EXHIBIT 10.11
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CONFIDENTIAL RELEASE AND SETTLEMENT AGREEMENT
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This Confidential Release and Settlement Agreement (the "Agreement") is
executed as of the 6th day of June, 2001 by and among TheResidentClub, Inc.
("TRC"), USOL Holdings, Inc. ("USOL", and together with TRC, the "TRC Entities")
and GMAC Mortgage Corporation ("GMACM"). The TRC Entities and GMACM shall be
collectively referred to herein as the "Parties."
TRC, a Delaware corporation and subsidiary of USOL, is a Texas-based
business with its principal place of business at 00000 Xxxxxx Xxxxxxxxx, 0xx
xxxxx, Xxxxxx, Xxxxx 00000.
USOL is an Oregon corporation with its principal place of business at
00000 Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000.
GMACM is a Pennsylvania corporation with its principal place of
business at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000.
TRC and GMACM entered into a written Services Agreement on August 21,
2000 ("Services Agreement"). This Agreement was amended in writing on September
20, 2000; October 19, 2000; November 20, 2000; December 20, 2000 and January 24,
2001. On April 10, 2001, GMACM terminated the Services Agreement.
A dispute exists between the Parties regarding the amounts due to TRC
from GMACM under the Services Agreement. The parties also dispute matters
relating to each Party's performance under the Services Agreement.
The Parties now wish to resolve all possible claims and controversies
between them pursuant to the terms and conditions set forth in this Agreement.
The Parties acknowledge that this Agreement is solely for the purpose of the
settlement and compromise of disputed claims and that the execution of this
Agreement is not to be construed or considered as an admission of liability or
fault by any Party.
1. Payment. On June 30, 2001 (the "Settlement Date"), GMACM shall
pay the sum of $6,600,000 (Six Million Six Hundred Thousand
Dollars) to TRC. This payment shall be made by wire transfer
pursuant to the instructions set forth on Exhibit A hereto.
2. Capital Assets. On the Settlement Date, TRC shall deliver to
GMACM the capital assets ("Capital Assets") pursuant to Section
1.16 of the Services Agreement, together with the Xxxx of Sale
(as defined herein). The Capital Assets set out on the draft xxxx
of sale attached as Exhibit B represent the Parties' current best
estimate of the Capital Assets that are subject to this
provision. A final Xxxx of Sale ("Xxxx of Sale") shall be
determined and agreed upon by the Parties on or before June 20,
2001.
Exhibit 10.11-1
3. Ownership of Products Under The Services Agreement. The Parties
acknowledge and agree that: (1) all original designs, memoranda,
data, discoveries, software, object code, source code, HTML
files, Java files, graphics files, animation tiles, data files,
technology, scripts and programs, prepared, created or obtained
by TRC for GMACM under the Services Agreement (the "GMACM
Software") were developed for GMACM as works made for hire and
are therefore owned exclusively by GMACM; and (2) all materials
created and owned by TRC as part of the Services Agreement that
are of general applicability (i.e., not specific to the
xxx.xxxxxx.xxx Web Site developed for GMACM or the services
performed by TRC under the Services Agreement), shall continue to
be owned exclusively by TRC (the "TRC Software"). TRC will
deliver to GMACM all tangible embodiments of GMACM Software not
already in the possession of GMACM, if any, on the Settlement
Date. In addition, on the Settlement Date, TRC shall deliver to
GMACM a non-exclusive, perpetual royalty free, assignable and/or
sub- licensable license ("License") to use the TRC Software as
may be necessary for the GMACM Software to function properly. The
License shall be acceptable to GMACM in its reasonable
discretion. The C20 and the ISP bundle products developed by TRC
are exclusively owned by TRC pursuant to Section 2.5 of the
Services Agreement.
4. Release by TRC. Effective upon completion of the payment to TRC
described above and the execution and delivery from TRC to GMACM
of the final Xxxx of Sale, the Capital Assets, the GMACM Software
and the License, the TRC Entities hereby fully release, remise,
acquit, dissolve and further discharge and forever hold harmless
GMACM, its subsidiaries, and their former and current officers,
directors, agents, shareholders, servants, attorneys, and
employees (the "GMACM Persons") of and from any and every claim,
suit, liability, demand, action, and/or cause of action, whether
based in common law, statute or equity, whether known or unknown,
whether liquidated or unliquidated, whether fixed or contingent,
which the TRC Entities have asserted or could have asserted
against any of the GMACM Persons, now or in the future, that
relate to or arise out of the Services Agreement. TRC's or USOL's
relationship or involvement with GMACM, and/or any other
agreement or understanding, between the Parties or any of the
GMACM Persons, whether express or implied.
5. Release by GMACM. Effective upon completion of the payment to TRC
and the execution and delivery from TRC to GMACM of the final
Xxxx of Sale, the Capital Assets, the GMACM Software and the
License, GMACM hereby releases, remises, acquits, dissolves, and
further discharges and forever holds harmless the TRC Entities
and their former and current officers, directors, agents,
shareholders, servants, attorneys, and employees (the "TRC
Persons") of and from every claim, suit liability, demand,
action, and/or cause of action, whether based in common law,
statute or equity, whether known or unknown, whether liquidated
or unliquidated, whether fixed or contingent, which GMACM has
asserted or could have asserted against any of the TRC Persons,
now or in the future, that relate to or arise out of Services
Agreement, TRC's or USOL's relationship or
Exhibit 10.11-2
involvement with GMACM, and/or any other agreement or
understanding between the Parties or the TRC Persons, whether
express or implied.
6. Full and Complete Agreement. This Agreement contains the full and
complete agreement of the Parties hereto and all prior
negotiations and agreements between the Parties are merged into
the Agreement. Other than the obligations set out in this
Agreement, the Parties shall have no further obligations to one
another under the Services Agreement or any other alleged
agreement or understanding between them, except for mutual
obligations to protect any confidential information exchanged by
the Parties
7. Binding Agreement. It is hereby acknowledge that no material term
of this Agreement remains to be negotiated and that this
Agreement represents a final and binding agreement between the
Parties which shall not be modified or varied in any manner
unless by written and signed agreement.
8. Representative Authority. Each signatory heret represents and
warrants that he is competent to sign this Agreement and
possesses all necessary authority to execute this Agreement on
behalf of the entity for which this Agreement is signed.
[Signature page follows]
Exhibit 10.11-3
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first stated above.
Attest: TheResidentClub, Inc.
By: By: /s/ Xxx Xxxxxxx
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Name: Name: Xxx Xxxxxxx
Its: Secretary Its: Sole Director of TRC
Attest: USOL Holdings, Inc.
By: /s/ Xxx Xxxxxx By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxx Name: Xxx Xxxxxxx
Its: Secretary Its: Chief Executive Officer
Attest: GMAC Mortgage Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx
Its: Secretary Its: President
Exhibit 10.11-4
