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Exhibit 10.1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into, effective
June 1, 2000, by and between Bikers Dream, Inc. ("BDI") and w3 Holdings, Inc.
("w3") with the intention of extinguishing all claims w3 may have against BDI
arising from or relating to certain promissory notes (the "Notes") currently
held by w3, as more particularly described below.
I - RECITALS
A. In October 1998, BDI obtained a bridge loan in the amount of $300,000
from MD Strategic L.P. ("MD Strategic"), a partnership in which Don Duffy, a
former director of BDI, is a principal. The loan was evidenced by an unsecured
note bearing interest at 18% per annum and was due, together with accrued
interest, on the earlier of December 31, 1999, or upon receipt by BDI of funds
from a third-party lender (the "MD Strategic Note").
B. In January 2000, MD Strategic assigned the MD Strategic Note, on which
there was accrued approximately $82,200 in interest and fees, to w3. Pursuant to
a letter dated January 25, 2000, w3 extended the term of the MD Strategic Note
to March 31, 2000.
C. In November 1999, BDI obtained a second bridge loan in the amount of
$300,000 from Bill Whalen, a stockholder of BDI. The loan originally was
evidenced by two promissory notes in the principal amounts of $200,000 and
$100,000 respectively, each bearing interest at a rate of 12% per annum and
maturing on March 31, 2000 (the said notes are hereafter referred to as the
"200,00 Original Whalen Note" and the "$100,000 Original Whalen Note").
D. In January 2000, the $200,000 Original Whalen Note and the $100,000
Original Whalen Note were replaced by two amended and restated promissory notes
in the principal amounts of $156,638 and $150,000, respectively (said amended
and restated promissory notes are hereafter referred to as the "$156,638 Amended
Whalen Note" and the "$150,000 Amended Whalen Note.") This $156,638 Amended
Whalen Note evidences $150,000 of the principal amount of the $200,000 Original
Whalen Note, $4,338 of accrued interest on the $200,000 Original Whalen Note and
$2,300 of accrued interest on the $100,000 Original Whalen Note. The $150,000
Amended Whalen Note evidences the entire principal amount of the $100,000
Original Whalen Note, plus the balance of the original principal amount of the $
200,000 Original Whalen Note. Both the $156,638 Amended Whalen Note and the
$150,000 Amended Whalen Note bear interest at a rate of 12% per annum and mature
on March 31, 2000.
E. On January 26, 2000, Mr. Whalen assigned the $150,000 Amended Whalen
Note to w3, while Mr. Whalen continued to hold the $156,638 Amended Whalen Note.
The $150,000 Amended Whalen Note, together with the MD Strategic Note, are
hereafter referred to as the "w3 Notes."
F. On March 31, 2000, BDI failed to pay the w3 Notes when due, including
interest thereon, and since that time has been negotiating with w3 regarding the
satisfaction of the indebtedness evidenced by the w3 Notes. BDI contends that it
has certain defenses to the payment of the MD Strategic Note, which offset its
obligations thereon.
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G. The parties desire to resolve the dispute over payment of the
indebtedness evidenced by the w3 Notes and therefore are entering into this
Settlement Agreement and Release.
II - AGREEMENT
For valuable consideration, as hereinafter set forth, the parties agree as
follows:
A. In order to extinguish the indebtedness owing to w3 on the w3 Notes, BDI
shall pay to w3 the total sum of $195,000, payable, as follows: $100,000 upon
the return to BDI of a fully executed copy of this Agreement and $95,000.00
within 15 days thereafter. It is understood that w3 has agreed to accept this
compromise payment in full satisfaction of the w3 Notes only if it receives the
full payment of $195,000 and is able to retain said payment. Therefore, this
Agreement shall not serve to extinguish the w3 Notes, until such time as the
full amount of $195,000.00 has been received by w3 and further providing that
BDI has not sought relief in any bankruptcy proceeding that might cause or
result in w3 having to relinquish or disgorge any of the payments received
hereunder.
B. Subject to Paragraph II-A, w3 hereby releases and forever discharges BDI
and all of its affiliates, associates, agents, principals, parent corporations,
dealers, employees, officers, directors, insurers and attorneys, and all other
persons, from any and all claims, causes of actions, debts, obligations, or
otherwise he/she/it may have, of whatever nature, arising from, relating to or
associated with the w3 Notes and the indebtedness evidenced thereby. w3
expressly waives the provisions of California Civil Code, Section 1542, which
provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
w3 also waives any provision that may exist under federal law or the law of any
other state that may have jurisdiction over the claims released herein, which is
similar in language, purpose or effect to California Civil Code, Section 1542.
C. In giving this release w3 relies wholly upon its judgment, belief and
knowledge of the nature, extent, degree, affect and duration of any damages it
has suffered and the liability therefor, and this release is made without
reliance upon any statement or representation of the party or parties hereby
released or their representatives.
D. It is understood and agreed that this Agreement is the compromise of a
doubtful and disputed claim(s) and that the consideration given herein is not to
be construed as an admission of liability on the part of the party or parties
hereby released, and that said releasees deny liability therefor and intend
merely to avoid litigation and buy their peace.
E. The releases herein run in favor of the heirs, successors, predecessors,
assigns, agents,
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employees, representatives, attorneys, insurers, affiliates and
partners, parent, affiliate or subsidiary organizations, officers, directors,
shareholders, related entities, contractors and subcontractors of each released
party.
F. w3 represents and warrants to BDI that it (w3) is the owner of all
claims being released herein and it has not heretofore assigned or transferred,
or purported to assign or transfer, to any person or entity whatsoever, any of
the claims released herein, and it agrees to indemnify and hold harmless each
releasee against any claim, demand, damage, debt, liability, account, action,
proceeding or cause of action, cost or expense, including reasonable attorney's
fees actually paid or incurred, arising out of or in connection with any such
transfer or assignment, or purported transfer or assignment, of such claim.
III - GENERAL PROVISIONS:
A. TERMINOLOGY. Whenever used herein, the masculine includes the feminine
and the neuter, and the singular includes the plural.
B. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be governed
by and construed in accordance with the laws of the State of California. Any
action to enforce this Agreement or to recover for any breach thereof shall be
brought in the County of Riverside, State of California.
C. BINDING UPON SUCCESSORS. All of the terms of this Agreement shall be
binding upon, and inure to the benefits of, and be enforceable by the successors
of the parties hereto.
D. DISCLAIMER OF THIRD PARTY BENEFICIAL CONTRACT. Nothing herein shall be
construed to create a "third party" beneficiary contract, and no person or
entity, save and except for the parties hereto, their heirs and successors and
their voluntary assigns, shall have any rights hereunder nor any right of
enforcement hereof.
E. REPRESENTATION BY COUNSEL OF OWN CHOOSING. By execution hereof, each
party represents and warrants that he is either represented by counsel, or has
been advised to seek the representation or advice of counsel and has had the
opportunity to do so and has voluntarily and knowingly declined to do so;
further, that, except as set forth herein, there have been no representations
made to him, which are being relied upon as an inducement to enter into this
Agreement, and further, that he recognizes and agrees that for the purposes of
this Agreement, no attorney representing any party hereto has undertaken any
duty to disclose any facts or knowledge had or possessed by said attorney.
F. INTERPRETATION. All parties and/or their counsel have participated in
the negotiation and preparation of this Agreement. In the event of a dispute as
to the meaning or intent of any provision hereof, such provision shall be given
a reasonable interpretation and there shall be no presumption or burden against
any person as a preparer or drafter of this Agreement.
G. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of
the
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parties hereto relating to the subject matter herein contained, and this
Agreement cannot be changed, modified, amended, rescinded or terminated, except
by an Agreement in writing signed by all parties, who are affected by such
change, modification, amendment, rescission or termination. This Agreement
supersedes all prior releases, understandings, discussions, statements and
negotiations of the parties. Each party acknowledges that no representations,
inducements, promises or releases, oral or written, with reference to the
subject matter hereof, have been made other than as expressly set forth herein,
and that the terms of this Agreement are contractual and not a mere recital.
H. ADDITIONAL DOCUMENTS. Each of the parties hereto specifically agrees to
execute such other and further instruments and documents, as may be reasonably
required to effectuate the terms, conditions and objectives of this Agreement,
including the execution and filing of a request for dismissal with prejudice of
any action heretofore filed in this matter.
I. SEVERABILITY. Should any part of this Agreement for any reason be
declared invalid by any court having jurisdiction over this Agreement, or the
relationship between the parties, such decision or determination will not affect
the validity of any remaining portion of said Agreement and such remaining
portion will remain in force and effect as if this Agreement had been executed
with the invalid portion eliminated; provided, however, that in the event of a
declaration of invalidity, the provision declared invalid will not be
invalidated in its entirety but will be observed and performed by the parties to
the extent such provision is valid and enforceable. The parties hereby agree
that any such provision shall be deemed to be altered and amended to the extent
necessary to affect such validity and enforceability.
J. ATTORNEY'S FEES. If any action or proceeding is commenced by any party
to enforce any of the terms of this Agreement, then the prevailing party shall
be entitled to the recovery of reasonable attorney's fees and costs incurred
therein, whether or not prosecuted to judgment or conclusion and whether or not
said action or proceeding is dismissed independently of any settlement requiring
such dismissal. Pleading this Agreement as a defense in an action or proceeding
and as a bar to the enforcement of any of the claims released herein shall be
deemed an action to enforce this Agreement.
K. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be a duplicate original, but all
of which together shall constitute one and the same instrument.
L. EFFECTIVE DATE: This Agreement shall become effective on the date above
written.
THE UNDERSIGNED has read and fully understands the foregoing Agreement.
w3 HOLDINGS, INC.
Dated: By:
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ANTONIO KATZ,
President
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BIKERS DREAM, INC.
Dated: By:
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HAROLD L. COLLINS,
Chief Operating Officer
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