HERETO OR
ANY OF THEM WITH RESPECT TO THIS TERMINATION AGREEMENT (AS NOW OR
9
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY PARTY TO THIS TERMINATION AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
EACH PARTY HERETO CONSENTS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT
WITHIN THE STATE OF CALIFORNIA HAVING VENUE IN SAN FRANCISCO, CALIFORNIA. THE
PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE ANY TERMINATION OF THIS TERMINATION
AGREEMENT OR THE OPTION AGREEMENT, AND THE CLOSING OF THE PURCHASE AND SALE
PURSUANT TO THE OPTION AGREEMENT.
k.
ADVICE OF COUNSEL. THE PARTIES
REPRESENT AND DECLARE TO EACH OTHER THAT THEY HAVE CAREFULLY READ THIS
TERMINATION AGREEMENT AND KNOW THE CONTENTS THEREOF, AND THAT THEY SIGN THE SAME
FREELY AND VOLUNTARILY. EACH OF THE SIGNATORIES HERETO WARRANTS AND REPRESENTS
THAT THEY ARE EFFECTING THIS SETTLEMENT AND EXECUTING THIS TERMINATION AGREEMENT
AFTER HAVING RECEIVED FULL LEGAL ADVICE AS TO THEIR RESPECTIVE RIGHTS FROM THEIR
ATTORNEYS. THIS TERMINATION AGREEMENT IS THE PRODUCT OF NEGOTIATIONS AND
PREPARATION BY AND AMONG EACH PARTY HERETO AND HIS, HER OR ITS RESPECTIVE
COUNSEL. THEREFORE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THIS
TERMINATION AGREEMENT SHALL NOT BE DEEMED PREPARED OR DRAFTED BY ONE PARTY OR
ANOTHER AND SHALL BE CONSTRUED ACCORDINGLY.
l.
Notwithstanding anything to
the contrary in this Termination Agreement, Tenant and Guarantor hereby agree
that recovery against Landlord or any Landlord Party for any breach or other
action arising out of this Termination Agreement shall be limited to Landlord's
interest in the Property.
m.
All of the understandings, covenants, and
agreements contained herein are solely for the benefit of Landlord and Tenant
and their respective successors and permitted assigns, and no other person or
party is intended to be benefited, in any way, by this Termination Agreement.
n.
Each party to this Termination hereby confirms and admits that she, he or
it has read and understands this Termination Agreement and that she, he or it
has been fully advised and represented by counsel with respect to this
Termination Agreement and all negotiations giving rise to it, and that he or it
has fully
10
discussed this Termination Agreement and its terms, consequences and
ramifications with her, his or its respective counsel.
IN WITNESS WHEREOF, the parties have executed this Termination Agreement on the
day and year first above written.
LANDLORD:
AMB PROPERTY, L.P., a Delaware limited
partnership
By:
AMB PROPERTY CORPORATION, a Maryland
corporation, its general partner
By:
John L. Rossi
Its:
Vice President
TENANT:
HYSEQ, INC., a Nevada corporation
By:
Name:
Title:
By:
Name:
Title: