(INCLUDING
REASONABLE COSTS OF LITIGATION AND ATTORNEYS' FEES), EXPENSES, CLAIMS, DAMAGES
AND LIABILITIES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH
THE EXISTENCE, INSTALLATION, CONSTRUCTION, OPERATION, REPAIR, MAINTENANCE AND/OR
REMOVAL OF THE GENERATOR, UNLESS SUCH LOSS, INJURY, OR DAMAGE WAS CAUSED BY THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD, ITS AGENTS, EMPLOYEES, INVITEES,
OR CONTRACTORS. TENANT'S LICENSE UNDER THIS SECTION SHALL AUTOMATICALLY
TERMINATE UPON THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE. "GOVERNMENTAL
REQUIREMENTS" SHALL MEAN ANY AND ALL APPLICABLE LAWS, CODES, RULES, REGULATIONS
AND ORDINANCES FROM ANY AND ALL APPLICABLE GOVERNING AUTHORITIES.
3.
AUTHORITY. TENANT HEREBY REPRESENTS AND WARRANTS THAT (I) TENANT
IS A DULY ORGANIZED AND VALIDLY EXISTING CORPORATION, (II) TENANT IS QUALIFIED
TO DO BUSINESS IN THE STATE OF GEORGIA, (III) TENANT HAS FULL RIGHT, POWER AND
AUTHORITY TO ENTER INTO THIS FIRST AMENDMENT, AND (IV) EACH PERSON SIGNING ON
BEHALF OF TENANT IS AUTHORIZED TO DO SO. UPON LANDLORD'S REQUEST, TENANT SHALL
PROVIDE LANDLORD WITH EVIDENCE REASONABLY SATISFACTORY TO LANDLORD CONFIRMING
THE FOREGOING REPRESENTATIONS AND WARRANTIES.
4.
MISCELLANEOUS. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, AND SHALL BE
BINDING UPON AND INURE TO THE
3
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS,
SUCCESSORS-IN-TITLE, REPRESENTATIVES AND PERMITTED ASSIGNS. IN THE EVENT OF ANY
INCONSISTENCY OR CONFLICT BETWEEN THE TERMS OF THIS FIRST AMENDMENT AND OF THE
LEASE, THE TERMS OF THIS FIRST AMENDMENT SHALL CONTROL. TIME IS OF THE ESSENCE
OF ALL OF THE TERMS OF THIS FIRST AMENDMENT. THIS FIRST AMENDMENT CONSTITUTES
AND CONTAINS THE SOLE AND ENTIRE AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND NO PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN
REPRESENTATIONS OR AGREEMENTS BETWEEN THE PARTIES AND RELATING TO THE SUBJECT
MATTER HEREOF SHALL HAVE ANY LEGAL EFFECT. THE SUBMISSION OF THIS FIRST
AMENDMENT FOR EXAMINATION DOES NOT CONSTITUTE AN OFFER TO ENTER INTO A CONTRACT
AND THIS FIRST AMENDMENT SHALL BE EFFECTIVE ONLY UPON EXECUTION HEREOF BY
LANDLORD AND TENANT. EXCEPT AS HEREINABOVE PROVIDED, ALL OTHER TERMS AND
CONDITIONS OF THE LEASE SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND
ARE HEREBY RATIFIED AND CONFIRMED BY THE PARTIES HERETO. TENANT HEREBY
ACKNOWLEDGES AND AGREES THAT, AS OF THE DATE HEREOF, TO TENANT'S ACTUAL
KNOWLEDGE, THE LEASE IS SUBJECT TO NO OFFSETS, CLAIMS, COUNTERCLAIMS OR DEFENSES
OF ANY NATURE WHATSOEVER. THIS FIRST AMENDMENT MAY NOT BE CHANGED, MODIFIED,
DISCHARGED OR TERMINATED ORALLY IN ANY MANNER OTHER THAN BY AN AGREEMENT IN
WRITING SIGNED BY ALL PARTIES HERETO OR THEIR RESPECTIVE HEIRS, REPRESENTATIVES,
SUCCESSORS AND PERMITTED ASSIGNS. IF ANY CLAUSE OR PROVISION OF THIS FIRST
AMENDMENT IS ILLEGAL, INVALID OR UNENFORCEABLE UNDER PRESENT OR FUTURE LAWS, THE
REMAINDER OF THIS FIRST AMENDMENT SHALL NOT BE AFFECTED THEREBY, AND IN LIEU OF
EACH CLAUSE OR PROVISION OF THIS FIRST AMENDMENT WHICH IS ILLEGAL, INVALID OR
UNENFORCEABLE, THERE SHALL BE ADDED AS A PART OF THIS FIRST AMENDMENT A CLAUSE
OR