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EXHIBIT 10.6
QWEST COMMUNICATIONS CORPORATION, ORION TECHNOLOGIES, INC.,
AND GLOBALINX, INC. FORBEARANCE, REPAYMENT, SETTLEMENT AND
RELEASE AGREEMENT
This Forbearance, Repayment, Settlement and Release Agreement (the
"Settlement Agreement") is entered into by and between Qwest Communications
Corporation ("Qwest") located at 000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Orion
Technologies, Inc. ("Orion"), the parent company of Globalinx, Inc.
("Globalinx") located at 0000 00xx Xxxxxx, X.X., 0xx Xxxxx, Xxxxxxxxxx X.X.
00000 and Globalinx, the successor in interest to Erbia Networks, Inc. located
at 0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000. All references to
each party set forth above include its businesses, agents, affiliates,
successors, and assigns.
FOR VALUE RECEIVED and in consideration of the mutual covenants and
agreements contained herein, the parties intending to be legally bound, agree to
the resolution, compromise, and settlement of certain disputes, claims, and
controversies which are more particularly described below, on the following
terms and conditions:
1. In consideration of the forgoing including but not limited to
forbearance of Qwest's legal right to commence litigation, Orion and
Globalinx, hereby release, forever quitclaim, and discharge Qwest,
their officers, directors, employees, and affiliates, from any and all
claims, causes of action, obligations, and liabilities of every kind and
nature whatsoever for, on account of, and pertaining to Qwest's
provisioning or rendering of, and invoicing for, telecommunications and
other related services to Globalinx pursuant to the Wholesale Services
Agreement dated May 18, 2000 by and between Qwest and Globalinx. This
release and discharge from all claims and liabilities applies both as to
all matters now known and as to all matters that may hereafter be
discovered arising from the provisioning or rendering of, and invoicing
for, telecommunications and other related services to Globalinx as of
the date of this Settlement Agreement.
2. Upon execution of this Settlement Agreement, Orion agrees to execute a
Commercial Note, payable to the order of Qwest in the original principal
amount of Three hundred twenty-one thousand one hundred six and 42/100
U.S. Dollars ($321,106.42), plus interest, (the "Qwest Arrearage") for
telecommunication and related services provided by Qwest to Globalinx
through and including June 30, 2001 and agrees it owes the Qwest
Arrearage.
3. In addition, Globalinx acknowledges it is indebted to Touch America in
the amount of $22,458.77 for telecommunications and related services
provided by TA to Globalinx through and including June 30, 2001 ("TA
Arrearage").
4. Orion shall repay the Commercial Note and the TA Arrearage as follows:
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Qwest/Orion/Globalinx Settlement Agreement
- $64,471.90 due on or before August 1, 2001 ($22,458.77 of which
will be applied to fully cure the TA Arrearage, $27,052.63 for
the Qwest invoices dated June 30, 2001, and $15,520.14 of which
will be applied against the Commercial Note);
- $15,520.14 due on or before September 3, 2001;
- $15,520.14 due on or before October 1, 2001;
- $15,520.14 due on or before November 1, 2001;
- $15,520.14 due on or before December 3, 2001;
- $15,520.14 due on or before January 1, 2002;
- $41,743.83 due on or before February 1, 2002;
- $41,743.83 due on or before March 1, 2002;
- $41,743.83 due on or before April 1, 2002;
- $41,743.83 due on or before May 1, 2002;
- $41,743.83 due on or before June 3, 2002; and
- $41,743.83 due on or before July 1, 2002.
5. Each installment payment shall be sent by wire transfer as follows:
Qwest's account at National City Bank
Louisville, Kentucky, USA
Routing Number 000000000
Credit (dollar amount) to Qwest DDA #354075341
6. Orion's failure to pay any installment when due and/or by wire as
provided above may, at Qwest's sole discretion, result in the
disconnection of all telecommunications services and will be an event of
default under this Settlement Agreement, the Commercial Note and the
Wholesale Service Agreement between Qwest and Globalinx. In addition, in
the event of default, the entire Qwest Arrearage and any other amounts
due and owing for services provided to Globalinx will accelerate and
become due and payable, without further notice to Orion
7. Upon execution of this Settlement Agreement, Orion and Globalinx hereby
agree to timely pay Globalinx's future invoices within thirty (30) days
from the date of each invoice in accordance with the terms of the
Wholesale Service Agreement, commencing with the June 30, 2001 invoice.
Failure to pay Qwest invoices in full when due and/or by wire as
provided above may, at Qwest's sole discretion, result in the
disconnection of all telecommunications services and will be an event of
default under this Settlement Agreement, the Commercial Note and the
Wholesale Services Agreement.
8. In the event of a default under this Settlement Agreement, and in the
event Qwest pursues any legal actions or remedies in an effort to
collect all amounts remaining unpaid by Globalinx or Orion, Orion and
Globalinx hereby agree to pay to Qwest, in addition to all sums
outstanding, it's reasonable attorneys fees.
9. It is expressly agreed that this Settlement Agreement shall be binding
on each party, its agents, affiliates, successors, and assigns.
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Qwest/Orion/Globalinx Settlement Agreement
10. Neither party nor their respective agents or employees will disclose the
terms or substance of this Settlement Agreement to any third person,
except for the parties' respective attorneys or accountants and in the
event of a default by Globalinx or Orion.
11. The parties agree that this Settlement Agreement is being executed to
settle this matter and the terms of this release do not constitute an
admission by any party as to liability.
12. With execution of this Settlement Agreement, Qwest agrees that during
the Forbearance Period, they shall forbear any actions to collect the
Qwest Arrearage through the end of the Forbearance Period as defined
herein. The Forbearance Period shall commence with the execution of this
Settlement Agreement by Globalinx, Orion, and Qwest, and shall continue
until the close of business when the Qwest Arrearage is paid in full, or
on an earlier date, in the event any one of the payments due Qwest, as
set forth in Paragraphs 4 and 7 hereof, is not paid in full to Qwest
when due. If such payment, or a portion of such payment, is not paid
when due, then the Forbearance Period shall terminate on the date said
payment was due to be paid in full. (the "Forbearance Period").
13. The obligations, terms and conditions of the Wholesale Service Agreement
remain in full force and effect except as amended hereto by this
Settlement Agreement.
14. This Settlement constitutes the entire agreement and understanding
between the parties and supersedes any prior settlement agreement,
release, installment note, promise, and/or discussion, including all
prior settlement discussions and conversations between Orion or
Globalinx and Qwest personnel, whether written or verbal, concerning
this matter. This Settlement Agreement shall be governed by the laws of
the Commonwealth of Virginia.
15. Each party represents that the person executing this Settlement
Agreement has been duly authorized by the party to execute and enter
into this Settlement Agreement on behalf of that party. Orion and
Globalinx represent that they have not assigned, conveyed, pledged, or
otherwise transferred to any person or entity any claim, asserted or
unasserted that Globalinx or Orion may have against Qwest arising from
the provisioning of telecommunications and other related services.
17. This Settlement Agreement may be executed in counterparts and facsimile
signatures shall have the same force and effect as original signatures.
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Qwest/Orion/Globalinx Settlement Agreement
This Forbearance, Repayment, Settlement and Release Agreement is hereby signed
and effective as of the date of execution by Qwest and TA.
Orion Technologies, Inc. Globalinx, Inc.
By: By:
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Name and Title Name and Title
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Date Date
Qwest Communications Corporation
By
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Name and Title
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Date
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