Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of: (i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or (ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or (iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities. (b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date. (c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred. (d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of: (i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or (ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities. (e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 2 contracts
Sources: Omnibus Agreement (Holly Corp), Omnibus Agreement (Holly Energy Partners Lp)
Environmental Indemnification. (a) Subject to Section 3.23.2 and Section 3.5 and with respect to Assets Transferred pursuant to a Transaction Agreement, the ▇▇▇▇▇ Entities Delek Entities, jointly and severally, shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, orLaws;
(ii) any event environmentally related event, condition or condition matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the such Assets or the disposal or release of Hazardous Substances generated by operation of the such Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, HOU02:1274288 10 remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work;
(iii) any environmentally related event, condition or matter or legal action pending as of the applicable Closing Date against the Delek Entities, a true and correct summary of which, with respect to Assets Transferred pursuant to a particular Transaction Agreement, is set forth on Schedule I attached hereto;
(iv) any event, condition or environmental matter associated with or arising from the Retained Assets, whether occurring before or after the Closing Date; but and
(v) any obligation imposed by or violation of the consent decree entered in United States ▇. ▇▇▇▇▇ Holding Company, Inc. and Delek Refining, Ltd., case no. 6:09-cv-319 (Eastern District of Texas), as it exists on the date hereof and may be amended. provided, however, that with respect to any violation under Section 3.1(a)(i) or any environmentally related event, condition or matter included under Section 3.1(a)(ii) that is associated with the ownership or operation of the Assets Transferred pursuant to a Transaction Agreement, the Delek Entities will be obligated to indemnify the Partnership Group only to the extent that such violation complained of under Section 3.1(a)(i) environmentally related violation, event, condition or such events or conditions included under Section 3.1(a)(iimatter giving rise to the claim (x) occurred in whole or in part before the applicable Closing Date for such Transaction Agreement (or, with respect to an API 653 Tank, before the applicable API 653 Inspection Date) under then-applicable Environmental Laws and (y)(i) such environmentally related violation, event, condition or matter is set forth on Schedule II attached hereto or (ii) Delek US is notified in writing of such environmentally related violation, event, condition or matter prior to the applicable First Indemnification Deadline (or, with respect to an API 653 Tank, the applicable First API 653 Indemnification Deadline) (clauses (i) through (iv) of this Section 3.1(a) collectively, with respect to such Transaction Agreement, being “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities Group shall indemnify, defend and hold harmless the ▇▇▇▇▇ Delek Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the ▇▇▇▇▇ Entities Delek Entities, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with or arising from the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, orAssets; and
(ii) any event environmentally related event, condition or condition matter associated with or arising from the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.HOU02:1274288 11
Appears in 2 contracts
Sources: Omnibus Agreement (Delek US Holdings, Inc.), Omnibus Agreement (Delek Logistics Partners, LP)
Environmental Indemnification. (a) Subject to Section 3.2, the ▇H▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇H▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇W▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇H▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇H▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇H▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇H▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇H▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇H▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇H▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇H▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇H▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇H▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇H▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇H▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇H▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇H▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇H▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇B▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, or the Tulsa Interconnecting Pipelines.
Appears in 2 contracts
Sources: Omnibus Agreement (Holly Energy Partners Lp), Omnibus Agreement (HollyFrontier Corp)
Environmental Indemnification. (a) Subject to Section 3.23.2 and Section 3.7 and with respect to Assets conveyed, contributed or otherwise transferred pursuant to a Contribution Agreement, each of the ▇▇▇▇▇ Tesoro Entities set forth on Schedule VII attached to this Agreement with respect to that Contribution Agreement (the “Tesoro Indemnifying Parties”), severally and not jointly, shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, orLaws;
(ii) any event event, condition or condition environmental matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations)including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial, or appellate legal or litigation support work;
(iii) any event, condition or environmental matter or legal action pending as of the Closing Date against the Tesoro Entities, a true and correct summary of which with respect to Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement is described on Schedule I to this Agreement; and
(iv) any event, condition or environmental matter associated with or arising from the Retained Assets, whether occurring before or after the Closing Date; provided, however, that with respect to any violation under Section 3.1(a)(i) or any event, condition or environmental matter included under Section 3.1(a)(ii) that is associated with the ownership or operation of the Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement, the Tesoro Indemnifying Parties will be obligated to indemnify the Partnership Group only to the extent that such violation, event, condition or environmental matter (x) occurred before the Closing Date for that Contribution Agreement under then-applicable Environmental Laws and (y)(i) such violation, event, condition or environmental matter is set forth on Schedule II to this Agreement or (ii) Tesoro is notified in writing of such violation, event, condition or environmental matter prior to the applicable Identification Deadline (Sections 3.1(a)(i) through (iv) collectively, with respect to that Contribution Agreement being “Covered Environmental Losses”).
(b) The Partnership Group shall indemnify, defend and hold harmless the Tesoro Entities from and against any Losses suffered or incurred by the Tesoro Entities, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with or arising from the ownership or operation of the Assets; and
(ii) any event, condition or environmental matter associated with or arising from the ownership or operation of the Assets (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only and regardless of whether such violation under Section 3.1(b)(i) or such event, condition or environmental matter included under Section 3.1(b)(ii) occurred before or after the Closing Date, in each case, to the extent that such violation complained any of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “foregoing are not Covered Environmental Losses”); or
(iii) Losses for which the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of Partnership Group is entitled to indemnification from the Assets, including but not limited to underground pipelines retained by the Seller Tesoro Indemnifying Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets under this Article III without giving effect to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership EntitiesAnnual Environmental Deductible.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 2 contracts
Sources: Omnibus Agreement (Tesoro Logistics Lp), Omnibus Agreement (Tesoro Corp /New/)
Environmental Indemnification. (a) Subject to Section 3.23.2 and Section 3.7 and with respect to Assets conveyed, contributed or otherwise transferred pursuant to a Contribution Agreement, each of the ▇▇▇▇▇ Tesoro Entities set forth on Schedule VII attached to this Agreement with respect to that Contribution Agreement (the “Tesoro Indemnifying Parties”), severally and not jointly, shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, orLaws;
(ii) any event event, condition or condition environmental matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial, or appellate legal or litigation support work;
(iii) any event, condition or environmental matter or legal action pending as of the applicable Closing Date against the Tesoro Entities, a true and correct summary of which with respect to Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement is described on Schedule I to this Agreement; and
(iv) any event, condition or environmental matter associated with or arising from the Retained Assets, whether occurring before or after the applicable Closing Date; provided, however, that with respect to any violation under Section 3.1(a)(i) or any event, condition or environmental matter included under Section 3.1(a)(ii) that is associated with the ownership or operation of the Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement, the Tesoro Indemnifying Parties will be obligated to indemnify the Partnership Group only to the extent that such violation, event, condition or environmental matter (x) occurred before the Closing Date for that Contribution Agreement under then-applicable Environmental Laws and (y)(i) such violation, event, condition or environmental matter is set forth on Schedule II to this Agreement or (ii) Tesoro is notified in writing of such violation, event, condition or environmental matter prior to the applicable Identification Deadline (Sections 3.1(a)(i) through (iv) collectively, with respect to that Contribution Agreement being “Covered Environmental Losses”).
(b) The Partnership Group shall indemnify, defend and hold harmless the Tesoro Entities from and against any Losses suffered or incurred by the Tesoro Entities, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with or arising from the ownership or operation of the Assets; and
(ii) any event, condition or environmental matter associated with or arising from the ownership or operation of the Assets (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only and regardless of whether such violation under Section 3.1(b)(i) or such event, condition or environmental matter included under Section 3.1(b)(ii) occurred before or after the applicable Closing Date, in each case, to the extent that such violation complained any of the foregoing are not Covered Environmental Losses for which the Partnership Group is entitled to indemnification from the Tesoro Indemnifying Parties under this Article III without giving effect to the Annual Environmental Deductible. The Losses covered by this Section 3.1(a)(i3.1(b) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “are hereinafter referred to as ‘Non-Covered Environmental Losses.”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 2 contracts
Sources: Omnibus Agreement (Tesoro Corp /New/), Omnibus Agreement (Tesoro Logistics Lp)
Environmental Indemnification. (a) Subject to Section 3.23.2 and Section 3.5 and with respect to Assets Transferred pursuant to a Transaction Agreement, the ▇▇▇▇▇ Entities Delek Entities, jointly and severally, shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses any Losses suffered or incurred by the Partnership Group, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws;
(ii) any environmentally related event, condition or matter associated with or arising from the ownership or operation of the Assets (including, without limitation, economic lossesthe presence of Hazardous Substances on, diminution in value suffered under, about or migrating to or from such Assets or the disposal or release of Hazardous Substances generated by third parties, and lost profits), damages, injuries (operation of such Assets at non-Asset locations) including, without limitation, personal injury (A) the cost and deathexpense of any investigation, assessment, evaluation, monitoring, reporting, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial, or appellate legal or litigation support work;
(iii) any environmentally related event, condition or matter or legal action pending as of the applicable Closing Date against the Delek Entities, a true and correct summary of which, with respect to Assets Transferred pursuant to a particular Transaction Agreement, is set forth on Schedule I attached hereto;
(iv) any event, condition or environmental matter associated with or arising from the Retained Assets, whether occurring before or after the Closing Date;
(v) any obligation imposed by or violation of the consent decree entered in United States ▇. ▇▇▇▇▇ Holding Company, Inc. and Delek Refining, Ltd., case no. 6:09-cv-319 (Eastern District of Texas), liabilitiesas it exists on July 26, claims2013 and may be amended; and
(vi) any obligation imposed by or violation of the consent decree entered in United States and State of Arkansas v. Lion Oil Company, demandsLLC, causes Civ. No. 03-1028 (Western District of actionArkansas), judgmentsas it exists on the date hereof and may be amended. provided, settlementshowever, finesthat with respect to any violation under Section 3.1(a)(i) or any environmentally related event, penaltiescondition or matter included under Section 3.1(a)(ii) that is associated with the ownership or operation of the Assets Transferred pursuant to a Transaction Agreement, coststhe Delek Entities will be obligated to indemnify the Partnership Group only to the extent that such environmentally related violation, event, condition or matter giving rise to the claim (x) existed or occurred in whole or in part before the applicable Closing Date for such Transaction Agreement (or, with respect to an API 653 Tank, before the applicable API 653 Inspection Date) under then-applicable Environmental Laws and expenses (includingy)(i) such environmentally related violation, without limitationevent, court costs and reasonable attorney’s and expert’s feescondition or matter is set forth on Schedule II attached hereto or (ii) Delek US is notified in writing of such environmentally related violation, event, condition or matter prior to the applicable First Indemnification Deadline (or, with respect to an API 653 Tank, the applicable First API 653 Indemnification Deadline) (clauses (i) through (iv) of this Section 3.1(a) collectively, with respect to such Transaction Agreement, being “Covered Environmental Losses”).
(b) The Partnership Group shall indemnify, defend and hold harmless the Delek Entities from and against any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Delek Entities, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with or arising from the ownership or operation of the Assets, or; and
(ii) any event environmentally related event, condition or condition matter associated with or arising from the ownership or operation of the Assets (including, without limitationbut not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, reporting, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but and regardless of whether such violation under Section 3.1(b)(i) or such environmentally related event, condition or matter included under Section 3.1(b)(ii) occurred before or after the applicable Closing Date (or, with respect to an API 653 Tank, before or after the applicable API 653 Inspection Date), in each case, only to the extent that such violation complained any of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “foregoing are not Covered Environmental Losses”); or
(iii) Losses for which the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of Partnership Group is entitled to indemnification from the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets Delek Entities under this Article III without giving effect to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entitiesapplicable Annual Environmental Deductible.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 2 contracts
Sources: Omnibus Agreement (Delek US Holdings, Inc.), Omnibus Agreement (Delek Logistics Partners, LP)
Environmental Indemnification. (a) Subject to Section 3.23.01(b) and Section 3.08(a), the ▇▇▇▇▇ Entities Hess shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:of the following (collectively, “Covered Environmental Losses”):
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Assets, or;
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or;
(iii) any environmental event, condition or matter associated with or arising from the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Retained Assets, including but not limited to underground pipelines retained by whether occurring before or after the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership EntitiesEffective Date.
(b) To With respect to any discrete violation under Section 3.01(a)(i) or any discrete environmental event, condition or matter included under Section 3.01(a)(ii), Hess will be obligated to indemnify the Partnership Group only if and to the extent that a good faith claim by that:
(i) such violation, event, condition or environmental matter occurred before the Partnership Entities for indemnification Effective Date under then-applicable Environmental Laws; and
(ii) either (A) such violation, event, condition or environmental matter is set forth on Schedule I attached hereto or (B) Hess is notified in writing of such violation, event, condition or environmental matter prior to the fifth anniversary of the Effective Date. For the avoidance of doubt, nothing in this Section 3.1(a)(i3.01(b) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the shall apply to ▇▇▇▇’▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Dateindemnification obligations under Section 3.01(a)(iii).
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless each of the ▇▇▇▇▇ Hess Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the ▇▇▇▇▇ Entities Hess Entities, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Assets by a Person (other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, orJoint Interest Assets); and
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets by a Person (other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity Joint Interest Assets) (including, but not limited towithout limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost or and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only and regardless of whether such violation under Section 3.01(c)(i) or such event, condition or environmental matter included under Section 3.01(c)(ii) occurred before or after the Effective Date, in each case, to the extent that any of the foregoing do not constitute Covered Environmental Losses for which the Partnership Group is entitled to indemnification from Hess under this Article III.
(d) HTGP Opco shall indemnify, defend and hold harmless each of the Hess Entities from and against any Losses suffered or incurred by the Hess Entities, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the HTGP Assets; and
(ii) any event, condition or matter associated with or arising from the ownership or operation of the HTGP Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the HTGP Assets or the disposal or release of Hazardous Substances generated by operation of the HTGP Assets at non-HTGP Asset locations) that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial or appellate legal or litigation support work; and regardless of whether such violation complained of under Section 3.1(d)(i3.01(d)(i) or such events event, condition or conditions environmental matter included under Section 3.1(d)(ii3.01(d)(ii) occurred before or after the Closing Effective Date; provided, howeverin each case, to the extent that nothing stated above shall make any of the foregoing do not constitute Covered Environmental Losses for which the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ EntitiesGroup is entitled to indemnification from Hess under this Article III.
(e) Notwithstanding anything Logistics Opco shall indemnify, defend and hold harmless each of the Hess Entities from and against any Losses suffered or incurred by the Hess Entities, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Logistics Assets; and
(ii) any event, condition or matter associated with or arising from the ownership or operation of the Logistics Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Logistics Assets or the disposal or release of Hazardous Substances generated by operation of the Logistics Assets at non-Logistics Assets locations) that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial or appellate legal or litigation support work; and regardless of whether such violation under Section 3.01(e)(i) or such event, condition or environmental matter included under Section 3.01(e)(ii) occurred before or after the Effective Date, in this Agreement each case, to the contrary, as used in Section 3.1(a) extent that any of the definition of Assets shall foregoing do not include constitute Covered Environmental Losses for which the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner PipelinePartnership Group is entitled to indemnification from Hess under this Article III.
Appears in 2 contracts
Sources: Omnibus Agreement (Hess Midstream Partners LP), Omnibus Agreement (Hess Midstream Partners LP)
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities TMG shall indemnify, defend and hold harmless the Partnership Entities Group for a period of 10 five years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses losses, damages (including, without limitation, economic losses, diminution in value suffered by third parties, real property damages and lost profitsnatural resource damages), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, breaches of contracts, causes of action, judgments, settlements, fines, penalties, costs, costs and expenses (including, without limitation, court costs and reasonable attorney’s 's and expert’s 's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group by reason of or any third party to the extent arising out of:
(i) any violation violation, or correction of violation any violation, of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by the operation of the Assets at non-Asset locations) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws or to satisfy any applicable Voluntary Cleanup Program, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, "Covered Environmental Losses").
(b) The Partnership Group shall jointly and severally indemnify, defend and hold harmless the TMG Entities from and against environmental and Toxic Tort losses, damages (including, without limitation, real property damages and natural resource damages), injuries (including, without limitation, personal injury and death), liabilities, claims, demands, breaches of contracts, causes of action, judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court costs and reasonable attorney's and expert's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the TMG Entities by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with the ownership or operation of the Assets (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by the operation of the Assets at non-Asset locations) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that and regardless of whether such violation complained of under Section 3.1(a)(i3.1(b)(i) or such events or conditions included under Section 3.1(a)(ii3.1(b)(ii) occurred before or after the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”)Date, except to the extent arising out that any of the negligent acts or omissions or willful misconduct of a member of foregoing are Covered Environmental Losses for which the Partnership EntitiesGroup is entitled to indemnification from TMG under this Article III.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.23.01(b), the ▇▇▇▇▇ Entities Company and Pipeline shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:of the following (collectively, “Covered Environmental Losses”):
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Assets, or;
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or;
(iii) any environmental event, condition or matter associated with or arising from the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Retained Assets, including but not limited to underground pipelines retained by whether occurring before or after the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership EntitiesEffective Date.
(b) To With respect to any discrete violation under Section 3.01(a)(i) or any discrete environmental event, condition or matter included under Section 3.01(a)(ii), Company and Pipeline will be obligated to indemnify the Partnership Group only if and to the extent that a good faith claim by that:
(i) such violation, event, condition or environmental matter occurred before the Partnership Entities for Effective Date under then-applicable Environmental Laws; and
(ii) either (A) such violation, event, condition or environmental matter is set forth on Schedule I attached hereto or (B) Company is notified in writing of such violation, event, condition or environmental matter prior to the fifth anniversary of the Effective Date. For the avoidance of doubt, nothing in this Section 3.01(b) shall apply to Company’s and Pipeline’s indemnification obligations under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date3.01(a)(iii).
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities Group shall indemnify, defend and hold harmless each of the ▇▇▇▇▇▇▇▇ 66 Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the ▇▇▇▇▇▇▇▇ Entities 66 Entities, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with or arising from the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, orAssets; and
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited towithout limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including, without limitation, (A) the cost and expense of any such activity, (B) the cost or and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only and regardless of whether such violation under Section 3.01(c)(i) or such event, condition or environmental matter included under Section 3.01(c)(ii) occurred before or after the Effective Date, in each case, to the extent such violation complained that any of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make foregoing do not constitute Covered Environmental Losses for which the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ EntitiesGroup is entitled to indemnification from Company and Pipeline under this Article III.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, or the Tulsa Interconnecting Pipelines.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ GPC Entities and the General Partner shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses losses, damages (including, without limitation, economic losses, diminution in value suffered by third parties, real property damages and lost profitsnatural resource damages), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, breaches of contracts, causes of action, judgments, settlements, fines, penalties, costs, costs and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group by reason of or any third party to the extent arising out of:
(i) any violation or correction of any violation of Environmental Laws associated with the ownership or operation of the Assets, or;
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental LawsLaws or to satisfy any applicable Voluntary Cleanup Program, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, action or other plans required or necessary under Environmental Laws, Laws or to satisfy any applicable Voluntary Cleanup Program and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; or
(iii) the MTBE Litigation; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To Except for the extent that a good faith claim by environmental indemnification obligation for the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containmentMTBE Litigation, and except for claims for Covered Environmental Losses made before the ▇▇▇▇▇ Entities refuse to provide such indemnificationfifth anniversary of the Closing Date, then the burden of proof which shall be not terminate, all environmental indemnification obligations in this Section 3.1 shall terminate on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after fifth anniversary of the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
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Environmental Indemnification. (a) Subject to the limitations contained in this Section 3.23.1(a), the ▇▇▇▇▇ Entities MRMC shall indemnify, defend and hold harmless each of the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (includingtoxic tort Losses suffered, without limitation, economic losses, diminution in value suffered incurred or paid by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes any of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities by reason of or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership Assets or operation of the Retained Assets, or,
(ii) any event or condition associated with the ownership or operation of the Assets or the Retained Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the Retained Assets or the disposal or release of Hazardous Substances generated by operation of the Assets or the Retained Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; , or
(iii) any environmental indemnity provisions contained in the CF Martin Contribution Agreement. but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility a written notice of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled such violation, event or condition is given to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from MRMC by the Partnership Entities regarding such delay at within five years following the time it occurredClosing Date (collectively, "Covered Environmental Losses"). In no event shall the aggregate liability of MRMC pursuant to this Section 3.1(a) exceed $7,500,000.
(db) The Partnership Entities MRMC shall indemnify, defend and hold harmless any of the ▇▇▇▇▇ Partnership Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by any of the ▇▇▇▇▇ Partnership Entities or any third party to the extent that MRMC is entitled to and receives indemnification, is defended or held harmless against any such Losses from any third-party pursuant to any agreement between any third-party and MRMC (collectively, "Pass-Through Environmental Losses"). In furtherance of such agreement, MRMC agrees to use its best commercially reasonable efforts to pursue, for the benefit of the Partnership Entities, any such indemnification with respect to which it might be entitled if requested by the Partnership; provided that, the Partnership shall reimburse MRMC for all costs and expenses incurred in connection with pursuing such indemnity on behalf of the Partnership.
(c) The Partnership shall indemnify, defend and hold harmless MRMC from and against Losses suffered or incurred by any of the MRMC Entities by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ EntityAssets, or
(ii) any event or condition associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent and regardless of whether such violation complained of under Section 3.1(d)(i3.1(c)(i) or such events or conditions included under Section 3.1(d)(ii3.1(c)(ii) occurred before or after the Closing Date; provided, however, except to the extent that nothing stated above shall make any of the foregoing are Covered Environmental Losses or Pass-Through Environmental Losses for which the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entitiesare entitled to indemnification from MRMC under this Article III.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
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Environmental Indemnification. (a) Subject to Section 3.23.01(b) and Section 3.09(a), the ▇▇▇▇▇ Entities HIP LP shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Public Company Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Public Company Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:of the following (collectively, “Covered Environmental Losses”):
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Assets, or;
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets (including, without limitation, including the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including (A) the cost and expense of any such activity, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or;
(iii) any environmental event, condition or matter associated with or arising from the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Retained Assets, including but not limited to underground pipelines retained by whether occurring before, on or after the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership EntitiesEffective Date.
(b) To With respect to any discrete violation under Section 3.01(a)(i) or any discrete environmental event, condition or matter included under Section 3.01(a)(ii), HIP LP will be obligated to indemnify the Public Company Group only if and to the extent that a good faith claim by that:
(i) such violation, event, condition or environmental matter occurred before the Partnership Entities for Effective Date under then-applicable Environmental Laws; and
(ii) either (A) such violation, event, condition or environmental matter is set forth on Schedule I attached hereto or (B) HIP LP is notified in writing of such violation, event, condition or environmental matter prior to the fifth anniversary of the Effective Date. For the avoidance of doubt, nothing in this Section 3.01(b) shall apply to HIP LP’s indemnification obligations under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date3.01(a)(iii).
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless each of the ▇▇▇▇▇ Hess Entities and the Non-Public Company Group Members from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the ▇▇▇▇▇ Hess Entities or the Non-Public Company Group Members, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Assets by a Person (other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, orJoint Interest Assets); and
(ii) any event event, condition or condition matter associated with or arising from the ownership or operation of the Assets by a Person (other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity Joint Interest Assets) (including, but not limited to, including the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, including (A) the cost and expense of any such activity, (B) the cost or and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, trial or appellate legal or litigation support work; but only and regardless of whether such violation under Section 3.01(c)(i) or such event, condition or environmental matter included under Section 3.01(c)(ii) occurred before or after the Effective Date, in each case, to the extent that any of the foregoing do not constitute Covered Environmental Losses for which the Public Company Group is entitled to indemnification from HIP LP under this Article III.
(d) HTGP Opco shall indemnify, defend and hold harmless each of the Hess Entities and the Non-Public Company Group Members from and against any Losses suffered or incurred by the Hess Entities or the Non-Public Company Group Members, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the HTGP Assets; and
(ii) any event, condition or matter associated with or arising from the ownership or operation of the HTGP Assets (including the presence of Hazardous Substances on, under, about or migrating to or from the HTGP Assets or the disposal or release of Hazardous Substances generated by operation of the HTGP Assets at non-HTGP Asset locations) that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action under Environmental Laws, including (A) the cost and expense of any such activity, (B) the cost and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial or appellate legal or litigation support work; and regardless of whether such violation complained of under Section 3.1(d)(i3.01(d)(i) or such events event, condition or conditions environmental matter included under Section 3.1(d)(ii3.01(d)(ii) occurred before or after the Closing Effective Date; provided, howeverin each case, to the extent that nothing stated above shall make any of the Partnership Entities responsible foregoing do not constitute Covered Environmental Losses for any post-Closing Date negligent actions or omissions or willful misconduct by which the ▇▇▇▇▇ EntitiesPublic Company Group is entitled to indemnification from HIP LP under this Article III.
(e) Notwithstanding anything Logistics Opco shall indemnify, defend and hold harmless each of the Hess Entities and the Non-Public Company Group Members from and against any Losses suffered or incurred by the Hess Entities or the Non-Public Company Group Members, directly or indirectly, or as a result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Logistics Assets; and
(ii) any event, condition or matter associated with or arising from the ownership or operation of the Logistics Assets (including the presence of Hazardous Substances on, under, about or migrating to or from the Logistics Assets or the disposal or release of Hazardous Substances generated by operation of the Logistics Assets at non-Logistics Assets locations) that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action under Environmental Laws, including (A) the cost and expense of any such activity, (B) the cost and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial or appellate legal or litigation support work; and regardless of whether such violation under Section 3.01(e)(i) or such event, condition or environmental matter included under Section 3.01(e)(ii) occurred before or after the Effective Date, in this Agreement each case, to the contraryextent that any of the foregoing do not constitute Covered Environmental Losses for which the Public Company Group is entitled to indemnification from HIP LP under this Article III.
(f) Gathering Opco shall indemnify, defend and hold harmless each of the Hess Entities and the Non-Public Company Group Members from and against any Losses suffered or incurred by the Hess Entities or the Non-Public Company Group Members, directly or indirectly, or as used in Section 3.1(aa result of any claim by a third party, by reason of or arising out of:
(i) any violation or correction of a violation of Environmental Laws associated with or arising from the ownership or operation of the Gathering Assets; and
(ii) any event, condition or matter associated with or arising from the ownership or operation of the Gathering Assets (including the presence of Hazardous Substances on, under, about or migrating to or from the Gathering Assets or the disposal or release of Hazardous Substances generated by operation of the Gathering Assets at non-Gathering Assets locations) that requires investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action under Environmental Laws, including (A) the definition cost and expense of Assets shall any such activity, (B) the cost and expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense of any environmental or toxic tort pre-trial, trial or appellate legal or litigation support work; and regardless of whether such violation under Section 3.01(f)(i) or such event, condition or environmental matter included under Section 3.01(f)(ii) occurred before or after the Effective Date, in each case, to the extent that any of the foregoing do not include constitute Covered Environmental Losses for which the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner PipelinePublic Company Group is entitled to indemnification from HIP LP under this Article III.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties ▇▇▇▇▇ Entities which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines, the UNEV Pipeline, the Malaga Pipeline System (other than 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 Partnership Entities as part of the 2004 Product Pipelines, Terminal and Related Assets), the El Dorado New Tank, the Artesia Blending Facility, or the ▇▇▇▇▇▇ to Lovington System Expansion.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties ▇▇▇▇▇ Entities which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines, the UNEV Pipeline, the Malaga Pipeline System (other than 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 Partnership Entities as part of the 2004 Product Pipelines, Terminal and Related Assets), or the El Dorado New Tank.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (Ac) 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, (Bd) 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 (Ce) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (if) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (iig) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (Ah) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (Bi) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (Aj) 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, (Bk) 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 (Cl) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines or the UNEV Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assetstransferred under this Agreement, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), ) except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but and only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ GPC Entities and the General Partner shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses losses, damages (including, without limitation, economic losses, diminution in value suffered by third parties, real property damages and lost profitsnatural resource damages), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, breaches of contracts, causes of action, judgments, settlements, fines, penalties, costs, costs and expenses (including, without limitation, court costs and reasonable attorney’s 's and expert’s 's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group by reason of or any third party to the extent arising out of:
(i) any violation or correction of any violation of Environmental Laws associated with the ownership or operation of the Assets, or;
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental LawsLaws or to satisfy any applicable Voluntary Cleanup Program, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, action or other plans required or necessary under Environmental Laws, Laws or to satisfy any applicable Voluntary Cleanup Program and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; or
(iii) the MTBE Litigation; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “"Covered Environmental Losses”"); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To Except for the extent that a good faith claim by environmental indemnification obligation for the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containmentMTBE Litigation, and except for claims for Covered Environmental Losses made before the ▇▇▇▇▇ Entities refuse to provide such indemnificationfifth anniversary of the Closing Date, then the burden of proof which shall be not terminate, all environmental indemnification obligations in this Section 3.1 shall terminate on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after fifth anniversary of the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.23.2 and Section 3.7 and with respect to Assets conveyed, contributed or otherwise transferred pursuant to a Contribution Agreement, each of the ▇▇▇▇▇ Tesoro Entities set forth on Schedule VII attached to this Agreement with respect to that Contribution Agreement (the “Tesoro Indemnifying Parties”), severally and not jointly, shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by the Partnership Entities Group, directly or indirectly, or as a result of any claim by a third party to the extent party, by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, orLaws;
(ii) any event event, condition or condition environmental matter associated with or arising from the ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for of any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or;
(iii) the operation any event, condition or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part environmental matter or legal action pending as of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the applicable Closing Date against the Tesoro Entities, a true and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement correct summary of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities which with respect to Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement is described on Schedule I to this Agreement; and
(iv) any event, condition or environmental matter associated with or arising from the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Retained Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind whether occurring before or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the applicable Closing Date; provided, however, that nothing stated above shall make with respect to any violation under Section 3.1(a)(i) or any event, condition or environmental matter included under Section 3.1(a)(ii) that is associated with the ownership or operation of the Assets conveyed, contributed or otherwise transferred pursuant to a particular Contribution Agreement, the Tesoro Indemnifying Parties will be obligated to indemnify the Partnership Entities responsible for any post-Group only to the extent that such violation, event, condition or environmental matter (x) occurred before the Closing Date negligent actions for that Contribution Agreement under then- applicable Environmental Laws and (y)(i) such violation, event, condition or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in environmental matter is set forth on Schedule II to this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.or
Appears in 1 contract
Sources: Omnibus Agreement
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties ▇▇▇▇▇ Entities which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines, the UNEV Pipeline, or the Malaga Pipeline System (other than 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 Partnership Entities as part of the 2004 Product Pipelines, Terminal and Related Assets).
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ GPC Entities and the General Partner shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, Group from and against environmental and Toxic Tort losses losses, damages (including, without limitation, economic losses, diminution in value suffered by third parties, real property damages and lost profitsnatural resource damages), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, breaches of contracts, causes of action, judgments, settlements, fines, penalties, costs, costs and expenses (including, without limitation, court costs and reasonable attorney’s 's and expert’s 's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group by reason of or any third party to the extent arising out of:
(i) any violation or correction of any violation of Environmental Laws associated with the ownership or operation of the Assets, or;
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental LawsLaws or to satisfy any applicable Voluntary Cleanup Program, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, action or other plans required or necessary under Environmental Laws, Laws or to satisfy any applicable Voluntary Cleanup Program and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; or
(iii) the MTBE Litigation. but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “"Covered Environmental Losses”"); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To Except for the extent that a good faith claim by environmental indemnification obligation for the Partnership Entities for MTBE Litigation, all other environmental indemnification under obligations in this Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof 3.1 shall be terminate on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after fifth anniversary of the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇H▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities Group for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Drop-Down Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assetstransferred under this Agreement, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇W▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Drop-Down Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities Group for indemnification under Section 3.1(a)(i3.1(a)(ii) or Section 3.1(a)(ii(iii) 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 ▇H▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇H▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇H▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities Group for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇H▇▇▇▇ Entities shall not reimburse the Partnership Entities Group with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Drop-Down Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇H▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (Aa) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (Bb) the ▇H▇▇▇▇ Entities received notice from the Partnership Entities Group regarding such delay at the time it occurred.
(d) The Partnership Entities Group shall indemnify, defend and hold harmless the ▇H▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇H▇▇▇▇ Entities or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ EntityAssets, or
(ii) any event or condition associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent and regardless of whether such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred before or after the Closing Date, except to the extent that any of the foregoing are Covered Environmental Losses for which the Partnership Group is entitled to indemnification from H▇▇▇▇ under this Article III; provided, however, that nothing stated above shall make the Partnership Entities Group responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇H▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (Holly Energy Partners Lp)
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities Group for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assetstransferred under this Agreement, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities Group for indemnification under Section 3.1(a)(i3.1(a)(ii) or Section 3.1(a)(ii3.1(a)(iii) 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 ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities Group for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities Group with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities Group regarding such delay at the time it occurred.
(d) The Partnership Entities Group shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ EntityAssets, or
(ii) any event or condition associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent and regardless of whether such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred before or after the Closing Date, except to the extent that any of the foregoing are Covered Environmental Losses for which the Partnership Group is entitled to indemnification from ▇▇▇▇▇ under this Article III; provided, however, that nothing stated above shall make the Partnership Entities Group responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assetstransferred under this Agreement, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), ) except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but and only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
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Environmental Indemnification. (a) Subject to the limitations contained in this Section 3.23.1(a), the ▇▇▇▇▇ Entities MRMC shall indemnify, defend and hold harmless each of the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, toxic tort Losses suffered or incurred by any of the Partnership Entities by reason of or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership Assets or operation of the Retained Assets, or
(ii) any event or condition associated with the ownership or operation of the Assets or the Retained Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the Retained Assets or the disposal or release of Hazardous Substances generated by operation of the Assets or the Retained Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility a written notice of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled such violation, event or condition is given to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from MRMC by the Partnership Entities regarding such delay at within five years following the time it occurredClosing Date (collectively, "Covered Environmental Losses"). In no event shall the aggregate liability of MRMC pursuant to this Section 3.1(a) exceed $7,500,000.
(db) The Partnership Entities MRMC shall indemnify, defend and hold harmless any of the ▇▇▇▇▇ Partnership Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, Losses suffered or incurred by any of the ▇▇▇▇▇ Partnership Entities or any third party to the extent that MRMC is entitled to and receives indemnification, is defended or held harmless against any such Losses from any third-party pursuant to any agreement between any third-party and MRMC (collectively, "Pass-Through Environmental Losses"). In furtherance of such agreement, MRMC agrees to use its best commercially reasonable efforts to pursue, for the benefit of the Partnership Entities, any such indemnification with respect to which it might be entitled if requested by the Partnership; provided that, the Partnership shall reimburse MRMC for all costs and expenses incurred in connection with pursuing such indemnity on behalf of the Partnership.
(c) The Partnership shall indemnify, defend and hold harmless MRMC from and against Losses suffered or incurred by any of the MRMC Entities by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ EntityAssets, or
(ii) any event or condition associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent and regardless of whether such violation complained of under Section 3.1(d)(i3.1(c)(i) or such events or conditions included under Section 3.1(d)(ii3.1(c)(ii) occurred before or after the Closing Date; provided, however, except to the extent that nothing stated above shall make any of the foregoing are Covered Environmental Losses or Pass-Through Environmental Losses for which the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entitiesare entitled to indemnification from MRMC under this Article III.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value 12 suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties ▇▇▇▇▇ Entities which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or Pipeline, the Roadrunner Pipeline, the Tulsa Interconnecting Pipelines, the UNEV Pipeline, the Malaga Pipeline System (other than 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 Partnership Entities as part of the 2004 Product Pipelines, Terminal and Related Assets), or the El Dorado New Tank.
Appears in 1 contract
Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities Sunoco shall indemnify, defend and hold harmless the Partnership Entities Group for a period of 10 30 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort toxic tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s 's and expert’s 's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities Group or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the AssetsLaws, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), ) including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “"Covered Environmental Losses”"); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities Group shall indemnify, defend and hold harmless the ▇▇▇▇▇ Sunoco Entities from and against environmental and Toxic Tort toxic tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s 's and expert’s 's fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Sunoco Entities or any third party to the extent by reason of or arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ EntityLaws, or
(ii) any event or condition associated with the ownership or operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort toxic tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent and regardless of whether such violation complained of under Section 3.1(d)(i3.1(b)(i) or such events or conditions included under Section 3.1(d)(ii3.1(b)(ii) occurred before or after the Closing Date; provided, however, except to the extent that nothing stated above shall make any of the foregoing are Covered Environmental Losses for which the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ EntitiesGroup is entitled to indemnification from Sunoco under this Article III.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.
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Environmental Indemnification. (a) Subject to Section 3.2, the ▇▇▇▇▇ Entities shall indemnify, defend and hold harmless the Partnership Entities for a period of 10 years after the Closing Date or, solely with respect to the 2008 Crude Pipelines, Tanks and Related Assets, 15 years after the Closing Date, as applicable, from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value suffered by third parties, and lost profits), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the Partnership Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the ownership or operation of the Assets, or
(ii) any event or condition associated with ownership or operation of the Assets (including, without limitation, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations), including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, “Covered Environmental Losses”); or
(iii) the operation or ownership by ▇▇▇▇▇ and its Affiliates of any assets not constituting part of the Assets, including but not limited to underground pipelines retained by the Seller Parties ▇▇▇▇▇ Entities which serve the refineries in Lovington, New Mexico, Artesia, New Mexico and ▇▇▇▇▇ Cross, Utah or the tanks that are part of the 2008 Crude Pipelines, Tanks and Related Assets to the extent not transferred to the Partnership Entities (the “Transferred Tanks”), except to the extent arising out of the negligent acts or omissions or willful misconduct of a member of the Partnership Entities.
(b) To the extent that a good faith claim by the Partnership Entities for indemnification under Section 3.1(a)(i) or Section 3.1(a)(ii) arises from events or conditions at the Transferred Tanks or the soil immediately underneath the Transferred Tanks or the Transferred Tanks’ secondary containment, and the ▇▇▇▇▇ Entities refuse to provide such indemnification, then the burden of proof shall be on the ▇▇▇▇▇ Entities to demonstrate that the events or conditions giving rise to the claim arose after the Closing Date.
(c) The ▇▇▇▇▇ Entities shall, during the period that commences on the Closing Date and ends five (5) years thereafter (the “Initial Tank Inspection Period”), reimburse the Partnership Entities for the actual costs associated with the first regularly scheduled API 653 inspection (the “Initial Tank Inspections”) and the costs associated with the replacement of the tank mixers on each of the Transferred Tanks after the Closing Date and any repairs required to be made to the Transferred Tanks as a result of any discovery made during the Initial Tank Inspections; provided, however, that (i) the ▇▇▇▇▇ Entities shall not reimburse the Partnership Entities with respect to the relocated crude oil Tank 437 in the Artesia refinery complex and the new crude oil tank to replace crude oil Tank 439 in the Artesia refinery complex more particularly described in the definition of 2008 Crude Pipelines, Tanks and Related Assets, and (ii) upon expiration of the Initial Tank Inspection Period, all of the obligations of the ▇▇▇▇▇ Entities pursuant to this Section 3.1(c) shall terminate, except that the Initial Tank Inspection Period shall be extended if, and only to the extent that (A) inaccessibility of the Transferred Tanks during the Initial Tank Inspection Period caused the delay of an Initial Tank Inspection originally scheduled to be preformed performed during the Initial Tank Inspection Period, and (B) the ▇▇▇▇▇ Entities received notice from the Partnership Entities regarding such delay at the time it occurred.
(d) The Partnership Entities shall indemnify, defend and hold harmless the ▇▇▇▇▇ Entities from and against environmental and Toxic Tort losses (including, without limitation, economic losses, diminution in value and lost profits suffered by third parties), damages, injuries (including, without limitation, personal injury and death), liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent, suffered or incurred by the ▇▇▇▇▇ Entities or any third party to the extent arising out of:
(i) any violation or correction of violation of Environmental Laws associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity, or
(ii) any event or condition associated with the operation of the Assets by a Person other than a ▇▇▇▇▇ Entity or ownership and operation of the Assets by a Person other than a ▇▇▇▇▇ Entity (including, but not limited to, the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or release of Hazardous Substances generated by operation of the Assets at non-Asset locations) except, where a ▇▇▇▇▇ Entity is operating an Asset, to the extent resulting from the negligent acts or omissions or willful misconduct of such ▇▇▇▇▇ Entity including, without limitation, (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, or other corrective action required or necessary under Environmental Laws, (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws, and (C) the cost and expense for any environmental or Toxic Tort pre-trial, trial, or appellate legal or litigation support work; but only to the extent such violation complained of under Section 3.1(d)(i) or such events or conditions included under Section 3.1(d)(ii) occurred after the Closing Date; provided, however, that nothing stated above shall make the Partnership Entities responsible for any post-Closing Date negligent actions or omissions or willful misconduct by the ▇▇▇▇▇ Entities.
(e) Notwithstanding anything in this Agreement to the contrary, as used in Section 3.1(a) the definition of Assets shall not include the 16” Lovington/Artesia Intermediate Pipeline, the ▇▇▇▇▇▇ Pipeline or the Roadrunner Pipeline.and
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Sources: Omnibus Agreement