Common use of Operations, Receipts and Deliveries Clause in Contracts

Operations, Receipts and Deliveries. 5.1 Receipts and deliveries of Product will be handled within the normal business hours of the Terminal. Owner may, without Customer’s approval, make temporary changes in business hours or temporarily close any Terminal or Storage Tank because of an extraordinary event (“Temporary Event”); provided, however, that a Temporary Event shall not include events caused by failure of equipment that Owner is obligated to maintain pursuant to this Agreement. Owner will notify Customer of such Temporary Event in advance, or as soon after implementation as is practicable. Except as required pursuant to Sections 5.2, 10.1, or 19 of this Agreement, Owner will not be responsible for the payment of any costs incurred by Customer or its transportation carrier for any delay in receiving or delivering Product or any other costs or fees, including freight, car leases and demurrage, as a result of such Temporary Event. 5.2 As part of the facility, Owner shall make available to Customer facilities serving the Terminal for receiving and unloading of Product from Customer and loading Products to Customer or Customer’s carrier (such unloading and loading facilities, collectively, the “Loading Facilities”). The Loading Facilities, being used for purposes defined in Section 2.2, are available on a “first-come, first-served” basis. In no event will Owner be responsible for accruing any expense, including demurrage, for following Customer’s instructions for the Loading Facilities. Any demurrage shall be at Customer’s sole expense, unless and to such extent demurrage is established by Customer as caused by Owner’s gross negligence or willful misconduct. Owner and Customer agree to use reasonable efforts to minimize any demurrage that may be incurred by Customer in accordance with the foregoing. Customer acknowledges that Owner requires Third Parties operating on Customer’s behalf and entering or accessing the Terminal to have separate access or service agreements with Owner. Owner will put in place agreements with any such Third Parties and Owner, at its sole discretion, will approve, negotiate and finalize such agreements. Owner will notify Customer of Third Parties operating on Customer’s behalf that are denied access to the Terminal. 5.3 Customer must arrange for and pay all costs related to the delivery of Customer’s Product to the Terminal and Third-Party costs from the Storage Tanks. Owner is not responsible for such Third-Party costs except as otherwise specifically provided herein. Unless otherwise provided by Owner in writing, Customer must provide notice reasonably acceptable to Owner containing all necessary instructions, including without limitation, the identity and quantity and any other specifications of the Product and the tentative date of delivery to the Terminal (“Scheduling Notice”). The Scheduling Notice may also be provided to Owner by Customer through electronic communications in the form of email. The Parties shall reasonably coordinate with each other in advance with regard to scheduling of all Product movements and the in-bound quality, volume, and grade, the times of delivery to Terminal, and all material movements prior to shipment of all Product delivered to Owner hereunder. Each Scheduling Notice delivered hereunder to Owner by Customer for deliveries of Product to a Terminal shall be sent to those individuals that Owner has specified to Customer to receive such Scheduling Notice for the applicable Terminal with respect to such Product delivery. 5.4 Upon receipt by Owner of instructions from Customer, Owner will deliver to Customer, or to such Third Parties as Customer may direct, the Product held by Owner in the Storage Tanks for the account of Customer. Customer is responsible for providing to Owner documentation required to authorize deliveries for or on its behalf from the Terminal. 5.5 Owner will provide the Services to Customer only with respect to Product. Customer will have access to the Terminal and Storage Tanks for other products only with prior written notice to and consent by Owner, such consent not to be unreasonably withheld, conditioned or delayed. Any other product approved by Owner will then become part of Product as defined in this Agreement. If a special method of providing the Services is required for the Product, then Customer must notify Owner in sufficient time to enable Owner to consider whether, in Owner’s sole discretion, it will accept the proposed changes in the method of delivering the Services and to take the necessary preparatory measures if it agrees with such changes. Absent such notice and absent Owner’s written approval with respect to a change in the Product to another Product or the method of delivering the Services, Owner will not be liable for losses, tank heels, line fill or damage incurred during the terminalling and storage of Product (except for losses and damages resulting from Product Loss), nor will Owner be obligated to provide such special Service. It is understood that the cost of any additional or special equipment required by Customer or of alterations made necessary by the nature of Product will be for the account of Customer, and Customer will be responsible for the expense of any necessary cleaning and restoration to their previous condition of the Terminal and Storage Tanks, including, without limitation, pumps, tank heels and loading facilities, unless otherwise explicitly stated in this Agreement. All fixtures, equipment, and appurtenances attached to the Storage Tanks will be installed by the Owner and will remain the property of Owner. 5.6 If any Storage Tank is damaged or destroyed by fire or other casualty, Owner will use reasonable efforts to make other storage tanks available to Customer at the monthly tankage fee as set forth in the applicable Schedules. If other storage tanks are unavailable, the monthly tankage fee, together with Owner’s requirement to handle the volume of Product in consideration of said monthly Storage Fee as set forth in the applicable Schedules, shall be reduced by a prorated amount equal to the tank capacity that is unusable by Customer for the purposes set forth herein. This abatement shall continue until the damaged or destroyed tank is repaired and ready for service, or until a substitute tank is provided and Owner is able to handle the required volume of Product. If, however, such tank is not damaged as a result of an event of Force Majeure and is not repaired and returned to its prior existing capacity within nine (9) Months after the date on which the damage or destruction occurred, and a substitute tank is not provided and Owner cannot handle the volume of Product in consideration, the Customer shall have the right to terminate that storage capacity from this Agreement upon written notice to Owner. Should such Storage Tank become repaired and returned to service after nine (9) Months, Customer shall have the right to add such Storage Tank to the applicable Schedule. If Customer does not add such Storage Tank to the applicable Schedules, Owner may lease such Storage Tanks to a Third Party or Third Parties. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents, or contractors, the reduction in Storage Fee shall not apply. 5.7 Owner may take any Storage Tank out of service during the Term in order to perform scheduled inspections, maintenance or repairs. If a Storage Tank is out of service for forty-five (45) days or less, Customer will be obligated to continue to pay the applicable Storage Fees during such 45-day period such Storage Tank is out of service. If a Storage Tank is out of service for more than 45 days for any reason other than Force Majeure or the negligence or willful misconduct of Customer, any of its Affiliates, or their employees, directors, officers, representatives, agents or contractors: (a) Owner, at Owner’s option and at Owner’s cost, may move Customer’s Product to substantially equivalent alternate tank(s) while the original Storage Tank is out of service, and Customer will continue to pay the applicable Storage Fees; (b) if Owner has not affected Customer’s capacity to receive or deliver Products while the Original Storage Tank is out of service, Customer will continue to pay any Storage Fee applicable to the original Storage Tank; or (c) after the 45 days that the Storage Tank is out of service, Customer’s obligation to pay the applicable Storage Fees will be reduced as provided herein to address the loss of capacity available. The abatement shall continue until the storage capacity is repaired and ready for service, or until substitute storage is provided, or until Customer’s need to receive or deliver Products is unaffected at the Terminal. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents or contractors, the reduction in Storage Fee shall not apply. 5.8 If any Governmental Authority requires installation of any improvement, alteration, or addition to any Terminal for purposes of compliance with Applicable Law, and if the installation would require Owner to make substantial and unanticipated capital expenditures, other than continued maintenance and capital expenditures not affected by such requirement, Owner will be entitled to impose a reasonable service surcharge (which surcharge may include the Owner’s cost of capital) in addition to the fees set out in Attachment A. Owner will notify Customer of (i) the cost of making any such improvement, alteration, or addition, after Owner’s efforts to mitigate such costs, (ii) when such improvement, alteration, or addition must be completed and (iii) the Owner’s reasonable estimate of the service surcharge related to the capital expenditure to be paid by Customer over the remaining Term. In calculating the surcharge, Owner shall calculate the cost of the improvement, alteration, or addition and the surcharge using reasonable assumptions and estimates. In addition to actual capital and installation costs, the costs to be recovered through the surcharge will include engineering and interest expense (at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation) and subsequent reasonable expenses, if any, of operating or maintaining such installation as reasonably determined by Owner. Owner will not be required to make any improvements, alterations, or additions to the Terminal or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. (a) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner chooses not to pay for such improvement, alteration or addition, and if the Services are not reduced by Owner’s decision to forego such improvement, alteration or addition, then the terms and conditions of this Agreement shall remain in full force and effect, including those set forth in Attachment A. (b) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner would be required by the Governmental Authority to reduce or terminate the Services to be provided under this Agreement, then the Parties shall negotiate in good faith the charges to be assessed by Owner and paid by Customer for such reduced scope of services that can be provided at the Terminal in compliance with Applicable Law. If the Parties are unable to agree on the charges to be assessed by Owner and paid by Customer for the reduced scope of services within thirty (30) days after Owner’s notification to Customer as set forth in this Section 5.8, then this Agreement will terminate immediately with no further action by the Parties. (c) If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration, or addition. Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration, or addition attributable to Customer’s use of the impacted portion of the Terminal and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues from the impacted segment of the Terminal and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six (6) full Months preceding the date of Owner’s notice to Customer for the cost of the improvement, alteration, or addition. Customer may pay the surcharge either (A) in equal monthly installments over the remaining Term, with each monthly installment payment increased by an interest component calculated on the surcharge at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation, or (B) by paying the surcharge in one lump sum within thirty (30) days after completion of the required improvement, addition, or alteration. 5.9 Owner will provide tank heels at the Terminal to the extent that it currently owns such tank heels, on a tank-by-tank basis. At any time during the Term, Customer may be required to provide a tank heel for various reasons, including but not limited to required maintenance, repairs, or inspection. To the extent that Owner does not own tank heels at the Terminal on a tank-by-tank basis, Customer will be responsible for providing tank heels. Owner or Customer, as applicable, will retain ownership of the tank heels it provides. 5.10 If, at any time during the Term, a complaint is made regarding offensive or obnoxious odors emitted from the Product delivered to or stored at the Terminal, or if such Products violate any applicable regulation relating to odor, Owner shall notify Customer of such complaint or violation. In such case, Owner and Customer shall cooperate in good faith to investigate and determine the source of the odor, and shall mutually determine the best method to xxxxx such odor. If reasonable changes to the Product would fully or partially xxxxx the odor, Customer shall make such reasonable changes to xxxxx the odor. Owner shall not be obligated to accept Product reasonably known to have excessive potential for odor that may affect the Terminal’s property boundaries. If the Parties’ investigation determines that abatement of the odor requires the installation of additional equipment reasonably necessary to xxxxx the odor (“Abatement Equipment”) Owner shall undertake procurement and installation of the Abatement Equipment. Customer shall be responsible for and shall pay to or reimburse Owner for the cost of (i) the investigation to determine the cause of such odor, and (ii) the Abatement Equipment ((i) and (ii), the “Abatement Costs”), up to a maximum of $*** in the aggregate. Owner shall be responsible for all Abatement Costs in excess of $***. Except to the extent a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Customer shall indemnify, defend, and hold harmless Owner from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Owner as a result of such odor. If a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Owner shall indemnify, defend, and hold harmless Customer from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Customer as a result of such odor. If at any time Customer desires to add Products to the Facilities in addition to those listed in Attachment B, such addition shall be subject to this Section 5.10.

Operations, Receipts and Deliveries. 5.1 4.1 Receipts and deliveries of Product will be handled within the normal business hours of the TerminalTerminals. Owner may, without with Customer’s prior approval, make temporary changes in the business hours of a Terminal or temporarily close any Terminal or Storage Tank because of an extraordinary event (“Temporary Event”); provided, however, that a Temporary Event shall not include events caused by failure of equipment that Owner is obligated to maintain pursuant to this Agreementevent. Owner will notify Customer of such Temporary Event temporary changes or closure in advance, or as soon after implementation as is practicable. Except as required pursuant to Sections 5.2, 10.1, or 19 of this Agreement, Owner will not be responsible for the payment of any costs incurred by Customer or its transportation carrier for any delay in receiving or delivering Product or any other costs or fees, including freight, car leases and demurrage, as a result except to the extent such delays are attributable to Owner’s inability to provide the Services other than an event of such Temporary EventForce Majeure covered by Section 10 hereof. 5.2 As part of the facility, Owner shall make available to Customer facilities serving the Terminal for receiving and unloading of Product from Customer and loading Products to Customer or Customer’s carrier (such unloading and loading facilities, collectively, the “Loading Facilities”). The Loading Facilities, being used for purposes defined in Section 2.2, are available on a “first-come, first-served” basis. In no event will Owner be responsible for accruing any expense, including demurrage, for following Customer’s instructions for the Loading Facilities. Any demurrage shall be at Customer’s sole expense, unless and to such extent demurrage is established by Customer as caused by Owner’s gross negligence or willful misconduct. Owner and Customer agree to use reasonable efforts to minimize any demurrage that may be incurred by Customer in accordance with the foregoing. Customer acknowledges that Owner requires Third Parties operating on Customer’s behalf and entering or accessing the Terminal to have separate access or service agreements with Owner. Owner will put in place agreements with any such Third Parties and Owner, at its sole discretion, will approve, negotiate and finalize such agreements. Owner will notify Customer of Third Parties operating on Customer’s behalf that are denied access to the Terminal. 5.3 4.2 Customer must arrange for and pay all Third Party costs related to the delivery of Customer’s Product to the Terminal Terminals and Third-Party costs from the Storage Tanks. Owner is not responsible for such Third-Third Party costs except as otherwise specifically provided hereincosts. Unless otherwise provided by Owner in writing, Customer must provide notice reasonably acceptable to Owner containing all necessary instructions, including without limitation, the identity and quantity and any other specifications of the Product and the tentative date of delivery to the Terminal Terminals (the “Scheduling Notice”). The Scheduling Notice may also be provided to Owner by Customer through electronic communications in the form of email. The Parties shall reasonably coordinate with each other in advance with regard to scheduling of all Product movements and the in-bound quality, volume, and grade, the times of delivery to Terminal, and all material movements prior to shipment of all Product delivered to Owner hereunder. Each Scheduling Notice delivered hereunder to Owner by Customer for deliveries of Product to a Terminal shall be sent to those individuals that Owner has specified to Customer Owner to receive such Scheduling Notice for the applicable Terminal with respect to such Product delivery. 5.4 Upon receipt by Owner 4.3 Subject to the restrictions of instructions from CustomerAttachment “A”, Owner will deliver to Customer, or to such Third Parties as Customer may direct, the Product held by Owner in the Storage Tanks for the account of Customer. Customer is responsible for providing to Owner documentation required to authorize deliveries for or on its behalf from the TerminalStorage Tanks. 5.5 4.4 Owner will provide the Services to Customer only with respect to Product. Customer will have access to the Terminal Terminals and Storage Tanks for other products only with prior written notice to and consent by Owner, such consent not to be unreasonably withheld, conditioned or delayed. Any other product approved by Owner will then become part of Product “Product” as defined in this Agreement. If a special method of providing the Services is required for the Product, then Customer must notify Owner in sufficient time to enable Owner to consider whether, in Owner’s sole discretion, it will accept the proposed changes in the method of delivering the Services and to take the necessary preparatory measures if it agrees with such changes. Absent such notice and absent Owner’s written approval with respect to a change changes in the Product to another Product or the method of delivering the Services, Owner will not be liable for losses, tank heels, line fill losses or damage incurred during the terminalling and storage of Product (except for losses and damages resulting from Product Loss), nor will Owner be obligated to provide such special Service. It is understood that the cost of any additional or special equipment required by Customer or of alterations made necessary by the nature of Product will be for the account of Customer, and Customer will be responsible for the expense of any necessary cleaning and restoration to their previous condition of the Terminal Terminals and Storage Tanks, including, without limitation, pumps, tank heels and loading facilities, unless otherwise explicitly stated in this Agreement. All fixtures, equipment, equipment and appurtenances attached to the Storage Tanks will be installed by the Owner and will remain the property of Owner. 5.6 If any Storage Tank is damaged or destroyed by fire or other casualty, Owner will use reasonable efforts to make other storage tanks available to Customer at the monthly tankage fee as set forth 4.5 Upon a change in the applicable Schedules. If other storage tanks are unavailable, Product to be terminalled and stored during the monthly tankage fee, together with Owner’s requirement to handle the volume Term of Product in consideration of said monthly Storage Fee as set forth in the applicable Schedules, shall be reduced by a prorated amount equal to the tank capacity that is unusable by Customer for the purposes set forth herein. This abatement shall continue until the damaged or destroyed tank is repaired and ready for servicethis Agreement, or until a substitute tank is provided upon termination of this Agreement, Customer shall remove all liquid Product from the Terminals and Owner is able to handle the required volume of ProductStorage Tanks that can be safely pumped with existing equipment. If, however, such tank is not damaged as a result of an event of Force Majeure and is not repaired and returned to its prior existing capacity within nine (9) Months after the date on which the damage or destruction occurred, and a substitute tank is not provided and Owner cannot handle the volume of Product in consideration, the Customer shall have a reasonable amount of time to remove all liquid Product from the right Terminals and Storage Tanks. Customer agrees to terminate that storage capacity from this Agreement upon written notice reimburse Owner for the actual costs of such removal, plus a ten percent (10%) administrative fee, should Customer fail to Owner. Should such Storage Tank become repaired and returned to service after nine (9) Months, Customer shall have the right to add such Storage Tank to the applicable Schedule. If Customer does not add such Storage Tank to the applicable Schedules, Owner may lease such Storage Tanks to remove its liquid Product within a Third Party or Third Parties. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents, or contractors, the reduction in Storage Fee shall not applyreasonable time period. 5.7 Owner may take any Storage Tank out of service during the Term in order to perform scheduled inspections, maintenance or repairs. If a Storage Tank is out of service for forty-five (45) days or less, Customer will be obligated to continue to pay the applicable Storage Fees during such 45-day period such Storage Tank is out of service. If a Storage Tank is out of service for more than 45 days for any reason other than Force Majeure or the negligence or willful misconduct of Customer, any of its Affiliates, or their employees, directors, officers, representatives, agents or contractors: (a) Owner, at Owner’s option and at Owner’s cost, may move Customer’s Product to substantially equivalent alternate tank(s) while the original Storage Tank is out of service, and Customer will continue to pay the applicable Storage Fees; (b) if Owner has not affected Customer’s capacity to receive or deliver Products while the Original Storage Tank is out of service, Customer will continue to pay any Storage Fee applicable to the original Storage Tank; or (c) after the 45 days that the Storage Tank is out of service, Customer’s obligation to pay the applicable Storage Fees will be reduced as provided herein to address the loss of capacity available. The abatement shall continue until the storage capacity is repaired and ready for service, or until substitute storage is provided, or until Customer’s need to receive or deliver Products is unaffected at the Terminal. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents or contractors, the reduction in Storage Fee shall not apply. 5.8 4.6 If any Governmental Authority requires installation of any improvement, alteration, alteration or addition to any Terminal or Storage Tank for purposes of compliance with Applicable Law, and if the installation would require Owner to make substantial and unanticipated capital expenditures, other than continued maintenance and capital expenditures not affected by such requirement, Owner will be entitled to impose a reasonable service surcharge (which surcharge may include the Owner’s cost of capital) in addition to the fees set out in Attachment A. “A”. Owner will notify Customer of (i) the cost of making any such improvement, alteration, alteration or addition, after Owner’s efforts to mitigate such costs, (ii) when such improvement, alteration, alteration or addition must be completed and (iii) the Owner’s reasonable estimate of the service surcharge related to the capital expenditure to be paid by Customer over the remaining Term. In calculating Owner will not be required to make any improvements, alterations or additions to the Terminals or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. If Customer elects, after negotiation with Owner in good faith, not to pay the surcharge and the Owner chooses not to pay for such improvement, alteration or addition, Owner may direct the affected Product to a mutually acceptable Storage Tank at the same Terminal, another Terminal or at other facilities owned by Owner or its Affiliates. If Customer elects not to pay the surcharge, and if Owner does not direct the Product to mutually acceptable alternate facilities, either Party may terminate this Agreement as to the Services provided at the affected Terminals and/or Storage Tanks from this Agreement, with an equivalent reduction of the fees set out on Attachment “A”, including the Minimum Use Commitments, by giving the other Party notice of its intention no later than thirty (30) days after Owner’s receipt of notice of Customer’s election not to pay the service surcharge. If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration or addition. Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration or addition attributable to Customer’s use of the impacted portion of the Terminals and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues from the impacted segment of the Terminals and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six (6) full Months preceding the date of Owner’s notice to Customer of the cost of the improvement, alteration or addition. Customer may pay the surcharge in equal monthly installments over the remaining Term. In such a case, the amount of the monthly installment will be increased by an interest component calculated on the surcharge at a rate of 1% over the prime lending rate as reported in the Wall Street Journal on the date of completion of such installation. Within thirty (30) days after completion of the required improvement, addition or alteration, Customer may elect to pay the surcharge for the remaining Term in one lump sum. Owner shall calculate the cost of the improvement, alteration, alteration or addition and the surcharge using reasonable assumptions and estimates. In addition to actual capital and installation costs, the costs to be recovered through the surcharge will include engineering and interest expense (at a rate of ***1% over the prime lending rate as reported in The the Wall Street Journal on the date of completion of such installation) and subsequent reasonable expenses, if any, of operating or maintaining such installation as reasonably determined by Owner. Owner will not be required to make any improvements, alterations, or additions to the Terminal or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. (a) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay 4.7 When the surcharge Product is specifically identified and the Owner chooses not to pay for such improvement, alteration or addition, and if the Services are not reduced by Owner’s decision to forego such improvement, alteration or addition, then the terms and conditions of this Agreement shall remain in full force and effect, including those set forth in Attachment A. (b) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner would be required by the Governmental Authority to reduce or terminate the Services to be provided under this Agreement, then the Parties shall negotiate in good faith the charges to be assessed by Owner and paid by Customer for such reduced scope of services that can be provided at the Terminal in compliance with Applicable Law. If the Parties are unable to agree on the charges to be assessed by Owner and paid by Customer for the reduced scope of services within thirty (30) days after Owner’s notification to Customer as set forth in this Section 5.8, then this Agreement will terminate immediately with no further action by the Parties. (c) If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration, or addition. Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration, or addition attributable to Customer’s use of the impacted portion of the Terminal and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues kept separate from the impacted segment product of the Terminal and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six other customers (6) full Months preceding the date of Owner’s notice to Customer for the cost of the improvement, alteration, or addition. Customer may pay the surcharge either (A) in equal monthly installments over the remaining Term, with each monthly installment payment increased by an interest component calculated on the surcharge at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation, or (B) by paying the surcharge in one lump sum within thirty (30) days after completion of the required improvement, addition, or alteration. 5.9 Owner will provide tank heels at the Terminal to the extent that it currently owns such tank heels, on a tank-by-tank basis. At any time during the Term, Customer may be required to provide a tank heel for various reasons, including but not limited to required maintenance, repairs, or inspection. To the extent that Owner does not own tank heels at the Terminal on a tank-by-tank basis“Segregated Service”), Customer will be responsible for providing all tank heelsbottoms and in all other cases, Customer will be responsible for providing its proportional share of tank bottoms. Owner or Customer, as applicable, Customer will retain ownership of any portion or all of the tank heels bottoms it provides. 5.10 If, at any time during the Term, a complaint is made regarding offensive or obnoxious odors emitted from the Product delivered to or stored at the Terminal, or if such Products violate any applicable regulation relating to odor, Owner shall notify Customer of such complaint or violation. In such case, Owner and Customer shall cooperate in good faith to investigate and determine the source of the odor, and shall mutually determine the best method to xxxxx such odor. If reasonable changes to the Product would fully or partially xxxxx the odor, Customer shall make such reasonable changes to xxxxx the odor. Owner shall not be obligated to accept Product reasonably known to have excessive potential for odor that may affect the Terminal’s property boundaries. If the Parties’ investigation determines that abatement of the odor requires the installation of additional equipment reasonably necessary to xxxxx the odor (“Abatement Equipment”) Owner shall undertake procurement and installation of the Abatement Equipment. Customer shall be responsible for and shall pay to or reimburse Owner for the cost of (i) the investigation to determine the cause of such odor, and (ii) the Abatement Equipment ((i) and (ii), the “Abatement Costs”), up to a maximum of $*** in the aggregate. Owner shall be responsible for all Abatement Costs in excess of $***. Except to the extent a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Customer shall indemnify, defend, and hold harmless Owner from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Owner as a result of such odor. If a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Owner shall indemnify, defend, and hold harmless Customer from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Customer as a result of such odor. If at any time Customer desires to add Products to the Facilities in addition to those listed in Attachment B, such addition shall be subject to this Section 5.10.

Operations, Receipts and Deliveries. 5.1 4.1 Receipts and deliveries of Product will be handled within the normal business hours of the TerminalTerminals. Owner may, without Customer’s approval, make temporary changes in business hours or temporarily close any Terminal or Storage Tank because of an extraordinary event which does not last longer than five (5) days (a “Temporary Event”); provided, however, that a Temporary Event shall not include events caused by failure of equipment that Owner is obligated to maintain pursuant to this Agreement. Owner will notify Customer of such Temporary Event in advance, or as soon after implementation as is practicablepracticable but in no event later than twenty-four (24) hours after the commencement of a Temporary Event. Except as required pursuant to Sections 5.2, 10.1, Section 15 or 19 18 of this Agreement, Owner will not be responsible for the payment of any costs incurred by Customer or its transportation carrier for any delay in receiving or delivering Product or any other costs or fees, including freight, car leases and demurrage, as a result of such Temporary Event. 5.2 As part of the facility, Owner shall make available to Customer facilities serving the Terminal for receiving and unloading of Product from Customer and loading Products to Customer or Customer’s carrier (such unloading and loading facilities, collectively, the “Loading Facilities”). The Loading Facilities, being used for purposes defined in Section 2.2, are available on a “first-come, first-served” basis. In no event will Owner be responsible for accruing any expense, including demurrage, for following Customer’s instructions for the Loading Facilities. Any demurrage shall be at Customer’s sole expense, unless and to such extent demurrage is established by Customer as caused by Owner’s gross negligence or willful misconduct. Owner and Customer agree to use reasonable efforts to minimize any demurrage that may be incurred by Customer in accordance with the foregoing. Customer acknowledges that Owner requires Third Parties operating on Customer’s behalf and entering or accessing the Terminal to have separate access or service agreements with Owner. Owner will put in place agreements with any such Third Parties and Owner, at its sole discretion, will approve, negotiate and finalize such agreements. Owner will notify Customer of Third Parties operating on Customer’s behalf that are denied access to the Terminal. 5.3 4.2 Customer must arrange for and pay all Third Party costs related to the delivery of Customer’s Product to the Terminal Terminals and Third-Party costs from the Storage Tanks. Owner is not responsible for such Third-Third Party costs except as otherwise specifically provided hereincosts. Unless otherwise provided by Owner in writing, Customer must provide notice reasonably acceptable to Owner containing all necessary instructions, including without limitation, the identity and quantity and any other specifications of the Product and the tentative date of delivery to the Terminal Terminals (the “Scheduling Notice”). The Scheduling Notice may also be provided to Owner by Customer through electronic communications in the form of email. The Parties shall reasonably coordinate with each other in advance with regard to scheduling of all Product movements and the in-bound quality, volume, and grade, the times of delivery to Terminal, and all material movements prior to shipment of all Product delivered to Owner hereunder. Each Scheduling Notice delivered hereunder to Owner by Customer for deliveries of Product to a Terminal shall be sent to those individuals that Owner has specified to Customer Owner to receive such Scheduling Notice for the applicable Terminal with respect to such Product delivery. 5.4 Upon receipt by Owner of instructions from Customer, 4.3 Owner will deliver to Customer, or to such Third Parties as Customer may direct, the Product held by Owner in the Storage Tanks for the account of Customer. Customer is responsible for providing to Owner documentation required to authorize deliveries for or on its behalf from the TerminalStorage Tanks. 5.5 4.4 Owner will provide the Services to Customer only with respect to Product. Customer will have access to the Terminal Terminals and Storage Tanks for other products only with prior written notice to and consent by Owner, such consent not to be unreasonably withheld, conditioned or delayed. Any other product approved by Owner will then become part of Product “Product” as defined in this Agreement. If a special method of providing the Services is required for the Product, then Customer must notify Owner in sufficient time to enable Owner to consider whether, in Owner’s sole discretion, it will accept the proposed changes in the method of delivering the Services and to take the necessary preparatory measures if it agrees with such changes. Absent such notice and absent Owner’s written approval with respect to a change changes in the Product to another Product or the method of delivering the Services, Owner will not be liable for losses, tank heels, line fill losses or damage incurred during the terminalling and storage of Product (except for losses and damages resulting from Product Loss), nor will Owner be obligated to provide such special Service. It is understood that the cost of any additional or special equipment required by Customer or of alterations made necessary by the nature of Product will be for the account of Customer, and Customer will be responsible for the expense of any necessary cleaning and restoration to their previous condition of the Terminal Terminals and Storage Tanks, including, without limitation, pumps, tank heels and loading facilities, unless otherwise explicitly stated in this Agreement. All fixtures, equipment, equipment and appurtenances attached to the Storage Tanks will be installed by the Owner and will remain the property of Owner. 5.6 If any Storage Tank is damaged or destroyed by fire or other casualty, Owner will use reasonable efforts to make other storage tanks available to Customer at the monthly tankage fee as set forth 4.5 Upon a change in the applicable Schedules. If other storage tanks are unavailableProduct to be terminalled and stored during the Term of this Agreement, or upon termination of this Agreement, or upon the monthly tankage fee, together with Owner’s requirement to handle the volume of Product in consideration of said monthly Storage Fee as set forth in the applicable Schedules, shall be reduced by a prorated amount equal to the tank capacity that is unusable election by Customer for to remove all Product from a Terminal or Storage Tank, Customer shall remove all Product from the purposes set forth hereinTerminals and Storage Tanks. This abatement shall continue until the damaged or destroyed tank is repaired and ready for service, or until a substitute tank is provided and Owner is able to handle the required volume of Product. If, however, such tank is not damaged as a result of an event of Force Majeure and is not repaired and returned to its prior existing capacity within nine (9) Months after the date on which the damage or destruction occurred, and a substitute tank is not provided and Owner cannot handle the volume of Product in consideration, the Customer shall have a reasonable amount of time to remove all Product from the right to terminate that storage capacity from Terminals and Storage Tanks. All fees, rates and charges under this Agreement upon written notice shall continue to Owner. Should apply to any such Terminal or Storage Tank become repaired until all Product is removed from the applicable Terminal or Storage Tank. Customer agrees to (i) reimburse Owner for the actual costs of such removal, which shall include the expense of any necessary cleaning and returned restoration to service after nine their previous condition of the Terminals and Storage Tanks, plus a ten percent (910%) Monthsadministrative fee, (ii) pay for (A) the cost of such removal and (B) upon removal, the expense of any necessary cleaning and restoration to their previous condition of the Terminals and Storage Tanks at its sole cost and expense, or (iii) transfer any and all tank bottoms owned by Customer shall have the right to add at any such Terminal or Storage Tank to the applicable Schedule. If Customer does not add such Storage Tank to the applicable Schedules, Owner may lease such Storage Tanks to a Third Party or Third Parties. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents, or contractors, the reduction in Storage Fee shall not apply. 5.7 Owner may take any Storage Tank out of service during the Term in order to perform scheduled inspections, maintenance or repairs. If a Storage Tank is out of service for forty-five (45) days or less, Customer will be obligated to continue to pay the applicable Storage Fees during such 45-day period such Storage Tank is out of service. If a Storage Tank is out of service for more than 45 days for any reason other than Force Majeure or the negligence or willful misconduct of Customer, any of its Affiliates, or their employees, directors, officers, representatives, agents or contractors: (a) Owner, at Owner’s option and at Owner’s cost, may move Customer’s Product to substantially equivalent alternate tank(s) while the original Storage Tank is out of service, and Customer will continue to pay the applicable Storage Fees; (b) if Owner has not affected Customer’s capacity to receive or deliver Products while the Original Storage Tank is out of service, Customer will continue to pay no longer be liable for any Storage Fee applicable to the original Storage Tank; or (c) after the 45 days that the Storage Tank is out of service, Customer’s obligation to pay the applicable Storage Fees will be reduced as provided herein to address the loss of capacity available. The abatement shall continue until the storage capacity is repaired and ready for service, or until substitute storage is provided, or until Customer’s need to receive or deliver Products is unaffected at the Terminal. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents or contractors, the reduction in Storage Fee shall not applysuch removal. 5.8 4.6 If any Governmental Authority requires installation of any improvement, alteration, alteration or addition to any Terminal or Storage Tank for purposes of compliance with Applicable Law, and if the installation would require Owner to make substantial and unanticipated capital expenditures, other than continued maintenance and capital expenditures not affected by such requirement, Owner will be entitled to impose a reasonable service surcharge (which surcharge may include the Owner’s cost of capital) in addition to the fees set out in Attachment A. Owner will notify Customer of (i) the cost of making any such improvement, alteration, or addition, after Owner’s efforts to mitigate such costs, (ii) when such improvement, alteration, or addition must be completed and (iii) the Owner’s reasonable estimate of the service surcharge related to the capital expenditure to be paid by Customer over the remaining Term. In calculating the surcharge, Owner shall calculate the cost of the improvement, alteration, or addition and the surcharge using reasonable assumptions and estimates. In addition to actual capital and installation costs, the costs to be recovered through the surcharge will include engineering and interest expense (at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation) and subsequent reasonable expenses, if any, of operating or maintaining such installation as reasonably determined by Owner. Owner will not be required to make any improvements, alterations, alterations or additions to the Terminal Terminals or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. (a) . If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner chooses not to pay for such improvement, alteration or addition, and if Owner may direct the affected Product to a mutually acceptable Storage Tank at the same Terminal, another Terminal or at other facilities owned by Owner or its Affiliates. If Owner does not direct the Product to mutually acceptable alternate facilities, either Party may terminate this Agreement as to the Services are not reduced by Owner’s decision to forego such improvement, alteration or addition, then provided at the terms and conditions of this Agreement shall remain in full force and effect, including those set forth in Attachment A. (b) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner would be required by the Governmental Authority to reduce or terminate the Services to be provided under affected Terminals and/or Storage Tanks from this Agreement, then by giving the Parties shall negotiate in good faith the charges to be assessed by Owner and paid by Customer for such reduced scope other Party notice of services that can be provided at the Terminal in compliance with Applicable Law. If the Parties are unable to agree on the charges to be assessed by Owner and paid by Customer for the reduced scope of services within its intention no later than thirty (30) days after Owner’s notification election not to Customer as set forth in this Section 5.8, then this Agreement will terminate immediately with no further action by the Partiesmake such improvement. (c) If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration, or addition. 4.7 Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration, or addition attributable to keep Customer’s use of the impacted portion of the Terminal and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues Product separate from the impacted segment product of the Terminal and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six other customers (6) full Months preceding the date of Owner’s notice to Customer for the cost of the improvement, alteration, or addition“Segregated Service”). Customer may pay the surcharge either (A) in equal monthly installments over the remaining Term, with each monthly installment payment increased by an interest component calculated on the surcharge at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation, or (B) by paying the surcharge in one lump sum within thirty (30) days after completion of the required improvement, addition, or alteration. 5.9 Owner will provide tank heels at the Terminal to the extent that it currently owns such tank heels, on a tank-by-tank basis. At any time during the Term, Customer may be required to provide a tank heel for various reasons, including but not limited to required maintenance, repairs, or inspection. To the extent that Owner does not own tank heels at the Terminal on a tank-by-tank basis, Customer will be responsible for providing all tank heelsbottoms. Owner or Customer, as applicable, Customer will retain ownership of all of the tank heels bottoms it provides, except as provided in Section 4.5. 5.10 If, at any time during the Term, a complaint is made regarding offensive or obnoxious odors emitted from the Product delivered to or stored at the Terminal, or if such Products violate any applicable regulation relating to odor, Owner shall notify Customer of such complaint or violation. In such case, Owner and Customer shall cooperate in good faith to investigate and determine the source of the odor, and shall mutually determine the best method to xxxxx such odor. If reasonable changes to the Product would fully or partially xxxxx the odor, Customer shall make such reasonable changes to xxxxx the odor. Owner shall not be obligated to accept Product reasonably known to have excessive potential for odor that may affect the Terminal’s property boundaries. If the Parties’ investigation determines that abatement of the odor requires the installation of additional equipment reasonably necessary to xxxxx the odor (“Abatement Equipment”) Owner shall undertake procurement and installation of the Abatement Equipment. Customer shall be responsible for and shall pay to or reimburse Owner for the cost of (i) the investigation to determine the cause of such odor, and (ii) the Abatement Equipment ((i) and (ii), the “Abatement Costs”), up to a maximum of $*** in the aggregate. Owner shall be responsible for all Abatement Costs in excess of $***. Except to the extent a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Customer shall indemnify, defend, and hold harmless Owner from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Owner as a result of such odor. If a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Owner shall indemnify, defend, and hold harmless Customer from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Customer as a result of such odor. If at any time Customer desires to add Products to the Facilities in addition to those listed in Attachment B, such addition shall be subject to this Section 5.10.

Operations, Receipts and Deliveries. 5.1 4.1 Customer’s Product will be delivered to the Terminals by pipeline, truck, railcar or Vessel, as applicable by Terminal, free of any charge to Owner. Receipts and deliveries of Product will be handled within the normal business operating hours of the Terminalrelevant Terminal as set forth on Attachment “A”. Owner may, without Customer’s approval, may make temporary changes in business operating hours or temporarily close any Terminal or Storage Tank without Customer’s approval because of an extraordinary event (“Temporary Event”); provided, however, that a Temporary Event shall not include events caused by failure of equipment that Owner is obligated to maintain pursuant to this Agreementevent. Owner will notify Customer of such Temporary Event temporary changes or closure in advance, or as soon after implementation as is practicable. Except Any charges to Customer related to Owner’s decision to change operating hours or to close any Terminal, including but not limited to demurrage, shall be for Owner’s account, excluding such changes in operating hours or closures which are due to an event of Force Majeure. 4.2 Vessels will be loaded and unloaded on first come, first serve basis as required pursuant to Sections 5.2directed by the applicable port authority or Owner, 10.1as applicable, and, other than as provided in Section 4.1 or 19 of this AgreementSection 4.6, Owner will not be responsible for the payment of any demurrage or other costs incurred by Customer or its transportation carrier with respect thereto, or for any delay in receiving receipt or delivering Product or any other costs or fees, including freight, car leases and demurrage, as a result Throughput of such Temporary Event. 5.2 As part of the facility, Owner shall make available to Customer facilities serving the Terminal for receiving and unloading of Product from Customer and loading Products to Customer or Customer’s carrier (such unloading and loading facilitiesProduct to or from the Terminals; provided, collectivelyhowever, the “Loading Facilities”). The Loading Facilities, being used for purposes defined in Section 2.2, are available on a “first-come, first-served” basis. In no event will Owner be responsible for accruing any expense, including demurrage, for following that once Customer’s instructions for Vessel is all fast at the Loading Facilities. Any demurrage shall be at berth, any delay in the receipt or Throughput of Customer’s sole expense, unless and to such extent demurrage is established by Customer as Product caused by Owner’s gross the negligence or willful misconduct. misconduct of Owner (e.g. failure of equipment at such Terminal or inadequate staffing) and costs attendant thereto, will be for the account of Owner. 4.3 Any delay and demurrage caused by the failure of Customer’s Product to meet required specifications hereunder, as determined pursuant to Section 5, shall not be deemed to have been caused by Owner and Customer agree to use reasonable efforts to minimize any costs attendant thereto shall be for Customer’s account. For the avoidance of doubt, any demurrage that may be incurred by Customer in accordance with during the foregoing. Customer acknowledges that Owner requires Third Parties operating on testing of Customer’s behalf and entering or accessing the Terminal to have separate access or service agreements with Owner. Owner will put in place agreements with any such Third Parties and Owner, at its sole discretion, will approve, negotiate and finalize such agreements. Owner will notify Customer of Third Parties operating on Product shall be solely for Customer’s behalf that are denied access account. In the event Customer’s Vessel shall discharge at multiple discharge ports, the foregoing shall apply to the Terminaleach such discharge port. 5.3 4.4 Customer must arrange for and pay all Third Party costs related to the receipt or delivery of Customer’s Product to the Terminal and Third-Party costs from the Storage TanksTerminals. Owner is not responsible for such Third-Party costs except only to receive or Throughput, as otherwise specifically provided hereinthe case may be, the Product at its Terminals. Unless otherwise provided by Owner in writing, Customer must provide reasonably prompt notice to Owner and the relevant Terminal in a form reasonably acceptable to Owner (in accordance with Section 13) containing all necessary shipping instructions, including without limitation, the identity identity, quality and quantity and any other specifications of the Product and the tentative date of delivery to arrival date(s) (the Terminal (“Scheduling Arrival Notice”). 4.5 As this Agreement involves marine receipts or Throughput of Product, Owner will advise Customer of the limitations of the Vessel that may be berthed, including its maximum size, draw, draft and length, the docks and associated positions to be used for each Product movement, as well as the minimum pumping rates or pressure, as applicable, or both. The Scheduling Owner and/or the applicable port authority may change Vessel limitation, dock designation, and pumping rates or pressure criteria from time to time upon prior reasonable notice to Customer. If Owner determines that a Vessel is unsuitable for the receipt or Throughput of Products, as Owner in its reasonable discretion deems appropriate, Owner may refuse to load or unload such Vessel and will advise the carrier and Customer of the situation promptly, and request further instructions from the Customer. It is the responsibility of Customer to notify the appropriate Governmental Authorities regarding Vessel arrivals. 4.6 If any of Customer’s Vessels (i) fails to vacate a berth upon completion of loading or discharge, (ii) fails to discharge or load a barge within twenty-four (24) hours or within thirty-six (36) hours for a Vessel, or (iii) fails to vacate in order to conduct repairs, unless such failures are caused by an event of Force Majeure, then, after having been notified by Owner to vacate, Customer shall be responsible for all costs applicable to the berths, together with any costs incurred by any Vessel which would otherwise be occupying such berth but for the failure of Customer’s Vessel to vacate, except for such costs arising due to delay caused by Owner. 4.7 If Customer requires any change in the shipping instructions, including, without limitation, the identity and timing of the Product, Customer must provide notice of any change in the Arrival Notice (in accordance with Section 13) to the Owner and the relevant Terminal before the arrival of the Product at such Terminal. Upon receipt of Customer’s shipping instructions, Owner will immediately advise Customer of such Terminal’s availability. If such Terminal will not be available to receive or deliver Customer’s Product on the communicated arrival date, Owner will advise as to the earliest time when Customer’s Product may also be provided received or delivered at such Terminal. Customer will ensure that confirmation of the arrival date(s) and time of the Product will be communicated to Owner and the relevant Terminal by Customer’s carrier periodically, at intervals of at least 48, 24 and 12 hours in advance of the anticipated date and time of arrival of the Product. Notwithstanding the notice provisions of Section 13, such communication may be effected by telephone, facsimile or electronic mail directed to Owner’s representatives and the relevant Terminal manager. If Customer through electronic communications fails to provide Owner and the relevant Terminal the notice containing shipping instructions in a form mutually agreed to by the Parties and in the form of email. The Parties shall reasonably coordinate with each other in advance with regard manner required by this Section 4.7, Owner will not be obligated to scheduling of all receive or Throughput Customer’s Product movements and the in-bound quality, volume, and grade, the times of delivery Owner will not be responsible for any Product loss directly attributable to Terminal, and all material movements prior to shipment of all Product delivered to Owner hereunder. Each Scheduling Notice delivered hereunder to Owner by Customer for deliveries Owner’s receipt or Throughput of Product to a Terminal shall be sent to those individuals that Owner has specified to Customer to receive such Scheduling Notice for the applicable Terminal with respect to such Product deliverybased upon erroneous shipping instructions. 5.4 Upon receipt by Owner of instructions from Customer, 4.8 Owner will deliver to Customer, or to its Affiliates, or to such Third Parties as Customer may direct, the Product held by Owner in at the Storage Tanks Terminals for the account of Customer. Customer is responsible for providing to Owner documentation required to authorize deliveries of Product for or on its behalf from the TerminalTerminals. 5.5 4.9 The services to be provided by Owner will provide the Services pursuant to Customer this Agreement are to be provided only with respect to Product. Customer Customer’s Product and will have access be provided with respect to the Terminal and Storage Tanks for other products only with the prior written notice to and consent by of Owner, such consent not to be unreasonably withheld, conditioned or delayed. Any other product approved by Owner will then become part of Product as defined in this Agreement. If a special method of providing the Services storing or handling Product is required for the Productrequired, or if Customer requests a swing of Tank capacity, then Customer must notify Owner in sufficient time to enable Owner to consider whether, in Owner’s sole discretion, whether it will accept or reject the proposed changes in the Product to be stored or the method of delivering storing or handling the Services Product and to take the necessary preparatory measures if it agrees with Owner accepts such changes. Absent such notice and absent Owner’s written approval with respect to ; provided, however, that if Owner determines in good faith that a change in the Product to another Product or Tank lineup would have a negative impact upon the method normal operation of delivering the Servicesrelevant Terminal, Owner may, as noted above, reject Customer’s request. Failing such notice, Owner will not be liable for losses, tank heels, line fill losses or damage incurred during the terminalling storage and storage handling of Product the Products (except for to the extent attributable to Owner’s negligence or willful misconduct), including losses and or damages resulting from Product Loss)which may be related to Owner’s inability to employ the required method of storing or handling the Product, nor will Owner be obligated to provide such special Servicestorage and handling service. It is understood that in the cost event Owner agrees to swing Tanks (change service) at Customer’s request, Customer shall reimburse Owner for all costs associated therewith. Typical costs associated with such changes may include, but are not limited to, those costs incurred when draining and cleaning Tanks and associated piping, performing piping and system modifications necessary to maintain and provide normal facility and load rack operations as well as modifications to Terminal automation systems necessitated by such changes. Owner will provide, if requested by Customer, a reasonable estimate of any additional or special equipment required by Customer or costs prior to a requested change of alterations made necessary by service. In no case shall the nature of Product will estimate be for the account of Customerbinding, and Customer will be responsible reimburse Owner for the expense of any necessary cleaning and restoration to their previous condition of the Terminal and Storage Tanks, including, without limitation, pumps, tank heels and loading facilities, unless otherwise explicitly stated in this Agreementactual expenses incurred. All fixtures, equipment, equipment and appurtenances attached to the Storage Tanks will be installed Tanks, pipelines and other facilities of the Terminals by the Owner either Party are and will remain the property of Owner. No such items may be installed by Customer without the prior written consent of Owner. 5.6 4.10 Following cancellation or termination of this Agreement, Customer shall reimburse Owner for all costs commercially reasonable under the circumstances incurred by Owner in cleaning such Tanks and pipelines to a condition suitable for the storage of the grade of Product most recently stored in such Tanks as of such termination date. If any Storage Tank is damaged Customer shall not have removed Customer’s Product from the Tanks and/or pipelines within ten (10) Business Days from the date of cancellation or destroyed termination of this Agreement, Customer agrees to reimburse Owner for all costs and expenses reasonably incurred by fire or other casualtyOwner in taking such action, Owner will use reasonable efforts to make other plus a [**] handling fee, as well as the cost of storage tanks available to Customer and handling of the Product removed, if any, at the monthly tankage fee as set forth rate of [**] per Barrel per day in the applicable Schedulesaddition to any other fees due hereunder. If other storage tanks are unavailable, the monthly tankage fee, together with Owner’s requirement to handle the volume of Product in consideration of said monthly Storage Fee as set forth in the applicable Schedules, shall be reduced by a prorated amount equal to the tank capacity that is unusable by Customer for the purposes set forth Nothing herein. This abatement shall continue until the damaged or destroyed tank is repaired and ready for service, or until a substitute tank is provided and Owner is able to handle the required volume of Product. If, however, such tank is not damaged as a result of an event of Force Majeure and is not repaired and returned to its prior existing capacity within nine (9) Months after the date on which the damage or destruction occurred, and a substitute tank is not provided and Owner cannot handle the volume of Product in consideration, the Customer shall have the right to terminate detract from any lien that storage capacity from this Agreement upon written notice to Owner. Should such Storage Tank become repaired and returned to service after nine (9) Months, Customer shall have the right to add such Storage Tank to the applicable Schedule. If Customer does not add such Storage Tank to the applicable Schedules, Owner may lease such Storage Tanks to a Third Party or Third Parties. In have at any time on the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents, or contractors, the reduction in Storage Fee shall not applyProduct. 5.7 Owner may take any Storage Tank out of service during the Term in order to perform scheduled inspections, maintenance or repairs. If a Storage Tank is out of service for forty-five (45) days or less, Customer will be obligated to continue to pay the applicable Storage Fees during such 45-day period such Storage Tank is out of service. If a Storage Tank is out of service for more than 45 days for any reason other than Force Majeure or the negligence or willful misconduct of Customer, any of its Affiliates, or their employees, directors, officers, representatives, agents or contractors: (a) Owner, at Owner’s option and at Owner’s cost, may move Customer’s Product to substantially equivalent alternate tank(s) while the original Storage Tank is out of service, and Customer will continue to pay the applicable Storage Fees; (b) if Owner has not affected Customer’s capacity to receive or deliver Products while the Original Storage Tank is out of service, Customer will continue to pay any Storage Fee applicable to the original Storage Tank; or (c) after the 45 days that the Storage Tank is out of service, Customer’s obligation to pay the applicable Storage Fees will be reduced as provided herein to address the loss of capacity available. The abatement shall continue until the storage capacity is repaired and ready for service, or until substitute storage is provided, or until Customer’s need to receive or deliver Products is unaffected at the Terminal. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents or contractors, the reduction in Storage Fee shall not apply. 5.8 4.11 If any Governmental Authority requires installation of any improvement, alteration, alteration or addition to any Tank or other equipment at any Terminal for purposes of compliance with Applicable LawLaw that would materially interfere with or change the nature of the services provided under this Agreement, and if the installation would require Owner to make substantial and unanticipated capital expenditures, other than continued maintenance and capital expenditures not affected by such requirement, Owner will be entitled to impose a reasonable service surcharge (which surcharge may include the Owner’s cost of capital) in addition to the fees set out in Attachment A. Owner will notify Customer of (ia) the cost of making any such improvement, alteration, alteration or addition, after Owner’s efforts to mitigate such costs, (iib) when such improvement, alteration, alteration or addition must be completed completed, and (iiic) Customer’s proportional share of such costs. Owner will not be required to make any improvements, alterations or additions to such Terminal in such circumstance, unless Customer agrees to pay its share of such costs in the manner provided below, or agrees in good faith with Owner for a ratable surcharge to be added to the Throughput Fees. All such improvements, alterations or additions to such Terminal are and will remain the property of Owner’s reasonable estimate . If Customer elects to pay its share of such costs, Owner shall likewise pay its share of such costs and proceed with the installation of the service surcharge related required improvement, alteration or addition. Customer may elect either to pay its proportionate share of such costs in one lump sum or pay its proportionate share of the capital expenditure to be paid by Customer costs on a prorated monthly basis over the remaining Term. In calculating the surcharge, Owner shall calculate the cost Term of the improvement, alteration, or addition and the surcharge using reasonable assumptions and estimatesthis Agreement. In addition to actual capital and installation costs, the these costs to be recovered through the surcharge will include engineering and interest expense (at a rate of ***% over the prime lending rate as reported in The Wall Street Journal Interest Rate on the date of completion of such installation) ), and subsequent reasonable expenses, if any, of operating or maintaining such installation as reasonably determined by required installation. Upon expiration or earlier termination of this Agreement, all such improvements, alterations or additions shall be the property of Owner. Owner will not be required to make any improvements, alterations, or additions to the Terminal or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. (a) If Customer elects, after commercially reasonable negotiation negotiating with Owner in good faith, not to pay the surcharge share in such costs and the Owner chooses not to pay for such improvement, alteration or additionaddition in lieu thereof, and if Owner does not direct the Services are not reduced affected Product to mutually acceptable terminal assets owned by Owner’s decision to forego such improvement, alteration Owner or additionits Affiliates, then either Party may terminate or release the terms and conditions of this Agreement shall remain in full force and effect, including those set forth in Attachment A. (b) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner would be required by the Governmental Authority to reduce affected facilities or terminate the Services to be provided under Tanks from this Agreement, then with an equivalent reduction of the Parties shall negotiate in good faith Throughput Fees by giving the charges to be assessed by Owner and paid by Customer for such reduced scope other Party notice of services that can be provided at the Terminal in compliance with Applicable Law. If the Parties are unable to agree on the charges to be assessed by Owner and paid by Customer for the reduced scope of services within its intention no later than thirty (30) calendar days after Owner’s notification receipt of notice of Customer’s election not to Customer as set forth share in this Section 5.8, then this Agreement will terminate immediately with no further action by the Partiessuch costs. (c) If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration, or addition. Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration, or addition attributable to Customer’s use of the impacted portion of the Terminal and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues from the impacted segment of the Terminal and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six (6) full Months preceding the date of Owner’s notice to Customer for the cost of the improvement, alteration, or addition. Customer may pay the surcharge either (A) in equal monthly installments over the remaining Term, with each monthly installment payment increased by an interest component calculated on the surcharge at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation, or (B) by paying the surcharge in one lump sum within thirty (30) days after completion of the required improvement, addition, or alteration. 5.9 Owner will provide tank heels at the Terminal to the extent that it currently owns such tank heels, on a tank-by-tank basis. At any time during the Term, Customer may be required to provide a tank heel for various reasons, including but not limited to required maintenance, repairs, or inspection. To the extent that Owner does not own tank heels at the Terminal on a tank-by-tank basis, 4.12 Customer will be responsible for providing tank heels. Owner or Customerall Tank bottoms and line fill: provided, as applicable, will retain ownership of however in the tank heels it provides. 5.10 If, at any time during the Term, a complaint is made regarding offensive or obnoxious odors emitted from the Product delivered to or stored at the Terminal, or if such Products violate any applicable regulation relating to odor, Owner shall notify Customer of such complaint or violation. In such case, Owner and Customer shall cooperate event Tanks are in good faith to investigate and determine the source of the odor, and shall mutually determine the best method to xxxxx such odor. If reasonable changes to the Product would fully or partially xxxxx the odorcommingled service with Third Parties, Customer shall make such reasonable changes to xxxxx the odor. Owner shall not be obligated to accept Product reasonably known to have excessive potential for odor that may affect the Terminal’s property boundaries. If the Parties’ investigation determines that abatement of the odor requires the installation of additional equipment reasonably necessary to xxxxx the odor (“Abatement Equipment”) Owner shall undertake procurement and installation of the Abatement Equipment. Customer shall only be responsible for and shall pay to or reimburse Owner for the cost of (i) the investigation to determine the cause of such odor, and (ii) the Abatement Equipment ((i) and (ii), the “Abatement Costs”), up to a maximum of $*** in the aggregate. Owner shall be responsible for all Abatement Costs in excess of $***. Except to the extent a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Customer shall indemnify, defend, and hold harmless Owner from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Owner as a result of such odor. If a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Owner shall indemnify, defend, and hold harmless Customer from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Customer as a result of such odor. If at any time Customer desires to add Products to the Facilities in addition to those listed in Attachment B, such addition shall be subject to this Section 5.10its proportionate share thereof.

Operations, Receipts and Deliveries. 5.1 4.1 Receipts and deliveries of Product will be handled within the normal business hours of the Terminal. Owner may, without Customer’s approval, make temporary changes in business hours or temporarily close any applicable Terminal or Storage Tank because of an extraordinary event (“Temporary Event”subject to Section 11); provided, however, that a Temporary Event shall not include events caused by failure of equipment that Owner is obligated to maintain pursuant to this Agreement. Owner will notify Customer of such Temporary Event in advance, or as soon after implementation as is practicable. Except as required pursuant to Sections 5.2Section 4.2, 10.1, Section 8.1 or Section 19 of this Agreement, Owner the Owners will not be responsible for the payment of any costs incurred by Customer or its transportation carrier for any delay in receiving or delivering Product or any other costs or fees, including freight, car leases and demurrage, as a result of such Temporary Event. 5.2 As part of 4.2 If applicable, the facility, applicable Owner shall make available to Customer facilities existing loading docks and wharves serving the Terminal applicable Terminal. Access to the dock/loading facilities sometimes depends on the level of the adjacent waterway and the draft of the barges. Customer assumes the risks of access to the dock/loading facilities due to the foregoing, and is responsible for receiving arranging for and unloading of Product from Customer and loading Products to Customer or Customer’s carrier (such unloading and bearing any costs associated with accessing the dock/loading facilities, collectively, the “Loading Facilities”). The Loading Facilities, being used for purposes defined in Section 2.2, are available on a “first-come, first-served” basis. In no event will Owner be responsible for accruing any expense, including demurrage, for following Customer’s instructions for the Loading Facilities. Any demurrage for vessels utilized by Customer shall be at Customer’s sole expense, unless and to such extent demurrage is established by Customer as caused by the applicable Owner’s gross negligence or willful misconduct. Owner The Owners and Customer agree to use commercially reasonable efforts to attempt to minimize any demurrage that may be incurred by Customer in accordance with the foregoing. Customer acknowledges that Owner requires Third Parties operating on Customer’s behalf and entering or accessing the Terminal to have separate access or service agreements with Owner. Owner will put in place agreements with any such Third Parties and Owner, at its sole discretion, will approve, negotiate and finalize such agreements. Owner will notify Customer of Third Parties operating on Customer’s behalf that are denied access to the Terminal. 5.3 4.3 Except as set forth in Section 2.4(a) and (b), Customer must arrange for and pay all Third Party costs related to the delivery of Customer’s Product to the applicable Terminal and Third-Party costs from the Storage Tanks. Owner is The Owners are not responsible for such Third-Third Party costs except as otherwise specifically provided herein. Unless otherwise provided agreed by the applicable Owner in writing, Customer must provide written notice reasonably acceptable to each Owner containing all necessary instructions, including without limitation, the identity and quantity and any other specifications Specifications of the Product and the tentative date of delivery to the applicable Terminal (“Scheduling Notice”). The Scheduling Notice may also be provided to Owner by Customer through electronic communications in the form of email. The Parties shall reasonably coordinate with each other in advance with regard to scheduling of all Product movements and the in-bound quality, volume, volume and grade, the times of delivery to by each Terminal, and all material movements movement prior to shipment of all Product delivered to Owner the Owners hereunder. Each Scheduling Notice delivered hereunder to Owner by Customer for deliveries of Product to a Terminal shall be sent to those individuals that the applicable Owner has specified to Customer to receive such Scheduling Notice for the applicable Terminal with respect to such Product delivery. 5.4 Upon receipt by Owner of instructions from Customer, Owner will deliver to Customer, or to such Third Parties as Customer may direct, the Product held by Owner in the Storage Tanks for the account of Customer. Customer is responsible for providing to Owner documentation required to authorize deliveries for or on its behalf from the Terminal. 5.5 Owner will provide the Services to Customer only with respect to Product. Customer will have access to the Terminal and Storage Tanks for other products only with prior written notice to and consent by Owner, such consent not to be unreasonably withheld, conditioned or delayed. Any other product approved by Owner will then become part of Product as defined in this Agreement. If a special method of providing the Services is required for the Product, then Customer must notify Owner in sufficient time to enable Owner to consider whether, in Owner’s sole discretion, it will accept the proposed changes in the method of delivering the Services and to take the necessary preparatory measures if it agrees with such changes. Absent such notice and absent Owner’s written approval with respect to a change in the Product to another Product or the method of delivering the Services, Owner will not be liable for losses, tank heels, line fill or damage incurred during the terminalling and storage of Product (except for losses and damages resulting from Product Loss), nor will Owner be obligated to provide such special Service. It is understood that the cost of any additional or special equipment required by Customer or of alterations made necessary by the nature of Product will be for the account of Customer, and Customer will be responsible for the expense of any necessary cleaning and restoration to their previous condition of the Terminal and Storage Tanks, including, without limitation, pumps, tank heels and loading facilities, unless otherwise explicitly stated in this Agreement. All fixtures, equipment, and appurtenances attached to the Storage Tanks will be installed by the Owner and will remain the property of Owner. 5.6 If any Storage Tank is damaged or destroyed by fire or other casualty, Owner will use reasonable efforts to make other storage tanks available to Customer at the monthly tankage fee as set forth in the applicable Schedules. If other storage tanks are unavailable, the monthly tankage fee, together with Owner’s requirement to handle the volume of Product in consideration of said monthly Storage Fee as set forth in the applicable Schedules, shall be reduced by a prorated amount equal to the tank capacity that is unusable by Customer for the purposes set forth herein. This abatement shall continue until the damaged or destroyed tank is repaired and ready for service, or until a substitute tank is provided and Owner is able to handle the required volume of Product. If, however, such tank is not damaged as a result of an event of Force Majeure and is not repaired and returned to its prior existing capacity within nine (9) Months after the date on which the damage or destruction occurred, and a substitute tank is not provided and Owner cannot handle the volume of Product in consideration, the Customer shall have the right to terminate that storage capacity from this Agreement upon written notice to Owner. Should such Storage Tank become repaired and returned to service after nine (9) Months, Customer shall have the right to add such Storage Tank to the applicable Schedule. If Customer does not add such Storage Tank to the applicable Schedules, Owner may lease such Storage Tanks to a Third Party or Third Parties. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents, or contractors, the reduction in Storage Fee shall not apply. 5.7 Owner may take any Storage Tank out of service during the Term in order to perform scheduled inspections, maintenance or repairs. If a Storage Tank is out of service for forty-five (45) days or less, Customer will be obligated to continue to pay the applicable Storage Fees during such 45-day period such Storage Tank is out of service. If a Storage Tank is out of service for more than 45 days for any reason other than Force Majeure or the negligence or willful misconduct of Customer, any of its Affiliates, or their employees, directors, officers, representatives, agents or contractors: (a) Owner, at Owner’s option and at Owner’s cost, may move Customer’s Product to substantially equivalent alternate tank(s) while the original Storage Tank is out of service, and Customer will continue to pay the applicable Storage Fees; (b) if Owner has not affected Customer’s capacity to receive or deliver Products while the Original Storage Tank is out of service, Customer will continue to pay any Storage Fee applicable to the original Storage Tank; or (c) after the 45 days that the Storage Tank is out of service, Customer’s obligation to pay the applicable Storage Fees will be reduced as provided herein to address the loss of capacity available. The abatement shall continue until the storage capacity is repaired and ready for service, or until substitute storage is provided, or until Customer’s need to receive or deliver Products is unaffected at the Terminal. In the event the unavailability of a Storage Tank is a result of the negligence or willful misconduct of Customer, any of its Affiliates, or their respective employees, directors, officers, representatives, agents or contractors, the reduction in Storage Fee shall not apply. 5.8 If any Governmental Authority requires installation of any improvement, alteration, or addition to any Terminal for purposes of compliance with Applicable Law, and if the installation would require Owner to make substantial and unanticipated capital expenditures, other than continued maintenance and capital expenditures not affected by such requirement, Owner will be entitled to impose a reasonable service surcharge (which surcharge may include the Owner’s cost of capital) in addition to the fees set out in Attachment A. Owner will notify Customer of (i) the cost of making any such improvement, alteration, or addition, after Owner’s efforts to mitigate such costs, (ii) when such improvement, alteration, or addition must be completed and (iii) the Owner’s reasonable estimate of the service surcharge related to the capital expenditure to be paid by Customer over the remaining Term. In calculating the surcharge, Owner shall calculate the cost of the improvement, alteration, or addition and the surcharge using reasonable assumptions and estimates. In addition to actual capital and installation costs, the costs to be recovered through the surcharge will include engineering and interest expense (at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation) and subsequent reasonable expenses, if any, of operating or maintaining such installation as reasonably determined by Owner. Owner will not be required to make any improvements, alterations, or additions to the Terminal or the Storage Tanks in such circumstance, unless Customer agrees to pay the surcharge. (a) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner chooses not to pay for such improvement, alteration or addition, and if the Services are not reduced by Owner’s decision to forego such improvement, alteration or addition, then the terms and conditions of this Agreement shall remain in full force and effect, including those set forth in Attachment A. (b) If Customer elects, after commercially reasonable negotiation with Owner in good faith, not to pay the surcharge and the Owner would be required by the Governmental Authority to reduce or terminate the Services to be provided under this Agreement, then the Parties shall negotiate in good faith the charges to be assessed by Owner and paid by Customer for such reduced scope of services that can be provided at the Terminal in compliance with Applicable Law. If the Parties are unable to agree on the charges to be assessed by Owner and paid by Customer for the reduced scope of services within thirty (30) days after Owner’s notification to Customer as set forth in this Section 5.8, then this Agreement will terminate immediately with no further action by the Parties. (c) If Customer elects to pay the service surcharge, Owner shall proceed with the installation of the required improvement, alteration, or addition. Owner will calculate the surcharge required to recover the portion of Owner’s costs for the improvement, alteration, or addition attributable to Customer’s use of the impacted portion of the Terminal and/or Storage Tanks. The portion of Owner’s costs to be recovered through the surcharge to Customer shall equal the percentage of total revenues from the impacted segment of the Terminal and/or Storage Tanks attributable to Customer’s use of such Terminal or Storage Tank segment for the six (6) full Months preceding the date of Owner’s notice to Customer for the cost of the improvement, alteration, or addition. Customer may pay the surcharge either (A) in equal monthly installments over the remaining Term, with each monthly installment payment increased by an interest component calculated on the surcharge at a rate of ***% over the prime lending rate as reported in The Wall Street Journal on the date of completion of such installation, or (B) by paying the surcharge in one lump sum within thirty (30) days after completion of the required improvement, addition, or alteration. 5.9 Owner will provide tank heels at the Terminal to the extent that it currently owns such tank heels, on a tank-by-tank basis. At any time during the Term, Customer may be required to provide a tank heel for various reasons, including but not limited to required maintenance, repairs, or inspection. To the extent that Owner does not own tank heels at the Terminal on a tank-by-tank basis, Customer will be responsible for providing tank heels. Owner or Customer, as applicable, will retain ownership of the tank heels it provides. 5.10 If, at any time during the Term, a complaint is made regarding offensive or obnoxious odors emitted from the Product delivered to or stored at the Terminal, or if such Products violate any applicable regulation relating to odor, Owner shall notify Customer of such complaint or violation. In such case, Owner and Customer shall cooperate in good faith to investigate and determine the source of the odor, and shall mutually determine the best method to xxxxx such odor. If reasonable changes to the Product would fully or partially xxxxx the odor, Customer shall make such reasonable changes to xxxxx the odor. Owner shall not be obligated to accept Product reasonably known to have excessive potential for odor that may affect the Terminal’s property boundaries. If the Parties’ investigation determines that abatement of the odor requires the installation of additional equipment reasonably necessary to xxxxx the odor (“Abatement Equipment”) Owner shall undertake procurement and installation of the Abatement Equipment. Customer shall be responsible for and shall pay to or reimburse Owner for the cost of (i) the investigation to determine the cause of such odor, and (ii) the Abatement Equipment ((i) and (ii), the “Abatement Costs”), up to a maximum of $*** in the aggregate. Owner shall be responsible for all Abatement Costs in excess of $***. Except to the extent a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Customer shall indemnify, defend, and hold harmless Owner from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Owner as a result of such odor. If a defect in or failure of any of the equipment at the Terminal is the cause of such odor issue, Owner shall indemnify, defend, and hold harmless Customer from and against any and all fines, assessments, damages, penalties, and other expenses, including reasonable attorneys’ fees and costs, incurred by Customer as a result of such odor. If at any time Customer desires to add Products to the Facilities in addition to those listed in Attachment B, such addition shall be subject to this Section 5.10.