Exhibit 10.24
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into as of the 28th day
of August, 2001 (the "Execution Date"), by and among Breakaway Solutions, Inc.,
a Delaware corporation ("Breakaway"), and Ascendant Solutions, Inc., a Delaware
corporation ("Ascendant"). Breakaway and Ascendant are collectively referred to
herein as the "Parties".
WITNESSETH:
WHEREAS, on July 31, 2000, Breakaway, as tenant, and Xxxxxx Xxxxx
Development Limited Partnership, a Texas limited partnership ("Landlord"), as
landlord, entered into that certain Lease Agreement (the "Lease") for
approximately 49,900 square feet in the "Galleria North" building in Dallas,
Texas (the "Leased Premises"), as more particularly described in the Lease;
WHEREAS, on or about February 13, 2001, Breakaway, as sublandlord, and
Ascendant, as subtenant, entered into that certain Sublease Agreement
("Sublease") for the lease of approximately 24,950 square feet of the Leased
Premises (the "Subleased Premises") as more particularly described in the
Sublease, and for certain items of personal property owned by Sublandlord,
defined in the Sublease as the "FF&E" and listed on Exhibit "A" attached hereto;
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WHEREAS, Ascendant posted a letter of credit in the amount of $350,000.00
(defined in the Sublease as the "Letter of Credit") for the benefit of Breakaway
to secure its obligations under the Sublease;
WHEREAS, on February 16, 2001, Breakaway sold, and Ascendant purchased,
certain personal property more particularly described on Exhibit "B" and
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referred to hereafter as the "Purchased Equipment"; and
WHEREAS, the Parties wish to terminate the Sublease and mutually release
and waive all claims against each other under the terms and conditions set forth
below.
NOW, THEREFORE, for and in consideration of the above, and other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the Parties agree as follows:
A G R E E M E N T:
1. Termination of Sublease. The Sublease shall terminate effective as of
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the Termination Date (defined below). The Parties further agree that Ascendant's
rent, allocable share of operating expenses, parking rental, and any and all
past, present and future monetary and non-monetary obligations have been, and/or
will be satisfied from the funds provided to Breakaway as set forth below. After
the Termination Date, neither Party will owe any obligation arising under the
Lease or Sublease, monetary or otherwise, to the other party, except as may be
provided in this Agreement.
2. Termination Date and Vacating Premises.
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a. The "Termination Date" shall mean the date that Ascendant tenders
Three Hundred Thousand Dollars and No/100 ($300,000.00) to Breakaway
in immediately available funds. The funds will be wired to Breakaway
according to the instructions set forth on Exhibit "C". On the
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Termination Date, Breakaway shall return the original Letter of
Credit to Ascendant. Breakaway represents and warrants that it has
not, and will not, draw on the Letter of Credit, and that it will
take any and all actions necessary so that the Letter of Credit is
returned to Ascendant or cancelled. In connection with the
foregoing, Breakaway has executed and faxed the letter attached
hereto as Exhibit "D" to Comerica Bank-Texas, as evidenced by the
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attached confirmation of receipt.
b. For and in consideration of the $300,000.00 referenced in Section
2(a) above (and no additional consideration), Ascendant will have
the right to occupy the Subleased Premises and use the FF&E and
Purchased Equipment until September 7, 2001 (the "Departure
Date"). At that time, Ascendant will vacate the Subleased
Premises, remove its personal property therefrom, and return the
FF&E and the Purchased Equipment to Breakaway, all as provided
for in the Sublease or this Agreement. The Parties acknowledge
that effective as of the Termination Date, title to the Purchased
Equipment will vest in Breakaway, and Ascendant will no longer
have any interest in the same, except the right of use provided
for above.
3. Waiver and Release. Except as provided in Section 5 below, the Parties
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agree and acknowledge that by the execution of this Agreement and in
consideration of the payments and agreements contained herein, each Breakaway
and Ascendant do hereby waive and release the other party, and their respective
officers, directors, shareholders, partners, affiliates, agents, predecessors,
successors and assigns of and from any and all claims, liabilities, damages, and
causes of action, known or unknown, at law or in equity, whether now existing or
hereafter arising in connection with the Lease and the Sublease or otherwise in
connection with Ascendant's use or occupancy of the Subleased Premises. The
Parties represent and warrant that each is the owner and holder of any and all
claims and causes of action which each party released and that each has neither
assigned, transferred, or otherwise disposed of same (by operation of law or
otherwise) nor shall they hereafter do so without express reference to, and
being conditioned upon, the acquiring parties' agreement to be bound by this
Agreement.
4. Indemnity. Except as provided in Section 5 below, from and after the
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Termination Date, Breakaway shall indemnify, defend, and hold Ascendant harmless
from and against any and all claims, losses, liabilities, costs, expenses
(including without limitation reasonable attorneys' fees and costs of court),
damages, and liens (collectively, the "Claims"), arising from, or relating or
incident to, the Sublease or the Subleased Premises, to the extent said Claims
are made or demanded by Landlord, its agent, representatives, successors and
assigns.
5. Carve-out from Waiver & Release and Indemnity. The Parties acknowledge
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that the waiver and release contained in Section 3 above (the "Release"), and
the indemnity contained in Section 4 above (the "Indemnity"), shall not apply to
any matters that arise solely from Ascendant's use of the Subleased Premises,
the Purchased Equipment, or the FF&E between the Termination Date and Departure
Date (the "Interim Period"). Unless Breakaway notifies Ascendant in writing
within five (5) business days of the Departure Date of any claims it may have
with respect to Ascendant's use of the Subleased Premises, the Purchased
Equipment,
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or the FF&E during the Interim Period, then the Release and the Indemnity
will automatically (and without further action by either party) be deemed to
apply to the Interim Period as well. If Breakaway so notifies Ascendant, then
the Parties agree to negotiate in good faith to resolve any outstanding issues;
provided however, that except with respect to the Interim Period, the Release
and Indemnity will be unaffected.
6. Survival. The provisions of this Agreement shall survive and be
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binding upon the parties hereto following the execution and delivery hereof.
7. General. This Agreement has been executed in, and shall be governed by
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and construed in accordance with, the laws of the State of Texas, and all
obligations are enforceable, and venue shall be in Dallas County, Texas. All
terms and provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the legal representatives, heirs, successors
and assigns of the parties hereto. Except as may be necessary to comply with
applicable laws, the Parties covenant and agree to keep this Agreement
confidential and that there are not, and shall not be, any third party
beneficiaries of this Agreement.
8. Attorneys' Fees. If any action at law or equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary disbursements in
addition to any relief to which it may be entitled.
9. Assumption of Risk. Each of the parties expressly accepts and assumes
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the risk that if any fact or circumstance is found, suspected or claimed
hereafter to be other than or different from, the facts or circumstances now
believed to be true, then this Agreement shall be and remain effective
notwithstanding any such difference in any such facts or circumstances.
10. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior and contemporaneous
agreements or understandings and/or discussions, whether written or oral,
between the parties with respect to the subject matter hereof.
11. Counterparts. This Agreement may be executed in multiple facsimile
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counterparts, each of which shall constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first above written.
ASCENDANT:
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ASCENDANT SOLUTIONS, INC.
a Delaware corporation
By:
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Name: Xxxxx X. Xxxx
Its: President and CEO
BREAKAWAY:
BREAKAWAY SOLUTIONS, INC.
a Delaware corporation
By:
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Name:
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Its:
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