of such third-party services
results in a material increase of any Lessor Services required by Lessor
Services, and (iii) provision of such Lessor Services is available to Lessee
from third-party vendors on commercially reasonable terms, then Lessor may
decline to provide such increased and additional Lessor Services.
(b)
If subsequent to the date hereof Lessor Services not specifically described
herein, but which are being produced or utilized by Lessor or its Affiliates in
the normal course of their operations at the Refinery Site, are or become
reasonably necessary to operate or maintain the Tank Farm Assets and any
Improvements, Lessor shall use commercially reasonable efforts to provide such
Lessor Services on terms and conditions consistent with the provision of the
existing Lessor Services by Lessor. The Rent with respect to such additional
Lessor Services may be increased in accordance with Section 5.2 hereof.
5.4
Disclaimers.
(a)
FAILURE TO ANY EXTENT TO MAKE AVAILABLE, OR ANY SLOW-DOWN, STOPPAGE OR
INTERRUPTION OF ANY LESSOR SERVICES DESCRIBED IN THIS ARTICLE 5 RESULTING FROM
ANY CAUSE WHATSOEVER (OTHER THAN LESSOR'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT) SHALL NOT RENDER LESSOR LIABLE IN ANY RESPECT FOR DAMAGES, NOR BE
CONSTRUED AS AN EVICTION OF LESSEE (ACTUAL OR CONSTRUCTIVE) NOR RELIEVE LESSEE
FROM FULFILLMENT OF ANY COVENANT OR AGREEMENT HEREOF. NEITHER LESSOR NOR ANY OF
ITS LESSOR INDEMNIFIED PARTIES SHALL BE LIABLE TO LESSEE OR ANY OF THE LESSEE
INDEMNIFIED PARTIES FOR ANY LOSSES ARISING OUT OF THE PROVISION AND DELIVERY OF
(OR FAILURE TO PROVIDE AND DELIVER) ANY LESSOR SERVICES, AND LESSEE HEREBY
RELEASES THE LESSOR INDEMNIFIED PARTIES FROM ALL SUCH LOSSES.
(b)
LESSEE ASSUMES ALL RISKS AND LIABILITIES IN CONNECTION WITH ITS USE OF ANY
LESSOR SERVICES PROVIDED BY LESSOR PURSUANT TO THE TERMS OF THIS LEASE OTHER
THAN TO THE EXTENT ARISING FROM LESSOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
LESSEE HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT, OR FUTURE, OF, AS TO, CONCERNING OR
11
WITH RESPECT TO THE LESSOR SERVICES SO PROVIDED INCLUDING WITHOUT LIMITATION
(A) THE NATURE, QUALITY, CHARACTER OR SUFFICIENCY OF FACILITIES AND EQUIPMENT
UTILIZED TO SUPPLY THE LESSOR SERVICES TO LESSEE; (B) THE CONDITION OF THE
LESSOR SERVICES; (C) ANY SPECIFIC PRESSURE OR VOLUME OF FIREWATER, IT BEING
UNDERSTOOD THAT NO SUCH GUARANTEE IS PROVIDED BY LESSOR, AND THAT THERE MAY BE
TIMES WHEN THE FIREWATER SERVICE TO EITHER OR BOTH THE TANKS AND THE REFINERY IS
INTERRUPTED OR UNAVAILABLE, (D) THE COMPLIANCE OF OR BY THE LESSOR SERVICES WITH
ANY APPLICABLE LAWS; (E) THE MERCHANTABILITY, OR FITNESS OF THE LESSOR SERVICES
FOR A PARTICULAR PURPOSE; OR (F) ANY OTHER MATTER WITH RESPECT TO THE LESSOR
SERVICES OR THEIR RESPECTIVE DELIVERY FACILITIES COLLECTIVELY THE "DISCLAIMED
MATTERS"). LESSEE HEREBY WAIVES ANY SUCH DISCLAIMED MATTERS. FURTHER, LESSOR
MAKES NO WARRANTY OR REPRESENTATION THAT THE LESSOR SERVICES CONFORM TO LESSEE'S
SPECIFICATIONS OR ANY LEGAL OR INDUSTRY