that Lessee (or
StemSource, Inc.) may have in the Security Deposit (as described in the Lease),
including any accrued interest, claim for offset, or otherwise.
The Security
Deposit, along with all accrued interest shall become the property of the
Lessor; and
(c)
Surrender of Possession of the Premises.
Lessee shall surrender possession of the Premises, including any tenant
improvements constructed by Lessee during Lessee's tenancy.
2.
REPRESENTATIONS AND WARRANTIES.
EACH
PARTY HEREBY REPRESENTS TO THE OTHER THAT:
(A) SUCH PARTY HAS THE SOLE LEGAL
POWER, RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT; (B) ALL REQUISITE
CORPORATE ACTION HAS BEEN TAKEN BY SUCH PARTY IN CONNECTION WITH ENTERING INTO
THIS AGREEMENT; (C) NO ADDITIONAL CONSENT OF ANY INDIVIDUAL, OFFICER, DIRECTOR,
SHAREHOLDER, PARTNER, MEMBER, MANAGER, TRUSTEE, TRUSTOR, BENEFICIARY, CREDITOR,
INVESTOR, JUDICIAL OR ADMINISTRATIVE BODY, GOVERNMENTAL AUTHORITY OR OTHER PARTY
SHALL BE REQUIRED FOR SUCH PARTY TO CONSUMMATE THE TRANSACTION CONTEMPLATED BY
THIS AGREEMENT; AND (D) LESSEE IS THE SOLE OWNER OF THE LESSEE'S LEASEHOLD
INTEREST UNDER THE LEASE, FREE OF ANY LIENS, SUBLEASES, CLAIMS OR ENCUMBRANCES;
AND (E) THE INDIVIDUALS EXECUTING THIS AGREEMENT ON BEHALF OF SUCH PARTY HAVE
THE LEGAL POWER, RIGHT AND ACTUAL AUTHORITY TO BIND SUCH PARTY TO THE TERMS AND
CONDITIONS HEREOF.
3.
GENERAL INDEMNITY.
LESSEE SHALL
INDEMNIFY, DEFEND AND HOLD LESSOR HARMLESS (WITH COUNSEL REASONABLY ACCEPTABLE
TO LESSOR) FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES AND
EXPENSES, INCLUDING ATTORNEYS' FEES RESULTING FROM LESSEE'S NEGLIGENT USE OR
OCCUPATION OF THE PREMISES.
NOTWITHSTANDING THE FOREGOING, LESSOR REPRESENTS
AND WARRANTS THAT LESSOR (INCLUDING ANY REPRESENTATIVES OF LESSOR) ARE NOT AS OF
THE EFFECTIVE DATE, AWARE OF ANY CLAIM FOR INDEMNITY AGAINST THE LESSEE.
4.
Acceptance of Surrender of the Premises.
Lessor accepts the
surrender of the Premises by Lessee and acknowledges that the Premises are in
good condition and repair, and that no further removal of any alterations is
required.
2
5.
ATTORNEYS' FEES.
IF ANY ACTION,
LAWSUIT OR PROCEEDING RELATING TO THIS AGREEMENT, OR ANY DEFAULT THEREUNDER,
WHETHER OR NOT ANY ACTION, LAWSUIT OR PROCEEDING IS COMMENCED, THEN THE
NON-PREVAILING PARTY SHALL REIMBURSE THE PREVAILING PARTY FOR ITS ATTORNEYS' AND
EXPERT WITNESS' FEES AND COSTS AND ALL FEES, COSTS AND EXPENSES INCURRED IN
CONNECTION WITH SUCH ACTION, LAWSUIT OR PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY POST-JUDGMENT FEES, COSTS OR EXPENSES INCURRED ON ANY APPEAL, IN
COLLECTION OF ANY JUDGMENT OR IN APPEARING IN ANY BANKRUPTCY PROCEEDING.
THE
PREVAILING PARTY SHALL BE DETERMINED UNDER CIVIL CODE SECTION 1717(B)(1) OR ANY
SUCCESSOR STATUTE.
6.
SUCCESSORS.
THIS AGREEMENT SHALL BE
BINDING ON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE
SUCCESSORS, HEIRS AND ASSIGNS.
7.
SEVERABILITY.
IF ANY ONE OR MORE
PROVISIONS CONTAINED IN THIS AGREEMENT IS DEEMED INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT, SUCH PROVISION SHALL BE ENFORCED TO THE FULLEST
EXTENT PERMISSIBLE BY LAW, AND THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE
REMAINING PROVISIONS CONTAINED HEREIN SHALL NOT IN ANY WAY BE AFFECTED OR
IMPAIRED THEREBY.
8.
ENTIRE AGREEMENT.
THIS AGREEMENT
REPRESENTS THE