(II) HAS MADE ANY
RECOMMENDATION, GIVEN ANY ADVICE OR TAKEN ANY OTHER ACTION WITH RESPECT TO THE
CHOICE OF ANY MANUFACTURER, SUPPLIER OR TRANSPORTER OF, OR ANY VENDOR OF OR
OTHER CONTRACTOR, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO PROPERTY
COMPRISING THE FACILITY, (III) HAS AT ANY TIME HAD PHYSICAL POSSESSION OF ANY
SUCH PROPERTY, (IV) HAS MADE OR IS MAKING ANY WARRANTY, EXPRESS OR IMPLIED,
RELATING TO THE FACILITY, INCLUDING WITHOUT LIMITATION, WITH RESPECT TO TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, THE DESIGN,
CONDITION, QUALITY OF MATERIAL OR WORKMANSHIP, CONFORMITY TO SPECIFICATIONS,
FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT, ABSENCE OF ANY LATENT OR OTHER
DEFECTS, WHETHER OR NOT DISCOVERABLE, WHETHER ARISING PURSUANT TO THE UCC OR ANY
OTHER PRESENT OR FUTURE LAW OR OTHERWISE, OR COMPLIANCE WITH APPLICABLE PERMITS
OR OTHER GOVERNMENTAL REQUIREMENTS, OR (V) SHALL BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LIABILITY IN TORT, STRICT OR OTHERWISE).
IN
THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE FACILITY OR ANY
PROPERTY OR OTHER ITEM CONSTITUTING A PART THEREOF, WHETHER PATENT OR LATENT,
NONE OF THE LESSOR, ANY LEASE PARTICIPANT, ARRANGER, OR ADMINISTRATIVE AGENT
SHALL HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO.
THE PROVISIONS
OF THIS SECTION 11 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, BY THE
LESSOR, THE LEASE PARTICIPANTS, ARRANGER, AND ADMINISTRATIVE AGENT WITH RESPECT
TO THE FACILITY OR ANY PROPERTY OR OTHER ITEM CONSTITUTING A PART THEREOF,
WHETHER ARISING PURSUANT TO THE UCC OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT.
(b)
The Lessor hereby assigns to the Lessee,
until the occurrence of a Cancellation Event or Termination Event hereunder, the
benefits in respect of any Vendor's warranties or undertakings, express or
implied, relating to the Facility (including any labor, equipment or parts
supplied therewith), and, to the extent assignment of the same is prohibited or
precludes enforcement of any such warranty or undertaking, the Lessor hereby
subrogates the Lessee to its rights in respect thereof.
The Lessor hereby
authorizes the Lessee, at the Lessee's expense, to assert any and all claims and
to prosecute any and all suits, actions and proceedings, in its own name or in
the name of the Lessor, in respect of any such warranty or undertaking and,
except during the continuance of an Event of Default, or after the occurrence of
a Cancellation Event or Termination Event hereunder, to retain the proceeds
received, and after the termination of this Lease or after the occurrence of a
Cancellation Event or Termination Event, to pay the same in the form received
(with any necessary endorsement) to the Lessor.
(c)
The Lessee may use the Facility for the
Permitted Use provided that the value of the Facility is not diminished by any
such use other than as a result of normal wear and tear in the ordinary course
of business.
During the term of this Lease, the Lessor covenants that unless