EXHIBIT 10.58
CONSENT AND WAIVER UNDER
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NOTE AND WARRANT PURCHASE AGREEMENT
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CONSENT AND WAIVER, dated as of February 7, 2000 (this "Consent"), to the
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Note and Warrant Purchase Agreement referred to below by and among EASYRIDERS,
INC. (the "Parent"), PAISANO PUBLICATIONS, INC. (as successor by merger with
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Easyriders Sub II, Inc.) (the "Company") and NOMURA HOLDING AMERICA INC. (the
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"Purchaser").
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W I T N E S S E T H
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WHEREAS, the Parent, the Company and the Purchaser are parties to that
certain Note and Warrant Purchase Agreement, dated as of September 23, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Note
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Purchase Agreement");
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WHEREAS, the Parent, the Company, and Easyriders Franchising, Inc.
have entered into a Settlement Agreement and Mutual General Release (the
"Release"), a copy of which is attached as Annex 1, in respect of certain
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litigation brought by Steel Horses, Inc. and its affiliates (the "Claimants");
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WHEREAS, in connection with the Release, (i) the Company, and
Easyriders Franchising, Inc. have delivered a promissory note (the "Note") to
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certain; of the Claimants which provides for certain monthly payments to be
made through February 2002 and (ii) the Parent has issued to certain of the
Claimants 400,000 shares of its Common Stock;
WHEREAS, (i) for the period ended September 30, 1999, the Company
failed to comply with its covenant to maintain maximum Leverage Ratio, minimum
Consolidated EBITDA and minimum Interest Coverage Ratio as required by Sections
10.18(c), (d)and (e), respectively, of the Note Purchase Agreement, and (ii)for
the period ended December 31, 1999, the Company failed to comply with (x) its
covenant as to maximum Operating Leases as required by Section 10.11 of the Note
Purchase Agreement, and (y) its covenant to maintain minimum Consolidated Net
Worth, maximum Leverage Ratio, minimum Consolidated EBITDA and minimum Interest
Coverage Ratio as required by Sections 10.18(b), (c), (d) and (e), respectively,
of the Note Purchase Agreement, and each such noncompliance set forth in clause
(i) and (ii) above constitutes an Event of Default (collectively, the "Financial
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Covenant Event of Default"); and
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WHEREAS, the Purchaser has agreed to consent to certain actions, which
are otherwise prohibited under the Note Purchase Agreement, in the manner, and
on the terms and conditions, provided for herein;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
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have the meanings ascribed to them in the Note Purchase Agreement.
2. Consent and Waiver.
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(a) Consent. (i) The Purchaser consents to (x) the delivery of the
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Note and (y) so long as no Default or Event of Default shall then exist or
result therefrom, the payment by the Company of scheduled principal payments in
respect of the Note (as set forth in the form of Note attached hereto).
(ii) Notwithstanding the existing Events of Default, the Purchaser
hereby consents and agrees that on the Consent Effective Date, the Company
shall be permitted to issue and sell to Purchaser Revolving Notes in an
aggregate amount not exceeding $325,000 subject to all other terms and
conditions set forth in the Note Purchase Agreement.
(b) Waiver. The Purchaser hereby waives the Event of Default
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resulting solely from the principal payment on the Note made on or about
January 20, 2000.
3. Acknowledgment of Event of Default. The Parent and the Company
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hereby acknowledge and agree that (w)the Financial Covenant Event of Default has
occurred and is continuing, (x) the Purchaser has not exercised its rights and
remedies under the Note Purchase Agreement and the other Note Documents with
respect to the Financial Covenant Event of Default and that, as a result of the
Financial Covenant Event of Default, Purchaser has the immediate right to
exercise any and all rights and remedies under the Note Documents, including
without limitation the right to terminate any commitment to make further
extensions of credit, declare all or any portion of the Obligations to be
immediately due and payable, charge interest at the Default Rate and to exercise
any and all rights and remedies under the Note Documents with respect to the
Collateral, (y) the current non-exercise of rights, remedies, powers and
privileges by the Purchaser under the Note Documents with respect to the
Financial Covenant Event of Default, and any future such non-exercise thereof
with respect to the Financial Covenant Event of Default (except to the extent as
evidenced by a written instrument, executed and delivered in accordance with the
provisions of Section 14.1 of the Note Purchase Agreement), shall not be, and
shall not be construed as, a waiver of any of the Purchaser's rights, remedies,
powers or privileges, and (z) the Purchaser has reserved its rights, and has the
right, to fully invoke any and all of its rights, remedies, powers or privileges
under the Note Purchase Agreement and all other Note Documents at any time it
deems appropriate in respect of the Financial Covenant Event of Default. This
Agreement shall constitute a Note Document. The breach by Parent and Company of
any representation, warranty, covenant or agreement in this Agreement shall
constitute an Event of Default hereunder and under the other Note Documents.
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4. Representations and Warranties. To induce the Purchaser to
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enter into this Consent, each of the Parent and the Company, jointly and
severally, hereby represents and warrants to the Purchaser that:
(a) Corporate Power. The execution, delivery and performance of this
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Consent are within its corporate power and have been duly authorized by all
necessary corporate and shareholder action.
(b) Due Execution and Delivery. This Consent has been duly executed and
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delivered by or on behalf of each of the Parent and the Company.
(c) Binding Effect. This Consent constitutes a legal, valid and
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binding obligation of each of the Parent and the Company enforceable against
such Person, in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
(d) No Defaults. Except for the Financial Covenant Event of
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Default, no Default or Event of Default has occurred and is continuing after
giving effect to the waivers set forth in Section 2(b)hereof.
(e) Representations and Warranties True. The representations and
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warranties of the Parent and the Company contained in the Note Purchase
Agreement and each other Note Document (including without limitation the Note
Documents delivered pursuant to the Consent) shall be true and correct on and as
of the Consent Effective Date with the same effect as if such representations
and warranties had been made on and as of such date, except that any such
representation or warranty which is expressly made only as of a specified date
need be true only as of such date.
5. Effectiveness. This Consent shall become effective as of
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February 7, 2000 (the "Consent Effective Date") only upon satisfaction in full
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in the judgment of the Purchaser of each of the following conditions on or prior
to February 7, 2000:
(a) Consent. The Purchaser shall have received four (4) original
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copies of this Consent duly executed and delivered by the Parent and the
Company.
(b) Representations and Warranties True. The representations and
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warranties of the Parent and the Company contained in this Consent shall be
true and correct on and as of the Consent Effective Date.
(c) Proceedings Satisfactory. All corporate and other proceedings
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taken or to be taken in connection with the transactions contemplated hereby
and all documents incident thereto shall be reasonably satisfactory in form and
substance to the Purchaser and its special counsel, and the Purchaser and its
special counsel shall have received all such counterpart originals or certified
or other copies of such documents as
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they may reasonably request, including certificates as to the incumbency and
signatures of each of the officers of the Parent and the Company who shall
execute this Consent on behalf of such Person.
(d) Fees. On or before the Consent Effective Date, the Company shall
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have paid to the Purchaser all costs and expenses owing in connection with the
preparation of this Consent (including, without limitation, any legal fees and
expenses).
(e) Capital Contribution. Parent shall have received from Martin and
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Teresi not less than $500,000, in the aggregate, in cash as a contribution to
Parent's common equity, on terms and conditions satisfactory to Purchaser.
(f) Release; Notes. The Purchaser shall have received from the
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Company true and correct copies of the Release and the Note.
6. No Other Amendments/Waivers. The Note Purchase Agreement shall be
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unmodified and shall continue to be in full force and effect in accordance with
its terms. In addition, except as expressly provided in Section 2 hereof, this
Consent shall not be deemed a consent to any action under, or a waiver of any
term or condition of, the Note Purchase Agreement or any Note Document and shall
not be deemed to prejudice any right or rights which the Purchaser may now have
or may have in the future under or in connection with the Note Purchase
Agreement or any Note Document or any of the instruments or agreements referred
to therein, as the same may be amended from time to time.
7. Outstanding Indebtedness; Waiver of Claims. Parent and Company
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hereby acknowledge and agree that (i) as of February 1, 2000 the aggregate
outstanding principal amounts of the Term Notes and Revolving Notes are
$16,295,588 and $4,375,000, respectively; and that such principal amounts are
payable pursuant to the Note Documents, without defense, offset,
withholding, counterclaim or deduction of any kind (all of which are hereby
waived by Parent and Company) and (ii) all of the Obligations are secured by a
first priority security interest in all of the Collateral, and such security
interest remains in full force and effect. Each of Parent, Company and each
other Credit Party executing this Consent hereby acknowledges that it has no
claims against Purchaser, the participants and their respective employees,
agents, representatives, consultants, attorneys, fiduciaries, servants,
officers, directors, partners, predecessors, subsidiary corporations, parent
corporations and related corporate divisions and their respective successors and
assigns (all of the foregoing being the "Indemnified Person"), and hereby
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waives, releases, remises and forever discharges Purchaser and each other
Indemnified Person from any and all claims of any and every character, known or
unknown, direct and/or indirect, at law or in equity, of whatsoever kind or
nature, whether heretofore or hereafter arising, for or because of any matter or
things done, omitted or suffered to be done by any Indemnified Person prior to
and including the Consent Effective Date, and in any way directly or indirectly
arising out of or in any way connected to the Note Purchase Agreement, this
Consent or any other Note Document.
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8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Counterparts. This Consent may be executed by the parties hereto
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on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed and delivered as of the day and year first above written.
EASYRIDERS, INC.
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: CHIEF FINANCIAL OFFICER
PAISANO PUBLICATIONS, INC. (as
successor by merger with EASYRIDERS
SUB II, INC.)
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: EXECUTIVE VICE PRESIDENT
NOMURA HOLDING AMERICA INC.
By: /s/ Joseph R. Schmuckler
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Name: Joseph R. Schmuckler
Title: EXECUTIVE MANAGING DIRECTOR
Each of the undersigned hereby acknowledges
and consents to the consents and waivers to
the Note Purchase Agreement affected by this
Consent and hereby confirms and agrees that
its obligations under the Note Documents
shall continue without any diminution thereof
and shall remain in full force and effect
without amendment or modification on and
after the effectiveness of this Consent.
ACKNOWLEDGED, CONSENTED and
AGREED to as of the date first written above.
EASYRIDERS OF COLUMBUS, INC.
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary
EASYRIDERS FRANCHISING, INC.
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary
TERESI, INC.
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary
BROS CLUB, INC.
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary
ASSOCIATED RODEO RIDERS ON WHEELS
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary