Tanks Under Construction. Tank 108 at the Cheyenne Refinery and Tanks 640 and 641 at the El Dorado Refinery (the “Under Construction Tanks”) are under construction and, as of the date of this Agreement, such construction is incomplete. The Under Construction Tanks are owned by a Seller and have not been transferred to either Cheyenne Logistics or El Dorado Logistics prior to or contemporaneously with the Closing. Following the Closing, each Seller agrees that it shall complete the construction of the Under Construction Tanks that are located at the Refinery it owns in an expeditious and diligent manner and at the applicable Seller’s sole cost and expense. Upon completion of the construction of each Under Construction Tank, the Seller that owns such tank shall convey title to it to either Cheyenne Logistics (for Tank 108) or El Dorado Logistics (for Tanks 640 and 641). Prior to the conveyance of a tank as described in the prior sentence, risk of loss for the Under Construction Tanks shall remain with the Seller that owns such tank, and any loss, destruction or damage to the tank shall not relieve such Seller of the obligation to diligently construct and convey such tank as described herein. Notwithstanding the foregoing, no Seller shall be entitled to any consideration for conveyance of the Under Construction Tanks other than the consideration received under Section 2.2 of this Agreement, and conveyance of the Under Construction Tanks shall not affect Sellers’ obligations under the Throughput Agreements. Following the conveyance of the Under Construction Tanks, the term “Cheyenne Assets” shall be deemed to include Tank 108 and the term “El Dorado Assets” shall be deemed to include Tanks 640 and 641, for all purposes, including (i) breaches of representations and warranties hereunder and any indemnification to which a Buyer is entitled as a result thereof, and (ii) any Ancillary Documents containing provisions or defined terms that refer to or derive their meaning from the definition of “Assets,” “Cheyenne Assets” or “El Dorado Assets” under this Agreement.
Tanks Under Construction. Following the Closing, VTDC agrees that it will complete or cause to be completed, the construction of tank TK-80-2 owned by Valero Meraux and tank TK-201 owned by Valero Three Rivers (collectively, the “Under Construction Tanks”) in an expeditious, diligent and good and workmanlike manner and at VTDC’s sole cost and expense, and the Partnership shall be entitled to participate in all stages of planning, scheduling, implementing and oversight of construction. Any Losses, Claims and Encumbrances that may arise out of the performance of such work on the Under Construction Tanks shall constitute Partnership Indemnified Costs, except to the extent they (a) arise out of the acts, omissions or negligence of any of the Partnership Indemnified Parties or (b) constitute Special Damages (other than Special Damages of the types identified in clauses (a) and (b) of the definition of Partnership Indemnified Costs). Neither VTDC nor its Affiliates shall be entitled to any additional consideration by reason of VTDC’s undertakings in this Section 6.6, other than the consideration set forth in Section 2.2(a), nor shall VTDC’s undertakings in this Section 6.6 affect VTDC’s or its Affiliates’ obligations under the Terminal Services Schedules.
