly Corporation, a Delaware corporation, together with others who become Partners (as defined in the Partnership Agreement).
Partnership Group has the meaning set forth in the Preamble.
Partnership Group Member means any member of the Partnership Group.
Party means any Partnership Group Member or any HollyFrontier Group Member, individually.
Period of Secondment has the meaning set forth in Section 2.01 .
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.
Prudent Industry Practice has the meaning set forth in the Omnibus Agreement.
Secondment has the meaning set forth in Section 2.01 .
Services has the meaning set forth in Section 2.01 .
Throughput Agreement means an agreement whereby Frontier El Dorado or Frontier Refining (or their Affiliates) agrees to terminal, transport or store crude oil or refined petroleum products on, in or at the Assets, as such agreement may be amended, modified or superceded from time to time.
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Exhibit B
to
Services and Secondment Agreement
Interpretation
As used in this Agreement, unless a clear contrary intention appears:
(a) any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa, and any reference to a gender includes the other gender;
(b) the words hereof, herein, and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(c) any reference to Articles, Sections and Exhibits are, unless otherwise stated, references to Articles, Sections and Exhibits of or to this Agreement and references in any Section or definition to any clause means such clause of such Section or definition. The headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation;
(d) reference to any agreement (including this Agreement), document or instrument means such agreement, document, or instrument as amended, modified or supplemented and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Agreement;
(e) the Exhibits hereto form an integral part of this Agreement and are equally binding therewith. Any reference to this Agreement shall include such Exhibits;
(f) references to a Person shall include any permitted assignee or successor to such Party in accordance with this Agreement and reference to a Person in a particular capacity excludes such Person in any other capacity;
(g) if any period is referred to in this Agreement by way of reference to a number of days, the days shall be calculated exclusively of the first and inclusively of the last day unless the last day falls on a day that is not a Business Day in which case the last day shall be the next succeeding Business Day;
(h) the use of or is not intended to be exclusive unless explicitly indicated otherwise;
(i) references to $ or to dollars shall mean the lawful currency of the United States of America; and
(j) the words includes, including, or any derivation thereof shall mean including without limitation or including, but not limited to.
B-1
Exhibit C
to
Services and Secondment Agreement
Services
The HollyFrontier Group shall provide HEP Seconded Employees to the Partnership Group to perform operational and maintenance activities related to the following assets that are owned (in whole or in part) or leased by any Partnership Group Member, or with respect to which any Partnership Group Member has the right or obligation to operate and/or maintain, at each of the following refinery locations:
Cheyenne Refinery (the Cheyenne Assets)
Storage tanks, propane loading spots and crude oil LACTS located at or comprising any part of the Cheyenne Refinery and the piping and valves associated with the tank farm that are directly connected to the Partnership Groups storage tanks at the Cheyenne Refinery.
El Dorado Refinery (the El Dorado Assets)
Storage tanks located at or comprising any part of the El Dorado Refinery, the valves and piping located in the tank farm area that are directly connected to the Partnership Groups storage tanks at the El Dorado Refinery and piping at the El Dorado Refinery connected to the Nustar and Magellan pipeline.
C-1
Exhibit D
to
Services and Secondment Agreement
Accounting Procedures
This Exhibit shall govern the Accounting Procedures with regard to the billing and/or reimbursement of costs and expenses incurred by the HollyFrontier Group in connection with the HEP Seconded Employees pursuant to the Agreement. These Accounting Procedures shall be in effect until replaced or modified by mutual agreement of the Parties.
1. | General Provisions |
(a) | Statements and Billings . The HollyFrontier Group shall record the Partnership Groups financial transactions resulting from this Agreement in its financial system and allow the Partnership Group reasonable access to such records in that system. |
(b) | Payments by the Partnership Group . The Partnership Group shall pay all costs and expenses incurred by the HollyFrontier Group in accordance with Section 3.03 of the Agreement. Notwithstanding anything to the contrary in this Agreement, the HollyFrontier Group shall only look to the Partnership Group Member that owns the applicable Assets for which such costs and expenses were incurred for payment. |
(c) | Adjustments . Except as otherwise provided in the Agreement, the payment of any such bills shall not prejudice the right of the Partnership Group to protest or question the correctness or appropriateness thereof; provided, however, that all bills and statements rendered to the Partnership Group during any calendar year shall conclusively be presumed to be true and correct after twelve (12) months following the end of any such calendar year, unless prior to the end of said twelve (12) month period the Partnership Group takes written exception thereto and makes a claim against the HollyFrontier Group for adjustment. |
(d) | Financial Records . The HollyFrontier Group shall maintain accurate books and records in accordance with GAAP. |
(e) | No Duplication . It is the intent of the Parties that any amounts billed to the Partnership Group under this Agreement shall be without duplication of amounts billed to the Partnership Group under the Omnibus Agreement, the Master Site Services Agreement and other agreements between the Parties. |
2. | HEP Seconded Employee Expenses . Subject to the Allocation Methodology (as defined below), the Partnership Group shall be required to provide reimbursement for each month during the Period of Secondment for all costs and expenses incurred for such month for the HEP Seconded Employees, including the following (collectively, the HEP Seconded Employee Expenses ): |
(a) | Salary and wages (including payroll and withholding taxes associated therewith); |
(b) | Cash bonuses; |
(c) | Costs of matching and other 401(k) contributions; |
D-1
(d) | Any cash expense associated with any deferred compensation plan; |
(e) | Vacation, sick leave, personal leave, maternity leave and any other federal or state mandated leave; |
(f) | Healthcare coverage, including medical, dental, vision and prescription drug coverage; |
(g) | Flexible benefits plan, including medical care and dependent care expense reimbursement programs; |
(h) | Short-term disability benefits and long-term disability insurance premiums; |
(i) | Workers compensation insurance; |
(j) | Premiums for life insurance, accidental death and dismemberment insurance and any other insurance provided to the HEP Seconded Employees by the HollyFrontier Group; |
(k) | The vesting of any long-term incentive awards, whether granted before or during the Period of Secondment; |
(l) | Termination costs; |
(m) | Business travel expenses and other business expenses reimbursed in the normal course by the HollyFrontier Group; |
(n) | Any other employee benefit or compensation arrangement customarily provided to all employees by the HollyFrontier Group for which the HollyFrontier Group incurs costs with respect to HEP Seconded Employees; and |
(o) | Any sales taxes imposed upon the provision of any taxable services provided under this Agreement; provided, however, that the Parties contemplate that the services provided pursuant to this Agreement are not taxable services for sales and use tax purposes. |
When it is not reasonably practicable to determine the amount of any such costs or expense described above, the Parties shall mutually agree on the method of determining or estimating such cost or expense. If the actual amount of any cost or expense, once known, varies from the estimate used for billing purposes hereunder, the difference, once determined, shall be reflected as either a credit or additional charge in the next monthly invoice issued by the HollyFrontier Group, or in such manner as may otherwise be agreed between the Parties.
3. | Allocation Methodology . The HollyFrontier Group shall bill the Partnership Group for the HEP Seconded Employee Expenses in accordance with the following allocation methodology ( Allocation Methodology ): |
The HollyFrontier Group and the Partnership Group will maintain a schedule reflecting whether each HEP Seconded Employee shall be billed based on the (a) percentage of time such HEP Seconded Employee provides Services to the Partnership Group in relation to the Assets or (b) time such HEP Seconded Employee actually spends providing Services to the Partnership Group in relation to the Assets.
D-2
The HollyFrontier Group will use commercially reasonable efforts to maintain an allocation schedule reflecting the employee costs for each HEP Seconded Employee based on either the (a) percentage of time such HEP Seconded Employee provides Services to the Partnership Group in relation to the Assets or (b) time such HEP Seconded Employee actually spends providing Services to the Partnership Group in relation to the Assets. The Partnership Group has the right to review and dispute the allocation schedule prior to paying the HEP Seconded Employee Expenses to the HollyFrontier Group.
4. | Direct Costs . The HollyFrontier Group shall be entitled to reimbursement for direct costs, including, but not be limited to, the following: (a) fees and expenses associated with providing other Persons such as consultants and professionals, and service or other organizations, (b) cost of workers compensation insurance premiums paid or allocated for the HEP Seconded Employees performing Services under this Agreement, not to exceed state manual rates for such insurance on a guaranteed cost basis and charged as an amount per $100 of payroll, and (c) any other expenditure not covered or dealt with in the foregoing provisions, and that is incurred by the HollyFrontier Group in the necessary and proper conduct of the Services, and that may be captured and billed to the Partnership Group on a direct cost basis. |
D-3
Exhibit E-1
to
Services and Secondment Agreement
Seconded Employee Positions El Dorado
1. | Refinery Manager |
2. | Operations |
3. | Oil Movements |
E-1
Exhibit E-2
to
Services and Secondment Agreement
Seconded Employee Positions Cheyenne
1. | Refinery Manager |
2. | Operations |
3. | Oil Movements |
E-1
Exhibit 10.6
EXECUTION VERSION
MASTER LEASE AND ACCESS AGREEMENT
Effective as of January 1, 2015
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS |
1 | |||||
1.1 |
Definitions |
1 | ||||
1.2 |
Interpretation |
1 | ||||
1.3 |
Independent Obligations |
1 | ||||
1.4 |
Prior Leases |
1 | ||||
ARTICLE 2 DEMISE OF APPLICABLE PREMISES AND TERM |
2 | |||||
2.1 |
Demise of Applicable Premises and Applicable Term |
2 | ||||
2.2 |
Access |
2 | ||||
2.3 |
Rent |
3 | ||||
2.4 |
Place of Payment |
3 | ||||
2.5 |
Net Lease |
3 | ||||
ARTICLE 3 CONDUCT OF BUSINESS |
3 | |||||
3.1 |
Use of Applicable Premises |
3 | ||||
3.2 |
Waste |
3 | ||||
3.3 |
Governmental Regulations |
3 | ||||
3.4 |
Permits |
4 | ||||
3.5 |
Utilities |
5 | ||||
3.6 |
Tank Inspection and Repairs |
5 | ||||
3.7 |
Tank Inspection and Maintenance Plan |
6 | ||||
3.8 |
Notice of Planned Shutdown |
6 | ||||
ARTICLE 4 ALTERATIONS, ADDITIONS AND IMPROVEMENTS |
6 | |||||
4.1 |
Additional Improvements |
6 | ||||
4.2 |
Quality; Compliance with Applicable Laws |
6 | ||||
4.3 |
Ownership |
6 | ||||
4.4 |
No Liens |
7 | ||||
ARTICLE 5 MAINTENANCE OF APPLICABLE PREMISES |
7 | |||||
5.1 |
Maintenance by Relevant Asset Owner |
7 | ||||
5.2 |
Operation |
7 | ||||
5.3 |
Surrender of Applicable Premises |
7 | ||||
5.4 |
Release of Hazardous Substances |
7 | ||||
ARTICLE 6 TAXES, ASSESSMENTS |
8 | |||||
6.1 |
Relevant Asset Owners Obligation to Pay |
8 | ||||
6.2 |
Manner of Payment |
8 | ||||
ARTICLE 7 EMINENT DOMAIN; CASUALTY; INSURANCE |
9 | |||||
7.1 |
Total Condemnation of Applicable Premises |
9 | ||||
7.2 |
Partial Condemnation |
9 | ||||
7.3 |
Damages and Right to Additional Property |
9 | ||||
7.4 |
Insurance |
9 | ||||
ARTICLE 8 ASSIGNMENT AND SUBLETTING |
10 | |||||
8.1 |
Assignment and Subletting |
10 |
i
8.2 |
Release of Assigning Party |
10 | ||||
ARTICLE 9 DEFAULTS; REMEDIES; TERMINATION |
10 | |||||
9.1 |
Default |
10 | ||||
9.2 |
Related Refinery Owners Remedies |
11 | ||||
9.3 |
Relevant Asset Owners Remedies |
11 | ||||
ARTICLE 10 LIABILITY AND INDEMNIFICATION |
12 | |||||
10.1 |
Limitation of Liability; Indemnity |
12 | ||||
10.2 |
Survival |
12 | ||||
ARTICLE 11 OPTION |
12 | |||||
11.1 |
Applicability of Option |
12 | ||||
11.2 |
Grant of Option |
12 | ||||
11.3 |
Determination of Fair Market Value |
12 | ||||
11.4 |
Cooperation |
13 | ||||
11.5 |
Survival |
13 | ||||
ARTICLE 12 GENERAL PROVISIONS |
13 | |||||
12.1 |
Estoppel Certificates |
13 | ||||
12.2 |
Notices |
13 | ||||
12.3 |
Severability |
13 | ||||
12.4 |
Time of Essence |
14 | ||||
12.5 |
Captions |
14 | ||||
12.6 |
Entire Agreement |
14 | ||||
12.7 |
Waivers |
14 | ||||
12.8 |
Incorporation by Reference |
14 | ||||
12.9 |
Binding Effect |
14 | ||||
12.10 |
Amendment |
14 | ||||
12.11 |
No Partnership |
14 | ||||
12.12 |
No Third Party Beneficiaries |
14 | ||||
12.13 |
Governing Law |
14 | ||||
12.14 |
Cooperation |
15 | ||||
12.15 |
Further Assurances |
15 | ||||
12.16 |
Waiver of the Related Refinery Owners Lien |
15 | ||||
12.17 |
Recording |
15 | ||||
12.18 |
Warranty of Peaceful Possession |
15 | ||||
12.19 |
Survival |
15 | ||||
12.20 |
AS IS, WHERE IS |
16 | ||||
12.21 |
Relocation of Pipelines; Amendment |
16 | ||||
12.22 |
Counterparts |
16 | ||||
12.23 |
Joinder by Affiliates of Parties |
16 |
EXHIBITS
Exhibit A |
- |
Parties |
||
Exhibit B |
- |
Definitions |
||
Exhibit C |
- |
Interpretation |
||
Exhibit D |
|
Applicable Term and Applicable Assets |
||
Exhibit D-1 |
|
Applicable Assets: El Dorado Refinery Complex |
||
Exhibit D-2 |
|
Applicable Assets: Cheyenne Refinery Complex |
ii
Exhibit D-3 |
|
Applicable Assets: Tulsa Refinery Complex |
||
Exhibit D-4 |
|
Applicable Assets: Woods Cross Refinery Complex |
||
Exhibit D-5 |
|
Applicable Assets: Woods Cross Pipeline Pad |
||
Exhibit D-6 |
|
Applicable Assets: Navajo Refinery Complex |
||
Exhibit D-7 |
|
Applicable Assets: Artesia Pump and Receiving Stations |
||
Exhibit E |
|
Description of Applicable Premises |
||
Exhibit E-1 |
|
Legal Description for El Dorado Refinery Complex |
||
Exhibit E-2 |
|
Legal Description for Cheyenne Refinery Complex |
||
Exhibit E-3 |
|
Legal Description for Tulsa Refinery Complex |
||
Exhibit E-4 |
- |
Legal Description for Woods Cross Refinery Complex |
||
Exhibit E-5 |
|
Legal Description for Woods Cross Pipeline Pad |
||
Exhibit E-6 |
|
Legal Description for Navajo Refinery Complex |
||
Exhibit E-7 |
|
Legal Description for Artesia Pump and Receiving Stations |
iii
MASTER LEASE AND ACCESS AGREEMENT
This Master Lease and Access Agreement (this Lease ) is entered into as of October 16, 2015 to be effective as of 12:00 a.m. Central Time (the Effective Time ) on January 1, 2015 (the Effective Date ) by and between the Parties set forth on Exhibit A .
RECITALS:
A. Pursuant to certain transactions, each Relevant Asset Owner acquired its Applicable Assets located at the Refinery Complex from the Related Refinery Owner.
B. In connection with each such acquisition, each Related Refinery Owner and Relevant Asset Owner entered into a Prior Lease pursuant to which the Related Refinery Owner leases to the Relevant Asset Owner real property at the Related Refinery Owners Refinery Complex on which all or a part of the Applicable Assets are located.
C. The Parties are concurrently entering into a Master Site Services Agreement pursuant to which each Related Refinery Owner has agreed to provide certain services to the Relevant Asset Owner in connection with the Applicable Assets located at each Refinery Complex.
D. The Parties now desire to amend and restate in its entirety their respective Prior Leases from and after the Effective Time, all in accordance with the terms and conditions set forth in this Lease.
NOW, THEREFORE, for and in consideration of the Applicable Premises and the covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 Definitions . Capitalized terms used throughout this Lease and not otherwise defined herein has the meanings set forth on Exhibit B .
1.2 Interpretation . Matters relating to the interpretation of this Agreement are set forth on Exhibit C .
1.3 Independent Obligations . The Parties hereby acknowledge and agree that (a) the obligations of each Relevant Asset Owner and each Related Refinery Owner are independent of any obligation of any other Relevant Asset Owner and Related Refinery Owner, (b) the Parties shall look solely to their counterparty (as identified on Exhibit A) for fulfillment of their respective obligations under this Agreement; and (c) no Relevant Asset Owner or Related Refinery Owner shall be obligated to fulfill any of the obligations of any other Relevant Asset Owner or Related Refinery Owner and shall have no liability for such obligations.
1.4 Prior Leases . This Lease shall amend and restate each Prior Lease in its entirety from and after the Effective Time. It is the Parties intent that the terms and provisions of this Lease shall be effective and govern from and after the Effective Time. Any matter first arising prior to the Effective Time shall be governed by the respective Prior Lease related thereto.
ARTICLE 2
DEMISE OF APPLICABLE PREMISES AND TERM
2.1 Demise of Applicable Premises and Applicable Term .
2.1.1 Demise of Applicable Premises . In consideration of the rents, covenants, and agreements set forth herein and subject to the terms and conditions hereof, each Related Refinery Owner hereby leases to the Relevant Asset Owner and each Relevant Asset Owner hereby leases from the Related Refinery Owner, the Applicable Premises for the Applicable Term; provided, however, the Relevant Asset Owner may terminate this Lease (with respect to itself only) at the end of the Applicable Term or by delivering written notice to the Related Refinery Owner, on or before 180 days prior to the end of the Applicable Term, that the Relevant Asset Owner has elected to terminate this Lease (with respect to itself only).
2.1.2 Early Termination by the Relevant Asset Owner . At the Relevant Asset Owners option, such Relevant Asset Owner may terminate this Lease (with respect to itself only), by providing written notice to the Related Refinery Owner on or before 180 days prior to the desired termination date if the Relevant Asset Owner ceases to operate the Applicable Assets at the Applicable Premises or ceases its business operations. In the event of such termination pursuant to this Section 2.1.2 , such Related Refinery Owner shall retain the remaining Rent for the then current 12-month rental period as set forth in Section 2.3 as its sole and exclusive remedy for such early termination and shall refund to the Relevant Asset Owner any Rent relating to any period after such 12-month period.
2.2 Access .
2.2.1 Access . Each Related Refinery Owner hereby grants to the Relevant Asset Owner and its Affiliates, agents, employees and contractors (collectively, the Relevant Asset Owner Parties ) free of charge, non-exclusive right of access to and use of those portions of such Related Refinery Owners Refinery Complex that are reasonably necessary for access to and/or the operation of the Applicable Assets by the Relevant Asset Owner as a stand-alone enterprise (the Shared Access Facilities ), all so long as such access and use by any of the Relevant Asset Owner Parties does not unreasonably interfere in any material respect with The Related Refinery Owners operations at the Refinery Complex and complies with the Related Refinery Owners rules, norms and procedures governing safety and security at the Refinery Complex. The provisions of this Section 2.2.1 relate only to access and use of the Shared Access Facilities, and the Master Site Services Agreement shall cover all services that are to be provided by the Related Refinery Owner under the terms of the Master Site Services Agreement.
2.2.2 Retained Rights . Each Related Refinery Owner hereby retains for itself and its Affiliates, agents, employees and contractors (collectively, the Related Refinery Owners Parties ), the right of access to the Applicable Premises and the Applicable Assets located at the Refinery Complex of such Related Refinery Owner:
(a) to determine whether the conditions and covenants contained in this Lease are being kept and performed,
(b) to comply with Environmental Laws, and
(c) to inspect, maintain, repair, improve and operate the Service Assets and the Shared Access Facilities and any assets of such Related Refinery Owner located on such Applicable Premises or to install or construct any structures or equipment necessary for the maintenance, operation or improvement of any such assets or the installation, construction or maintenance of any Connection Facilities,
2
in each case, so long as such access by the Related Refinery Owners Parties does not unreasonably interfere in any material respect with the Relevant Asset Owners operations on the Applicable Premises and complies with such Relevant Asset Owners rules, norms and procedures governing safety and security at the Applicable Premises.
2.3 Rent . As rental for the Applicable Premises during the Term, each Relevant Asset Owner agrees to pay to each Related Refinery Owner for each 12-month period of the Term One Hundred and 00/100 ($100.00) (the Rent ) on or before the 1st day of each 12-month period, the first such payment being due within 30 days of the Commencement Date of the Term.
2.4 Place of Payment . All Rent shall be payable at the Related Refinery Owners address set forth the Omnibus Agreement.
2.5 Net Lease . Except as otherwise expressly provided herein and in the Ancillary Agreements, this is a net lease and the Related Refinery Owner shall not at any time be required to pay any costs associated with the maintenance, repair, alteration or improvement of the Applicable Premises or to provide any services or do any act or thing with respect to the Applicable Premises or any part thereof or any appurtenances thereto. The Rent reserved herein shall be paid without any claim on the part of the Relevant Asset Owner for diminution, setoff or abatement and nothing shall suspend, abate or reduce any Rent to be paid hereunder, except as expressly provided herein.
ARTICLE 3
CONDUCT OF BUSINESS
3.1 Use of Applicable Premises . Each Relevant Asset Owner shall have the right to use the Applicable Premises:
(a) for the purpose of owning, operating, maintaining, repairing, replacing, improving, and expanding the Applicable Assets and the Additional Improvements, and
(b) for any other lawful purpose associated with the operation and ownership of the Applicable Assets and the Additional Improvements.
3.2 Waste . Subject to the obligations of the Related Refinery Owner under the Ancillary Agreements, the Relevant Asset Owner shall not commit, or suffer to be committed, any waste to the Applicable Premises, ordinary wear and tear or casualty excepted.
3.3 Governmental Regulations .
3.3.1 Compliance with Governmental Requirements . Subject to the obligations of the Related Refinery Owner to the Relevant Asset Owner under this Lease and the Ancillary Agreements including the indemnity provisions contained in the Omnibus Agreement, the Relevant Asset Owner shall, at the Relevant Asset Owners sole cost and expense, at all times:
(a) comply with all applicable requirements (including requirements under Environmental Laws) of all Governmental Authorities now in force, or which may hereafter be in force, pertaining to the Applicable Premises, and
3
(b) faithfully observe all Applicable Laws now in force or which may hereafter be in force pertaining to the Applicable Premises or the use, maintenance or operation thereof.
3.3.2 Notices . Each Relevant Asset Owner shall give prompt written notice to the Related Refinery Owner of such Relevant Asset Owners receipt from time to time of any notice of non-compliance, order or other directive from any court or other Governmental Authority under Applicable Laws, including Environmental Laws, relating to the Applicable Premises.
3.3.3 Right to Remedy . If a Related Refinery Owner reasonably believes at any time that a Relevant Asset Owner is not complying with all applicable legal requirements (including requirements under Environmental Laws) with respect to the Applicable Assets and Additional Improvements, it will provide reasonable notice to the Relevant Asset Owner of such condition. If such Relevant Asset Owner fails to take appropriate action to cause such assets to comply with Applicable Laws or take other actions required under Applicable Laws within 30 days of the Related Refinery Owners reasonable notice, the Related Refinery Owner may, without further notice to such Relevant Asset Owner, take such actions for such Relevant Asset Owners account. Within 30 days following the date the Related Refinery Owner delivers to such Relevant Asset Owner evidence of payment for those actions by the Related Refinery Owner reasonably necessary to cause the Applicable Assets and Additional Improvements to achieve compliance with Applicable Laws because of such Relevant Asset Owners failure to do so, the Relevant Asset Owner shall reimburse the Related Refinery Owner all amounts paid by the Related Refinery Owner on such Relevant Asset Owners behalf.
3.4 Permits .
3.4.1 Environmental Permits . Notwithstanding the Relevant Asset Owners obligation to maintain and operate the Applicable Assets and Additional Improvements and comply with Applicable Laws, the Related Refinery Owner and the Relevant Asset Owner acknowledge that the Related Refinery Owner may, as required by any applicable Governmental Authorities, maintain Environmental Permits under the federal Clean Air Act or similar state statutes in its name. Consequently and also for the ease of administration, the Related Refinery Owner may maintain in its name such air quality Environmental Permits and other authorizations applicable to all, or part of, the Applicable Assets and Additional Improvements and may be responsible for making any reports or other notifications to Governmental Authorities pursuant to such Permits or Applicable Laws; provided that upon the Related Refinery Owners written request the Relevant Asset Owner shall apply for, attempt to obtain and, if obtained, maintain any such Environmental Permits in its name. Except as provided in the preceding sentence, nothing in this Lease shall reduce the Relevant Asset Owners obligations under Applicable Laws with respect to the Applicable Assets and Additional Improvements.
3.4.2 Violation of Environmental Permits . If the Related Refinery Owner or one of such Affiliates receives a notice of violation or enforcement action from the U.S. Environmental Protection Agency or a state agency alleging non-compliance with such Environmental Permits, and such non-compliance relates to the Applicable Assets, then the Relevant Asset Owner (and not the Related Refinery Owner or its Affiliates), will be responsible for responding to any such notice of violation or enforcement action. The Related Refinery Owner shall have the right, but not the duty, to be fully informed and to participate in the prosecution and/or settlement of any notice of violation or enforcement action relating to such Applicable Assets.
3.4.3 Cheyenne RCRA Order . Frontier Cheyenne will retain responsibility for complying with the terms of the Cheyenne RCRA Order, including all obligations that apply or relate to the Applicable Assets located at the Cheyenne Refinery Complex. Cheyenne Logistics will and will cause its Affiliates to cooperate with and support Frontier Cheyenne and its Affiliates in satisfying any
4
applicable compliance and reporting obligations under the Cheyenne RCRA Order or Environmental Permits as they relate to the Cheyenne Assets and does hereby authorize Frontier Cheyenne to submit all reports, certifications and other compliance related submissions on its behalf in satisfaction of such compliance and reporting obligations. Cheyenne Logistics confirms that it has received a copy of the Cheyenne RCRA Order. If, as a result of future circumstances or construction, it becomes necessary for Frontier Cheyenne or Cheyenne Logistics (or their Affiliates) to obtain additional Environmental Permit(s) that relate to assets that will be located at the Cheyenne Refinery Complex but owned by Cheyenne Logistics or its Affiliates, such Environmental Permit(s) shall be held by or in the name of Frontier Cheyenne or its Affiliates and shall be subject to the provisions of this Section 3.4.3 to the same extent as if the assets to which such Environmental Permit(s) relate were originally included in the Applicable Assets at the Cheyenne Refinery Complex.
3.4.4 El Dorado RCRA Order . Frontier El Dorado will retain responsibility for complying with the terms of the El Dorado RCRA Order, including all obligations that apply or relate to the El Dorado Assets. El Dorado Logistics will and will cause its Affiliates to cooperate with and support Frontier El Dorado and its Affiliates in satisfying any applicable compliance and reporting obligations under the El Dorado RCRA Order or Environmental Permits as they relate to the Applicable Assets located at the El Dorado Refinery Complex and does hereby authorize Frontier El Dorado to submit all reports, certifications and other compliance related submissions on its behalf in satisfaction of such compliance and reporting obligations. El Dorado Logistics confirms that it has received a copy of the El Dorado RCRA Order. If, as a result of future circumstances or construction, it becomes necessary for Frontier El Dorado or El Dorado Logistics (or their Affiliates) to obtain additional Environmental Permit(s) that relate to assets that will be located at the El Dorado Refinery Complex but owned by El Dorado Logistics or its Affiliates, such Environmental Permit(s) shall be held by or in the name of Frontier El Dorado or its Affiliates and shall be subject to the provisions of this Section 3.4.4 to the same extent as if the assets to which such Environmental Permit(s) relate were originally included in the Applicable Assets at the El Dorado Refinery Complex.
3.4.5 Indemnification . The Parties acknowledge that any costs, penalties, fines or losses associated with responses to any notices of violation from the Environmental Protection Agency or a state agency under any such Environmental Permits (including the Cheyenne RCRA Order or the El Dorado RCRA Order) may be the subject of indemnification under the Omnibus Agreement, and nothing in this Section 3.4.5 shall be deemed to change, amend or expand the Parties obligations under such Omnibus Agreement provisions (other than with regard to the obligation to respond to such notice of violation or enforcement).
3.5 Utilities . The Related Refinery Owner may, at its election, provide any utilities (electricity, natural gas, water, steam, etc.) necessary for the Relevant Asset Owners operation of the Applicable Assets in accordance with the provisions of the Master Site Services Agreement. Any other necessary utilities shall be provided by and at the sole expense of the Relevant Asset Owner
3.6 Tank Inspection and Repairs . Each Related Refinery Owner will reimburse the Relevant Asset Owner for the cost of performing the first API 653 inspection on each of the tanks included in the Applicable Assets (other than the tanks included in the Malaga Pipeline System) and any repairs or tests or consequential remediation that may be required to be made to such tanks as a result of any discovery made during such inspection; provided, however , that if a tank is two (2) years old or less or has been inspected and repaired during the last twelve months prior to the applicable Commencement Date, then the Relevant Asset Owner will bear the cost of any API 653 inspection and any required repair, testing or consequential remediation of such tank. In addition, the Relevant Asset Owner will be responsible for the costs of painting any tanks included in the Applicable Assets that require it.
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3.7 Tank Inspection and Maintenance Plan . At least annually, the Relevant Asset Owner shall prepare and submit to the Related Refinery Owner a tank inspection and maintenance plan (which shall include an inspection plan, a cleaning plan, a waste disposal plan, details regarding scheduling and a budget) for the tankage included in the Applicable Assets. If the Related Refinery Owner consents to the submitted plan (which consent shall not be unreasonably withheld, conditioned or delayed), then the Relevant Asset Owner shall conduct tank maintenance in conformity with such approved tank maintenance plan (other than any deviations or changes from such plan to which the Related Refinery Owner consents (which consent shall not be unreasonably withheld, conditioned or delayed)). Each Relevant Asset Owner will use its commercially reasonable efforts to schedule the activities under such maintenance plan to minimize disruptions to the operations of the Related Refinery Owner at the Refinery Complex.
3.8 Notice of Planned Shutdown . Each Related Refinery Owner shall deliver to the Relevant Asset Owner at least six months advance written notice of any planned shut down or reconfiguration (excluding planned maintenance turnarounds) of the Refinery Complex or any portion of the Refinery Complex of which the Related Refinery Owner has advance notice that would reduce the output of the Refinery Complex. Each Related Refinery Owner will use its commercially reasonable efforts to mitigate any reduction in revenues or throughput obligations under the Master Throughput Agreement that would result from such a shut down or reconfiguration.
ARTICLE 4
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
4.1 Additional Improvements . Subject to the provisions of this Article 4 , each Relevant Asset Owner may make any alterations, additions, improvements or other changes to the Applicable Premises, and the Applicable Assets, and may request that the Related Refinery Owner make any alterations, additions, improvements or other changes to the Shared Access Facilities, as may be necessary or useful in connection with the operation of the Applicable Assets (collectively, the Additional Improvements ). If such Additional Improvements require alterations, additions or improvements to the Applicable Premises or any of the Shared Access Facilities, the Relevant Asset Owner shall notify the Related Refinery Owner in writing in advance and the parties shall:
(a) negotiate in good faith any increase to the fees paid by the Relevant Asset Owner under the Master Site Services Agreement;
(b) provide for reimbursement of any material increase in cost (if any) to the Related Refinery Owner under the Master Site Services Agreement that results from any modifications to the Applicable Premises or the Shared Access Facilities necessary to accommodate the Additional Improvements; or
(c) proceed in such manner as otherwise mutually agreed by the Parties.
4.2 Quality; Compliance with Applicable Laws . Any alteration, addition, improvement or other change to the Applicable Assets or Additional Improvements (and, if agreed by the Relevant Asset Owner and the Related Refinery Owner, to the Applicable Premises and Shared Access Facilities) by the Relevant Asset Owner shall be made in a good and workmanlike manner and in accordance with all Applicable Laws.
4.3 Ownership . The Applicable Assets and all Additional Improvements shall remain the property of the Relevant Asset Owner and shall be removed by the Relevant Asset Owner within one year after termination of this Lease as to the Applicable Premises (provided that such can be removed by the
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Relevant Asset Owner without unreasonable damage or harm to the Applicable Premises or Refinery Complex) or, at the Relevant Asset Owners option exercisable by notice to the Related Refinery Owner, surrendered to the Related Refinery Owner upon the termination of this Lease.
4.4 No Liens . No Relevant Asset Owner shall have the right or power to create or permit any lien of any kind or character on the Applicable Premises or Refinery Complex by reason of repair or construction or other work. Unless otherwise agreed in writing by the Relevant Asset Owner and the Related Refinery Owner, in the event any such lien is filed against the Applicable Premises or Refinery Complex, the Relevant Asset Owner shall cause such lien to be discharged or bonded within 30 days of the date of filing thereof.
ARTICLE 5
MAINTENANCE OF APPLICABLE PREMISES
5.1 Maintenance by the Relevant Asset Owner . Except as otherwise expressly provided in this Article 5 and in Article 7 or elsewhere in this Lease and subject to the obligations of the Related Refinery Owner and the Relevant Asset Owner under the Ancillary Agreements, including any indemnity provisions contained in the Omnibus Agreement, the Relevant Asset Owner shall at its sole cost, risk and expense at all times keep the Applicable Premises and the Applicable Assets and Additional Improvements in good order and repair and in compliance with all Applicable Laws and make all necessary repairs thereto, structural and nonstructural, ordinary and extraordinary, and unforeseen and foreseen. For the avoidance of doubt, the Related Refinery Owner shall maintain, at its sole cost, risk and expense, any dikes, including those dikes surrounding tanks owned by the Relevant Asset Owner and whether or not the entire dike is located on the Applicable Premises, and any roads located on the Applicable Premises. As used in this Article 5 , the term repairs shall include all necessary replacements, renewal, alterations and additions. All repairs made by the Relevant Asset Owner shall be made in accordance with normal and customary practices in the industry, in a good and workmanlike manner, and in accordance with all Applicable Laws. The Relevant Asset Owner shall be responsible at its sole cost and expense for the proper handling, removal and disposal of all materials, debris, waste and Hazardous Substances generated or resulting from such repair and maintenance activities, all in accordance with Applicable Laws.
5.2 Operation . Subject to the obligations of the Related Refinery Owner and the Relevant Asset Owner in this Lease and under the Ancillary Agreements, including any indemnity provisions contained in the Omnibus Agreement, the Relevant Asset Owner covenants and agrees to operate the Applicable Assets and Additional Improvements in accordance with normal and customary practices in the industry and all Applicable Laws now in force, or which may hereafter be in force.
5.3 Surrender of Applicable Premises . The Relevant Asset Owner shall at the expiration of the Applicable Term or at any earlier termination of this Lease as to the Applicable Assets, surrender the Applicable Premises to the Related Refinery Owner in as good condition as it received the same, ordinary wear and tear and limitations permitted by Article 7 excepted and in accordance with the provisions of Article 4 .
5.4 Release of Hazardous Substances . The Relevant Asset Owner shall give prompt notice to the Related Refinery Owner of any release of any Hazardous Substances on or at the Applicable Premises or Shared Access Facilities that occur during the Applicable Term. The Relevant Asset Owner shall immediately take all steps necessary to contain or remediate (or both) any such release and provide any governmental notifications required by Applicable Law. If the Related Refinery Owner believes at any time that the Relevant Asset Owner is failing to contain or remediate in compliance with all Applicable Laws (including Environmental Laws) any release arising from the Relevant Asset Owners operation of
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the Applicable Assets or Additional Improvements or the Relevant Asset Owners failure to comply with its obligations pursuant to this Lease, the Related Refinery Owner will provide reasonable notice to the Relevant Asset Owner of such failure. If the Relevant Asset Owner fails to take appropriate action to contain or remediate such a release or take other actions required under Applicable Laws or this Lease within 30 days of the Related Refinery Owners reasonable notice, the Related Refinery Owner may, without further notice to the Relevant Asset Owner, take such actions for the Relevant Asset Owners account. Within 30 days following the date the Related Refinery Owner delivers to the Relevant Asset Owner evidence of payment for those actions by the Related Refinery Owner reasonably necessary to contain or remediate a release or otherwise achieve compliance with Applicable Laws or this Lease because of the Relevant Asset Owners failure to do so, the Relevant Asset Owner shall reimburse the Related Refinery Owner all amounts paid by the Related Refinery Owner on the Relevant Asset Owners behalf.
ARTICLE 6
TAXES, ASSESSMENTS
6.1 Relevant Asset Owners Obligation to Pay . The Relevant Asset Owner shall pay during the Applicable Term all Taxes assessed against the Applicable Premises, or improvements situated thereon, including the Applicable Assets and all Additional Improvements (including those Additional Improvements situated on the Shared Access Facilities but excluding any Shared Access Facilities and any Service Assets) (for purposes of this Article 6 , collectively, the Taxable Assets ) during the Applicable Term that are payable to any Governmental Authority assessed against or with respect to the Applicable Premises or the use or operation thereof during the Applicable Term. In the event that the Relevant Asset Owner fails to pay its share of such Taxes in accordance with the provisions of this Article 6 prior to the time the same become delinquent, the Related Refinery Owner may pay the same and the Relevant Asset Owner shall reimburse the Related Refinery Owner all amounts paid by the Related Refinery Owner on the Relevant Asset Owners behalf within 30 days following the date the Related Refinery Owner delivers to the Relevant Asset Owner evidence of such payment.
6.2 Manner of Payment . Upon notice by the Relevant Asset Owner to the Related Refinery Owner, the Related Refinery Owner and the Relevant Asset Owner shall use commercially reasonable efforts to cause the Taxable Assets to be separately assessed for purposes of Taxes as soon as reasonably practicable following the Commencement Date (to the extent allowed by Applicable Law). During the Applicable Term but subject to the provisions of this Section 6.2 , the Relevant Asset Owner shall pay all Taxes assessed directly against the Taxable Assets directly to the applicable taxing authority prior to delinquency and shall promptly thereafter provide the Related Refinery Owner with evidence of such payment. Until such time as the Related Refinery Owner and the Relevant Asset Owner can cause the Taxable Assets to be separately assessed as provided above, the Relevant Asset Owner shall reimburse the Related Refinery Owner, upon request, for any such Taxes paid by the Related Refinery Owner to the applicable taxing authorities (such reimbursement to be based upon the mutual agreement of the Related Refinery Owner and the Relevant Asset Owner as to the portion of such Taxes attributable to the Taxable Assets), subject to the terms of this Section 6.2 . The certificate issued or given by the appropriate officials authorized or designated by law to issue or give the same or to receive payment of such Taxes shall be prima facie evidence of the existence, payment, nonpayment and amount of such Taxes. The Relevant Asset Owner may contest the validity or amount of any such Taxes or the valuation of the Taxable Assets (to the extent any of them may be separately issued), at the Relevant Asset Owners sole cost and expense, by appropriate proceedings, diligently conducted in good faith in accordance with Applicable Law. If the Relevant Asset Owner contests such items then the Related Refinery Owner shall cooperate with the Relevant Asset Owner in any such contesting of the validity or amount of any such Taxes or the valuation of the Taxable Assets. Taxes for the first and last years of the Applicable Term shall be prorated between the Related Refinery Owner and the Relevant Asset Owner based on the portions of such years that are coincident with the applicable tax years and for which each of them is responsible.
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ARTICLE 7
EMINENT DOMAIN; CASUALTY; INSURANCE
7.1 Total Condemnation of Applicable Premises . If the whole of the Applicable Premises is acquired or condemned by eminent domain for any public or quasi-public use or purpose, then this Lease shall terminate with respect to such Applicable Premises as of the date title vests in any public agency. All rentals and other charges owing hereunder shall be prorated as of such date.
7.2 Partial Condemnation . If only a portion of the Applicable Premises is acquired or condemned by eminent domain for any public or quasi-public use or purpose, and if in the Relevant Asset Owners reasonable opinion such partial taking or condemnation renders the Applicable Premises unsuitable for the business of the Relevant Asset Owner, then this Lease shall terminate with respect to such Applicable Premises at the Relevant Asset Owners election as of the date title vests in any public agency, provided the Relevant Asset Owner delivers to the Related Refinery Owner written notice of such election to terminate within 60 days following the date title vests in such public agency. In the event of such termination, all rentals and other charges owing hereunder with respect to such Applicable Premises shall be prorated as of such effective date of termination.
7.3 Condemnation Award and Damages . The Related Refinery Owner shall be entitled to any award and all damages payable as a result of any condemnation or taking of the fee title of the Applicable Premises. The Relevant Asset Owner shall have the right to claim and recover from the condemning authority, but not from the Related Refinery Owner, such compensation as may be separately awarded or recoverable by the Relevant Asset Owner in the Relevant Asset Owners own right on account of any and all damage to the Applicable Assets, the Additional Improvements and/or the Relevant Asset Owners business by reason of the condemnation, including loss of value of any unexpired portion of the Applicable Term, and for or on account of any cost or loss to which the Relevant Asset Owner might be put in removing the Relevant Asset Owners personal property, fixtures, leasehold improvements and equipment, including the Applicable Assets and the Additional Improvements, from the Applicable Premises use good faith efforts to resolve such infeasibility.
7.4 Restoration of Applicable Premises . If the Applicable Assets and/or Additional Improvements are partially damaged by any casualty insured against under any insurance policy maintained by the Related Refinery Owner (a Casualty Event ) or damaged by reason of a condemnation proceeding, the net amount that may be awarded or tendered to the Related Refinery Owner in such condemnation proceedings or realized from any applicable insurance policy in the event of a Casualty Event (less all legal and other expenses incurred by the Related Refinery Owner in connection therewith) shall (as long as the Relevant Asset Owner is not then in default hereunder) be used to pay for any repair, replacement or restoration by the Relevant Asset Owner of the Applicable Assets, the Additional Improvements and/or the remainder of the Applicable Premises hereof to the extent the Relevant Asset Owner desires any of the same to be repaired, replaced or restored and such repair, replacement or restoration is commercially practicable, as determined by the Related Refinery Owner in the exercise of its reasonable discretion. If it is so determined that such repair, replacement or restoration is not commercially practicable, the Relevant Asset Owner and the Related Refinery Owner shall use good faith efforts to resolve such infeasibility.
7.5 Rent Abatement . During any periods of time during which the Applicable Assets and/or Additional Improvements are destroyed, damaged by a Casualty Event or are being restored or reconstructed under the terms of Section 7.4 , Rent hereunder shall be abated in the proportion that the Relevant Asset Owners use thereof is impacted, on the condition that the Relevant Asset Owner uses commercially reasonable efforts to mitigate the disruption to its business caused by such event.
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7.6 Insurance . Except as otherwise agreed by the Related Refinery Owner and the Relevant Asset Owner, the Relevant Asset Owner shall, during the Applicable Term, maintain or cause to be maintained property and casualty insurance (including pollution insurance coverage) on the Applicable Premises and the Applicable Assets and Additional Improvements in accordance with customary industry practices and with a licensed, reputable carrier.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
8.1 Assignment and Subletting . Neither this Lease nor any of the rights or obligations hereunder shall be assigned by a the Related Refinery Owner without the prior written consent of the Relevant Asset Owner, or by a Related Asset Owner without the prior written consent of the Related Refinery Owner, in each case, such consent is not to be unreasonably withheld or delayed; provided, however, that:
(a) The Related Refinery Owner or the Relevant Asset Owner may make such an assignment (including a partial pro rata assignment) to its Affiliate without the others consent,
(b) The Related Refinery Owner may make a collateral assignment of its rights and obligations hereunder, and
(c) The Relevant Asset Owner may make a collateral assignment of its rights hereunder and/or grant a security interest in all or a portion of the Applicable Assets and/or Additional Improvements to a bona fide third party lender or debt holder, or trustee or representative for any of them, without the Related Refinery Owners consent, if such third party lender, debt holder or trustee shall have executed and delivered to the Related Refinery Owner a non-disturbance agreement in such form as is reasonably satisfactory to the Related Refinery Owner and such third party lender, debt holder or trustee and the Related Refinery Owner 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 assigning Party agrees to require its respective successors, if any, to expressly assume, in a form of agreement reasonably acceptable to the other Party, its obligations under this Lease.
8.2 Release of Assigning Party . Any assignment of this Lease by a Party in accordance with this Article 8 shall operate to terminate the liability of the assigning Party for all obligations under this Lease accruing after the date of any such assignment.
ARTICLE 9
DEFAULTS; REMEDIES; TERMINATION
9.1 Default . The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by the Party for whom such event occurred:
(a) The failure by the Relevant Asset Owner to make when due any payment of Rent or any other payment required to be made by the Relevant Asset Owner hereunder, if such failure continues for a period of 90 days following written notice from the Related Refinery Owner;
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(b) The failure by a Party to observe or perform any of the other covenants, conditions or provisions of this Lease to be observed or performed by such Party, if such failure continues for a period of 90 days (in the case of the Relevant Asset Owner) or 30 days (in the case of the Related Refinery Owner) following written notice from the non-defaulting the Relevant Asset Owner or the Related Refinery Owner; provided, however, if a reasonable time to cure such default would exceed 90 days (in the case of the Relevant Asset Owner) or 30 days (in the case of the Related Refinery Owner), such Party shall not be in default so long as it begins to cure such default within 90 days (in the case of the Relevant Asset Owner) or 30 days (in the case of the Related Refinery Owner) of receiving written notice from the non-defaulting Relevant Asset Owner or the Related Refinery Owner and thereafter completes the curing of such default within reasonable period of time (under the circumstances) following the receipt of such written notice; or
(c) The occurrence of any Bankruptcy Event.
9.2 Related Refinery Owners Remedies .
9.2.1 Termination Remedies . In the event of any such material default under or material breach of the terms of this Lease by the Relevant Asset Owner, the Related Refinery Owner may, at the Related Refinery Owners option, at any time thereafter that such default or breach remains uncured, without further notice or demand:
(a) terminate this Lease with respect to the Relevant Asset Owner and the Relevant Asset Owners right to possession of the Applicable Premises, and
(b) thereafter repossess the Applicable Premises by any lawful means in which event the Relevant Asset Owner shall immediately surrender possession of the Applicable Premises to the Related Refinery Owner.
9.2.2 Right to Perform . If, by the terms of this Lease, the Relevant Asset Owner is required to do or perform any act or to pay any sum to a Third Party, and fails or refuses to do so, the Related Refinery Owner, after 30 days written notice to the Relevant Asset Owner, without waiving any other right or remedy hereunder for such default, may do or perform such act, at the Relevant Asset Owners expense, or pay such sum for and on behalf of the Relevant Asset Owner, and the amounts so expended by the Related Refinery Owner shall be repayable on demand, and bear interest from the date expended by the Related Refinery Owner until paid at the Post-Maturity Rate. Past due Rent and any other past due payments required hereunder shall bear interest from maturity until paid at the Post-Maturity Rate.
9.2.3 Cumulative Remedies . The Related Refinery Owner may, at the Related Refinery Owners option, deduct any such amounts so expended by the Related Refinery Owner from any amounts owed hereunder or under any Ancillary Agreement. Any such action on the part of the Related Refinery Owner shall be in addition to any other remedy that may be available to the Related Refinery Owner for arrears of Rent or breach of contract, or otherwise, including the right of setoff.
9.3 Relevant Asset Owners Remedies .
9.3.1 Remedies . In the event of any such default under or breach of the terms of this Lease by the Related Refinery Owner, the Relevant Asset Owner may, at the Relevant Asset Owners option, at any time thereafter that such default or breach remains uncured, after ten days prior written notice to the Related Refinery Owner:
(a) perform any act that the Related Refinery Owner is required to do, or
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(b) perform any act for or to pay any sum to a Third Party, at the Related Refinery Owners expense (to the extent the terms of this Lease require such performance at the Related Refinery Owners expense) or pay such sum for and on behalf of the Related Refinery Owner, and the amounts so expended by the Relevant Asset Owner shall be repayable on demand, and bear interest from the date expended by the Relevant Asset Owner until paid at the Post-Maturity Rate.
9.3.2 Cumulative Remedies . The Relevant Asset Owner may, at the Relevant Asset Owners option, deduct any such amounts so expended by the Relevant Asset Owner from the Rent and any other amounts owed hereunder or under any Ancillary Agreement. Any such action on the part of the Related Refinery Owner shall be in addition to any other remedy that may be available to the Related Refinery Owner for arrears of Rent or breach of contract, or otherwise, including the right of setoff.
ARTICLE 10
LIABILITY AND INDEMNIFICATION
10.1 Limitation of Liability; Indemnity . The Parties acknowledge and agree that the provisions relating to force majeure, indemnity and the limitation of liability are set forth in the Omnibus Agreement. Notwithstanding anything in this Lease or the Omnibus Agreement to the contrary and solely for the purpose of determining which of the Related Refinery Owners or the Relevant Asset Owners shall be liable in a particular circumstance, neither a the Related Refinery Owner nor the Relevant Asset Owner shall be liable to another Party for any default, loss, damage, injury, judgment, claim, cost, expense or other liability suffered or incurred (collectively, Damages ) by such Party except to the extent set forth in the Omnibus Agreement and to the extent that the Related Refinery Owner or the Relevant Asset Owner causes such Damages or owns or operates the assets or other property in question responsible for causing such Damages. In no event shall any Related Refinery Owner have any liability to another Related Refinery Owner, or shall any Relevant Asset Owner have any liability to another Relevant Asset Owner, for Damages, regardless of how caused or under any theory of recovery.
10.2 Survival . The provisions of this Article 10 shall survive the termination of this Agreement.
ARTICLE 11
OPTION
11.1 Applicability of Option . The provisions of this Article 11 shall apply to all Applicable Assets except those that are located at the Refinery Complexes of Navajo or Holly Woods Cross.
11.2 Grant of Option . Following the termination or expiration of the Master Throughput Agreement as it relates to a Refinery Complex, including any renewal, extension, or replacement agreement thereof pursuant thereto, the affected Related Refinery Owner shall have an option, and the affected Relevant Asset Owner hereby grants such option, to purchase the Applicable Assets and the Additional Improvements at such Refinery Complex at a cost equal to the fair market value thereof, as reasonably determined by the Related Refinery Owner and the Relevant Asset Owner.
11.3 Determination of Fair Market Value . In the event that the Related Refinery Owner and the Relevant Asset Owner cannot agree as to the fair market value of such Applicable Assets and the Additional Improvements, the Related Refinery Owner and the Relevant Asset Owner shall each select a qualified appraiser. The two appraisers shall give their opinion of the fair market value of such
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Applicable Assets and Additional Improvements within 20 days after their retention. In the event the opinions of the two appraisers differ and, after good faith efforts over the succeeding 20-day period, they cannot mutually agree, the appraisers shall immediately and jointly appoint a third qualified appraiser. The third appraiser shall immediately (within five days) choose the determination of either appraiser and such choice of this third appraiser shall be final and binding on the Related Refinery Owner or the Relevant Asset Owner. Each of the Related Refinery Owner and the Relevant Asset Owner shall pay its own costs for its appraiser. Following the determination of the fair market value of the Applicable Assets and the Additional Improvements by the appraisers, the Related Refinery Owner and the Relevant Asset Owner shall equally share the costs of any third appraiser.
11.4 Cooperation . Upon the Related Refinery Owners exercise of the option granted pursuant to this Article 11 , the Related Refinery Owner and the Relevant Asset Owner shall cooperate to convey the Applicable Assets and the Additional Improvements from the Relevant Asset Owner to the Related Refinery Owner. If the Related Refinery Owner chooses to exercise its option granted pursuant to this Article 11 , the sale of the Applicable Assets and the Additional Improvements shall be subject to the receipt of any consents or waivers required pursuant to the Relevant Asset Owners credit facility or indentures then in effect.
11.5 Survival . The terms and conditions of this Article 11 shall survive the termination or expiration of this Lease or the Master Throughput Agreement with respect to the Related Refinery Owner and the Relevant Asset Owner.
ARTICLE 12
GENERAL PROVISIONS
12.1 Estoppel Certificates . The Related Refinery Owner and the Relevant Asset Owner shall, at any time and from time to time upon not less than 20 days prior written request from the other, execute, acknowledge and deliver to the other a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which Rent and other charges are paid, and (b) acknowledging that there are not, to the executing partys knowledge, any uncured defaults on the part of the other Party hereunder (or specifying such defaults, if any are claimed). Any such statement may be conclusively relied upon by any prospective purchaser of the Applicable Premises or the leasehold evidenced by this Lease or any lender with respect to the Applicable Premises or the leasehold evidenced by this Lease. Nothing in this Section 12.1 shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Applicable Premises by the Relevant Asset Owner.
12.2 Notices . Any notice or other communication given under this Lease shall be in writing and shall be delivered in accordance with the requirements for notices set forth in the Omnibus Agreement.
12.3 Severability . If any term or other provision of this Lease is invalid, illegal or incapable of being enforced by any Applicable Law or public policy, all other terms and provisions of this Lease shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party hereto. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Lease so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
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12.4 Time of Essence . Time is of the essence in the performance of all obligations falling due hereunder.
12.5 Captions . The headings to Articles and Sections of this Lease are inserted for convenience of reference only and will not affect the meaning or interpretation of this Lease.
12.6 Entire Agreement This Lease constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof as applicable to such Party and supersedes all prior agreements and undertakings, both written and oral, between the Related Refinery Owner and the Relevant Asset Owner with respect to the subject matter hereof.
12.7 Waivers . To be effective, any waiver of any right under this Lease must be in writing and signed by a duly authorized officer or representative of the Party bound thereby. No waiver or waivers of any breach or default or any breaches or defaults by any Party of any term, condition or liability of or performance by any other Party of any duty or obligation hereunder shall be deemed or construed to be a waiver or waivers of any subsequent breaches or defaults of any kind, character or description under any circumstance. The acceptance of Rent hereunder by the Related Refinery Owner shall not be a waiver of any preceding breach by the Relevant Asset Owner of any provision hereof, other than the failure of the Relevant Asset Owner to pay the particular Rent so accepted, regardless of the Related Refinery Owners knowledge of such preceding breach at the time of acceptance of such Rent.
12.8 Incorporation by Reference . Any reference herein to any Appendix or Exhibit to this Lease will incorporate such Appendix or Exhibit herein as if it were set out in full in the text of this Lease.
12.9 Binding Effect . This Lease will be binding upon, and will inure to the benefit of, the Parties and their respective successors, permitted assigns and legal representatives. Nothing in this Section 12.9 shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Applicable Premises by the Relevant Asset Owner.
12.10 Amendment . This Lease may not be amended or modified except by an instrument in writing signed by, or on behalf of, each of the Parties hereto. If and to the extent the Relevant Asset Owner may have occupied any portion of the Applicable Premises prior to the date of a Prior Lease without the benefit of any written lease, license or other instrument, the Relevant Asset Owner and the Related Refinery Owner release and waive any claims that such Party may have against the other Party with respect to such prior occupancy.
12.11 No Partnership . The relationship between the Related Refinery Owner and the Relevant Asset Owner at all times shall remain solely that of the landlord and tenant and shall not be deemed a partnership or joint venture.
12.12 No Third Party Beneficiaries . Subject to the provisions Article 10 and Section 12.9 . Any Person not a Party to this Lease shall have no rights under this Lease as a third party beneficiary or otherwise.
12.13 Governing Law . THIS LEASE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE APPLICABLE PREMISES ARE LOCATED WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW RULES THAT WOULD DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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12.14 Cooperation . The Parties acknowledge that they are entering into a long-term arrangement in which the cooperation of the Related Refinery Owner and the Relevant Asset Owner will be required. If, during the Applicable Term of this Lease, changes in the operations, facilities or methods of either the Related Refinery Owner or the Relevant Asset Owner will materially benefit one of them without detriment to the other, the Related Refinery Owner or the Relevant Asset Owner commit to each other to make reasonable efforts to cooperate and assist each other.
12.15 Further Assurances . The Parties shall execute such additional documents and shall cause such additional actions to be taken as may be required or, in the judgment of any Party, be necessary or desirable, to carry out the purposes of this Lease and to more fully assure the Parties rights and interests provided for hereunder. The Parties each agree to reasonably cooperate with the other Parties on all matters relating to the required Permits and regulatory compliance by any Party in respect of the Applicable Premises so as to ensure continued full operation of the Relevant Assets by the Relevant Asset Owner pursuant to the terms of this Lease.
12.16 Waiver of the Related Refinery Owners Lien . To the extent permitted by Applicable Law, the Related Refinery Owner hereby expressly waives any and all liens (constitutional, statutory, contractual or otherwise) upon the Relevant Asset Owners personal property now or hereafter installed or placed in or on the Applicable Premises, which otherwise might exist to secure payment of the sums herein provided to be paid by the Relevant Asset Owner to the Related Refinery Owner.
12.17 Recording . Upon the request of the Related Refinery Owner or the Relevant Asset Owner, the Related Refinery Owner and the Relevant Asset Owner shall execute, acknowledge, deliver and record a short form memorandum of this Lease in a form mutually acceptable to the Related Refinery Owner and the Relevant Asset Owner. Promptly upon request by the Related Refinery Owner at any time following the expiration or earlier termination of this Lease with respect to such Related Refinery Owner and the Relevant Asset Owner, however such termination may be brought about, the Relevant Asset Owner shall execute and deliver to the Related Refinery Owner an instrument, in recordable form, evidencing the termination of this Lease with respect to the Related Refinery Owner and the Relevant Asset Owner and the release by the Relevant Asset Owner of all of the Relevant Asset Owners right, title and interest in and to the Applicable Premises existing under and by virtue of this Lease (the Relevant Asset Owner Release ) and the Relevant Asset Owner grants the Related Refinery Owner an irrevocable power of attorney coupled with an interest for the purpose of executing the Relevant Asset Owner Release in the name of the Relevant Asset Owner. This Section 12.17 shall survive the termination of this Lease.
12.18 Warranty of Peaceful Possession . The Related Refinery Owner covenants and warrants that the Relevant Asset Owner, upon paying the Rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on the Relevant Asset Owners part to be observed and performed hereunder, may peaceably and quietly have, hold, occupy, use and enjoy, and, subject to the terms of this Lease, shall have the full, exclusive, and unrestricted use and enjoyment of, all the Applicable Premises during the Applicable Term for the purposes permitted herein, and the Related Refinery Owner agrees to warrant and forever defend title to the Applicable Premises against the claims of any and all persons whomsoever lawfully claiming the same or any part thereof.
12.19 Survival . All obligations of the Related Refinery Owner and the Relevant Asset Owner that shall have accrued under this Lease prior to the expiration or earlier termination hereof shall survive such expiration or termination to the extent the same remain unsatisfied as of the expiration or earlier termination of this Lease. The Related Refinery Owner and the Relevant Asset Owner further expressly agree that all provisions of this Lease which contemplate performance after the expiration or earlier termination hereof shall survive such expiration or earlier termination of this Lease.
15
12.20 AS IS, WHERE IS . SUBJECT TO ALL OF THE OBLIGATIONS OF RELATED REFINERY OWNER UNDER THIS LEASE INCLUDING THOSE SET FORTH IN ARTICLE 5 , ARTICLE 10 AND SECTION 12.18 , RELEVANT ASSET OWNER HEREBY ACCEPTS THE APPLICABLE PREMISES AS IS, WHERE IS, AND WITH ALL FAULTS, AND RELATED REFINERY OWNER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, UNDER THIS LEASE AS TO THE PHYSICAL CONDITION OF THE APPLICABLE PREMISES, INCLUDING THE APPLICABLE PREMISES MERCHANTABILITY, HABITABILITY, CONDITION, FITNESS, OR SUITABILITY FOR ANY PARTICULAR USE OR PURPOSE.
12.21 Relocation of Pipelines; Amendment . If the Related Refinery Owner elects to move certain pipelines within the Refinery Complex, and such relocation of the pipelines requires relocation of any of the Applicable Assets, then this Lease shall continue in full force and effect; provided, however, the Parties shall execute an amendment hereto reflecting the new location(s) of the Applicable Assets.
12.22 Counterparts . This Lease may be executed in one or more counterparts, and by the Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
12.23 Joinder by Affiliates of Parties . From time to time, an Affiliate of the Relevant Asset Owner who own assets at a refinery (whether now or in the future owned by the Related Refinery Owner or its Affiliate), may desire to become a party to this Lease, upon such terms and conditions that such Relevant Asset Owner (or its Affiliate) and the refinery owner may agree. The joinder of such Relevant Asset Owners Affiliate and/or the Related Refinery Owners Affiliate to this Agreement shall be effective upon the execution of a joinder agreement (a Joinder ), in form and substance acceptable to such parties. The Joinder shall specify such Affiliates Applicable Assets, the Applicable Term and the applicable Rent, and shall include any provisions unique to such Affiliates assets. In executing the Joinder, such parties thereby acknowledge, represent and warrant that they have read and are familiar with the terms and conditions of this Lease and upon execution of the Joinder, and that this Lease is the binding and enforceable obligation of them, modified only as expressly set forth in such Joinder. The Joinder shall be for the sole purpose of joining such Affiliate(s) to this Lease and, except as expressly set forth in the Joinder only with respect to such Affiliate(s), shall not alter, modify or affect any of the terms or conditions of this Lease as they relate to such Affiliate(s), the Relevant Asset Owners or the Related Refinery Owners, all of which remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
16
The parties hereto have executed this Master Lease and Access Agreement to be effective as of the Commencement Date.
Related Refinery Owners: | ||||||
FRONTIER EL DORADO REFINING LLC | ||||||
FRONTIER REFINING LLC | ||||||
HOLLY REFINING & MARKETING TULSA LLC | ||||||
HOLLY REFINING & MARKETING COMPANY WOODS CROSS LLC | ||||||
NAVAJO REFINING COMPANY, L.L.C. | ||||||
By: |
/s/ Michael C. Jennings |
|||||
Name: | Michael C. Jennings | |||||
Title: | Chief Executive Officer and President | |||||
Relevant Asset Owners: | ||||||
EL DORADO LOGISTICS LLC | ||||||
CHEYENNE LOGISTICS LLC | ||||||
HEP TULSA LLC | ||||||
By: |
/s/ Bruce R. Shaw |
|||||
Name: | Bruce R. Shaw | |||||
Title: | President | |||||
HEP WOODS CROSS, L.L.C. | ||||||
HEP PIPELINE, L.L.C. | ||||||
By: | Holly Energy Partners Operating, L.P., its sole member | |||||
By |
/s/ Bruce R. Shaw |
|||||
Name: | Bruce R. Shaw | |||||
Title: | President |
[Signature Page to Master Lease and Access Agreement]
Exhibit A
to
Master Lease and Access Agreement
Parties
1. | Frontier El Dorado and El Dorado Logistics with respect to the Applicable Premises at the El Dorado Refinery Complex |
2. | Frontier Cheyenne and Cheyenne Logistics with respect to the Applicable Premises at the Cheyenne Refinery Complex |
3. | Holly Tulsa and HEP Tulsa with respect to the Applicable Premises at the Tulsa Refinery Complex |
4. | Holly Woods Cross and HEP Woods Cross with respect to the Applicable Premises at the Woods Cross Refinery Complex |
5. | Navajo and HEP Pipeline with respect to the Applicable Premises at the Navajo Refinery Complex |
Exhibit A-1
Exhibit B
to
Master Lease and Access Agreement
Definitions
Additional Improvements is defined in Section 4.1 .
Affiliates 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, the Related Refinery Owners, on the one hand, and the Relevant Asset Owners, on the other hand, shall not be considered Affiliates of each other.
Ancillary Agreements means, collectively, any other agreement executed by the Related Refinery Owner and the Relevant Asset Owner in connection with the Relevant Asset Owners ownership of the Applicable Assets or the Relevant Asset Owners acquisition of the Applicable Assets, as the case may be, that has not been otherwise amended or superseded, and specifically includes the Omnibus Agreement.
Applicable Assets means the assets located at a Refinery Complex owned by the Relevant Asset Owner, identified on Exhibit D and any Additional Improvements.
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 all of the terms and provisions of the common law of such Governmental Authority), as interpreted and enforced at the time in question.
Applicable Premises means those certain tracts or parcels of land on which the Applicable Assets are situated at a Refinery Complex, such land as to each of the Applicable Assets more particularly described or identified on Exhibit E together with all right, title and interest, if any, of the Related Refinery Owner in and to all accretion attaching to the land and any rights to submerged lands or interests in riparian rights or riparian grants owned by the Related Asset Owner and adjoining the land shown on said Exhibit E , but excluding (i) the Applicable Assets, and (ii) the Additional Improvements.
Applicable Term means the Applicable Term set forth on Exhibit D for the Applicable Assets as such Applicable Term may be extended from time to time pursuant to Exhibit D .
Bankruptcy Event means, in relation to any Party,
(a) | the making of a general assignment for the benefit of creditors by such Party; |
Exhibit B-1
(b) | the entering into of any arrangement or composition with creditors as a result of insolvency (other than for the purposes of a solvent reconstruction or amalgamation); |
(c) | the institution by such Party of proceedings: |
(i) seeking to adjudicate such Party as bankrupt or insolvent or seeking protection or relief from creditors,
(ii) seeking liquidation, winding up, or rearrangement, reorganization or adjustment of such Party or its debts (other than for purposes of a solvent reconstruction or amalgamation), or
(iii) seeking the entry of an order for the appointment of a receiver, trustee or other similar official for such Party or for all or a substantial part of such Partys assets; or
(d) | the institution of any proceeding of the type described in the third bullet above against such Party, which proceeding shall not have been dismissed within ninety (90) days following its institution. |
Business Day means any day other than Saturday, Sunday or other day upon which commercial banks in Dallas, Texas are authorized by law to close.
Casualty Event is defined in Section 7.3 .
Cheyenne Logistics means Cheyenne Logistics LLC, a Delaware limited liability company.
Cheyenne RCRA Order means that certain administrative order dated September 24, 1990, as transferred to the Wyoming Department of Environmental Quality on March 22, 1995, to which the Cheyenne Refinery Complex is subject.
Commencement Date is defined in Exhibit D .
Connection Facilities is defined in the Master Site Services Agreement.
El Dorado Logistics means El Dorado Logistics LLC, a Delaware limited liability company.
El Dorado RCRA Order means that certain administrative order to which the El Dorado Refinery Complex is or soon will be subject issued by the U.S. Environmental Protection Agency under Section 3008(h) of the Resource Conservation and Recovery Act.
Frontier El Dorado means Frontier El Dorado Refining LLC, a Delaware limited liability company.
Frontier Cheyenne means Frontier Refining LLC, a Delaware limited liability company.
Environmental Law or 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 the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery
Exhibit B-2
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.
Environmental Permit means a Permit issued under any Environmental Law.
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.
Hazardous Substances 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 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.
HEP Operating means Holly Energy Partners-Operating, L.P., a Delaware limited partnership.
HEP Pipeline means HEP Pipeline, L.L.C., a Delaware limited liability company.
HEP Tulsa means HEP Tulsa LLC, a Delaware limited liability company.
HEP Woods Cross means HEP Woods Cross, L.L.C., a Delaware limited liability company.
Holly Tulsa means Holly Refining & Marketing Tulsa LLC, a Delaware limited liability company.
Holly Woods Cross means Holly Refining & Marketing Company Woods Cross LLC, a Delaware limited liability company.
Lease is defined in the preamble to this Lease.
Master Throughput Agreement means the Master Throughput Agreement between HollyFrontier Refining & Marketing LLC and HEP Operating, dated as of the date hereof.
Master Site Services Agreement shall mean the Master Site Services Agreement as it relates to the Parties, dated as of the date hereof.
Navajo means Navajo Refining Company, L.L.C., a Delaware limited liability company.
Omnibus Agreement means the Twelfth Amended and Restated Omnibus Agreement, dated as of the date hereof.
Party and Parties has the meanings ascribed to such term in the preamble to this Lease.
Permits means all permits, licenses, franchises, authorities, consents, and approvals, as necessary under applicable Laws, including Environmental Laws, for operating the Assets and/or the Applicable Premises.
Exhibit B-3
Person means any individual or entity, including any partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, unincorporated organization or Governmental Authority (or any department, agency or political subdivision thereof).
Post-Maturity Rate means a rate equal to the lesser of (i) an interest rate equal to the Prime Rate as published in The Wall Street Journal , Southwest Edition, in its listing of Money Rates plus two percent or (ii) the maximum non-usurious rate of interest permitted to be charged the Relevant Asset Owner under applicable Law.
Prior Lease means:
For the avoidance of doubt, Prior Lease does not include: (a) Lease and Access Agreement (Lovington) dated as of February 29, 2008, (b) Lease and Access Agreement (Lovington Pump and Receiving Stations) dated as of September 10, 2010, (c) Amended and Restated Lease and Access Agreement (Artesia Truck Rack and Blending Facility) dated as of March 12, 2015, (d) Equipment Sites, Access and Rail Line License Agreement (Tulsa Truck and Rail Equipment Tulsa County, Oklahoma) dated as of August 1, 2009, and (e) Equipment Sites, Access and License Agreement (Tulsa Interconnecting Pipelines) dated as of August 31, 2011.
Refinery Complex means:
Exhibit B-4
Holly Woods Cross and HEP Woods Cross |
the refinery complex owned by Holly Woods Cross, commonly known as the Woods Cross Refinery, and located near the City of Woods Cross, Davis County, Utah | |
Navajo and HEP Pipeline |
the refinery complex owned by Navajo, commonly known as the Navajo Refinery, and located near the City of Artesia, Eddy County, New Mexico | |
Related Refinery Owner means:
with respect to: | Related Refinery Owner | |
El Dorado Logistics |
Frontier El Dorado | |
Cheyenne Logistics |
Frontier Cheyenne | |
HEP Tulsa |
Holly Tulsa | |
HEP Woods Cross |
Holly Woods Cross | |
HEP Pipeline |
Navajo |
Related Refinery Owners Parties is defined in Section 2.2.2 .
Relevant Asset Owner means:
with respect to: |
Relevant Asset Owner | |
Frontier El Dorado |
El Dorado Logistics | |
Frontier Cheyenne |
Cheyenne Logistics | |
Holly Tulsa |
HEP Tulsa | |
Holly Woods Cross |
HEP Woods Cross | |
Navajo |
HEP Pipeline |
Relevant Asset Owner Release is defined in Section 12.17 .
Relevant Asset Owners Parties is defined in Section 2.2.1 .
Rent is defined in Section 2.3 .
Service Assets is defined in the Master Site Services Agreement as it relates to the Relevant Asset Owner and the Related Refinery Owner.
Shared Access Facilities is defined in Section 2.2(a) .
Tankage means the storage tanks that are included in the Applicable Assets.
Taxable Assets is defined in Section 6.1 .
Taxes means all federal, state and local real and personal property ad valorem taxes, assessments, and other governmental charges, general and special, ordinary and extraordinary, including assessments for public improvements or benefits, any federal, state or local income, gross receipts,
Exhibit B-5
withholding, franchise, excise, sales, use, value added, recording, transfer or stamp tax, levy, duty, charge or withholding of any kind, in each case, imposed or assessed by any federal, state or local government, agency or authority, together with any addition to tax, penalty, fine or interest thereon, other than state or U.S. federal income tax imposed upon the taxable income of the Related Refinery Owner and any franchise taxes imposed upon the Related Refinery Owner.
Third Party shall mean a Person which is not (a) the Related Refinery Owner or an Affiliate of the Related Refinery Owner, (b) the Relevant Asset Owner or an Affiliate of the Relevant Asset Owner or (c) a Person that, after the signing of this Lease becomes a successor entity of the Related Refinery Owner, the Relevant Asset Owner or any of their respective Affiliates. An employee of the Related Refinery Owner or the Relevant Asset Owner shall not be deemed an Affiliate.
Exhibit B-6
Exhibit C
to
Master Lease and Access Agreement
Interpretation
As used in this Lease, unless a clear contrary intention appears
(a) any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa, and any reference to a gender includes the other gender;
(b) the words hereof, herein, and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(c) any reference to Articles, Sections and Exhibits are, unless otherwise stated, references to Articles, Sections and Exhibits of or to this Agreement. The headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation;
(d) reference to any agreement (including this Agreement), document or instrument means such agreement, document, or instrument as amended, modified or supplemented and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Agreement;
(e) the Exhibits hereto form an integral part of this Agreement and are equally binding therewith. Any reference to this Agreement shall include such Exhibits;
(f) references to a Person shall include any permitted assignee or successor to such Party in accordance with this Agreement and reference to a Person in a particular capacity excludes such Person in any other capacity;
(g) if any period is referred to in this Agreement by way of reference to a number of days, the days shall be calculated exclusively of the first and inclusively of the last day unless the last day falls on a day that is not a Business Day in which case the last day shall be the next succeeding Business Day;
(h) the use of or is not intended to be exclusive unless explicitly indicated otherwise;
(i) references to $ or to dollars shall mean the lawful currency of the United States of America; and
(j) The words includes, including, or any derivation thereof shall mean including without limitation or including, but not limited to.
Exhibit C-1
Exhibit D
to
Master Lease and Access Agreement
Applicable Term and Applicable Assets
1 | At the end of the initial Applicable Term for each Applicable Premises, the term of this Lease as to such Applicable Premises shall be automatically renewed for a maximum of our (4) successive ten-year periods thereafter, subject in all cases to the termination rights set forth in Section 2.1 of the Lease. |
Exhibit D
Exhibit D-1
to
Master Lease and Access Agreement
Applicable Assets: El Dorado Refinery Complex
1. | The following storage tanks located on the Land described under Storage Tanks and Propane Tank Loading Rack and Tanks 600-621 on Exhibit E-1 . |
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
1 |
Naptha | 2,885 | ||
2 |
Naptha | 2,885 | ||
3 |
ULSD | 40,425 | ||
15 |
ULSD | 12,422 | ||
16 |
Light Slop | 28,880 | ||
17 |
Gasoline | 92,740 | ||
18 |
Gasoline | 88,600 | ||
19 |
Gasoline | 90,733 | ||
20 |
Finish Gasoline | 17,961 | ||
21 |
ULSD | 120,639 | ||
23 |
ULSD | 113,182 | ||
24 |
ULSD | 119,269 | ||
25 |
Av Jet | 65,117 | ||
29 |
CRU1 Feed | 33,723 | ||
30 |
CRU2 Feed | 39,417 | ||
31 |
ULSD | 23,792 | ||
32 |
Finish Gasoline | 74,847 | ||
64 |
Gasoline | 17,961 |
Exhibit D-1
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
65 | Gasoline | 17,941 | ||
66 | Naptha | 22,582 | ||
75 | ULS k | 24,938 | ||
78 | ULS k | 9,226 | ||
127 | Heavy Slop | 20,504 | ||
652 | Sour Distilate | 90,000 | ||
642 | HTU2 Chg. | 78,511 | ||
134 | HTU2 Chg. | 76,492 | ||
649 | HTU4 CHg. | 100,000 | ||
137 | Gas Oil/Sour diesel | 191,899 | ||
138 | Gas Oil | 194,091 | ||
139 | Gas Oil | 74,792 | ||
142 | Gas Oil | 191,563 | ||
143 | Gas Oil | 191,570 | ||
159 | Slurry | 9,778 | ||
167 | Slurry | 8,908 | ||
650 | ULSD Dock | 36,000 | ||
178 | Coke Charge/Swing Tank | 80,000 | ||
192** | Idled | 8,908 | ||
212 | Coker Chg. | 76,524 | ||
213 | Asphalt | 77,675 | ||
215 | AV Jet | 67,529 | ||
216 | Alkylate | 72,618 |
Exhibit D-1
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
218 | Gas Oil | 77,675 | ||
219 | Reformate | 71,466 | ||
220 | Swing Tank | 71,495 | ||
221 | Gasoline Swing | 71,508 | ||
222 | Gasoline Swing | 71,509 | ||
223 | Reformate | 72,893 | ||
224 | Jet Fuel | 71,534 | ||
225 | HTU1 Chg, kerosene | 28,882 | ||
226 | Finish Gasoline | 27,679 | ||
227 | Natural Gasoline | 27,701 | ||
230 | Diesel (RAM) | 4,780 | ||
231 | Light Cycle (RAM) | 1,923 | ||
243 | Toluene | 11,300 | ||
244 | Toluene | 10,175 | ||
250 | FCCU Gasoline | 75,354 | ||
251 | FCCU Gasoline | 75,968 | ||
252 | FCCU Gasoline | 75,968 | ||
253 | Natural Gasoline | 74,653 | ||
254 | Isomerate | 19,318 | ||
255 | Isomerate | 19,318 | ||
256 | TEL Wash | 950 | ||
447 | Finish Gasoline | 17,730 | ||
448 | Gasoline | 16,109 |
Exhibit D-1
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
453 |
Ethanol | 5,121 | ||
457 |
HTU3 Chg, LSR | 32,690 | ||
458 |
Isomerate | 32,690 | ||
490 |
ULSD | 116,094 | ||
600 |
Propane | 625 | ||
601 |
Propane | 625 | ||
602 |
Propane | 625 | ||
603 |
Propane | 625 | ||
604 |
Propane | 625 | ||
605 |
Propane | 625 | ||
606 |
Propane | 625 | ||
607 |
Propane | 625 | ||
608 |
Propane | 625 | ||
609 |
Propane | 625 | ||
610 |
Propane | 625 | ||
611 |
Propane | 625 | ||
612 |
Propane | 625 | ||
613 |
Propane | 625 | ||
614 |
Propane | 625 | ||
615 |
Propane | 625 | ||
616 |
Propane | 625 | ||
617 |
Propane | 625 | ||
618 |
Propane | 625 |
Exhibit D-1
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS | ||
619 |
Propane | 625 | ||
620 |
Propane | 575 | ||
621 |
Propane | 100 | ||
640 |
Asphalt | 66,859 | ||
641 |
Propane | 6,813 | ||
643 |
Sour distillate | 90,600 | ||
647 |
Asphalt | 76,600 | ||
651 |
Heavy Atmospheric Gas Oil
(GASO) |
32,000 |
2. | The Refined Products Truck Loading Rack located on the Land described under Refined Products Truck Loading Rack on Exhibit E-1 . |
3. | The Propane Truck Loading Rack located on the Land described under Propane Truck Loading Rack on Exhibit E-1 . |
Exhibit D-1
Exhibit D-2
to
Master Lease and Access Agreement
Applicable Assets: Cheyenne Refinery Complex
1. | The following storage tanks located on the Land described under Storage Tanks on Exhibit E-2 . |
TANK ID NUMBER |
CURRENT
SERVICE/PRODUCT |
NOMINAL CAPACITY, BBLS 2 | ||
1-107 | Intermediate Distillate | 69,942 | ||
1-013 | Coker Distillate | 1,914 | ||
1-014 | Low Sul. Diesel | 24,677 | ||
1-015 | No Lead Gas | 24,677 | ||
1-016 | Ethanol | 2,564 | ||
1-017 | Prem. No Lead Gas | 5,034 | ||
1-020 | FCC Slurry Oil | 5,018 | ||
1-021 | Sweet Naphtha / VRU | 9,867 | ||
1-027 | Slop Oil | 4,000 | ||
1-028 | Biodiesel | 5,179 | ||
1-029 | Coker Gas Oil | 10,709 | ||
1-032 | Diesel | 10,124 | ||
1-033 | Coker Distillate | 10,342 | ||
1-040 | FCC Slurry Oil | 10,121 | ||
1-048 | Coker Distillate | 1,341 | ||
1-049 | Coker Distillate | 1,341 | ||
1-050 | Vacuum Bottoms | 67,428 |
2 | Nominal capacity is approximate |
Exhibit D-2
TANK ID NUMBER |
CURRENT
|
NOMINAL CAPACITY, BBLS | ||
1-051 | Slurry | 24,938 | ||
1-052 | PG 58-28 (Asphalt) | 72,017 | ||
1-053 | FCCU Slurry | 13,506 | ||
1-054 | FCCU Slurry | 24,938 | ||
1-055 | PG 58-28 (Asphalt) | 54,499 | ||
1-056 | Coker feed tank | 61,709 | ||
1-058 | Coker Gas Oil | 10,493 | ||
1-090 | PG 64-22 (Asphalt) | 55,954 | ||
1-091 | PG 58-28 (Asphalt) | 55,954 | ||
1-093 | PG 64-22 (Asphalt) | 2,602 | ||
1-094 | PG 64-22 (Asphalt) | 2,602 | ||
1-095 | PG 64-22 (Asphalt) | 2,602 | ||
1-106 | Naphtha | 120,000 | ||
1-108 | Distillate | 107,000 | ||
1-117 | Vacuum Bottoms | 69,942 | ||
2-015 | Diesel | 28,870 | ||
2-016 | Diesel | 28,046 | ||
2-017 | UC Crack (LCO / Coker Distillate) | 28,562 | ||
2-020 | Gas Oil | 10,746 | ||
2-021 | Gas Oil | 10,746 | ||
2-022 | UC Crack (LCO / Coker Distillate) | 9,731 |
Exhibit D-2
TANK ID NUMBER |
CURRENT
|
NOMINAL CAPACITY, BBLS | ||
2-023 |
Coker Gas Oil | 10,583 | ||
2-028 |
Cat Gas Oil | 80,153 | ||
2-034 |
Reformate | 23,234 | ||
2-035 |
Alkylate | 24,190 | ||
2-036 |
Recovered Oil / Crude slop | 5,056 | ||
2-060 |
Burner / Distillate | 9,846 | ||
2-061 |
Sweet Naphtha | 10,096 | ||
2-062 |
Naphtha | 9,970 | ||
2-063 |
Crude HSR | 10,096 | ||
2-067 |
Crude LSR | 10,093 | ||
2-070 |
Sub Grade No Lead Gas | 32,608 | ||
2-071 |
Premium No Lead Gas | 32,612 | ||
2-072 |
Crude | 80,581 | ||
2-073 |
Crude | 80,551 | ||
2-074 |
Crude | 79,766 | ||
2-075 |
Finished NL gasoline | 80,278 | ||
2-100 |
LSR/LSG | 41,978 | ||
2-101 |
Diesel | 42,051 | ||
2-102 |
No Lead Gas | 80,278 | ||
2-104 |
Reformate | 54,749 | ||
2-105 |
Cat Gas Oil | 54,954 | ||
2-118 |
Light Straight Run | 40,609 | ||
2-119 |
FCCU Cat Gas | 40,609 | ||
2-161 |
Finished Diesel | 40,485 |
Exhibit D-2
2. | The Refined Products Truck Loading Rack, including the Vapor Recovery Unit, located on the Land described under Refined Products Truck Loading Rack on Exhibit E-2 . |
3. | The two Propane Loading Spots located on the Land described under Propane Loading Spots on Exhibit E-2 . |
4. | The four Crude Oil LACTS Units located on the Land described under Crude Oil LACTS Units on Exhibit E-2 . |
5. | The Crude Receiving Pipeline located on the Land described under Crude Receiving Pipeline on Exhibit E-2 . |
Exhibit D-2
Exhibit D-3
to
Master Lease and Access Agreement
Applicable Assets: Tulsa Refinery Complex
Group 1 Assets located on the land described on Exhibit E-3
1. | The following storage tanks located at the Tulsa East Refinery: |
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 | ||
104A |
ULSD #2 (XT) | 37,500 | ||
110 |
ULSD #1 | 37,500 | ||
111 |
Kerosene | 37,500 | ||
115 |
ULSD #2 (XT) | 150,421 | ||
215 |
ULSD #2 (XT) | 150,421 | ||
116 |
Kerosene | 37,500 | ||
117 |
ULSD #2 (XT) | 63,300 | ||
450A |
Premium Unleaded | 12,574 | ||
451 |
USLD #2 (XT) | 11,700 | ||
452A |
USLD #2 (XT) | 12,000 | ||
464A |
Unleaded Regular | 73,000 | ||
465 |
Unleaded Regular | 79,320 | ||
466 |
Unleaded Regular | 79,320 | ||
467A |
Unleaded Regular | 73,000 | ||
470A |
Unleaded Regular | 151,020 | ||
472 |
Unleaded Regular | 151,000 | ||
473A |
Premium Unleaded (ST) | 151,020 | ||
601 |
Unleaded Regular | 18,634 | ||
602 |
Premium Unleaded (ST) | 10,743 | ||
603 |
Out of Service | 2,000 | ||
605 |
Ethanol | 3,528 | ||
606 |
Empty | 500 |
2. | The Asphalt Truck Loading Rack |
3. | The Propane Truck Loading Rack |
Exhibit D-3
4. | The Gasoline/Diesel/Jet Fuel Truck Loading Rack |
5. | Two Product Delivery Pipelines |
Group 2 Assets located on the land described on Exhibit E-3
6. | The following storage tanks located at the Tulsa East Refinery: |
TANK ID |
CURRENT SERVICE | CAPACITY (BBLS) | ||
1 |
Crude | 130,450 | ||
2 |
Crude | 130,000 | ||
3 |
Crude | 116,579 | ||
8 |
Crude | 130,233 | ||
123 |
CSO | 37,500 | ||
471 |
Unleaded Gasoline | 71,371 | ||
107A |
Flux/Asphalt | 55,954 | ||
108A |
Flux/Asphalt | 37,500 | ||
109 |
Flux/Asphalt | 37,500 | ||
125 |
Flux/Asphalt | 37,500 | ||
131 |
Flux/Asphalt | 37,500 | ||
442 |
Gasoline blendstock | 11,700 | ||
445A |
Gasoline blendstock | 32,787 | ||
446 |
Gasoline blendstock | 11,700 | ||
444A |
Gasoline blendstock | 32,832 | ||
460 |
LSR | 80,000 | ||
461A |
LSR | 80,000 | ||
17 |
FCCU LCO | 37,500 | ||
114 |
Raw Diesel | 131,000 | ||
9 |
Raw gas oil | 150,260 | ||
15 |
Raw gas oil | 130,000 | ||
16 |
Raw gas oil-Sour | 151,078 | ||
6A |
Raw naphtha | 69,082 | ||
4 |
Scanfiner feed | 120,566 | ||
40 |
Raw gas oil | 5,734 | ||
41 |
CSO | 4,032 | ||
34 |
Truck loading-64/22 asphalt | 11,798 | ||
36A |
Truck loading-58/28 asphalt | 11,500 | ||
124A |
Flux/Asphalt | 37,500 | ||
18A |
Slop | 37,500 | ||
31 |
Slop | 15,000 | ||
7A |
Naptha | 69,082 | ||
14 |
Naptha | 55,000 |
7. | The Rail Loading Rack |
8. | The Truck Unloading Rack |
Exhibit D-3
Exhibit D-4
to
Master Lease and Access Agreement
Applicable Assets: Woods Cross Refinery Complex
(excluding the Woods Cross Pipeline Pad)
1. | Crude oil tanks identified as numbers 103, 121 and 126 |
Exhibit D-4
Exhibit D-5
to
Master Lease and Access Agreement
Applicable Assets: Woods Cross Pipeline Pad
1. | 12 HEP to UNEV refined products pipeline origin trap and piping, associated SCADA Control building and satellite dish. |
2. | 8 HEP to Chevron refined products pipeline origin trap and piping. |
3. | 10 HEP to Pioneer refined products pipeline origin trap and piping. |
4. | All equipment, machinery, fixtures and other tangible personal property and improvements used or held for use exclusively in connection with the assets described above, to the extent currently owned by the Relevant Asset Owner. |
5. | All other assets used or held for use exclusively in connection with or constituting the assets described above, to the extent owned by the Relevant Asset Owner. |
Exhibit D-5
Exhibit D-6
to
Master Lease and Access Agreement
Applicable Assets: Navajo Refinery Complex
(excluding the Truck Rack, the Artesia Blending Station and the Artesia Pump and Receiving Stations)
1. | Crude oil tanks identified as numbers 437 and 1225 (replacement tank for tank 439) |
Exhibit D-6
Exhibit D-7
to
Master Lease and Access Agreement
Applicable Assets: Artesia Pump and Receiving Stations
1. | El Paso 8/12 Products Pipeline Originating Pump Station |
2. | Four Corners 12 Products Pipeline Originating Pump Station |
3. | Lovington 8 Pipeline Receiving Station |
4. | Lovington 10 Pipeline Receiving Station |
5. | Lovington 16 Pipeline Receiving Station |
6. | Natural Gas 8 Pipeline Receiving Station |
7. | El Paso 6 Pipeline Pump Station |
8. | Roswell 4 Pipeline Pump Station |
9. | All equipment, machinery, fixtures and other tangible personal property and improvements used or held for use exclusively in connection with the assets described above, to the extent currently owned by the Relevant Asset Owner. |
10. | All other assets used or held for use exclusively in connection with or constituting the assets described above, to the extent owned by the Relevant Asset Owner. |
Exhibit D-7
Exhibit E
to
Master Lease and Access Agreement
Description of Applicable Premises
1. | El Dorado Refinery Complex |
[See Exhibit E-1]
2. | Cheyenne Refinery Complex |
[See Exhibit E-2]
3. | Tulsa Refinery Complex |
[See Exhibit E-3]
4. | Woods Cross Refinery Complex (excluding the Woods Cross Pipeline Pad) |
[See Exhibit E-4]
5. | Woods Cross Pipeline Pad |
[See Exhibit E-5]
6. | Navajo Refinery Complex (excluding the Truck Rack, the Artesia Blending Station and the Artesia Pump and Receiving Stations) |
[See Exhibit E-6]
7. | Artesia Pump and Receiving Stations |
[See Exhibit E-7]
For the avoidance of doubt, the Applicable Premises as to Tankage includes only that portion of the land described above upon which the Applicable Assets are situated and does not extend beyond the circular footprint of such Applicable Assets, the legal descriptions set forth herein notwithstanding.
Exhibit E
Exhibit E-1
to
Master Lease and Access Agreement
[Legal Description for El Dorado Refinery Complex]
Storage Tanks
Tract 1
(Tanks 1, 2, 3, 15, and 448)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 32°3924 East a distance of 1,674.34 feet to the POINT OF BEGINNING;
THENCE North 90°0000 East a distance of 76.12 feet;
THENCE South 01°4108 East a distance of 193.10 feet;
THENCE South 87°4856 East a distance of 148.93 feet;
THENCE South 00°5818 East a distance of 135.27 feet;
THENCE North 87°3348 West a distance of 160.50 feet;
THENCE North 89°0629 West a distance of 122.95 feet;
THENCE South 00°2029 East a distance of 129.20 feet;
THENCE South 89°3257 West a distance of 97.73 feet;
THENCE North 01°1533 West a distance of 274.71 feet;
THENCE North 47°0218 East a distance of 68.31 feet;
THENCE North 90°0000 East a distance of 102.25 feet;
THENCE North 00°2909 East a distance of 133.98 feet to the POINT OF BEGINNING.
Said tract of land containing 87,220 square feet or 2.0023 acres more or less.
Exhibit E-1
Tract 2
(Tank 16)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 20°0417 East a distance of 2,155.66 feet to the POINT OF BEGINNING;
THENCE North 88°4954 East a distance of 111.73 feet;
THENCE South 00°0000 West a distance of 104.04 feet;
THENCE North 73°0107 West a distance of 114.41 feet;
THENCE North 01°5437 West a distance of 68.39 feet to the POINT OF BEGINNING.
Said tract of land containing 9,512 square feet or 0.2184 acres more or less.
Tract 3
(Tanks 17, 133, 168 and 447)
A tract of land lying in the South Half of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the Southeast Quarter of said Section 10, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 11°3546 West a distance of 1,415.56 feet to the POINT OF BEGINNING;
THENCE North 88°5416 East a distance of 969.62 feet;
THENCE South 00°1029 West a distance of 173.43 feet;
THENCE North 89°5218 West a distance of 296.67 feet;
THENCE South 00°1830 East a distance of 135.24 feet;
THENCE South 89°3945 West a distance of 664.39 feet;
THENCE North 01°4043 West a distance of 293.51 feet to the POINT OF BEGINNING.
Said tract of land containing 249,588 square feet or 5.7298 acres more or less.
Exhibit E-1
Tract 4
(Tanks 18, 19, 20, 32, 64, 65, 75, 78 and 192)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 21°4009 East a distance of 271.04 feet to the POINT OF BEGINNING;
THENCE North 90°0000 East a distance of 393.08 feet;
THENCE North 68°1237 East a distance of 124.83 feet;
THENCE South 89°2919 East a distance of 112.89 feet;
THENCE South 00°0351 East a distance of 753.65 feet;
THENCE North 89°2239 West a distance of 164.23 feet;
THENCE South 00°3723 West a distance of 164.14 feet;
THENCE South 88°5944 West a distance of 101.76 feet;
THENCE North 01°0121 West a distance of 80.96 feet;
THENCE North 89°4101 West a distance of 111.36 feet;
THENCE South 00°0043 East a distance of 221.61 feet;
THENCE North 88°4910 West a distance of 214.01 feet;
THENCE North 05°1542 West a distance of 444.99 feet;
THENCE North 01°1634 East a distance of 565.11 feet to the POINT OF BEGINNING.
Said tract of land containing 547,812 square feet or 12.5760 acres more or less.
Tract 5
(Tanks 21, 23, 24, 25, 31, 132, 225, 226, 227, 490 and 641)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 88°2426 West, along the north line of said Southwest Quarter, a distance of 1,325.13 feet;
Exhibit E-1
THENCE South 01°0334 East a distance of 367.57 feet to the POINT OF BEGINNING;
THENCE North 87°3617 East a distance of 205.95 feet;
THENCE North 01°2123 West a distance of 295.87 feet;
THENCE South 89°3150 East a distance of 254.89 feet;
THENCE South 03°5133 East a distance of 186.25 feet;
THENCE South 44°1356 West a distance of 107.82 feet;
THENCE South 00°0330 West a distance of 349.66 feet;
THENCE North 87°4025 East a distance of 332.81 feet;
THENCE North 44°2224 East a distance of 131.44 feet;
THENCE North 02°1214 West a distance of 271.63 feet;
THENCE South 90°0000 West a distance of 104.46 feet;
THENCE North 00°5720 West a distance of 250.58 feet;
THENCE North 88°2531 East a distance of 383.91 feet;
THENCE South 02°2823 East a distance of 305.23 feet;
THENCE South 73°4344 East a distance of 150.78 feet;
THENCE South 07°5003 East a distance of 396.39 feet;
THENCE South 87°4029 West a distance of 586.33 feet;
THENCE South 03°0015 East a distance of 378.52 feet;
THENCE South 88°3724 West a distance of 660.09 feet;
THENCE North 03°2206 West a distance of 360.11 feet;
THENCE North 00°4750 East a distance of 117.28 feet;
THENCE North 34°4244 West a distance of 71.74 feet;
THENCE North 01°0334 West a distance of 292.29 feet to the POINT OF BEGINNING.
Said tract of land containing 861,557 square feet or 19.7786 acres more or less.
Exhibit E-1
Tract 6
(Tanks 215, 216 and 220)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of said Southwest Quarter bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 88°2426 West, along the north line of said Southwest Quarter, a distance of 1,325.13 feet;
THENCE South 01°0334 East a distance of 659.86 feet;
THENCE South 88°2251 West a distance of 69.13 feet to the POINT OF BEGINNING;
THENCE South 00°2341 East a distance of 649.43 feet;
THENCE South 51°5401 West a distance of 129.14 feet;
THENCE South 01°5731 East a distance of 116.60 feet;
THENCE South 42°4935 East a distance of 148.03 feet;
THENCE South 00°1842 West a distance of 187.73 feet;
THENCE South 88°1437 West a distance of 301.63 feet;
THENCE North 02°2843 West a distance of 1,142.50 feet;
THENCE North 88°2251 East a distance of 344.60 feet to the POINT OF BEGINNING.
Said tract of land containing 348,642 square feet or 8.0037 acres more or less.
Tract 7
(Tanks 219, 221, 222, 223, 224, 250, 251, and 252)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 88°2426 West, along the north line of said Southwest Quarter, a distance of 1,325.13 feet;
THENCE South 01°0334 East a distance of 659.86 feet;
THENCE South 88°2251 West a distance of 543.81 feet to the POINT OF BEGINNING;
Exhibit E-1
THENCE South 00°1326 West a distance of 212.34 feet;
THENCE South 50°3542 West a distance of 96.96 feet;
THENCE South 00°1906 West a distance of 133.48 feet;
THENCE South 61°1516 East a distance of 95.60 feet;
THENCE South 02°5818 East a distance of 1,328.34 feet;
THENCE South 45°0029 West a distance of 167.07 feet;
THENCE North 82°3414 West a distance of 168.65 feet;
THENCE North 29°0828 West a distance of 126.92 feet;
THENCE North 02°2520 West a distance of 642.84 feet;
THENCE North 89°4754 West a distance of 350.79 feet;
THENCE North 01°5516 West a distance of 1,103.08 feet;
THENCE North 88°2251 East a distance of 686.21 feet to the POINT OF BEGINNING.
Said tract of land containing 998,424 square feet or 22.9207 acres more or less.
Tract 8
(Tank 218)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 34°0337 West a distance of 2,849.63 feet to the POINT OF BEGINNING;
THENCE South 88°5622 East a distance of 86.29 feet;
THENCE South 52°2325 East a distance of 114.29 feet;
THENCE South 04°0010 East a distance of 129.69 feet;
THENCE South 87°4737 West a distance of 262.75 feet;
THENCE North 04°1110 West a distance of 131.33 feet;
THENCE North 47°1238 East a distance of 117.57 feet to the POINT OF BEGINNING.
Said tract of land containing 47,374 square feet or 1.0876 acres more or less.
Exhibit E-1
Tract 9
(Tanks 134, 649, 137, 138 and 139)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 40°3807 West a distance of 1,838.56 feet to the POINT OF BEGINNING;
THENCE North 89°5255 East a distance of 626.05 feet;
THENCE South 38°4527 East a distance of 142.27 feet;
THENCE South 00°3429 West a distance of 514.76 feet;
THENCE South 37°4151 West a distance of 200.54 feet;
THENCE South 88°3707 West a distance of 324.57 feet;
THENCE South 01°2413 East a distance of 445.50 feet;
THENCE South 87°4239 West a distance of 227.55 feet;
THENCE North 41°3902 West a distance of 131.37 feet;
THENCE North 01°2052 West a distance of 1,059.76 feet;
THENCE North 36°5311 East a distance of 109.68 feet to the POINT OF BEGINNING.
Said tract of land containing 727,128 square feet or 16.6926 acres more or less.
Tract 10
(Tanks 142 and 143)
A tract of land lying in the Northwest Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Northwest Quarter of Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE South 09°5701 East a distance of 492.35 feet to the POINT OF BEGINNING;
THENCE North 88°2925 East a distance of 502.80 feet;
THENCE South 62°4057 East a distance of 63.92 feet;
Exhibit E-1
THENCE South 02°5850 East a distance of 345.87 feet;
THENCE South 86°2048 West a distance of 564.35 feet;
THENCE North 02°0246 West a distance of 397.70 feet to the POINT OF BEGINNING.
Said tract of land containing 216,393 square feet or 4.9677 acres more or less.
Tract 11
(Tanks 254, 255 and 256)
A tract of land lying in the Northwest Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Northwest Quarter of Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE South 79°1507 East a distance of 773.84 feet to the POINT OF BEGINNING;
THENCE North 86°2846 East a distance of 53.25 feet;
THENCE South 02°4648 East a distance of 84.29 feet;
THENCE South 00°2557 East a distance of 216.62 feet;
THENCE South 90°0000 West a distance of 101.39 feet;
THENCE North 02°3759 West a distance of 213.57 feet;
THENCE North 85°3203 East a distance of 52.49 feet;
THENCE North 00°0000 East a distance of 80.11 feet to the POINT OF BEGINNING.
Said tract of land containing 27,360 square feet or 0.6281 acres more or less.
Tract 12
(Tanks 178, 212, 213, 230, and 231)
A tract of land lying in the Northeast Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the Northwest Quarter of said Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE South 85°0615 East a distance of 2,940.18 feet to the POINT OF BEGINNING;
Exhibit E-1
THENCE North 86°0354 East a distance of 311.95 feet;
THENCE North 01°2353 West a distance of 20.44 feet;
THENCE North 89°5517 East a distance of 90.83 feet;
THENCE South 05°3323 East a distance of 56.08 feet;
THENCE South 56°0510 West a distance of 250.51 feet;
THENCE South 02°2410 East a distance of 390.70 feet;
THENCE South 88°5511 West a distance of 200.37 feet;
THENCE North 01°3452 West a distance of 547.97 feet to the POINT OF BEGINNING.
Said tract of land containing 132,389 square feet or 3.0392 acres more or less.
Tract 13
(Tanks 159 and 167)
A tract of land lying in the Northeast Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the Northwest Quarter of said Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE North 88°4303 East a distance of 3,230.68 feet to the POINT OF BEGINNING;
THENCE North 84°5040 East a distance of 88.48 feet;
THENCE South 01°5055 East a distance of 151.75 feet;
THENCE South 87°4239 West a distance of 91.86 feet;
THENCE North 00°2833 West a distance of 147.39 feet to the POINT OF BEGINNING.
Said tract of land containing 13,468 square feet or 0.3092 acres more or less.
Tract 14
(Tanks 243 and 244)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
Exhibit E-1
THENCE South 02°1428 West a distance of 2,082.09 feet to the POINT OF BEGINNING;
THENCE South 88°2554 East a distance of 75.95 feet;
THENCE South 00°1420 East a distance of 124.74 feet;
THENCE South 90°0000 West a distance of 50.44 feet;
THENCE North 43°2626 West a distance of 40.08 feet;
THENCE North 00°5453 East a distance of 97.72 feet to the POINT OF BEGINNING.
Said tract of land containing 9,302 square feet or 0.2135 acres more or less.
Tract 15
(Tank 127)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 06°2834 East a distance of 2,059.89 feet to the POINT OF BEGINNING;
THENCE North 88°1023 East a distance of 71.34 feet;
THENCE South 00°0000 West a distance of 75.05 feet;
THENCE South 88°0647 West a distance of 69.07 feet;
THENCE North 01°4412 West a distance of 75.09 feet to the POINT OF BEGINNING.
Said tract of land containing 5,269 square feet or 0.1210 acres more or less.
Tract 16
(Tanks 29, 30 and 66)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 03°4200 East a distance of 1,759.51 feet to the POINT OF BEGINNING;
THENCE North 90°0000 East a distance of 403.67 feet;
Exhibit E-1
THENCE South 00°2216 East a distance of 330.67 feet;
THENCE North 89°2846 West a distance of 117.79 feet;
THENCE North 33°5644 West a distance of 141.90 feet;
THENCE West a distance of 200.23 feet;
THENCE North 02°1854 West a distance of 212.06 feet to the POINT OF BEGINNING.
Said tract of land containing 103,314 square feet or 2.3718 acres more or less.
Tract 17
(Tank 453)
A tract of land lying in the Southeast Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Southeast Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 23°1501 East a distance of 2,282.23 feet to the POINT OF BEGINNING;
THENCE North 80°3800 East a distance of 79.33 feet;
THENCE South 02°4341 East a distance of 79.83 feet;
THENCE South 87°4400 West a distance of 76.81 feet;
THENCE North 04°2113 West a distance of 70.07 feet to the POINT OF BEGINNING.
Said tract of land containing 5,834 square feet or 0.1339 acres more or less.
Tract 18
(Tanks 253)
A tract of land lying in the Northwest Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Northwest Quarter of Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE South 86°5128 East a distance of 958.25 feet to the POINT OF BEGINNING;
THENCE North 87°0038 East a distance of 220.65 feet;
THENCE South 03°0049 East a distance of 218.94 feet;
Exhibit E-1
THENCE South 90°0000 West a distance of 223.64 feet;
THENCE North 02°1623 West a distance of 207.30 feet to the POINT OF BEGINNING.
Said tract of land containing 47,316 square feet or 1.0862 acres more or less.
Tract 19
(Tanks 457 and 458)
A tract of land lying in the Northwest Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the said Northwest Quarter of Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE South 55°2456 East a distance of 937.55 feet to the POINT OF BEGINNING;
THENCE North 88°2738 East a distance of 153.75 feet;
THENCE South 02°1934 East a distance of 325.75 feet;
THENCE South 89°0340 West a distance of 151.24 feet;
THENCE North 02°4632 West a distance of 324.21 feet to the POINT OF BEGINNING.
Said tract of land containing 49,544 square feet or 1.1374 acres more or less.
Tract 20
(Tank 640)
A tract of land lying in the Northeast Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the Northwest Quarter of said Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE North 88°2837 East a distance of 2,901.96 feet to the POINT OF BEGINNING;
THENCE continuing North 88°2837 East a distance of 161.88 feet;
THENCE South 01°0907 East a distance of 166.25 feet;
THENCE South 89°4948 West a distance of 161.29 feet;
THENCE North 01°2157 West a distance of 162.44 feet to the POINT OF BEGINNING.
Exhibit E-1
Said tract of land containing 26,553 square feet or 0.6096 acres more or less.
Tract 21
(Tank 647)
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 88°2426 West, along the north line of said Southwest Quarter, a distance of 869.29 feet;
THENCE South 03°5133 East a distance of 264.28 feet;
THENCE South 44°1356 West a distance of 107.82 feet to the POINT OF BEGINNING;
THENCE North 90°0000 East a distance of 414.78 feet;
THENCE South 02°1214 East a distance of 242.38 feet;
THENCE South 44°2224 West a distance of 131.44 feet;
THENCE South 87°4025 West a distance of 332.81 feet;
THENCE North 00°0330 East a distance of 349.66 feet to the POINT OF BEGINNING.
Said tract of land containing 139,420 square feet or 3.2006 acres, more or less.
Refined Products Truck Loading Rack
Tract 22
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the southwest corner of the said Southwest Quarter of Section 10, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE North 33°2624 East a distance of 92.46 feet to the POINT OF BEGINNING;
THENCE North 00°5402 West a distance of 138.96 feet;
Exhibit E-1
THENCE North 06°1519 West a distance of 148.36 feet;
THENCE North 01°0000 West a distance of 339.22 feet;
THENCE North 01°5923 West a distance of 106.61 feet;
THENCE North 89°0314 East a distance of 359.11 feet;
THENCE South 00°5413 East a distance of 376.13 feet;
THENCE South 86°1459 West a distance of 11.84 feet;
THENCE South 00°5700 East a distance of 387.49 feet;
THENCE South 89°2608 West a distance of 309.78 feet;
THENCE North 36°4424 West a distance of 36.56 feet to the POINT OF BEGINNING.
Said tract of land containing 264,128 square feet or 6.0635 acres more or less.
Propane Tank Loading Rack and Tanks 600-621
Tract 23
A tract of land lying in the Southeast Quarter of Section 9, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the southeast corner of the said Southeast Quarter of Section 9, from whence the northeast corner of the Southeast Quarter of Section 9, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE North 08°0404 West a distance of 963.22 feet to the POINT OF BEGINNING;
THENCE South 88°5602 West a distance of 354.67 feet;
THENCE North 01°3106 West a distance of 361.38 feet;
THENCE North 45°3452 West a distance of 273.12 feet;
THENCE North 00°5306 West a distance of 297.39 feet;
THENCE North 88°5001 East a distance of 548.73 feet;
THENCE South 01°0116 East a distance of 854.46 feet to the POINT OF BEGINNING.
Said tract of land containing 380,628 square feet or 8.7380 acres more or less.
Exhibit E-1
Tract 24
Tank #651
A tract of land lying in the Northeast Quarter of Section 15, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northwest corner of the Northwest Quarter of said Section 15, from whence the northwest corner of the Southwest Quarter of Section 10, T26S, R5E, Sixth Principal Meridian bears North 00°5511 West a distance of 2644.19 feet;
THENCE North 88°2837 East a distance of 3,063.84 feet to the POINT OF BEGINNING;
THENCE continuing North 88°2837 East a distance of 167.06 feet;
THENCE South 00°2833 East a distance of 160.96 feet;
THENCE South 86°3813 West a distance of 165.28 feet;
THENCE North 01°0907 West a distance of 166.25 feet to the POINT OF BEGINNING.
Said tract of land containing 27,171 square feet or 0.6238 acres more or less.
Tract 25
Tank #643
A tract of land lying in the Southwest Quarter of Section 10, Township 26 South, Range 5 East of the Sixth Principal Meridian, Butler County, Kansas, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southwest Quarter, from whence the northwest corner of the Southwest Quarter of said Section 10 bears South 88°2426 West a distance of 2650.26 feet;
THENCE South 37°0232 West a distance of 2,428.29 feet to the POINT OF BEGINNING;
THENCE South 36°1859 East a distance of 131.19 feet;
THENCE South 26°3451 West a distance of 183.71 feet;
THENCE South 90°0000 West a distance of 225.00 feet;
THENCE North 00°0000 East a distance of 270.00 feet;
THENCE North 90°0000 East a distance of 229.51 feet to the POINT OF BEGINNING.
Said tract of land containing 72,086 square feet or 1.6549 acres more or less.
Exhibit E-1
Exhibit E-2
to
Master Lease and Access Agreement
[Legal Description for Cheyenne Refinery Complex]
Refined Products Truck Loading Rack
Parcel 1
(Refined Products Truck Loading Rack)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel defined at the Refined Products Loading Rack. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner of said parcel, said corner being 2618.15 feet S42°5248W of the NE corner of Section 5; thence S77°1249E a distance of 263.13 feet (80.201 meters) to a point; thence S26°1216E a distance of 367.85 feet (112.122 meters) to a point; thence S 63°4744W a distance of 250.00 feet (76.200 meters) to a point; thence N26°1216W a distance of 533.41 feet (162.584 meters) to a point; thence N63°4744E a distance of 45.49 feet (13.864 meters) to the Point of Beginning.
The above parcel of land containing 2.7 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Storage Tanks
Parcel 2
(Tanks 1-013, 1-014, 1-015, 1-016, 1-017, 1-021, 1-027, 1-028,
1-032, 1-033, 1-040, 1-048, 1-049, 1-106, 1-107 and 1-108)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following tanks: 106, 107, 13, 14, 15, 16, 17, 21, 27, 28, 32, 33, 40, 48, 49 and 108. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 2401.59 feet S48°2749W of the NE corner of Section 5; thence N63°4926E a distance of 220.00 feet (67.056 meters) to a point; thence N26°12 16W a distance of 100.00 feet (30.48 meters) to a point; thence N63°4926E a distance of 245.00 feet (74.676 meters) to a point; thence S26°1216E a distance of 634.22 feet (193.311 meters) to a point; thence N63°4744E a distance of 85.00 feet (25.908 meters) to a point; thence S26°1216E a distance of 90.00 feet (27.432 meters) to a point; thence S63°4744W a distance of 90.00 feet (27.432 meters) to a point; thence S26°1216E a distance of 195.55 feet (59.603 meters) to a point; thence S63°5607W a distance of 50.00 feet (15.240 meters) to a point; thence N26°1216W a distance of 195.42 feet (59.566 meters) to a point; thence S63°4744W a distance of 75.00 feet (22.860 meters) to a point; thence S26°1216E a distance of 85.00 feet (25.908 meters) to a point; thence S63°4744W a distance of 189.94 feet (57.893 meters) to a point; thence N26°1216W a distance of 85.00 feet (25.908 meters) to a point; thence N63°4744E a distance of 100.03 feet (30.490 meters) to a point; thence N26°1034W a distance of 90.00 feet (27.432 meters) to a point; thence S63°4744W a distance of 100.00 feet (30.480 meters)
Exhibit E-2
to a point; thence N26°1034W a distance of 279.49 feet (85.189 meters) to a point; thence S63°4744W a distance of 145.28 feet (44.281 meters) to a point; thence N26°1216W a distance of 254.96 feet (77.713 meters) to a point, said point being the Point of Beginning.
The above parcel of land containing 6.0 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Parcel 3
(Tank Nos. 1-020, 1-029, 1-050, 1-051, 1-052, 1-053,
1-054, 1-055, 1-056, 1-058, 1-090 and 1-091)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following tanks: 90, 91, 56, 50, 51, 54, 52, 55, 53, 58, 20, and 29. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 1892.53 feet S46°2453W of the NE corner of Section 5; to a point; thence N63°4444E a distance of 313.33 feet (95.502 meters) to a point; thence S26°0353E a distance of 142.48 feet (43.429 meters) to a point; thence N 63°5607E a distance of 140.00 feet (42.672 meters) to a point; thence S26°0353E a distance of 367.00 feet (111.862 meters) to a point; thence S 26°0353E a distance of 184.57 feet (56.257 meters) to a point; thence S 63°4744W a distance of 321.63 feet (98.034 meters) to a point; thence N26°1216W a distance of 90.00 feet (27.432 meters) to a point; thence N 63°4744E a distance of 35.00 feet (10.668 meters) to a point; thence N26°1216W a distance of 129.27 feet (39.400 meters) to a point; thence N63°4444E a distance of 80.00 feet (24.384 meters) to a point; thence N26°1216W a distance of 165.00 feet (50.292 meters) to a point; thence S63°4444W a distance of 245.00 feet (74.676 meters) to a point; thence N26°1216W a distance of 310.00 feet (94.488 meters) to the Point of Beginning.
The above parcel of land containing 5.1 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Parcel 4
(Tank Nos. 1-093, 1-094, & 1-095)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following Tanks: 93, 94, and 95. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 2051.54 feet S18°1049W of the NE corner of Section 5; to a point; thence N63°5607E a distance of 80.00 feet (24.384 meters) to a point; thence S26°0353E a distance of 70.26 feet (21.415 meters) to a point; thence southeast a distance of 9.74 feet (2.969 meters) along a tangential curve concave northeast having a radius of 3065.00 feet (934.214 meters) and a central angle of 00°1056; to a point; thence S63°5607W a distance of 80.02 feet (24.389 meters) to a point; thence N26°0353W a distance of 80.00 feet (24.384 meters) to the Point of Beginning.
The above parcel of land containing 0.1 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Exhibit E-2
Parcel 6
(Tank Nos. 2-015, 2-016, 2-017, 2-020, 2-021, 2-022, 2-023, 2-028,
2-034, 2-035, 2-036, 2-070, 2-071, 2-100, 2-101, 2-102, 2-104 and 2-105)
A parcel situate in the NE1/4 of Section 5 and the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following tanks: 15, 16, 17, 20, 21, 22, 23, 28, 34, 35, 36, 70, 71, 100, 101, 102, 104, and 105. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 1047.11 feet S39°1459W of the NE corner of Section 5; to a point; thence N63°4710E a distance of 736.38 feet (224.450 meters) to a point; thence N63°4710E a distance of 89.79 feet (27.368 meters) to a point; thence east a distance of 155.88 feet (47.513 meters) along a non-tangential curve concave north having a radius of 6010.00 feet (1831.852 meters) and a central angle of 1°2910; to a point; thence S00°0000E a distance of 191.71 feet (58.435 meters) to a point; thence S90°0000E a distance of 80.00 feet (24.384 meters) to a point; thence S00°0000W a distance of 95.00 feet (28.956 meters) to a point; thence N90°0000W a distance of 180.00 feet (54.864 meters) to a point; thence S00°0000W a distance of 195.00 feet (59.436 meters) to a point; thence N90°0000W a distance of 135.00 feet (41.148 meters) to a point; thence S00°0000W a distance of 90.00 feet (27.432 meters) to a point; thence N89°4114W a distance of 303.77 feet (92.589 meters) to a point; thence S00°1846W a distance of 155.00 feet (47.244 meters) to a point; thence N82°0449W a distance of 169.19 feet (51.570 meters) to a point; thence N26°0353W a distance of 419.99 feet (128.014 meters) to the Point of Beginning.
The above parcel of land containing 8.9 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Parcel 7
(Tank Nos. 2-060, 2-061, 2-062, 2-063 and 2-067)
A parcel situate in the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following tanks: 60, 61, 62, 63, 67. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 991.00 feet S09°1444E of the NE corner of Section 5; to a point; thence N00°0000E a distance of 130.00 feet (39.624 meters) to a point; thence S90°0000E a distance of 175.00 feet (53.340 meters) to a point; thence S00°0000W a distance of 75.00 feet (22.860 meters) to a point; thence N90°0000W a distance of 65.00 feet (19.812 meters) to a point; thence S00°0000W a distance of 55.00 feet (16.764 meters) to a point; thence N90°0000W a distance of 110.00 feet (33.528 meters) to the Point of Beginning.
The above parcel of land containing 0.4 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Exhibit E-2
Parcel 8
(Tank Nos. 2-072, 2-073, 2-074 and 2-075)
A parcel situate in the NE1/4 of Section 5 and the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the following tanks: 72, 73, 74, and 75. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner, said corner being 1448.28 feet S15°0004W of the NE corner of Section 5; said corner monumented by a 3 ⁄ 4 × 24 rebar with a 1 1 ⁄ 2 aluminum cap stamped PE PLS 9283; thence N63°5607E a distance of 147.49 feet (44.956 meters) to a point; thence S26°0353E a distance of 245.00 feet (74.676 meters) to a point; thence N63°5607E a distance of 220.00 feet (67.056 meters) to a point; thence S26°0353E a distance of 400.00 feet (121.920 meters) to a point; thence S63°5607W a distance of 160.00 feet (48.768 meters) to a point; thence N26°0353W a distance of 310.00 feet (94.488 meters) to a point; thence S63°5607W a distance of 207.49 feet (63.244 meters) to a point; thence N26°0353W a distance of 269.50 feet (82.144 meters) to a point; thence N26°0353W a distance of 65.50 feet (19.964 meters) to the Point of Beginning.
The above parcel of land containing 2.7 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Crude Oil LACTS Units
Parcel 5
(Four Crude Oil LACTS Units)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel encompassing the Crude LACTS Unit. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner, said corner being 1435.52 feet S27°1555W of the NE corner of Section 5; to a point; thence N63°5607E a distance of 160.00 feet (48.768 meters) to a point; thence S67°3222E a distance of 135.21 feet (41.212 meters) to a point; thence S47°2857W a distance of 260.20 feet (79.310 meters) to a point; thence N26°0353W a distance of 175.00 feet (53.340 meters) to the Point of Beginning.
The above parcel of land containing 0.7 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Propane Loading Spots
Parcel 9
(Two Propane Loading Spots)
A parcel situate in the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel defined as the LPG Loading & Unloading Dock. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner, said corner being 3728.67 feet S74°5331W of the NE corner of Section 4; thence S02°5225W a distance of 200.00 feet (60.960 meters); thence N87°0735W a distance of 50.00 feet (15.240 meters); thence N02°5225E a distance of 200.00 feet (60.960 meters); thence S87°0735E a distance of 50.00 feet (15.240 meters) to the Point of Beginning.
Exhibit E-2
The above parcel of land containing 0.2 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Crude Receiving Pipeline
Parcel 10
(Pipeline Easement)
A parcel situate in the NW1/4 of Section 4 and the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. Said parcel defined at the Pipeline Easement. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner of said parcel, said corner being 527.07 feet S04°3650W of the NE corner of Section 5; thence S85°0051E a distance of 57.02 feet (17.379 meters) to a point; thence S00°3813W a distance of 598.12 feet (182.309 meters) to a point; thence S88°5422W a distance of 41.07 feet (12.519 meters) to a point; thence S02°2056W a distance of 70.33 feet (21.436 meters) to a point; thence N87°3904W a distance of 9.17 feet (2.796 meters) to a point; thence S23°4220W a distance of 70.42 feet (21.464 meters) to a point; thence S60°1901E a distance of 44.53 feet (13.572 meters) to a point; thence S09°5215E a distance of 134.30 feet (40.935 meters) to a point; thence S04°0832E a distance of 86.91 feet (26.490 meters) to a point; thence S65°2334W a distance of 93.43 feet (28.477 meters) to a point; thence S24°3626E a distance of 13.79 feet (4.203 meters) to a point; thence S78°1841E a distance of 58.03 feet (17.686 meters) to a point; thence S11°4119W a distance of 20.00 feet (6.096 meters) to a point; thence N78°1841W a distance of 43.34 feet (13.209 meters) to a point; thence S24°3626E a distance of 62.13 feet (18.938 meters) to a point; thence S61°5406W a distance of 56.80 feet (17.314 meters) to a point; thence N27°0841W a distance of 32.02 feet (9.760 meters) to a point; thence S63°2956W a distance of 47.36 feet (14.436 meters) to a point; thence N50°4404W a distance of 22.69 feet (6.916 meters) to a point; thence N39°1556E a distance of 20.00 feet (6.096 meters) to a point; thence S50°4404E a distance of 9.76 feet (2.975 meters) to a point; thence N63°2955E a distance of 71.65 feet (21.838 meters) to a point; thence N25°0254W a distance of 53.17 feet (16.205 meters) to a point; thence N77°3815W a distance of 110.08 feet (33.552 meters) to a point; thence N29°5848W a distance of 25.55 feet (7.786 meters) to a point; thence N56°0726E a distance of 17.11 feet (5.214 meters) to a point; thence N11°5504W a distance of 25.72 feet (7.838 meters) to a point; thence N56°5504W a distance of 7.69 feet (2.344 meters) to a point; thence N33°0456E a distance of 20.00 feet (6.096 meters) to a point; thence S56°5504E a distance of 15.98 feet (4.869 meters) to a point; thence S11°5504E a distance of 55.35 feet (16.870 meters) to a point; thence S77°3815E a distance of 85.38 feet (26.025 meters) to a point; thence N65°2334E a distance of 91.95 feet (28.028 meters) to a point; thence N04°0832W a distance of 72.03 feet (21.953 meters) to a point; thence N09°5215W a distance of 123.88 feet (37.759 meters) to a point; thence N60°1901W a distance of 53.12 feet (16.192 meters) to a point; thence N23°4220E a distance of 109.85 feet (33.483 meters) to a point; thence N02°2056E a distance of 61.93 feet (18.876 meters) to a point; thence N88°5422E a distance of 40.50 feet (12.345 meters) to a point; thence N00°3813E a distance of 560.18 feet (170.744 meters) to a point; thence N85°0051W a distance of 38.48 feet (11.729 meters) to a point; thence N04°5907E a distance of 20.00 feet (6.096 meters) to the Point of Beginning.
The above parcel of land containing 0.8 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Exhibit E-2
Parcel 11
(Tank No. 1-117)
A parcel situate in the NE1/4 of Section 5, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner of said parcel, said corner being 1466.20 feet S41°0646W of the NE corner of Section 5; thence S26°0353E a distance of 142.48 feet to a point; thence S63°5607E a distance of 140.00 feet to a point; thence N26°0353W a distance of 142.48 feet to a point; thence N63°5607E a distance of 140.00 feet to the Point of Beginning.
The above parcel of land containing 0.46 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Parcel 12
(Tank #2-118)
A parcel situate in the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner of said parcel, said corner being 783.85 feet S09°2920E of the NW corner of Section 4; thence N90°0000E a distance of 102.50 feet to a point; thence S00°0000E a distance of 102.50 feet to a point; thence N90°0000W a distance of 102.50 feet to a point; thence N00°0000E a distance of 102.50 feet to the Point of Beginning.
The above parcel of land containing 0.24 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Parcel 13
(Tank #2-119)
A parcel situate in the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. The boundary of said parcel being more particularly described as follows:
Beginning at the northeast corner of said parcel, said corner being 976.71 feet S07°3610E of the NW corner of Section 4; thence S00°0000E a distance of 10.00 feet to a point; thence N90°0000E a distance of 30.00 feet to a point; thence S00°0000E a distance of 130.00 feet to a point; thence N90°0000W a distance of 165.27 feet to a point; thence N0°0642E a distance of 140.00 feet to a point; thence N90°0000E a distance of 135.00 feet to the Point of Beginning.
The above parcel of land containing 0.52 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Exhibit E-2
PARCEL 14
Tank #2-161
A parcel situate in the NW1/4 of Section 4, Township 13 North, Range 66 West, of the Sixth Principle Meridian, Laramie County, Wyoming. The boundary of said parcel being more particularly described as follows:
Beginning at the northwest corner of said parcel, said corner being 905.77 feet S14°4922E of the NW corner of Section 4; thence N90°0000E a distance of 102.50 feet to a point; thence S00°0000E a distance of 102.50 feet to a point; thence N90°0000W a distance of 102.5 feet to a point; thence N00°0000E a distance of 102.50 feet to the Point of Beginning.
The above parcel of land containing 0.24 acres more or less and subject to all easements and or rights of way that may have been legally acquired.
Exhibit E-2
Exhibit E-3
to
Master Lease and Access Agreement
[Legal Description for Tulsa Refinery Complex]
HEP AREA 1
A tract of land lying in the East Half of the Northwest Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at southwest corner of the East Half of the Northwest Quarter of said Section 23;
THENCE North 00°5411 West, along the west line of the East Half of the Northwest Quarter of said Section 23, a distance of 50.00 feet to the POINT OF BEGINNING;
THENCE continuing North 00°5411 West, along said west line, a distance of 568.06 feet;
THENCE North 89°3018 East a distance of 209.09 feet;
THENCE North 46°0738 East a distance of 26.81 feet;
THENCE North 00°0525 West a distance of 70.74 feet;
THENCE North 89°2448 East a distance of 133.17 feet;
THENCE South 00°0525 East a distance of 87.50 feet;
THENCE North 89°2448 East a distance of 138.57 feet;
THENCE South 39°0810 East a distance of 13.47 feet;
THENCE South 01°0624 East a distance of 559.60 feet to a point on the northerly right-of-way line of West 35 th Place as established by that certain QUIT CLAIM DEED in favor of Tulsa County recorded in Book 240, Page 133, Tulsa County records;
THENCE South 89°2957 West, along said northerly right-of-way line, a distance of 510.53 feet to the POINT OF BEGINNING.
Said tract containing 301,738 square feet or 6.9270 acres more or less.
Exhibit E-3
HEP AREA 2
A tract of land lying in the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at southwest corner of the East Half of the Northwest Quarter of said Section 23;
THENCE North 89°2957 East, along the south line of the Northwest Quarter of said Section 23, a distance of 1,329.11 feet to the southwest corner of the Northeast Quarter of said Section 23;
THENCE North 00°5858 West, along the west line of the said Northeast Quarter, a distance of 2,650.41 feet to the northwest corner of the said Northeast Quarter;
THENCE North 89°1556 East, along the north line of said Northeast Quarter, a distance of 142.62 feet;
THENCE South 00°4227 East a distance of 15.00 feet to the POINT OF BEGINNING;
THENCE North 89°1733 East a distance of 100.00 feet;
THENCE South 00°4227 East a distance of 63.39 feet;
THENCE South 89°1733 West a distance of 100.00 feet;
THENCE North 00°4227 West a distance of 63.39 feet to the POINT OF BEGINNING.
Said tract containing 6,339 square feet or 0.1455 acres more or less.
HEP AREA 2A (Tank 36A)
A tract of land lying in the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, and being more particularly described as follows:
COMMENCING at the northwest corner of said Northeast Quarter;
THENCE North 89°1734 East, along the north line of said Northeast Quarter, a distance of 54.77 feet;
THENCE South 00°5859 East a distance of 194.44 feet to the POINT OF BEGINNING;
THENCE North 89°0101 East a distance of 100.00 feet;
THENCE South 00°5859 East a distance of 110.00 feet;
THENCE South 89°0101 West a distance of 100.00 feet;
THENCE North 00°5859 West a distance of 110.00 feet to the POINT OF BEGINNING.
Said tract of land containing 11,000 square feet or 0.2525 acres more or less.
Exhibit E-3
HEP AREA 3
A tract of land lying in the East Half of the Northwest Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at southwest corner of the East Half of the Northwest Quarter of said Section 23;
THENCE North 00°5411 West, along the west line of the East Half of the Northwest Quarter of said Section 23, a distance of 1,626.70 feet;
THENCE North 89°0549 East a distance of 506.89 feet to the POINT OF BEGINNING;
THENCE North 00°4421 West a distance of 801.29 feet;
THENCE North 85°1800 East a distance of 84.27 feet;
THENCE South 83°3138 East a distance of 117.32 feet;
THENCE South 77°4015 East a distance of 167.89 feet;
THENCE South 82°2257 East a distance of 82.28 feet;
THENCE South 00°0934 West a distance of 740.74 feet;
THENCE South 89°0116 West a distance of 433.79 feet to the POINT OF BEGINNING.
Said tract containing 343,387 square feet or 7.8831 acres more or less.
HEP AREA 4
A tract of land lying in the East Half of the Southwest Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at northwest corner of the East Half of the Southwest Quarter of said Section 14;
THENCE South 01°1344 East, along the west line of the East Half of the Southwest Quarter of said Section 14, a distance of 737.49 feet to the POINT OF BEGINNING;
THENCE North 89°5505 East a distance of 264.65 feet;
THENCE North 01°2111 West a distance of 401.49 feet;
THENCE North 88°5911 East a distance of 401.89 feet;
THENCE South 01°1538 East a distance of 401.87 feet;
THENCE North 89°0513 East a distance of 387.71 feet;
THENCE South 01°0502 East a distance of 1,179.39 feet;
Exhibit E-3
THENCE South 89°0559 West a distance of 387.07 feet;
THENCE North 01°3014 West a distance of 795.92 feet;
THENCE South 88°0421 West a distance of 395.99 feet;
THENCE South 01°2123 East a distance of 787.85 feet;
THENCE South 89°1945 West a distance of 265.47 feet to a point on the west line of the East Half of the Southwest Quarter of said Section 14;
THENCE North 01°1344 West, along said west line, a distance of 1,180.67 feet to the POINT OF BEGINNING.
Said tract containing 1,087,366 square feet or 24.9625 acres more or less.
HEP AREA 5
A tract of land lying in the Southeast Quarter of Section 14, and Government Lots 5 and 6 of Section 13, all in Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at the northeast corner of the Southeast Quarter of said Section 14;
THENCE South 01°1759 East, along the common line between said Sections 14 and 13, a distance of 712.02 feet to the POINT OF BEGINNING;
THENCE North 89°4122 East a distance of 298.19 feet;
THENCE South 16°3634 East a distance of 394.53 feet;
THENCE South 11°2912 East a distance of 374.39 feet;
THENCE South 88°3753 West a distance of 538.01 feet;
THENCE South 00°1017 East a distance of 375.72 feet;
THENCE North 88°3624 East a distance of 409.94 feet;
THENCE South 00°3651 East a distance of 253.54 feet;
THENCE South 69°2144 West a distance of 246.03 feet;
THENCE North 86°1914 West a distance of 98.24 feet;
THENCE South 63°3726 West a distance of 218.69 feet;
THENCE South 58°3558 West a distance of 258.38 feet;
THENCE North 22°0114 West a distance of 130.35 feet;
Exhibit E-3
THENCE North 02°2732 West a distance of 421.71 feet;
THENCE North 00°5539 West a distance of 1,127.66 feet;
THENCE North 85°4523 East a distance of 225.17 feet;
THENCE North 89°4122 East a distance of 244.09 feet to the POINT OF BEGINNING.
Said tract containing 1,108,516 square feet or 25.4480 acres more or less.
HEP AREA 6
A tract of land lying in the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at the northeast corner of the Southeast Quarter of said Section 14;
THENCE South 01°1759 East, along the east line of the Southeast Quarter of said Sections 14, a distance of 1,300.40 feet;
THENCE South 88°4201 West a distance of 878.08 feet to the POINT OF BEGINNING;
THENCE South 89°1716 West a distance of 128.55 feet;
THENCE North 00°0803 East a distance of 318.24 feet;
THENCE East a distance of 122.24 feet;
THENCE South 01°0016 East a distance of 316.69 feet to the POINT OF BEGINNING.
Said tract containing 39,805 square feet or 0.9138 acres more or less.
HEP OTHER ASSETS
A tract of land lying in the East Half of the Northwest Quarter and the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Northwest Quarter, said point also being the northwest corner of the said Northeast Quarter;
THENCE South 00°5859 East, along the common line between the Northwest Quarter and the Northeast Quarter, a distance of 564.68 feet to the POINT OF BEGINNING;
THENCE North 88°5333 East a distance of 13.95 feet;
THENCE South 00°5002 East a distance of 1,507.22 feet;
Exhibit E-3
THENCE South 89°4224 West a distance of 188.15 feet;
THENCE North 00°3814 West a distance of 291.81 feet;
THENCE South 88°5413 West a distance of 209.06 feet;
THENCE South 01°4949 East a distance of 268.80 feet;
THENCE South 87°2945 West a distance of 115.41 feet;
THENCE South 00°1220 West a distance of 266.41 feet;
THENCE South 89°0512 West a distance of 316.77 feet;
THENCE North 01°0624 West a distance of 282.09 feet;
THENCE continuing North 01°0624 West a distance of 271.57 feet;
THENCE North 86°3404 West a distance of 80.75 feet;
THENCE South 89°0338 West a distance of 427.05 feet to a point on the west line of the East Half of the said Northwest Quarter;
THENCE North 00°5411 West, along said west line, a distance of 1,550.38 feet;
THENCE South 89°2614 East a distance of 367.80 feet;
THENCE North 87°3843 East a distance of 141.55 feet;
THENCE South 00°4421 East a distance of 801.29 feet;
THENCE North 89°0116 East a distance of 433.79 feet;
THENCE North 00°0934 East a distance of 447.85 feet;
THENCE North 88°5333 East a distance of 377.19 feet to the POINT OF BEGINNING.
Said tract containing 1,856,282 square feet or 42.6144 acres more or less.
A tract of land lying in the East Half of the Southwest Quarter and the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, according to the United States government survey thereof, and being more particularly described as follows:
COMMENCING at the southeast corner of the said East Half of the Southwest Quarter, said point also being the southwest corner of the said Southeast Quarter;
THENCE North 01°1416 West, along the common line between the said Southeast and Southwest Quarter a distance of 1,127.81 feet to the POINT OF BEGINNING;
Exhibit E-3
THENCE South 88°4323 West a distance of 273.63 feet;
THENCE North 01°0502 West a distance of 787.59 feet;
THENCE North 01°3042 West a distance of 402.41 feet;
THENCE North 87°2240 East a distance of 209.33 feet;
THENCE South 86°3211 East a distance of 50.14 feet;
THENCE South 57°1941 East, passing at 17.12 feet the common line between the said Southwest Quarter and the Southeast Quarter, and continuing for a total distance of 41.07 feet;
THENCE South 00°5538 East a distance of 1,167.85 feet;
THENCE South 88°4323 West a distance of 13.55 feet to the POINT OF BEGINNING.
Said tract containing 344,581 square feet or 7.9105 acres more or less.
A tract of land lying in Government Lot 6 of Section 13 and the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at the northeast corner of the Southeast Quarter of said Section 14;
THENCE South 01°1758 East, along the common line between said Sections 13 and 14, a distance of 1,466.75 feet to the POINT OF BEGINNING;
THENCE North 88°3753 East a distance of 337.54 feet;
THENCE South 00°3651 East a distance of 375.50 feet;
THENCE South 88°3624 West a distance of 409.94 feet;
THENCE North 00°1017 West a distance of 375.72 feet;
THENCE North 88°3753 East a distance of 69.49 feet to the POINT OF BEGINNING.
Said tract of land containing 153,409 square feet or 3.5218 acres more or less.
A tract of land lying in the East Half of the Southwest Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at southeast corner of the Southwest Quarter of said Section 14;
Exhibit E-3
THENCE South 89°1734 West, along the south line of the said Southwest Quarter, a distance of 273.89 feet;
THENCE North 00°4226 West a distance of 319.04 feet to the POINT OF BEGINNING;
THENCE South 88°4244 West a distance of 394.78 feet;
THENCE South 88°2434 West a distance of 382.43 feet;
THENCE North 02°4856 West a distance of 422.64 feet;
THENCE North 01°2123 West a distance of 787.85 feet;
THENCE North 88°0421 East a distance of 395.99 feet;
THENCE South 01°3014 East a distance of 795.92 feet;
THENCE North 89°0559 East a distance of 387.07 feet;
THENCE South 01°4527 East a distance of 414.21 feet to the POINT OF BEGINNING.
Said tract containing 640,567 square feet or 14.7054 acres more or less.
A tract of land lying in the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at southwest corner of the Southeast Quarter of said Section 14;
THENCE North 01°1416 West, along the west line of the said Southeast Quarter, a distance of 737.88 feet;
THENCE North 88°4544 East a distance of 118.42 feet to the POINT OF BEGINNING;
THENCE North 00°5942 West a distance of 366.36 feet;
THENCE North 88°2912 East a distance of 120.43 feet;
THENCE South 80°0226 East a distance of 119.54 feet;
THENCE South 73°2045 East a distance of 75.84 feet;
THENCE South 01°5857 East a distance of 306.59 feet;
THENCE South 83°0910 West a distance of 151.16 feet;
THENCE South 89°0444 West a distance of 164.96 feet to the POINT OF BEGINNING.
Said tract containing 109,842 square feet or 2.5216 acres more or less.
Exhibit E-3
A tract of land lying in the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southeast Quarter;
THENCE South 01°1757 East, along the east line of said Southeast Quarter, a distance of 712.02 feet;
THENCE South 89°4122 West a distance of 244.09 feet;
THENCE South 85°4523 West a distance of 225.17 feet;
THENCE South 00°5539 East a distance of 750.57 feet;
THENCE South 88°3618 West a distance of 405.16 feet;
THENCE South 03°0149 East a distance of 172.35 feet;
THENCE South 01°1231 East a distance of 149.87 feet;
THENCE South 88°2552 West a distance of 134.78 feet;
THENCE South 01°5523 East a distance of 206.29 feet to the POINT OF BEGINNING;
THENCE North 89°0226 East a distance of 111.41 feet;
THENCE South 07°0738 West a distance of 40.12 feet;
THENCE South 02°4142 East a distance of 52.93 feet;
THENCE South 89°1936 West a distance of 105.80 feet;
THENCE North 01°5612 West a distance of 92.11 feet to the POINT OF BEGINNING.
Said tract of land containing 9,850 square feet or 0.2261 acres more or less.
A tract of land lying in the Southeast Quarter of Section 14, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Southeast Quarter;
THENCE South 01°1757 East, along the east line of said Southeast Quarter, a distance of 712.02 feet;
THENCE South 89°4122 West a distance of 244.09 feet;
THENCE South 85°4523 West a distance of 225.17 feet to the POINT OF BEGINNING;
THENCE South 00°5539 East a distance of 750.57 feet;
Exhibit E-3
THENCE South 88°3618 West a distance of 405.16 feet;
THENCE South 03°0149 East a distance of 172.35 feet;
THENCE South 01°1231 East a distance of 149.87 feet;
THENCE South 88°2552 West a distance of 134.78 feet;
THENCE North 01°0305 West a distance of 494.30 feet;
THENCE North 89°1716 East a distance of 128.55 feet;
THENCE North 01°0016 West a distance of 316.69 feet;
THENCE continuing North 01°0016 West a distance of 273.01 feet;
THENCE North 88°5937 East a distance of 392.66 feet;
THENCE South 64°5940 East a distance of 15.02 feet to the POINT OF BEGINNING.
Said tract of land containing 372,460 square feet or 8.5505 acres more or less.
A tract of land lying in the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, and being more particularly described as follows:
COMMENCING at the northwest corner of said Northeast Quarter;
THENCE North 89°1734 East, along the north line of said Northeast Quarter, a distance of 366.03 feet;
THENCE South 00°4226 East a distance of 212.66 feet to the POINT OF BEGINNING;
THENCE North 89°0101 East a distance of 60.00 feet;
THENCE South 00°5859 East a distance of 110.00 feet;
THENCE South 89°0101 West a distance of 60.00 feet;
THENCE North 00°5859 West a distance of 110.00 feet to the POINT OF BEGINNING.
Said tract containing 6,600 square feet or 0.1515 acres more or less.
A tract of land lying in the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, State of Oklahoma, and being more particularly described as follows:
COMMENCING at the northwest corner of said Northeast Quarter;
Exhibit E-3
THENCE North 89°1734 East, along the north line of said Northeast Quarter, a distance of 260.93 feet;
THENCE South 00°4226 East a distance of 193.45 feet to the POINT OF BEGINNING;
THENCE North 89°0101 East a distance of 70.00 feet;
THENCE South 00°5859 East a distance of 340.00 feet;
THENCE South 89°0101 West a distance of 70.00 feet;
THENCE North 00°5859 West a distance of 340.00 feet to the POINT OF BEGINNING.
Said tract containing 23,800 square feet or 0.5464 acres more or less.
A tract of land lying in the Southeast Quarter of Section 14 and the Northeast Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at southwest corner of the Southeast Quarter of said Section 14, said point also being the the northwest corner of the Northeast Quarter of said Section 23;
THENCE North 89°1734 East, along the common line between said Sections 14 and 23, a distance of 883.82 feet to the POINT OF BEGINNING;
THENCE North 01°2427 West a distance of 1,388.91 feet;
THENCE North 08°3308 East a distance of 170.84 feet;
THENCE South 81°2652 East a distance of 20.00 feet;
THENCE South 08°3308 West a distance of 10.00 feet;
THENCE North 81°2652 West a distance of 10.00 feet;
THENCE South 08°3308 West a distance of 38.55 feet;
THENCE South 01°2427 East a distance of 596.53 feet;
THENCE North 88°3533 East a distance of 25.00 feet;
THENCE South 01°2427 East a distance of 25.00 feet;
THENCE South 88°3533 West a distance of 25.00 feet;
THENCE South 01°2427 East a distance of 334.27 feet;
THENCE North 88°3533 East a distance of 61.00 feet;
Exhibit E-3
THENCE South 01°2427 East a distance of 15.00 feet;
THENCE South 88°3533 West a distance of 61.00 feet;
THENCE South 01°2427 East, passing at 537.21 feet the common line between said Sections 14 and 23, and continuing for a total distance of 610.32 feet;
THENCE South 05°2204 West a distance of 183.62 feet;
THENCE South 01°1533 East a distance of 475.90 feet;
THENCE North 88°4427 East a distance of 5.00 feet;
THENCE South 01°1533 East a distance of 20.00 feet;
THENCE South 88°4427 West a distance of 15.00 feet;
THENCE North 01°1533 West a distance of 751.70 feet to the POINT OF BEGINNING.
Said tract containing 58,733 square feet or 1.3483 acres more or less.
A tract of land lying in the East Half of the Northwest Quarter of Section 23, Township 19 North, Range 12 East of the Indian Base and Meridian, Tulsa County, Oklahoma, and being more particularly described as follows:
COMMENCING at the northeast corner of the said Northwest Quarter
THENCE South 89°1734 West, along the north line of the said Northwest Quarter, a distance of 316.92 feet;
THENCE South 00°4226 East a distance of 12.00 feet to the POINT OF BEGINNING;
THENCE South 00°4226 East a distance of 30.00 feet;
THENCE South 89°1734 West a distance of 140.00 feet;
THENCE North 00°4226 West a distance of 30.00 feet;
THENCE North 89°1734 East a distance of 140.00 feet to the POINT OF BEGINNING.
Said tract containing 4,200 square feet or 0.0964 acres more or less.
Exhibit E-3
Exhibit E-4
to
Master Lease and Access Agreement
[Legal Description for Woods Cross Refinery Complex (excluding the Woods Cross Pipeline Pad)]
LEGAL DESCRIPTION FOR TANK 103 :
BEGINNING AT A POINT NORTH 89°4737 EAST 1214.48 FEET ALONG THE SECTION LINE AND NORTH 17.43 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST SALT LAKE BASE AND MERIDIAN AND RUNNING THENCE WEST 127.59 FEET; THENCE NORTH 114.20 FEET; THENCE EAST 127.59 FEET; THENCE SOUTH 114.20 FEET TO THE POINT OF BEGINNING.
CONTAINS 0.33 ACRES
THE BASIS OF BEARING FOR THE ABOVE DESCRIPTION IS NORTH 89°2613 EAST BETWEEN THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 1100 WEST AND THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 800 WEST.
LEGAL DESCRIPTION FOR TANK 121 :
BEGINNING AT A POINT NORTH 89°4737 EAST 1245.39 FEET ALONG THE SECTION LINE AND NORTH 530.12 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST SALT LAKE BASE AND MERIDIAN AND RUNNING THENCE WEST 243.16 FEET; THENCE NORTH 181.87 FEET; THENCE EAST 243.16 FEET; THENCE SOUTH 181.87 FEET TO THE POINT OF BEGINNING.
CONTAINS 1.02 ACRES
THE BASIS OF BEARING FOR THE ABOVE DESCRIPTION IS NORTH 89°2613 EAST BETWEEN THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 1100 WEST AND THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 800 WEST.
LEGAL DESCRIPTION FOR TANK 126 :
BEGINNING AT A POINT NORTH 89°4737 EAST 1160.50 FEET ALONG THE SECTION LINE AND NORTH 364.64 FEET FROM THE SOUTHWEST CORNER SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST SALT LAKE BASE AND MERIDIAN AND RUNNING THENCE WEST 200.60 FEET; THENCE NORTH 15°1607 EAST 148.03 FEET; THENCE EAST 161.62 FEET; THENCE SOUTH 142.81 FEET TO THE POINT OF BEGINNING.
CONTAINS 0.59 ACRES
THE BASIS OF BEARING FOR THE ABOVE DESCRIPTION IS NORTH 89°2613 EAST BETWEEN THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 1100 WEST AND THE FOUND MONUMENT AT THE INTERSECTION OF 500 SOUTH AND 800 WEST.
Exhibit E-4
Exhibit E-5
to
Master Lease and Access Agreement
[Legal Description for Woods Cross Pipeline Pad]
12 HEP to UNEV Refined Products Pipeline Origin Trap and Piping, Associated SCADA Control Building, and Satellite Dish
A PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, DAVIS COUNTY, STATE OF UTAH, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES NORTH A DISTANCE OF 385.36 FEET AND EAST A DISTANCE OF 496.23 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, SAID SOUTHWEST CORNER OF SECTION 24 LIES SOUTH 89°2658 WEST 2462.29 FEET AND NORTH 544.10 FEET FROM THE MONUMENT LOCATED AT THE INTERSECTION OF 500 SOUTH STREET AND 800 WEST STREET (BASIS OF BEARING BEING SOUTH 89°4933 WEST 2708.26 FEET ALONG MONUMENT LINE BETWEEN THE MONUMENT LOCATED AT THE INTERSECTION OF 500 WEST STREET AND 500 SOUTH STREET AND THE MONUMENT LOCATED AT INTERSECTION OF 800 WEST STREET AND 500 SOUTH STREET) AND RUNNING THENCE SOUTH 80°4425 EAST 195.16 FEET; THENCE SOUTH 09°1337 WEST 175.44 FEET; THENCE NORTH 80°5506 WEST 193.45 FEET; THENCE NORTH 08°4005 EAST 176.05 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
CONTAINS: 34,147 SQ. FT., OR 0.784 ACRES, MORE OR LESS, AS DESCRIBED.
8 HEP to Chevron Refined Products Pipeline Origin Trap and Piping
A PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE I WEST, SALT LAKE BASE AND MERIDIAN, DAVIS COUNTY, STATE OF UTAH, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES NORTH A DISTANCE OF 83.09 FEET AND EAST A DISTANCE OF 860.40 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, SAID SOUTHWEST CORNER OF SECTION 24 LIES SOUTH 89°2658 WEST 2462.37 FEET AND NORTH 562.11 FEET FROM THE MONUMENT LOCATED AT THE INTERSECTION OF 500 SOUTH STREET AND 800 WEST STREET (BASIS OF BEARING BEING SOUTH 89°4933 WEST 2708.26 FEET ALONG MONUMENT LINE BETWEEN THE MONUMENT LOCATED AT THE INTERSECTION OF 500 WEST STREET AND 500 SOUTH STREET AND THE MONUMENT LOCATED AT THE INTERSECTION OF 800 WEST STREET AND 500 SOUTH STREET) AND RUNNING THENCE NORTH 09°0009 WEST 22.50 FEET; THENCE NORTH 80°5951 WEST 10.00 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
CONTAINS: 225 SQ. FT., OR 0.005 ACRES, MORE OR LESS, AS DESCRIBED.
Exhibit E-5
A PART OF THE SOUTHWEST QUARTER OF SECTION 24 AND THE SOUTHEAST QUARTER OF SECTION 23, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, DAVIS COUNTY, STATE OF UTAH, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A 15 FOOT WIDE PIPELINE EASEMENT, BEING 7.5 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE:
BEGINNING AT A POINT WHICH LIES NORTH A DISTANCE OF 83.09 FEET AND EAST A DISTANCE OF 860.40 FEET AND SOUTH 80°5951 EAST A DISTANCE OF 1.61 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, SAID SOUTHWEST CORNER OF SECTION 24 LIES SOUTH 89°2658 WEST 2462.37 FEET AND NORTH 562.11 FEET FROM THE MONUMENT LOCATED AT THE INTERSECTION OF 500 SOUTH STREET AND 800 WEST STREET (BASIS OF BEARING BEING SOUTH 89°4933 WEST 2708.26 FEET ALONG MONUMENT LINE BETWEEN THE MONUMENT LOCATED AT THE INTERSECTION OF 500 WEST STREET AND 500 SOUTH STREET AND THE MONUMENT LOCATED AT THE INTERSECTION OF 800 WEST STREET AND 500 SOUTH STREET) AND RUNNING
THENCE SOUTH 10°1542 WEST 11.42 FEET;
THENCE SOUTH 38°2834 WEST 2.43 FEET;
THENCE NORTH 77°5359 WEST 9.48 FEET;
THENCE NORTH 81°0917 WEST 9.21 FEET;
THENCE SOUTH 08°5428 WEST 585.03 FEET, MORE OR LESS, TO THE NORTHERLY
RIGHT OF WAY LINE OF 500 SOUTH STREET ON THE SOUTHERLY LINE OF
GRANTORS LAND AND TERMINATING.
CONTAINS: 9,284 SQ. FT., OR 0.213 ACRES, MORE OR LESS, AS DESCRIBED.
10 HEP to Pioneer Refined Products Pipeline Origin Trap and Piping
A PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, DAVIS COUNTY, STATE OF UTAH, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES NORTH A DISTANCE OF 2.01 FEET AND EAST A DISTANCE OF 1471.29 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, SAID SOUTHWEST CORNER OF SECTION 24 LIES SOUTH 89°2658 WEST 2462.37 FEET AND NORTH 562.11 FEET FROM THE MONUMENT LOCATED AT THE INTERSECTION OF 500 SOUTH STREET AND 800 WEST STREET (BASIS OF BEARING BEING SOUTH 89°4933 WEST 2708.26 FEET ALONG MONUMENT LINE BETWEEN THE MONUMENT LOCATED AT THE INTERSECTION OF 500 WEST STREET AND 500 SOUTH STREET AND THE MONUMENT LOCATED AT THE INTERSECTION OF 800 WEST STREET AND 500 SOUTH STREET) AND RUNNING THENCE SOUTH 20.00 FEET; THENCE WEST 20.00 FEET; THENCE NORTH 20.00 FEET; THENCE EAST 20.00 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
CONTAINS: 400 SQ. FT., OR 0.009 ACRES, MORE OR LESS, AS DESCRIBED.
Exhibit E-5
A PART OF THE SOUTHWEST QUARTER OF SECTION 24 AND THE SOUTHEAST
QUARTER OF SECTION 23, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE
AND MERIDIAN, DAVIS COUNTY, STATE OF UTAH, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
A 15 FOOT WIDE PIPELINE EASEMENT, BEING 7.5 FEET ON EACH SIDE OF THE
FOLLOWING DESCRIBED CENTERLINE:
BEGINNING AT A POINT WHICH LIES NORTH A DISTANCE OF 2.01 FEET AND EAST A DISTANCE OF 1471.29 FEET AND SOUTH A DISTANCE OF 15.00 FEET FROM THE SOUTHWEST CORNER OF SECTION 24, TOWNSHIP 2 NORTH, RANGE 1 WEST, SALT LAKE BASE AND MERIDIAN, SAID SOUTHWEST CORNER OF SECTION 24 LIES SOUTH 89°2658 WEST 2462.37 FEET AND NORTH 562.11 FEET FROM THE MONUMENT LOCATED AT THE INTERSECTION OF 500 SOUTH STREET AND 800 WEST STREET (BASIS OF BEARING BEING SOUTH 89°4933 WEST 2708.26 FEET ALONG MONUMENT LINE BETWEEN THE MONUMENT LOCATED AT THE INTERSECTION OF 500 WEST STREET AND 500 SOUTH STREET AND THE MONUMENT LOCATED AT THE INTERSECTION OF 800 WEST STREET AND 500 SOUTH STREET) AND RUNNING
THENCE SOUTH 89°4244 EAST 8.43 FEET;
THENCE SOUTH 88°3720 EAST 5.98 FEET;
THENCE SOUTH 87°5357 EAST 12.65 FEET;
THENCE SOUTH 44°3830 EAST 19.46 FEET;
THENCE SOUTH 01°5226 WEST 16.78 FEET;
THENCE SOUTH 00°1311 EAST 78.46 FEET;
THENCE SOUTH 00°1647 WEST 90.70 FEET;
THENCE SOUTH 00°1231 WEST 75.84 FEET;
THENCE SOUTH 00°0634 EAST 48.54 FEET;
THENCE SOUTH 00°0005 EAST 83.16 FEET;
THENCE SOUTH 00°1032 EAST 76.59 FEET, MORE OR LESS, TO THE NORTHERLY RIGHT OF WAY LINE OF 500 SOUTH STREET ON THE SOUTHERLY LINE OF GRANTORS LAND AND TERMINATING.
CONTAINS: 7,749 SQ. FT., OR 0.178 ACRES, MORE OR LESS, AS DESCRIBED.
Exhibit E-5
Exhibit E-6
to
Master Lease and Access Agreement
[Legal Description for Navajo Refinery Complex (excluding the Truck Rack, the Artesia Blending Station and the Artesia Pump and Receiving Stations)]
Exhibit E-6
Exhibit E-6
Exhibit E-7
to
Master Lease and Access Agreement
[Legal Description for Artesia Pump and Receiving Stations]
El Paso 8/12 Products Pipeline Originating Pump Station;
Four Corners 12 Products Pipeline Originating Station;
Lovington 8 Pipeline Receiving Station;
Lovington 10 Pipeline Receiving Station;
Lovington 16 Pipeline Receiving Station; and
Natural Gas 8 Pipeline Receiving Station
A TRACT OF LAND LOCATED IN SECTION 9, TOWNSHIP 17 SOUTH, RANGE 26 EAST, N.M.P.M., EDDY COUNTY, NEW MEXICO AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES N.00°0312E., 1,550.98 FEET AND S.89°5639E., 1,357.30 FEET FROM THE SOUTHWEST CORNER OF SAID SECTION 9; THENCE N.00°3705W., 273.20 FEET; THENCE S.89°4131E., 30.10 FEET; THENCE S.00°2211W., 57.00 FEET; THENCE S.89°5409E., 110.00 FEET; THENCE N.01°2856W., 71.10 FEET; THENCE N.89°5936E., 159.90 FEET; THENCE N.00°0444W., 117.00 FEET; THENCE S.88°1546E., 159.20 FEET; THENCE S.01°1548W., 399.70 FEET; THENCE N.89°5619W., 445.00 FEET TO THE POINT OF BEGINNING. SAID TRACT OF LAND CONTAINING 3.1906 ACRES, MORE OR LESS.
El Paso 6 Pipeline Pump Station
A TRACT OF LAND LOCATED IN SECTION 9, TOWNSHIP 17 SOUTH, RANGE 26 EAST, N.M.P.M., EDDY COUNTY, NEW MEXICO AND BEING MORE PARTICULARLY DESCRIBED HEREIN AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES IN N.00°0312E., 2,000.73 FEET AND S.89°5555E., 209.55 FEET FROM THE SOUTHWEST CORNER OF SAID SECTION 9; THENCE N.89°4819E., 128.13 FEET; THENCE S.00°0229E., 307.18 FEET; THENCE S.88°5031W., 102.17 FEET; THENCE N.04°3406W., 74.10 FEET; THENCE N.89°3137W., 12.60 FEET; THENCE N.0l°5238W., 235.00 FEET TO THE POINT OF BEGINNING. SAID TRACT OF LAND CONTAINING 0.8467 ACRES, MORE OR LESS.
Roswell 4 Pipeline Pump Station
A TRACT OF LAND LOCATED IN SECTION 9, TOWNSHIP 17 SOUTH, RANGE 26 EAST, N.M.P.M., EDDY COUNTY, NEW MEXICO AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES S.00°0312W., 1,705.65 FEET AND S.89°5648E., 110.28 FEET FROM THE NORTHWEST CORNER OF SAID SECTION 9; THENCE S.89°4519E., 64.10 FEET; THENCE S.00°0010W., 36.00 FEET; THENCE N.89°4519W., 64.10 FEET; THENCE N.00°0010E., 36.00 FEET TO THE POINT OF BEGINNING. SAID TRACT OF LAND CONTAINING 0.0530 ACRES, MORE OR LESS.
Exhibit E-7