EXHIBIT 10.61
SIENA CAPITAL PARTNERS, L.P.
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
April 13, 2000
Xxxxxx Xxxxxx and Xxxx Xxxxxx
c/o Easyriders, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Re: Purchase of Loan by Xxxxxx Xxxxxx and Xxxx Xxxxxx xxxx Siena
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Capital Partners, L.P.
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Gentlemen:
Xxxxxx Xxxxxx and Xxxx Xxxxxx, in their individual capacities (each a
"Purchaser" and collectively, the "Purchasers"), hereby agree, on the terms and
conditions hereof, to purchase from Siena Capital Partners, L.P. ("Seller"), and
Seller hereby agrees to sell to Purchasers, all of Seller's rights, titles and
interests in and to (i) that certain loan (the "Loan") in the principal amount
of $275,000 (the "Loan Amount") evidenced by that certain Increasing Rate
Secured Promissory Note (the "Note") dated as of October 13, 1999 in the
principal amount of the Loan Amount issued by Paisano Publications, Inc., a
California corporation ("Borrower") and payable to Seller, (ii) the Note, (iii)
that certain Securities Purchase Agreement dated October 14, 1999 between
Borrower and Seller (the "SPA"), (iv) that certain Warrant Agreement dated
October 14, 1999 between Seller and Easyriders, Inc. (the "Warrant Agreement"),
(v) that certain Common Stock Purchase Warrant issued by Easyriders, Inc. to
Seller dated October 13, 1999 (the "Warrant"), (v) that certain Pledge and
Guarantee Agreement dated October 14, 1999 between Newriders, Inc. and Seller
(the "Pledge"), and (vi) the other loan documents executed in connection with
the Loan (collectively (i) through (vi), the "Loan Documents").
1. Purchase Price:
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The purchase price (the "Purchase Price") to be paid by each Purchaser for
the Loan shall be $137,500, which in total equals the Loan Amount. Seller
hereby directs Purchasers to pay the Purchase Price in immediately
available funds pursuant to disbursement instructions from the Seller to
Purchasers.
2. Closing:
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On the date hereof, Purchasers shall pay in immediately available funds the
amount of the Purchase Price in accordance with the disbursement
instructions referred to in paragraph 1
above. Concurrently with Seller's receipt of the Purchase Price, the Seller
will sell the Loan to the Purchasers and will deliver to the Purchasers a
General Assignment and Assumption Agreement (the "General Assignment"), in
form acceptable to Seller. Seller shall thereafter promptly deliver to
Purchasers the original Note, Warrant and other Loan Documents.
3. Conditions to Closing:
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The Loan shall be sold by Seller to Purchasers subject to the payment by
Borrower to Seller on or before the date hereof of $6,860.19 in accrued
interest on the Loan through the date hereof.
4. Representations and Acknowledgements:
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(a) The Seller represents and warrants to the Purchasers that the
Seller is the sole owner and holder of the Loan. Notwithstanding the
foregoing, the Purchasers acknowledge that the Loan is subject to, and the
Purchasers agree to be bound by and accept the Loan subject to, that
certain Intercreditor and Subordination Agreement dated October 14, 1999
between Seller, Borrower, Easyriders, Inc. and Nomura Holding America, Inc.
(the "Intercreditor Agreement").
(b) This sale shall be "as is" and made without recourse,
representation or warranty (except as specifically set forth in this
Agreement). Without limiting the foregoing, Seller makes no representation
or warranty of any kind, express or implied, with respect to the Loan, the
Loan Documents, the financial condition of Borrower or the ability of
Borrower to perform pursuant to the terms of the Loan, the Note or any
other documents, evidencing, securing, guaranteeing or otherwise executed
in connection with the Loan. Purchaser hereby represents to Seller (i) that
it has performed an independent review and analysis of the adequacy and
sufficiency of, and approves of in all respects, the forms of the Note and
the other Loan Documents, and (ii) that it has independently performed its
own underwriting with respect to, and approves of in all respects, the
Loan, Borrower and the underlying transaction, including, without
limitation, the restrictions imposed by the Intercreditor Agreement.
5. Indemnification:
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(a) Each Purchaser agrees (in proportion to their respective share of
the Loan acquired) to indemnify, defend and hold harmless Seller from and
against any and all liabilities, costs (including attorneys' fees and
litigation costs), losses, damages, penalties, actions, suits or claims
(collectively, "Claims") which may be imposed upon, suffered by or asserted
against Seller, arising out of or in any way related to (i) any
discussions, negotiations or agreements between the Purchaser (or any of
its affiliates) and the Borrower with respect to the Loan, (ii) the
origination, ownership or sale of the Loan, including, without limitation,
any Claims relating to or arising out of the Intercreditor Agreement, (iii)
Purchaser's breach of any of the representations, warranties or covenants
contained herein or (iv) a breach of any of Purchaser's obligations under
this Agreement.
(b) Seller agrees to indemnify, defend and hold harmless Purchasers
from and against any and all liabilities, costs (including attorneys' fees
and litigation costs), losses, damages, penalties, actions, suits or claims
which may be imposed upon, suffered by or asserted against Purchasers,
arising out of or in any way related to (i) Seller's breach of any of the
representations and warranties contained in Paragraph 4(a) herein or (ii) a
breach of any of Seller's obligations under this Agreement.
6. Fees and Expenses:
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Except as otherwise provided herein, each party hereto shall pay its own
expenses in connection with the purchase and sale of the Loan.
7. Severability Clause:
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Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable by a court shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to the Loan shall not invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by
applicable law, the parties hereto waive any provision of law which
prohibits or renders void or unenforceable any provision hereof.
8. Counterparts:
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This Agreement may be executed simultaneously in any number of
counterparts. Each counterparts shall be deemed to be an original, and all
such counterparts shall constitute one and the same instrument.
9. Governing Law:
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This Agreement shall be construed in accordance with the laws of the State
of California and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of
California except for conflict of laws provisions.
10. Successors and Assigns: Assignment of Purchase Agreement:
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This Agreement shall bind and inure to the benefit of and be enforceable by
Seller and Purchasers and the respective successors and assigns of Seller
and Purchasers. Neither party may assign its interest under this Agreement
to a third party without the written consent of the other party.
Notwithstanding the foregoing, each Purchaser may assign its rights
hereunder in conjunction with Purchaser's sale of the Loan to any
subsequent purchaser of the Loan.
11. Waivers; Other Agreements:
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No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
12. Survival:
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All covenants, agreements, representations and warranties contained in this
Agreement shall survive the execution and delivery hereof.
Kindly acknowledge receipt and acceptance of this Agreement by signing and
promptly returning to Seller the enclosed duplicate copy of this Agreement to
acknowledge Purchasers' acceptance of the terms and conditions hereof.
Very truly yours,
SIENA CAPITAL PARTNERS, L.P.
/s/ Xxxxx Xxxxx
By:____________________________
Name: Xxxxx Xxxxx
Title: President
RECEIPT AND ACCEPTANCE OF THIS AGREEMENT IS HEREBY ACKNOWLEDGED as of this
13th day of April, 2000.
/s/ Xxxxxx Xxxxxx
________________________________
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
________________________________
Xxxx Xxxxxx
