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EXHIBIT 10.20
WHEN RECORDED, RETURN TO:
Xxxxx/Xxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
WAIVER AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT ("Agreement") dated as of February
14, 1997 is made and entered into this ____ day of February, 1997, by and among
(i) Octel Communications Corporation, a Delaware corporation (hereinafter
referred to as "Octel"), (ii) Sumitomo Bank Leasing and Finance, Inc., a
Delaware corporation ("SBLF" or "Buyer"), (iii) The Xxxxx Private Investment
Company-WP, L.P., a California limited partnership, as to an undivided 25%
interest, The Xxxxx Public Investment Company-WP, L.P., a California limited
partnership, as to an undivided 25% interest and Xxxx Xxxxxxxxx, as Trustee, or
Successor Trustee under Trust Agreement dated July 20, 1977 (the Arrillaga
Family Trust) and as amended, as to an undivided 50% interest (hereinafter
collectively referred to as "Xxxxx/Xxxxxxxxx"), and (iv) Xxxxxxx X. Xxxxx,
individually, and Xxxx Xxxxxxxxx, individually.
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R E C I T A L S
This Agreement is made with reference to the following facts and
intentions of the parties:
A. A Purchase and Sale Agreement dated February 14, 1997 has been
entered into on February ____, 1997, by and between Octel and Xxxxx/Arrillaga
for the purchase of certain property located in the City of Milpitas, County of
Santa Xxxxx, State of California known as a portion of APN# 000-00-000 and shown
on the legal description attached hereto as Exhibit I (hereinafter referred to
as the "Property"), the terms and conditions of which are more particularly set
forth in the Purchase and Sale Agreement.
B. As a condition to Buyer's obligations under the Purchase and Sale
Agreement, Buyer has agreed to and is obligated to execute and record this
Agreement at the close of escrow directly following the recording of the grant
deed from Xxxxx/Xxxxxxxxx to Buyer and prior to the recording of any other
matters or liens that would effect title in order to set forth the agreement of
the parties herein.
C. Octel has assigned to SBLF its right to buy and acquire title to the
Property pursuant to a written assignment and pursuant to the terms and
conditions of the Purchase and Sale Agreement, and Octel has entered into an
agreement with SBLF giving Octel the right to occupy the Property following
close of escrow (i.e. the date title to the Property is conveyed to SBLF and
this Agreement is recorded). One of the provisions of such assignment is that
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SBLF is to be bound by the terms and conditions of the Purchase and Sale
Agreement and by this Waiver and Release Agreement which concerns Hazardous
Materials, but excludes SBLF from the indemnification agreement concerning
Hazardous Materials as stated in Paragraph 3 herein.
D. This Agreement is intended to provide a waiver and release and
indemnity (subject to certain restrictions) for the benefit of Xxxxx/Xxxxxxxxx,
Xxxxxxx X. Xxxxx, individually, and Xxxx Xxxxxxxxx, individually, and the other
Waiver Parties (defined below) concerning Hazardous Materials, etc.
A G R E E M E N T
NOW, THEREFORE, as a material part of the consideration for the
executing of the Purchase and Sale Agreement set forth in Paragraph A above and
for other valuable consideration receipt of which is hereby acknowledged, the
parties agree to the following provisions hereinafter set forth as follows:
14. Waiver and Release. As of the close of escrow, except for the
breach of any express representation in the Purchase and Sale Agreement, each of
Octel and SBLF, on behalf of itself, its employees, agents, contractors,
consultants, representatives, assigns and successors in interest (individually,
a "Waiving Person", and collectively "Waiving Persons") hereby waives any right
to xxx the Waiver Party or the Waiver Parties (hereinafter defined) and waives
and releases any and all rights or claims (by
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way of contribution, indemnity or otherwise) related to or incurred in
connection with any release of Hazardous Materials prior to or after the close
of escrow, or the investigation, clean-up, removal or treatment of Hazardous
Materials in, on or under any and/or all of the parcels of the Property
described in Exhibit I attached hereto, and/or in groundwater which is now or
hereafter present (or which now or hereafter passes) thereunder, which any of
the above named parties may otherwise have against any of the following with
respect to their interest in the Property described Exhibit I: (i)
Xxxxx/Arrillaga, and Xxxxx/Arrillaga's heirs, employees, agents or any other
person acting on or in behalf of Xxxxx/Arrillaga, or Xxxxxxx X. Xxxxx and/or
Xxxx Xxxxxxxxx individually; (ii) Xxxxx Xxxxxx, as Trustee of the Xxxxx
Charitable Remainder Trust-WP for Private Charities dated December 27, 1996 and
the Xxxxx Charitable Remainder Trust-WP for Private Charities; (iii) Xxxxx
Xxxxxx, as Trustee of the Xxxxx Charitable Remainder Trust-WP for Public
Charities dated December 27, 1996 and the Xxxxx Charitable Remainder Trust-WP
for Public Charities; (iv) Xxxxxxx X. Xxxxx, as Trustee of the Xxxxxxx X. Xxxxx
Separate Property Trust dated July 20, 1977, as amended and the Xxxxxxx X. Xxxxx
Separate Property Trust; or (v) any mortgagee, or deed of trust beneficiary of
Xxxxx/Arrillaga in title to or ownership or possession of the Property or any
part thereof (each individually, a "Waiver Party"; collectively, "Waiver
Parties"); provided, however, that nothing set forth in this Waiver or any other
agreement executed in
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connection with the sale of the Property to SBLF shall waive any claim any
Waiving Person may now or hereafter have against any other person (other than
the Waiver Parties). This waiver and release extends to all claims, whether or
not known or suspected by Octel or SBLF to exist at the time of execution of
this Agreement, which if known by Octel or SBLF would materially affect the
giving of this waiver and release, and is an express waiver of the provisions of
California Civil Code Section 1542 by Octel and SBLF. Such waiver and release
shall apply to all costs, whether such costs are incurred in connection with any
action required to be undertaken by a governmental entity, nongovernmental
entity or by any agreement to which Octel or SBLF is a party, or by any law or
regulation, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, Hazardous Materials Transportation Act, Resource
Conservation and Recovery Act and California Health and Safety Code, or whether
such costs are incurred in any other manner.
As a material part of the consideration for the Waiver Party selling
the Property to SBLF, Octel and SBLF hereby agree not to xxx or file or assert
any claims against any or all Waiver Parties for recovery of any costs for which
Octel or SBLF has waived its right of recovery under the preceding paragraph.
Within ten (10) business days following any written request by
Xxxxx/Arrillaga or its successors in interest, Octel and/or SBLF shall execute
and deliver to any and all Waiver Party(ies)
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designated by Xxxxx/Xxxxxxxxx or its successors in interest written
confirmation of this waiver and release.
It is the intent of the parties that this Agreement be binding on and
enforceable against each and every one of the assigns or successors in interest
of Octel and SBLF, except as otherwise specifically provided in Paragraph 3
hereof.
15. Buyer's Covenant Not to Xxx. The parties hereby acknowledge and
agree that, in consideration of the Purchase and Sale Agreement, Octel and SBLF
each intends and agrees not to involve the Waiver Party or the Waiver Parties in
any legal, arbitration, administrative or other proceedings arising out of or in
connection with Hazardous Materials on, in or under the Property, prior to, or
as of the close of escrow, or thereafter, except for the breach of any express
representation by Xxxxx/Xxxxxxxxx in the Purchase and Sale Agreement. Therefore,
subject to the terms and conditions of this Agreement, upon consummation of the
transaction contemplated by the Purchase and Sale Agreement, Octel and SBLF, on
behalf of itself and its assigns and successors in interest, hereby covenant and
agree, with respect to any claim, duty, obligation or cause of action of any
kind, whether presently known or unknown, suspected or unsuspected, arising out
of or incurred in connection with any investigation, clean-up, removal or
treatment of Hazardous Materials in, on or under any and/or all of the Property
("Claim") not to bring any legal, arbitration, administrative or other
proceeding with respect
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to, or any grievance or complaint before any administrative or governmental body
with jurisdiction over any Claim, except for the breach of any express
representation by Xxxxx/Arrillaga in the Purchase and Sale Agreement against (A)
the Waiver Party or the Waiver Parties, their employees, agents, contractors,
consultants, representatives, directors, officers, employees, assigns and
successors in interest (but not including any other person or other entity who
was a tenant, subtenant or owner in fee prior to the close of escrow or any
other third party or other entity that may have indirectly or directly caused
contamination of, or on, in or under, the Property soil or groundwater); and (B)
any mortgagee or deed of trust beneficiary of any of the foregoing persons with
respect to the Property. The foregoing obligations of Octel and SBLF shall be
applicable upon the close of escrow.
3. Indemnity Agreement. Any owner of record of fee title to the
Property, by acquiring title to the Property, hereby agrees, and is bound, to
indemnify, hold harmless, defend (with counsel reasonably acceptable to the
Waiver Party and/or the Waiver Parties) from and against any and all claims,
demands, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings, judgments and all costs, related to any Hazardous
Materials related claims, liabilities, demands or requests of any type
whatsoever, related to or associated with the Property from third parties or
governmental agencies that may arise now or at any time in the future.
Notwithstanding the foregoing or
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anything else contained in this Waiver and Release Agreement or in the Purchase
and Sale Agreement, the following shall restrict and limit the obligations
stated in the first sentence of this Paragraph 3 (which obligations are referred
to herein as the "Indemnity Agreement"):
A. The Indemnity Agreement shall not be binding upon, or
create any liability on the part of, any of the following persons or entities,
who shall not in any way whatsoever be liable for any of the obligations created
by the Indemnity Agreement as stated in Paragraph 3 (the "Exempt Entities").
Notwithstanding anything to the contrary above in Paragraph 3 ("Indemnity
Agreement"), the only parties exempt from indemnifying the Waiver Parties as
stated in said Paragraph 3 are: (i) SBLF, its shareholders (including The
Sumitomo Bank, Limited) and its successors in interest; (ii) any owner of record
title to the Property who concurrently leases the Property to Octel on a basis
that results in substantially the same federal tax and financial accounting
treatment as the relationship between SBLF and Octel immediately following close
of escrow; (iii) any lender who acquires a security interest in the Property by
means of a mortgage or deed of trust; and (iv) any party (and any successor in
interest to such party by purchase or otherwise), excluding Octel or its
successors in interest, who acquires title to the Property as a result of the
foreclosure of a security interest held by any of the parties described in
clause (i), (ii) or (iii) above.
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B. Each of the Waiver Parties, on behalf of itself, its heirs,
successors, and assigns, hereby agrees not to xxx or file or serve any claims
against any Exempt Party with respect to any existing or potential Claim
concerning Hazardous Materials on the Property (as the term "Claim" is defined
in Paragraph 2 hereof); provided, however, that in any action brought by an
Exempt Party against a Waiving Party, a Waiving Party may assert as an
affirmative defense any breach or violation of this Agreement by any Exempt
Party.
4. Attorneys' Fees. In the event any suit or action is
brought to enforce this Agreement, the prevailing party or parties
will be entitled to receive from the losing party or parties all
costs of proceedings and reasonable attorneys' fees in an amount
fixed by the court.
5. Notices. Any notices to be given shall be addressed to
the individuals at the address given below, shall be personally
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delivered or mailed by certified mail, return receipt requested and shall be
deemed given to said parties upon personal delivery or upon the date for receipt
or refusal set forth in the return receipt.
Octel Communications Corporation
Attn: Xxxx Xxxx
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Sumitomo Bank Leasing and Finance, Inc.
Attn: Chief Credit Officer
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxx
Xxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX 00000
With copy to:
Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Any change in address shall not be effective until the other party is
notified in writing of such change pursuant to the terms of this Paragraph 5.
6. The provisions of this Agreement shall run with the land described
in Exhibit I attached hereto and shall inure to the benefit of and be binding
upon the respective heirs, successors in interest and assigns of the parties
hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Buyer Xxxxx/Xxxxxxxxx
SUMITOMO BANK LEASING
AND FINANCE, INC. THE ARRILLAGA FAMILY TRUST
a Delaware corporation
By___________________________ By__________________________________
Xxxx Xxxxxxxxx, Trustee
Its__________________________ of the Arrillaga Family
Trust dated 7/20/77, as
amended
Octel XXXXX PRIVATE INVESTMENT
COMPANY-WP, L.P., a California
OCTEL COMMUNICATIONS limited partnership
CORPORATION,
a Delaware corporation
By__________________________________
Xxxxxxx X. Xxxxx, Trustee
By___________________________ of the Xxxxxxx X. Xxxxx
Separate Property Trust
Its__________________________ dated 7/20/77, as amended,
as its General Partner
XXXXX PUBLIC INVESTMENT
COMPANY-WP, L.P., a California
limited partnership
By__________________________________
Xxxxxxx X. Xxxxx, Trustee
of the Xxxxxxx X. Xxxxx
Separate Property Trust
dated 7/20/77, as amended,
as its General Partner
*ALL SIGNATURES TO BE NOTARIZED.
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EXHIBIT I TO WAIVER AND RELEASE AGREEMENT
LEGAL DESCRIPTION
[To be determined; approximately 7.58 acres]
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