EXHIBIT 10.61
MUTUAL SETTLEMENT
AND RELEASE AGREEMENT AND
COVENANT NOT TO SUE
This Mutual Settlement and Release
and Covenant Not to Sue is made by and between Novo Networks, Inc.
(“NNI”) and the Novo Liquidating Trust as successor in
interest to Novo Networks Operating Corp., e.Volve Technology Group
Inc, and AxisTel Communications, Inc. (the “Trust”)
(NNI and the Trust are collectively referred to as
“Novo”) and Qwest Communications Corporation
(“Qwest”). Qwest and Novo are referred to herein
individually as a “Party,” or collectively as the
“Parties.” The Parties Enter into this Mutual
Settlement and Release Agreement and Covenant Not to Sue
(“Agreement”) on this 10th day of December, 2004.
RECITALS
WHEREAS, disputes have arisen between
the Parties regarding the provision and receipt of
telecommunication services, including but not limited to disputes
concerning the Parties’ April 29, 1998 Switched Services
Agreement, September 17, 1998 Carrier Services Agreement, and
September 30, 1999 IRU Agreement as amended; and
WHEREAS, on July 30, 2001,
AxisTel Communications, Inc., Novo Networks Global Services, Inc..
Novo Networks International Services, Inc., e.Volve Technology
Group, Inc., Novo Networks Operating Corp., and on
September 14, 2001 Novo Networks Metro Services, Inc.,
(collectively, “the Debtors”), filed for
Chapter 11 Bankruptcy protection in the United States
Bankruptcy Court for the District of Delaware (the
“Bankruptcy Court”), Case No. 01-10005 (RJN) (the
“Bankruptcy Proceeding”),
WHEREAS, on March 13, 2002, the
Bankruptcy Court confirmed the First Amended Joint Chapter 11
Plan filed by NNl and the Debtors (the “Plan”); and
WHEREAS, Executive Sounding Board
Associates, Inc. (“ESBA”) was originally appointed as
the Trustee of the Trust pursuant to the Plan and Rivershore
Advisors, LLC subsequently replaced ESBA, (the
“Trustee”).
WHEREAS, NNI and the Trust (as
successor in interest to Novo Networks Operating Corp., e.Volve
Technology Group, Inc., and AxisTel Communications, Inc.) filed
claims against Qwest in Novo Networks, Inc. and the Novo
Liquidating Trust (as successor in Interest to Nova Networks
Operating Corp., e.Volve Technology Group, Inc, and AxisTel
Communications, Inc.) vs. Qwest Communications Corporation and John
L. Higgins , Case No. A452142, County of Clark, State of
Nevada (the “Nevada Litigation”); and
WHEREAS, the Nevada Court ordered
that the Parties arbitrate the claims made against in the Nevada
Litigation;
WHEREAS, Novo subsequently asserted
claims against Qwest in American Arbitration Association (the
“AAA”) Matter No. 161 181 00622 02 (the
“Arbitration”); and
WHEREAS, Qwest filed an
administrative claim in the Bankruptcy Proceeding, which the
Trustee disputed, and Qwest sought to set off that claim in the
Arbitration and asserted other
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scheduled or filed claims
(together with the disputed administrative claim, the
“Contested Matters”).
WHEREAS, the Parties desire to avoid
the uncertainties, risks and expenses attendant in the Nevada
Litigation and the Arbitration and to compromise, settle and
release the claims by and between the Parties as set forth
herein;
WHEREAS, the Plan provides that any
settlement of Nova’s claims against Qwest must be approved by
NNI and the Trustee;
WHEREAS, the Trustee and NNI have
approved the settlement set forth herein;
NOW, THEREFORE, in consideration of
the mutual promises and covenants provided herein, and other good
and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1.
Payment
Within seven (7) days after the
execution of this Agreement by the Parties, Qwest shall pay NNI, on
behalf of itself and the Trust, One Million One Hundred Fifty
Thousand and 00/100 Dollars ($1,150,000.00) by wire transfer
to:
JP Morgan
Chase Bank
2200 Ross Avenue
Dallas, Texas 75201
ABA: #########
Account: ###-###-#####
a. Novo believes that the
payment set forth herein is intended to be a contemporaneous
exchange for new value provided by Novo.
2. Dismissal with
Prejudice
Novo hereby acknowledges the
sufficiency of the payment and consideration outlined in
Paragraph 1 of this Agreement. Within five (5) days after
payment of the amount outlined in Paragraph 1 of this
Agreement, the Parties will file a Stipulated Motion to Dismiss the
Nevada Litigation, with prejudice, and will inform the AAA that the
Arbitration has been finally settled with each party to pay its own
costs and attorney fees.
3. If Bankruptcy,
Approval is Necessary
Novo represents and warrants that the
Plan provides that Bankruptcy Court approval is unnecessary to
effectuate the Agreement. To the extent that Bankruptcy Court
approval of the Agreement is necessary, Qwest’s obligation to
make the payment identified in paragraph 1 of the Agreement to Novo
shall be suspended until five (5) days after Bankruptcy Court
approval is obtained, or if payment has already been made, Novo
shall immediately deposit any funds from
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Qwest paid pursuant to
paragraph 1 into the registry of the Bankruptcy Court until
approval is obtained.
4. Scope of
Agreement
The Parties intend that this
Agreement resolve all charges, amounts, disputes, damages,
obligations, rights, controversies, refunds, complaints, demands
and other claims, known or unknown, billed or unbilled,
discoverable or undiscoverable, and/or fixed or contingent, that
any Party has or may have against the other Party including, but
not limited to, those arising under, relating to, or that were
asserted or could have been asserted by NNI, the Debtors, the
Trust, the Trustee and Qwest or any of their respective parent,
subsidiary, or affiliated companies, in the Bankruptcy Proceeding,
in the Nevada Litigation, or in the Arbitration (collectively, the
“Claims and Demands”). The parties agree that the scope
of this agreement and the releases contained herein shall not
include matters involving the Trustee and Qwest not relating to the
Claims and Demands.
5. Novo’s
Release of Claims and Demands
For and in consideration of the
performance by Qwest of its obligations under this Agreement and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, NNI, and the Trustee
on behalf of the Trust, and their parent companies, subsidiaries
(including without limitation Novo Networks Global Services, Inc.,
Novo Networks International Services, Inc., Novo Networks Metro
Services, Inc. and Orix Global Communications, Inc.), owners,
affiliates, predecessors, successors, shareholders, partners,
principals, insurers and assigns and their past, present and future
employees, officers, directors, attorneys, agents and
representatives absolutely, unconditionally, completely, and
without reservation, release, acquit, and irrevocably release and
forever discharge Qwest and its parent companies; subsidiaries,
owners, affiliates, predecessors, successors, shareholders,
partners, principals, insurers and assigns and their past, present
and future employees, officers, directors, attorneys, agents and
representatives from and against each and every past, present and
future action, claim, demand, charge, invoice, complaint, petition,
right, action, claim, demand, charge, invoice, liability, damage,
loss, expense, obligation, potential action, cause of action, suit,
judgment, offset, or decree in controversy of any kind and nature
whatsoever, at law, in equity or otherwise, whether known or
unknown, foreseen or unforeseeable, discoverable or undiscoverable,
or certain or contingent, that have arisen or might arise in
connection with or relating to the Claims and Demands, or that were
or could have been asserted in the Nevada Litigation, the
Bankruptcy Proceeding or the Arbitration.
a. The foregoing release of
Qwest and affiliated parties is contingent upon:
(i) Qwest’s making the payment described in
Paragraph 1 above.
6. Novo’s
Release of Higgins
For and in consideration of the
performance by Qwest of its obligations under this Agreement and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, NNI, and the Trustee
on behalf of the Trust, and their parent companies, subsidiaries
(including without limitation Novo Networks Global Services, Inc.,
Novo Networks
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International Services,
Inc., Novo Networks Metro Services, Inc. and Orix Global
Communications, Inc.), owners, affiliates, predecessors,
successors, shareholders, partners, principals, insurers and
assigns and their past, present and future employees, officers,
directors, attorneys, agents and representatives absolutely,
unconditionally, completely, and without reservation, release,
acquit, and irrevocably, release, and forever discharge John L.
“Jack” Higgins and his companies, subsidiaries,
affiliates, predecessors, successors, shareholders, partners,
principals, insurers and assigns and their past, present and
future
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