EXHIBIT 10.68
ASSUMPTION AND RELEASE AGREEMENT
THIS AGREEMENT ("Agreement") is made by and between Easyriders, Inc. a
Delaware corporation ("Easyriders") Paisano Publications, Inc., a California
corporation ("Paisano"), Easyriders Events, Inc. a California corporation
formerly known as Xxxxxx, Inc. ("EZR Events") and Easyriders Licensing, Inc., a
California corporation ("XXX") each doing business at 00000 Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000, on one hand (collectively, "The EZR Parties"),
Southern Steel Streetwear, Inc. ("SSS"), a Florida corporation doing business at
000 Xxxxxxxx Xxxxxx, Xxxxxxxx 00, Xxxxxx Xxxxx, Xxxxxxx 00000 and Action
Promotions, Inc. ("API"), a Florida corporation, as of the "Effective Date"
specified in section 12 below.
1. Recitals This Agreement is made with reference to the following material
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facts:
1.1 The Easyriders Parties and SSS are parties to a Product License
Agreement dated as of March 29, 2001 (the "Product License Agreement").
1.2 As used herein, the terms "Offset Credit #1" and "Offset Credit #2"
shall mean the same as such terms are defined in the Product License Agreement.
1.4 Paisano and EZR Events are parties (collectively, the "Paisano
Parties") to an agreement with API dated as of March 31, 2000 (the "API
Agreement").
2. Delegation and Assumption of Contract Obligations. In consideration of this
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Agreement, the Product License Agreement, and for other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the parties, the
Paisano Parties do hereby assign and delegate to SSS all of the obligations of
the Paisano Parties arising out of and pertaining to Offset Credit #1, and all
of such obligations are hereby assumed by SSS. Pursuant to such assumption,
after the Effective Date of this Agreement, it shall be the obligation of SSS to
fulfill any and all orders of API to purchase Brand Merchandise (as defined in
the API Agreement).
3. Assignment of Contract Obligations. In consideration of this Agreement, the
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Product License Agreement, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, API does hereby
assign to SSS all of API's rights in and to Offset Credit #2, provided that such
Offset Credit #2 shall be applied as provided in Section 5.2 of the Product
License Agreement.
4. Release.
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4.1 In consideration of this Agreement, the Product License Agreement, and
for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, API, for itself and its successors and permitted
assigns, does hereby fully release, acquit and forever discharge the Paisano
Parties and their affiliates, partners, officers, employees, representatives,
agents, assigns and successors from all claims, causes of action and liability
arising out of or pertaining to Offset Credit #1 and Offset Credit #2
(collectively, the "API Credit," as so defined in the Product License
Agreement).
4.2 API hereby acknowledges and agrees that by reason of section 4.1
above, (a) henceforth it shall have no right to purchase Brand Merchandise from
Paisano by reason of the API Credit, (b) that as between API and the Paisano
Parties, the API Credit is henceforth a nullity.
EXHIBIT B
5. General Provisions.
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5.1 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California. Any action brought by
either party arising out of this Agreement shall be brought in a court of
competent jurisdiction in the County of Los Angeles, California, and Licensee
hereby consents to the jurisdiction of such court for purposes of adjudicating
any and all disputes arising hereunder.
5.2 Further Assurances. Each party to this Agreement shall execute all
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instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
5.3 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original and all of which together shall constitute one
document.
5.4 Time of Essence. Time and strict and punctual performance are of the
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essence with respect to each provision of this Agreement.
5.5 Attorney's Fees. In the event any dispute arises between the parties
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hereto to enforce or interpret the provisions of this Agreement, the prevailing
party in such action shall be entitled to recover from the other party all
reasonable costs, expenses, attorney's fees and costs actually incurred relating
to or arising from such action.
5.6 Modification. This Agreement may be modified only by a contract in
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writing executed by the party(ies) to this Agreement against whom enforcement of
such modifications is sought.
5.7 Headings. The headings of the sections of this Agreement have been
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included only for convenience, and shall not be deemed in any manner to modify
or limit any of the provisions of this Agreement, or be used in any manner in
the interpretation of this Agreement.
5.8 Prior Understanding. This Agreement contains the entire agreement
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between the parties to this Agreement with respect to the subject matter of this
Agreement, is intended as a final expression of such parties' agreement, is
intended as a complete and exclusive statement of the terms of such agreement,
and supersedes all negotiations, stipulations, understandings, agreements,
representations and warranties, if any, with respect to such subject matter,
which precede the execution of this Agreement.
5.9 Interpretation. Whenever the context so requires in this Agreement,
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all words used in the plural (and vice versa), each gender shall be construed to
include any other genders, and the word "person" shall be construed to include a
natural person, a joint venture, a trust, an estate or any other entity. This
Agreement shall be deemed to have been created jointly by all of the parties and
shall be interpreted the same way as to all parties, without regard to which of
them may have actually drafted the instrument.
5.10 Partial Invalidity. Each provision of this Agreement shall be valid
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and enforceable to the fullest extent permitted by law. If any provision of
this Agreement or the application of such provision to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
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affected by such invalidity or unenforceability, unless such provision of such
application of such provision is essential to this Agreement.
5.11 Notices. Notices under this agreement shall be deemed effective upon
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receipt, if delivered by messenger, facsimile or overnight courier, and if by
regular US mail, on the 3rd day following deposit in the US mail, postage
prepaid. All notices shall be sent as follows:
If to any of the EZR Parties: With a copy to:
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Attention: J. Xxxxxx Fabregas Xxxx Xxxxx, Esq.
00000 Xxxxxxx Xxxxx Easyriders, Inc.
Xxxxxx Xxxxx, XX 00000 00000 Xxxxxxx Xxxxx
Facsimile: (000) 000-0000 Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
If to SSS or API: With a copy to:
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Attention: Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, Esq. Xxxxxxx Xxxx
000 Xxxxxxxx Xxxxxx, Xxxx. 00 0000 X. Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000 Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile (000) 000-0000
5.12 Successors-in-Interest and Assigns. Subject to any restriction on
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transferability contained in this Agreement, this Agreement shall be binding
upon and shall inure to the benefit of the successors-in-interest and permitted
assigns of each party to this Agreement. Nothing in this Paragraph shall create
any rights enforceable by any person not a party to this Agreement., except for
the rights of the successors-in-interest and assigns of each party to this
Agreement, unless such rights are expressly granted in this Agreement to other
specifically identified persons.
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5.13 Waiver. Any waiver of a default under this Agreement must be in
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writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement. No delay or omission in the exercise of
any right or remedy shall impair such right or remedy or be construed as a
waiver. A consent to or approval of any act shall not be deemed to waive or
render unnecessary consent to or approval of any other or subsequent act.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the Effective Date.
Easyriders, Inc. Paisano Publications, Inc.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxx Xxxxxx
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Title: Executive Vice President Title: Chief Executive Officer
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Date: 3/28/01 Date: 3/28/01
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Easyriders Licensing, Inc. Easyriders Events, Inc.
By: /s/ Xxxx X. Xxxxx By: /s/ J. Xxxxxx Fabregas
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Name: Xxxx X. Xxxxx Name: J. Xxxxxx Fabregas
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Title: Secretary Title: President
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Date: 3/28/01 Date: 3/28/01
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Action Promotions, Inc. Southern Steel Streetwear, Inc.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
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Title: Vice President Title: Vice President
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Date: 3/28/01 Date: 3/28/01
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