EXHIBIT 10.7
WAIVER AND RELEASE AGREEMENT
THIS WAIVER AND RELEASE AGREEMENT, dated as of September 24, 2002 (this
"RELEASE"), is by and between U.S. Plastic Lumber Corp. (the "Company") and
Halifax Fund L.P. (the "Holder"). Unless otherwise defined herein, capitalized
terms shall have the meanings ascribed thereto in the Exchange and Repurchase
Agreement, dated as of the date hereof (the "Exchange Agreement"), between the
Company and the Holder.
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT EACH OF
THE UNDERSIGNED, in consideration of the sum of Ten Dollars ($10), a reciprocal
release and other good and valuable consideration received from each other party
hereto, the receipt and sufficiency of which are hereby acknowledged, having
been represented by counsel and having been fully and adequately informed as to
the facts, consequences and circumstances surrounding this RELEASE, and
representing and warranting that the claims, causes of actions and other rights
set forth below and which are the subject of this RELEASE have not heretofore
been assigned or otherwise transferred to any other person, hereby releases and
discharges, individually and collectively, one another, and their respective
present and former officers, directors, shareholders, agents, employees,
servants, affiliates, subsidiaries, general and/or limited partners (and their
respective general and/or limited partners), attorneys, representatives and
management companies and (to the maximum extent applicable) the respective
officers, directors, shareholders, agents, employees, servants, affiliates,
subsidiaries, general and/or limited partners (and their respective general
and/or limited partners), attorneys, representatives and management companies of
each of the foregoing, and each person who controls any of the foregoing, as
well as their respective successors and assigns, from and against any and all
actions, causes of action, suits, debts (including without limitation default
payments, fees and penalties), dues, sums of money, obligations, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, liabilities, rights and demands whatsoever, of whatever kind
or nature, in contract or in tort, in law or equity, known or unknown, which
such releasing party or any party claiming by or through such releasing party
ever had, now have or hereafter can, shall or may have for, upon or by reason of
any matter, cause or thing whatsoever, from the beginning of the world to the
date hereof which are based upon, arise under or are related to, subject to the
Existing Instruments other than actions or claims (i) arising under the
indemnification agreements contained in the 2000 Registration Rights Agreement
and the 2001 Registration Rights Agreement, respectively, and (ii) that result
from the willful misconduct of the other party. Notwithstanding the foregoing,
nothing contained herein shall be construed to limit or otherwise affect any
party's rights or remedies arising under, or in connection with the transactions
contemplated by, the Exchange Agreement and the other Transaction Documents;
PROVIDED, HOWEVER, that the Holder acknowledges that the Company has fulfilled
its obligation under Section 5.18 of the Exchange Agreement.
THIS RELEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
None of the terms or provisions of this RELEASE may be waived, altered,
modified or amended except by an instrument in writing, duly executed by each of
the parties hereto. This RELEASE shall be binding upon each of the parties
hereto, their successors and assigns, and shall inure to the benefit of the
other parties hereto and their successors and assigns.
Each party hereto expressly waives any and all rights under any
applicable statute, doctrine or principle of law restricting the right of any
person to release claims which such person does not know or suspect to exist at
the time of executing a release, which claims, if known, may have materially
affected such person's decision to give such a release. In connection with such
waiver and relinquishment, each party hereto acknowledges that they are aware
that they may hereafter discover claims presently unknown or unsuspected, or
facts in addition to or different from those which they now know or believe to
be true, with respect to the matters released herein. Nevertheless, it is the
intention of each party hereto to fully, finally and forever settle and release
all such matters, and all claims relative thereto which now exist, may exist or
theretofore have existed between and among the parties hereto, described above,
as specifically provided herein.
The provisions of this RELEASE may be pleaded as a full and complete
defense to, and may be used as the basis for an injunction against, any action,
suit or other proceeding that may be instituted, prosecuted or attempted in
breach thereof.
This RELEASE, together with the Exchange Agreement and the other
Transaction Documents, constitutes the entire agreement of the parties hereto as
to the subject matter hereof. Each of the undersigned acknowledges that there
are no communications or oral understandings contrary, different or which in any
way restrict the full, complete and general release and discharge intended
hereby, and that all prior agreements or understandings within the scope of the
subject matter of the RELEASE are, upon the execution and delivery of this
RELEASE, superseded, null and void.
This RELEASE may be executed by one or more of the parties hereto on
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
The effectiveness of this RELEASE is expressly conditioned upon the
consummation of the Closing in accordance with the terms of the Exchange
Agreement.
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IN WITNESS WHEREOF, each of the undersigned has executed this RELEASE
as of the day and year first above written.
U.S. PLASTIC LUMBER CORP.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Secretary
HALIFAX FUND, L.P.
By: THE PALLADIN GROUP, L.P.,
Attorney-in-Fact
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Counsel
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