RELEASE AGREEMENT
This RELEASE AGREEMENT, dated as of November 4, 1996 (this
"Agreement"), is by and among DEP CORPORATION, a Delaware corporation in its
individual capacity and as debtor in possession in its Chapter 11 proceeding
(the "Company"), and the Lenders (as defined below).
WHEREAS, the Company commenced on April 1, 1996 a case under Chapter
11 of the United States Bankruptcy Code (Title 11, United States Code) (the
"Bankruptcy Code") seeking protection from its creditors and reorganization
thereunder;
WHEREAS, the Company has prepared and negotiated the Consensual Plan
(as defined below), which Consensual Plan has been duly confirmed by the United
States Bankruptcy Code for the District of Delaware (the "Bankruptcy Court");
WHEREAS, one element of the Consensual Plan calls for the Company
Releasing Parties and the Lender Releasing Parties (each as defined below)
broadly to release and discharge all claims and causes of action of each
respective party against the others, other than obligations under the Consensual
Plan, with such release and discharge expressly to provide, out of an abundance
of caution, that nothing therein is intended to or constitutes a release or
waiver in favor of any of the SC Xxxxxxx Parties (as defined below); and
WHEREAS, this Agreement is intended as the "Class 1 Release Agreement"
contemplated by the Consensual Plan.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
"CLAIMS" shall mean any and all actions, liabilities, claims, demands, and
causes of action (in law or in equity, whether by tort, contract or other theory
of liability) for any and all acts, contracts, omissions, debts, accounts,
damages, costs, losses, and expenses of every type, character, kind, nature or
description, whether known or unknown, xxxxxx or inchoate, fixed or contingent,
accrued or hereinafter accruing, whether or not known, suspected or claimed of
any matter, cause or thing from the beginning of time up to and including the
Effective Date.
"COMPANY RELEASING PARTIES" shall mean the Company and each of its past,
present and future affiliates, associates, employees, officers, directors,
partners, fiduciaries, owners, subsidiaries, shareholders, agents, attorneys,
insurers, predecessors and successors, or any of them.
"CONSENSUAL PLAN" shall mean the Company's Second Amended Plan of
Reorganization dated as of August 23, 1996, duly confirmed by the Bankruptcy
Court under Section 1129 of the Bankruptcy Code.
"EFFECTIVE DATE" shall mean the date the Consensual Plan became effective
in accordance with the Consensual Plan.
"LENDER RELEASING PARTIES" shall mean the Lenders and each of them and each
of their respective past, present and future affiliates, associates, employees,
officers, directors, partners,
owners, subsidiaries, shareholders, agents, attorneys, insurers, predecessors
and successors, or any of them.
"LENDERS" shall mean all parties, other than the Company, that are, or at
any time were, parties to or have, or at any time had, a participation interest
in the Revolving Credit and Term Loan Agreement dated as of August 6, 1993, as
amended, among the Company, Citicorp USA, Inc. (individually and as agent for
the Lenders), The First National Bank of Boston (individually and as co-agent
for the Lenders), and City National Bank (individually and as co-agent for the
Lenders), and their respective successors and assigns.
"SC XXXXXXX PARTIES" shall mean S.C. Xxxxxxx & Son, Inc., a Wisconsin
corporation, and its past, present and future affiliates, associates, employees,
officers, directors, partners, owners, subsidiaries, shareholders, agents,
attorneys, insurers, predecessors and successors, or any of them. The foregoing
notwithstanding, under no circumstance shall any Company Releasing Party be
deemed a successor to any SC Xxxxxxx Party for the purposes of this Agreement,
or otherwise an "SC Xxxxxxx Party" hereunder, and no SC Xxxxxxx Party shall for
any purpose be deemed a "Lender" or a "Lender Releasing Party" hereunder.
SECTION 2. RELEASE.
(a) The Lenders, on behalf of themselves and each other Lender Releasing
Party, hereby expressly release, remit, acquit and forever discharge the Company
Releasing Parties of and from any and all Claims which such Lender Releasing
Parties, or any of them, now have or may hereafter have or assert against the
Company Releasing Parties, or any of them, other than the obligations of the
Company Releasing Parties, or any of them, to the Lenders arising under the
Consensual Plan.
(b) The Company, on behalf of itself and each other Company Releasing
Party, hereby expressly releases, remits, acquits and forever discharges the
Lender Releasing Parties of and from any and all Claims which such Company
Releasing Parties, or any of them, now have or may hereafter have or assert
against the Lender Releasing Parties, or any of them, other than the obligations
of the Lender Releasing Parties, or any of them, to the Company Releasing
Parties arising under the Consensual Plan.
(c) Notwithstanding the foregoing, nothing herein is intended to or shall
constitute a release or waiver of any Claim that any Company Releasing Party or
any Lender Releasing Party may now have or may hereafter assert against the SC
Xxxxxxx Parties or any of them, all such Claims being expressly preserved and
maintained.
SECTION 3. WAIVER OF RIGHTS UNDER CIVIL CODE SECTION 1542
EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY LEGAL COUNSEL AND
IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
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EACH PARTY, BEING AWARE OF SUCH CODE SECTION, HEREBY EXPRESSLY WAIVES ANY RIGHTS
HE MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
SECTION 4. AMENDMENTS IN WRITING. Any amendment to this Agreement must
be in writing and signed by duly authorized representative of each party hereto.
SECTION 5. AUTHORIZATION. By execution of this document, each party
hereto represents and warrants that it is duly authorized to enter into this
Agreement, including, without limitation, providing the releases set forth
herein.
SECTION 6. CHOICE OF LAW. This Agreement shall be construed in
accordance with, and all disputes hereunder shall be governed by, the internal
laws of the State of California.
SECTION 7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one original.
SECTION 8. BINDING EFFECT. The provisions of this Agreement shall
inure to the benefit of and be binding upon each of the parties, and each of
their affiliates, associates, employees, officers, directors, partners, owners,
subsidiaries, shareholders, agents, attorneys, insurers, predecessors and
successors and any and all persons acting by, through, under or in concert with
them or any of them.
SECTION 9. NO ASSIGNMENTS. Each party hereto represents and warrants
that there have been no assignments or other transfers of any interest in any
Claim being released hereunder, and agrees to hold the other parties harmless
from any liability, claims, demands, damages, costs, expenses and attorneys'
fees incurred by the other parties as a result of any person asserting any such
assignment or transfer, or any rights or claims under any such assignment or
transfer. The parties intend that this indemnity does not require payment as a
condition precedent to recovery hereunder.
SECTION 10. ATTORNEYS' FEES. Each party hereto further agrees that if
it hereafter commences, joins in, or in any manner seeks relief through any suit
arising out of, based upon or relating to any of the Claims released hereunder,
then that party shall pay to the other party in addition to any other damages
caused to such other parties thereby, all attorneys' fees reasonably incurred by
said parties in defending or otherwise responding to said suit or Claim.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
"COMPANY"
DEP CORPORATION
By________________________
Name:
Title:
"LENDERS"
FOOTHILL CAPITAL CORPORATION
By________________________
Name:
Title:
CITY NATIONAL BANK
By________________________
Name:
Title:
PNC BANK, N.A.
By________________________
Name:
Title:
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XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By________________________
Name:
Title:
CERBERUS PARTNERS, L.P.
By________________________
Name:
Title:
TCW SPECIAL CREDITS FUND V -- THE PRINCIPAL FUND
By: TCW ASSET MANAGEMENT
COMPANY, its general partner
By________________________
Name:
Title:
By________________________
Name:
Title:
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