Common use of Limitations Regarding Indemnification Clause in Contracts

Limitations Regarding Indemnification. The Tesoro Indemnifying Parties shall not, in any calendar year, be obligated to indemnify, defend and hold harmless the Partnership Group for a Covered Environmental Loss under Section 3.1(a)(ii) until such time as the aggregate amount of all Covered Environmental Losses in such calendar year exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying Parties shall be obligated to indemnify the Partnership Group for the amount of Covered Environmental Losses under Section 3.1(a)(ii) that are in excess of the Annual Environmental Deductible that are incurred by the Partnership Group in such calendar year. The Tesoro Indemnifying Parties shall not, in any calendar year, be obligated to indemnify, defend and hold harmless the Partnership Group for any individual Loss under Section 3.2 until such time as the aggregate amount of all Losses under Section 3.2 that are in such calendar year exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” (the “Annual ROW Deductible”), at which time the Tesoro Indemnifying Parties shall be obligated to indemnify the Partnership Group for all Losses under Section 3.2 in excess of the Annual ROW Deductible that are incurred by the Partnership Group in such calendar year.” 3. The “and” at the end of Section 4.1(c)(v) of the Original Agreement is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced with “; and.” In addition, a new Section 4.1(c)(vii) is hereby added to the Original Agreement as follows:

Limitations Regarding Indemnification. The Tesoro Indemnifying Parties (a) CONSOL shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless the any Partnership Group for a Covered Environmental Loss Member under Section 3.1(a)(ii2.1(a), Section 2.1(b), Section 2.1(c) and/or Section 2.1(d) until such time as the total aggregate amount of all Covered Environmental Losses in incurred by the Partnership Group for such calendar year Losses exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” $1,000,000 (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying Parties CONSOL shall be obligated to indemnify the Partnership Group for the amount of Covered Environmental such Losses under Section 3.1(a)(ii) that are in excess of the Annual Environmental Deductible that are incurred by the Deductible. (b) The Partnership Group in such calendar year. The Tesoro Indemnifying Parties shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless the Partnership any CONSOL Group for any individual Loss Member under Section 3.2 2.2(b)(i) and/or Section 2.2(b)(ii) to the extent and only to the extent relating to periods prior to the Closing until such time as the total aggregate amount of all Losses under Section 3.2 that are in incurred by the CONSOL Group for such calendar year Losses exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” (the “Annual ROW Deductible”), at which time the Tesoro Indemnifying Parties Partnership shall be obligated to indemnify the Partnership CONSOL Group for all the amount of such Losses under Section 3.2 in excess of the Annual ROW Deductible that are incurred Deductible. (c) For the avoidance of doubt, there is no monetary cap on the amount of indemnity coverage provided by any Indemnifying Party under this Article II. (d) The indemnities set forth in Section 2.1(a), Section 2.1(b), Section 2.1(c) and/or Section 2.1(d) shall terminate on the Partnership Group in such calendar year.” 3third anniversary of the Closing Date. The “and” at indemnities set forth in Section 2.1(e), Section 2.1(f), Section 2.1(g), Section 2.1(h) and Section 2.2(b) shall survive the end of Section 4.1(c)(v) of the Original Agreement is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced with “; and.” In additionClosing without time limit, a new Section 4.1(c)(vii) is hereby added to the Original Agreement as follows:fullest extent permitted by law. Notwithstanding the foregoing, there shall be no termination of any bona fide claim asserted pursuant to the indemnities in Section 2.1(a), Section 2.1(b), Section 2.1(c) and/or Section 2.1(d) prior to the date of termination for such indemnity. (e) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, A PARTY’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT SHALL BE LIMITED, TO THE FULLEST EXTENT PERMITTED BY LAW, TO ACTUAL DIRECT DAMAGES AND SHALL NOT INCLUDE ANY OTHER LOSS OR DAMAGE, INCLUDING INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, PRODUCTION OR REVENUES, AND EACH PARTY EXPRESSLY RELEASES THE OTHER PARTY FROM ALL SUCH CLAIMS FOR LOSS OR DAMAGE OTHER THAN ACTUAL DIRECT DAMAGES; PROVIDED THAT LIMITATION TO DIRECT DAMAGES ONLY SHALL NOT APPLY TO ANY DAMAGE, CLAIM OR LOSS ASSERTED BY OR AWARDED TO THIRD PARTIES AGAINST A PARTY AND FOR WHICH THE OTHER PARTY WOULD OTHERWISE BE RESPONSIBLE UNDER THIS ARTICLE II.

Limitations Regarding Indemnification. (a) The Tesoro Indemnifying CONSOL Parties shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless the Partnership Group for a Covered Environmental Loss under Section 3.1(a)(ii) Parties until such time as the total aggregate amount of all Covered Environmental Losses in Damages incurred by the Partnership Group for such calendar year Damages exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” $880,000 (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying CONSOL Parties shall be obligated to indemnify the Partnership Group for the amount of Covered Environmental Losses under Section 3.1(a)(ii) that are such Damages in excess of the Annual Environmental Deductible Deductible; provided, however, that are incurred by the Partnership Group in such calendar year. The Tesoro Indemnifying CONSOL Parties shall notnot be liable for Damages pursuant to Section 7.1 (but not including Damages for breaches of Fundamental Representations) that exceed, in any calendar yearthe aggregate, $8,800,000 (the “Cap”). (b) The Partnership Parties shall not be obligated to indemnify, defend and hold harmless the Partnership Group for any individual Loss under Section 3.2 CONSOL Parties, until such time as the total aggregate amount of all Losses under Section 3.2 that are in Damages incurred by the CONSOL Parties for such calendar year Damages exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” (the “Annual ROW Deductible”), at which time the Tesoro Indemnifying Partnership Parties shall be obligated to indemnify the Partnership Group CONSOL Parties for all Losses under Section 3.2 the amount of such Damages in excess of the Annual ROW Deductible Deductible; provided, however, that are incurred the Partnership Parties shall not be liable for Damages that exceed, in the aggregate, the Cap. (c) The liability of the CONSOL Parties for the breach of any of the representations and warranties of the CONSOL Parties set forth in Section 3.1 other than the Fundamental Representations shall be limited to claims for which the Partnership Parties deliver written notice to the CONSOL Parties on or before the date that is 18 months after the Closing Date. The indemnity of the CONSOL Parties for the breach of any of the representations and warranties of the CONSOL Parties set forth in Section 3.1(a), Section 3.1(b), Section 3.1(c) and Section 3.1(i) (the “Fundamental Representations”) shall survive indefinitely or until the latest date permitted by Law. The liability of the CONSOL Parties for failure to perform any of the covenants described in Article IV shall be limited to claims for which the Partnership Parties deliver written notice to the CONSOL Parties on or before the date CONSOL fully performs its obligations under those covenants. The liability of the CONSOL Parties for Damages for claims related to or arising from breach of the covenants described in Section 8.1 shall be limited to claims for which the Partnership Parties deliver written notice to the CONSOL on or before the date that is 90 days after the expiration of the applicable statute of limitations. (d) The liability of the Partnership Parties for the breach of any of the representations and warranties of the Partnership Parties set forth in Section 3.2 shall be limited to claims for which the CONSOL Parties deliver written notice to the Partnership Parties on or before the date that is 18 months after the Closing Date. (e) For purposes of determining the amount of Damages, with respect to any asserted claim for indemnification by the Partnership Group Parties, such determination shall be made without regard to any qualifier as to “material,” “materiality” or Sponsor Material Adverse Effect expressly contained in such calendar yearSection 3.1.” 3. The “and” at the end of Section 4.1(c)(v(f) of the Original Agreement is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced with “NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, A PARTY’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT SHALL BE LIMITED, TO THE FULLEST EXTENT PERMITTED BY LAW, TO ACTUAL DIRECT DAMAGES AND SHALL NOT INCLUDE ANY OTHER LOSS OR DAMAGE, INCLUDING INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, PRODUCTION OR REVENUES, AND EACH PARTY EXPRESSLY RELEASES THE OTHER PARTY FROM ALL SUCH CLAIMS FOR LOSS OR DAMAGE OTHER THAN ACTUAL DIRECT DAMAGES; andPROVIDED THAT LIMITATION TO DIRECT DAMAGES ONLY SHALL NOT APPLY TO ANY DAMAGE, CLAIM OR LOSS ASSERTED BY OR AWARDED TO THIRD PARTIES AGAINST A PARTY AND FOR WHICH THE OTHER PARTY WOULD OTHERWISE BE RESPONSIBLE UNDER THIS ARTICLE VII.” In addition, a new Section 4.1(c)(vii) is hereby added to the Original Agreement as follows:

Limitations Regarding Indemnification. (a) The Tesoro Indemnifying Parties aggregate liability of SPLC under Section 2.1(a)(i), Section 2.1(a)(ii), Section 2.2, Section 2.3(a)(iii) and Section 2.3(a)(v) shall notnot exceed $15,000,000. (b) With respect to Covered Environmental Losses under Section 2.1(a)(i), in any calendar year2.1(a)(ii) and Section 2.1(a)(iii), SPLC shall not be obligated to indemnify, defend and or hold harmless the Partnership any Group for a Covered Environmental Loss under Section 3.1(a)(ii) Member until such time as the aggregate amount of all Losses incurred by the Partnership Group for such Covered Environmental Losses in such calendar year exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” $500,000 (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying Parties SPLC shall be obligated to indemnify the Partnership Group for the amount excess of such Covered Environmental Losses under Section 3.1(a)(iiover the Environmental Deductible. (c) that are in excess of the Annual Environmental Deductible that are incurred by the Partnership Group in such calendar year. The Tesoro Indemnifying Parties With respect to Covered Right-of-Way and Permits Losses, SPLC shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless the Partnership any Group for any individual Loss under Section 3.2 Member until such time as the aggregate amount of all Covered Right-of-Way and Permits Losses under Section 3.2 that are in such calendar year exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” $500,000 (the “Annual ROW Right-of-Way and Permits Deductible”), at which time the Tesoro Indemnifying Parties SPLC shall be obligated to indemnify the Partnership Group for all the excess of such Losses over the Right-of-Way and Permits Deductible. (d) With respect to Losses covered under Section 3.2 in excess 2.3(a)(ii), SPLC shall not be obligated to indemnify, defend and hold harmless any Group Member until such time as the aggregate amount of such Losses exceeds $500,000 (the Annual ROW Deductible that are incurred by “Retained Assets Deductible”), at which time SPLC shall be obligated to indemnify the Partnership Group in for the excess of such calendar yearLosses over the Retained Assets Deductible. (e) With respect to Losses covered under Section 2.3(a)(iii), SPLC shall not be obligated to indemnify, defend and hold harmless any Group Member until such time as the aggregate amount of such Losses exceeds $500,000 (the “Litigation Matters Deductible”), at which time SPLC shall be obligated to indemnify the Partnership Group for the excess of such Losses over the Litigation Matters Deductible. 3. The (f) With respect to Losses covered under Section 2.3(a)(iv), SPLC shall not be obligated to indemnify, defend and hold harmless any Group Member until such time as the aggregate amount of such Losses exceeds $500,000 (the “and” Tax Matters Deductible”), at which time SPLC shall be obligated to indemnify the end Partnership Group for the excess of Section 4.1(c)(vsuch Losses over the Tax Matters Deductible. (g) For the avoidance of the Original Agreement doubt, there is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced no deductible with “; and.” In addition, a new Section 4.1(c)(vii) is hereby added respect to the Original Agreement as follows:indemnification owed by any Indemnifying Party under any portion of this Article 2 other than that described in Sections 2.5(b) through 2.5(f) and no monetary cap on the amount of indemnity coverage provided by any Indemnifying Party under this Article 2 other than that that described in Section 2.5(a). (h) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY’S INDEMNIFICATION OBLIGATION HEREUNDER COVER OR INCLUDE CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES OR LOST PROFITS (INCLUDING ANY DIMINUTION IN VALUE OF ANY PARTY’S RESPECTIVE INVESTMENT IN THE PARTNERSHIP OR ANY JOINT VENTURE ENTITY) SUFFERED, DIRECTLY OR INDIRECTLY, BY ANY OTHER PERSON ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT, EXCEPT AS A REIMBURSEMENT FOR ANY SUCH DAMAGES AS ARE PAID TO A GOVERNMENTAL ENTITY OR OTHER UNAFFILIATED THIRD PARTY, WHETHER OR NOT THE INDEMNIFYING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (i) THE FOREGOING INDEMNITIES ARE INTENDED TO BE ENFORCEABLE AGAINST THE PARTIES IN ACCORDANCE WITH THE EXPRESS TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT INDEMNITIES BECAUSE OF THE SOLE, CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR FAULT OF ANY OF THE INDEMNIFIED PERSONS.

Limitations Regarding Indemnification. (a) The Tesoro Indemnifying Parties aggregate liability of BP Pipelines under Section 2.1(a)(i), Section 2.1(a)(ii), Section 2.2, Section 2.3(a)(iii) and Section 2.3(a)(v) shall notnot exceed $15,000,000 (fifteen million U.S. dollars). (b) The aggregate liability of BP Pipelines under Section 2.3(a)(i) shall not exceed the amount of the total proceeds received by BP Pipelines Entities under the Contribution Agreement on the Closing Date. (c) The aggregate liability of BP Pipelines for the matters set forth on Schedule A shall not exceed $25,000,000 (twenty-five million U.S. dollars). (d) With respect to Covered Environmental Losses under Section 2.1(a)(i) and Section 2.1(a)(ii), in any calendar year, BP Pipelines shall not be obligated to indemnify, defend and or hold harmless any member of the Partnership Group for a Covered Environmental Loss under Section 3.1(a)(ii) until such time as the aggregate amount of all Losses incurred by the Partnership Group for such Covered Environmental Losses in such calendar year exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” $500,000 (five hundred thousand U.S. dollars) (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying Parties BP Pipelines shall be obligated to indemnify the Partnership Group for the amount excess of such Covered Environmental Losses over the Environmental Deductible. The Environmental Deductible shall not apply to items identified on Schedule A. (e) With respect to Covered Right-of-Way and Permits Losses under Section 3.1(a)(ii) that are in excess of the Annual Environmental Deductible that are incurred by the Partnership Group in such calendar year. The Tesoro Indemnifying Parties 2.2, BP Pipelines shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless any member of the Partnership Group for any individual Loss under Section 3.2 until such time as the aggregate amount of all Covered Right-of-Way and Permits Losses under Section 3.2 that are in such calendar year exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” $500,000 (five hundred thousand U.S. dollars) (the “Annual ROW Right-of-Way and Permits Deductible”), at which time the Tesoro Indemnifying Parties BP Pipelines shall be obligated to indemnify the Partnership Group for all Losses under Section 3.2 in the excess of such Losses over the Annual ROW Deductible that are incurred by the Partnership Group in such calendar yearRight-of-Way and Permits Deductible.” 3. The “and” at the end of Section 4.1(c)(v) of the Original Agreement is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced with “; and.” In addition, a new Section 4.1(c)(vii) is hereby added to the Original Agreement as follows:

Limitations Regarding Indemnification. (a) The Tesoro Indemnifying Parties aggregate liability of BP Pipelines under Section 2.1(a)(i), Section 2.1(a)(ii), Section 2.2, Section 2.3(a)(iii) and Section 2.3(a)(v) shall notnot exceed $15,000,000 (fifteen million U.S. dollars). (b) The aggregate liability of BP Pipelines under Section 2.3(a)(i) shall not exceed the amount of the total proceeds received by BP Pipelines Entities under the Contribution Agreement on the Closing Date. (c) The aggregate liability of BP Pipelines for the matters set forth on Schedule A shall not exceed $25,000,000 (twenty-five million U.S. dollars). (d) With respect to Covered Environmental Losses under Section 2.1(a)(i) and Section 2.1(a)(ii), in any calendar year, BP Pipelines shall not be obligated to indemnify, defend and or hold harmless any member of the Partnership Group for a Covered Environmental Loss under Section 3.1(a)(ii) until such time as the aggregate amount of all Losses incurred by the Partnership Group for such Covered Environmental Losses in such calendar year exceeds the amount listed on Schedule VIII under “Annual Environmental Deductible” $500,000 (five hundred thousand U.S. dollars) (the “Annual Environmental Deductible”), at which time the Tesoro Indemnifying Parties BP Pipelines shall be obligated to indemnify the Partnership Group for the amount excess of such Covered Environmental Losses over the Environmental Deductible. The Environmental Deductible shall not apply to items identified on Schedule A. (e) With respect to Covered Right-of-Way and Permits Losses under Section 3.1(a)(ii) that are in excess of the Annual Environmental Deductible that are incurred by the Partnership Group in such calendar year. The Tesoro Indemnifying Parties 2.2, BP Pipelines shall not, in any calendar year, not be obligated to indemnify, defend and hold harmless any member of the Partnership Group for any individual Loss under Section 3.2 until such time as the aggregate amount of all Covered Right-of-Way and Permits Losses under Section 3.2 that are in such calendar year exceeds the amount listed on Schedule VIII under “Annual ROW Deductible” $500,000 (five hundred thousand U.S. dollars) (the “Annual ROW Right-of-Way and Permits Deductible”), at which time the Tesoro Indemnifying Parties BP Pipelines shall be obligated to indemnify the Partnership Group for all the excess of such Losses over the Right-of-Way and Permits Deductible. (f) With respect to Losses covered under Section 3.2 in excess 2.3(a)(i), BP Pipelines shall not be obligated to indemnify, defend and hold harmless any member of the Annual ROW Deductible that are incurred by the Partnership Group in until such calendar yeartime as the aggregate amount of such Losses exceeds $500,000 (five hundred thousand U.S. dollars) (the “Equity Contribution Deductible”), at which time BP Pipelines shall be obligated to indemnify the Partnership Group for the excess of such Losses over the Equity Contribution Deductible. (g) With respect to Losses covered under Section 2.3(a)(iii), BP Pipelines shall not be obligated to indemnify, defend and hold harmless any member of the Partnership Group until such time as the aggregate amount of such Losses exceeds $500,000 (five hundred thousand U.S. dollars) (the “Litigation Matters Deductible” 3), at which time BP Pipelines shall be obligated to indemnify the Partnership Group for the excess of such Losses over the Litigation Matters Deductible. The “and” at the end of Litigation Matters Deductible shall not apply to items identified on Schedule B. (h) With respect to Losses covered under Section 4.1(c)(v) 2.3(a)(v), BP Pipelines shall not be obligated to indemnify, defend and hold harmless any member of the Original Agreement Partnership Group until such time as the aggregate amount of such Losses exceeds $500,000 (five hundred thousand U.S. dollars) (the “Asset Contribution Deductible”), at which time BP Pipelines shall be obligated to indemnify the Partnership Group for the excess of such Losses over the Asset Contribution Deductible. (i) For the avoidance of doubt, there is deleted and the period at the end of Section 4.1(c)(vi) of the Original Agreement is replaced no deductible with “; and.” In addition, a new Section 4.1(c)(vii) is hereby added respect to the Original Agreement as follows:indemnification owed by any Indemnifying Party under any portion of this Article 2 other than that described in Sections 2.5(d) through 2.5(h) and no monetary cap on the amount of indemnity coverage provided by any Indemnifying Party under this Article 2 other than that that described in Sections 2.5(a), 2.5(b) and 2.5(c).