d. The ESE is and shall remain the property of Tenant or Tenant's permitted assignee, and Landlord and Tenant agree that the ESE is not, and installation of the ESE on the Premises and/or within the Common Area, shall not cause the ESE to become the property of Landlord or a fixture pursuant to the Lease or by operation of law.
e. Without limiting the terms and conditions of the Lease, Tenant shall indemnify, defend, protect and hold Landlord, its partners, members, officers, agents, employees and contractors harmless from and against all claims, suits, losses, damages, fines, penalties, liabilities, judgments, costs, or expenses assessed against or incurred by Landlord (including reasonable attorneys' fees and other costs incurred by Landlord in connection with claims or suits, regardless of whether such claims involve litigation) arising out of, caused by or related to (or allegedly arising out of, caused by or allegedly related to) property damage, personal injury or death to the extent arising out of, caused by or related to the activities of Tenant or its employees, agents or contractors in installing, using, operating, maintaining, repairing, replacing, servicing or removing the ESE.
f. Tenant shall be solely liable for, at Tenant’s sole cost and expense, and shall pay prior to delinquency, all personal property taxes, assessments and other impositions levied with respect to the ESE. In the event that any such taxes, assessments or other impositions are levied against Tenant, Tenant shall pay the same directly to the taxing authority. However, in the event that any such taxes, assessments or other impositions are levied against Landlord or the Entire Premises, rather than levied against Tenant, Tenant shall promptly reimburse to Landlord the full amount (not merely Tenant’s pro rata share) of such taxes, assessments or other impositions pursuant to Article VIII of the Lease.
g. During the period commencing on the date of the installation of the ESE and ending on the date that the ESE is removed from the Entire Premises, the portion of the Common Area upon which the ESE is installed shall be deemed to be part of the Premises for all purposes under the Lease, including, but not limited to, Tenant’s insurance obligations under Section 16.01 of the Lease, and Tenant’s indemnification obligations under Section 16.04 of the Lease. However, notwithstanding anything in the Lease to the contrary, Tenant’s installation, use, maintenance, operation, repair and removal of the ESE shall be governed by the provisions of this Amendment.
h. Tenant acknowledges, understands and agrees that: (i) the installation of the ESE shall cause a loss of four (4) parking spaces in the Common Area of the Entire Premises; (ii) as a result thereof, Landlord shall not be obligated to restore or replace any of such four (4) parking spaces elsewhere in the Entire Premises; and (iii) if the Lease requires a certain minimum number of parking spaces to be maintained in or upon the Entire Premises, such minimum number of parking spaces shall be decreased by four (4) parking spaces.
i.The installation, use and operation of the ESE, and the utilization of the portion of the Common Area upon which the ESE is installed, shall not cause or result in a decrease or increase in the amount of rent due under the Lease, including, but not limited to, the amount of Minimum Rent, additional rent or Common Area Expenses due under the Lease, except for any increase in taxes, assessments or other impositions with respect to the ESE, which shall be paid directly by Tenant to the taxing authority or shall be reimbursed by Tenant to Landlord, as set forth in Paragraph 3f above.
4.Counterparts; Electronic Signatures. The parties may execute this Amendment in one or more counterparts, all of which when taken together will constitute one and the same instrument. Signatures transmitted by electronic means shall be effective and binding in the same manner as original signatures.
5. Effect of Amendment. This Amendment modifies and amends the Lease, and the terms and provisions hereof shall supersede and govern over any contrary or inconsistent terms and provisions set forth in the Lease. The Lease, as previously amended and as hereby further amended and modified, remains in full force and effect and is hereby ratified and confirmed. All future references in the Lease to the “Lease” shall mean and refer to the Lease, as amended and modified by this Amendment.
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