SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is made and
entered into this 17th day of September, 1999, by and between UNIFLOW
CORPORATION, a subsidiary of SECOM GENERAL CORPORATION, a Michigan
corporation ("Uniflow"), and GENERAL MOTORS CORPORATION, A Delaware
corporation ("General Motors" or "GM").
RECITALS
A. General Motors issued various purchase orders to Uniflow for the
purchase of parts nos. 24210334 and 24210335 (collectively, the
"Contract").
B. In order to perform its obligations under the Contract, Uniflow
purchased the equipment ("Equipment") identified on Attachment 1
to Xxxx of Sale and Purchase Agreement, attached hereto as Exhibit
A (the "Purchase Agreement").
C. General Motors and Uniflow have agreed that GM will purchase the
Equipment in accordance with the terms of the Purchase Agreement
and that Uniflow will wind down the production of parts under the
Contract and assist GM with the transition of the Equipment and
related parts production business to another GM supplier.
D. Uniflow and General Motors desire to settle all claims which do not
or could exist between them regarding the Contract.
AGREEMENTS
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do hereby covenant and agree as follows:
1. Recitals. The foregoing recitals to this Agreement are incorporated
into, and they shall constitute an integral part of, this Agreement.
2. Supplement.
A. General Motors will execute and deliver the Purchase Agreement
contemporaneously with the execution and delivery of this
Agreement. General Motors also agrees to pay Uniflow $5,086,578
(the "Settlement Fund"), to be paid as follows: General Motors
already has paid $1,000,000 to Uniflow (pursuant to Purchase Order
No. MXKVX, dated 4/23/99), and upon Uniflow's execution and
delivery of this Agreement and the Purchase Agreement to GM,
General Motors or its assignee will pay directly to Uniflow's
secured creditors (collectively, the "Creditors"), GE Capital
Public Finance, Inc. $1,593,396.40,
Bank One, formerly know as NBD Business Finance, $1,109,663.14, and
Key Bank, National Association $179,591.32, respectively, in return
for execution of Collective Exhibit B as described below and full,
complete and contemporaneous terminations of any security interest
or lien the Creditors may have in or to the Equipment. GM or its
assignee will pay the remainder or the Settlement Fund to Uniflow
net immediate, per the GM payment system, after GM or its assignee
takes delivery of the Equipment in accordance with the terms of
this Agreement or the Purchase Agreement attached hereto. Further,
GM agrees that GM or its assignee will reimburse Uniflow for its
cost of inventory related to the Contract and to pay Uniflow for
the parts shipped to General Motors under the Contract in
accordance with normal terms. Attached as Collective Exhibit B
hereto is a Secured Creditor Acknowledgement, upon which each
Creditor will acknowledge its obligations under this Paragraph 2A.
B. Uniflow will execute and deliver to GM the Purchase Agreement
contemporaneously with the execution and delivery of this
Agreement. Uniflow will perform its obligations in accordance with
the Purchase Agreement and will deliver the Equipment free and
clear of any liens or security interest to General Motors or its
assignee.
3. Releases.
A. Upon completion of General Motors' obligations under this Agreement
and the Purchase Agreement, Uniflow, for itself and for and on
behalf of each and all of its corporate affiliates (individually
and collectively, "Uniflow's Affiliates"), shall be deemed to have
remised, released and forever discharged General Motors and its
corporate affiliates and their respective or collective directors,
officers, employees, agents, successors and assigns (collectively,
the "General Motors Releases") of and from all and all manner of
obligations, action and actions, cause and causes of actions,
liens, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contracts, controversies, damages,
judgments, claims and demands whatsoever including, without
limitation, claims for indemnity, subrogation and/or contribution,
in each instance in law or in equity and whether discovered or
undiscovered, which Uniflow and the Uniflow Affiliates, or any one
or more of them, ever had, now has or hereafter can, shall or may
have, against General Motors and the other General Motors Releases,
or any one or more of them, by reason of (i) the Contract or any
obligation imposed thereby or thereunder, (ii) any obligation to
make payment to Uniflow and/or any Uniflow Affiliate for or as a
result of the provision of any goods or services by Uniflow or any
of Uniflow's Affiliates to General Motors pursuant to the Contract,
and/or (iii) any breach by General Motors of the Contract, it being
understood thereby that neither Uniflow nor any of Uniflow's
Affiliates shall have any further obligation whatsoever to General
Motors under the Contract other than those obligations set forth in
this Agreement.
B. Upon completion of Uniflow's obligations under this Agreement and
the Purchase Agreement, General Motors, for itself and for and on
behalf of each and all of its corporate affiliates (individually
and collectively, the "General Motors' Affiliates"), shall be
deemed to have remised, released and forever discharged Uniflow
and its corporate affiliates and their respective or collective
directors, officers, employees, agents, successors and assigns
(collectively, "Uniflow Releases") of and from any and all manner
of obligations, action and actions, cause and causes of actions,
liens, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, covenants, contacts, controversies, damages,
judgments, claims and demands whatsoever including, without
limitation, claims for indemnity, subrogation and/or contribution,
in law or in equity, whether discovered or undiscovered, which
General Motors and the General Motors Affiliates, or any one or
more of them, ever had, now has or hereafter can, shall or may have
against Uniflow and the other Uniflow Releases, or any one or more
of them, by reason of (i) the Contract or any obligation imposed
thereby or thereunder, (ii) the provision of any goods or services
by Uniflow or any of the Uniflow Affiliates to General Motors
pursuant to the Contract and/or (iii) any breach by Uniflow of the
Contract, it being understood thereby that neither General Motors
nor any of the General Motors Affiliates shall have any further
obligation whatsoever to Uniflow under the Contract, other than
those obligations set forth in this Agreement
4. Representations.
A. Each of the parties hereto represents that (i) it is a corporation
duly organized, validly existing and in good standing in the state
of its incorporation, (ii) it has all requisite right, power and
authority to execute this Agreement and to perform the obligations
undertaken by it in this Agreement, (iii) all requisite action has
been taken to authorize its execution of this Agreement and the
performance by it of the obligations undertaken by it in this
Agreement, (iv) except as disclosed herein, all requisite consents,
if any, which are required in order for it properly to execute this
Agreement and to perform the obligations undertaken by it in this
Agreement have been obtained, (v) except as disclosed herein, it is
not a party to or bound any contract, agreement, judgment, order or
decree which does or, with the passage of time could, prohibit its
execution of this Agreement or the performance by it of the
obligations undertaken by it in this Agreement, and (vi) upon its
execution and delivery of this Agreement it shall be binding upon
and enforceable against it accordance with its terms. Uniflow also
warrants and agrees that, other than the Creditors, there are no
other creditors or parties with any lien, interest, title, or right
in or to the Equipment, and that such Equipment will be free of any
liens or security interests after payment of the Settlement Fund as
described above in Paragraph 2.
B. The person who executes this Agreement on behalf of a party
represents that he duly is authorized to do so.
5. Entire Agreement. This Agreement contains the entire understanding and
agreement of the parties hereto with respect to the subject matter
hereof; it supersedes all prior negotiations and agreements, if any,
regarding the subject matter hereof; and it may not be amended or
modified in any respect except by written instrument which specifically
refers to this Agreement and is executed by both of the parties hereto
affected thereby. Only representations, warranties, promises or
inducements, not specifically set forth in this Agreement in respect of
the subject matter of this Agreement shall be binding on any of the
parties hereto.
6. Binding Effect. This Agreement shall be binding upon and enforceable
against the parties hereto and their respective successors and assigns.
7. Section Headings. Headings of sections in this Agreement are only for
the convenience of the parties hereto and, accordingly, they shall not be
deemed to constitute a part of this Agreement when construing or
enforcing this Agreement.
8. Governing Law. This Agreement is being entered into in the State of
Michigan and shall be governed and construed under and in accordance with
the laws of the State of Michigan.
INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto duly have executed and have
caused this Agreement executed this Agreement to be executed and delivered as
of the day and year first above written.
UNIFLOW CORPORATION GENERAL MOTORS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Its: Director Its: Purchasing Manager
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Secom General Corporation hereby
acknowledges the above Settlement
Agreement and agrees to its terms.
SECOM GENERAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: Chairman
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