EXHIBIT 10.64
THIS NOTE HAS BEEN ISSUED PURSUANT TO THAT CERTAIN SECURITIES PURCHASE
AGREEMENT, DATED AS OF OCTOBER 14, 1999, BY AND BETWEEN THE COMPANY (AS DEFINED
BELOW) AND SIENA (AS DEFINED BELOW) (THE "SECURITIES PURCHASE AGREEMENT"). THIS
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NOTE IS SUBJECT TO ALL OF THE TERMS AND CONDITIONS OF THE SECURITIES PURCHASE
AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREOF. ALL TERMS NOT OTHERWISE
DEFINED HEREIN, SHALL HAVE THE MEANING GIVEN TO SUCH TERMS IN THE SECURITIES
PURCHASE AGREEMENT. ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO
OTHER INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND THE RIGHTS OF
THE HOLDER OF THIS NOTE ARE OTHERWISE SUBJECT TO THE TERMS OF, THE INTERCREDITOR
AND SUBORDINATION AGREEMENT, DATED AS OF OCTOBER 14, 1999, AS THE SALE MAY BE
AMENDED, MODIFIED OR OTHERWISE SUPPLEMENTED FROM TIME TO TIME (THE
"INTERCREDITOR AGREEMENT"), BY AND AMONG NOMURA HOLDING AMERICA INC., SIENA
CAPITAL PARTNERS, L.P., PAISANO PUBLICATIONS, INC. AND EASYRIDERS, INC. THE
TERMS OF THE INTERCREDITOR AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO
THIS NOTE AS IF SET FORTH IN FULL HEREIN.
THE SECURITY REPRESENTED BY THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, IN THE ABSENCE OF (1) AN
EFFECTIVE REGISTRATION STATEMENT AND QUALIFICATION IN EFFECT WITH RESPECT TO
THIS NOTE UNDER THE SECURITIES ACT AND UNDER ANY APPLICABLE STATE SECURITIES
LAWS OR (2) AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION.
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INCREASING RATE SECURED PROMISSORY NOTE
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US$275,000.00 Beverly Hills, California
October 14, 1999
FOR VALUE RECEIVED, the undersigned, PAISANO PUBLICATIONS, INC., a
California corporation (the "Company"), hereby promises to pay to SIENA CAPITAL
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PARTNERS, L.P. ("Siena"), a California limited partnership or its assigns (the
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"Holder"), the principal sum of TWO HUNDRED SEVENTY FIVE THOUSAND UNITED STATES
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DOLLARS (US$275,000.00) (or so much thereof as shall remain outstanding) on
October 14, 2000 (the "Maturity Date"). Subject to modification pursuant to
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Section 1.3(c) of the Securities Purchase Agreement, this Note shall bear
interest from the Closing Date on the principal of this Note from time to time
outstanding at a rate per annum equal to thirteen percent (13%) (such rate, as
increased as provided in the Securities Purchase Agreement, the "Cash Interest
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Rate"). This Note shall also bear additional capitalized interest from the
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Closing Date on the principal amount of this Note from time to time outstanding
at a rate per annum equal to seven percent (7%) (such rate, as increased as
provided in the Securities Purchase Agreement, the "Capitalized Interest Rate"))
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and together with the Cash Interest Rate, collectively, the "Interest Rate").
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From and after April 14, 2000,
the Capitalized Interest Rate shall increase to a rate per annum equal to eight
percent (8%). The Capitalized Interest Rate shall increase by an additional one
percent (1%) on the 14th day of each month thereafter.
Interest shall be calculated in arrears through the last day of each month.
The Company shall make monthly payments on the interest that has accrued at the
Cash Interest Rate on the last Business Day of each month, commencing with
November 30, 1999, and ending on October 14, 2000 (the "Maturity Date"). All
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other interest which has accrued at the Capitalized Interest Rate shall be
capitalized into the principal of this Note and shall be due and payable in full
on the Maturity Date.
Interest shall be computed on this Note on the basis of a 360-day year
consisting of twelve (12) 30-day months and on the actual number of days elapsed
in any period including the date hereof but excluding the date by which the
Holder is deemed pursuant to the Securities Purchase Agreement to have received
payment. Any principal or interest payment due on this Note which is not paid
when due, whether at stated maturity, by notice of acceleration or otherwise,
shall bear interest (calculated in the manner set forth above) at a rate equal
to the then-current Interest Rate plus an additional five percent (5%) per
annum.
The outstanding principal balance of the Note shall be due and payable in
full on the Maturity Date.
The Company may, from time to time, prepay this Note, in whole or in part,
so long as each partial prepayment of principal on this Note is equal to or
greater than $50,000 and the Company has given the Holder one (1) or more
Business Day's written notice of such optional prepayment. Any such optional
prepayment of principal shall be without premium or penalty. Each prepayment of
principal under this Note shall be accompanied by all interest then accrued and
unpaid on the principal so prepaid. Any principal prepaid shall be in addition
to, and not in lieu of, all payments otherwise required to be paid hereunder and
under the Securities Purchase Agreement at the time of such prepayment.
Unless otherwise agreed to by Siena, the Company shall prepay the Note to
the extent of the net financing proceeds in excess of $50,000 actually received
by the Company or its affiliates in the event that (A) the Company completes any
financing transaction (other than the purchase of the Securities hereunder)
whatsoever from and after the Closing Date, including without limitation any
public or private placements of debt or equity or (B) Easyriders completes any
financing transaction (subject to the provisions of that certain Note and
Warrant Purchase Agreement between Easyriders and Nomura Holding America, Inc.
dated September 23, 1998 (the "Nomura Agreement") or any sale of any material
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assets of Easyriders or its subsidiaries. In addition, on the last Business Day
of each month commencing with April 14, 2000, the Company shall prepay the Note
in an amount equal to fifteen percent (15%) of the Company's Excess Cash Flow on
such date. For
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Increasing Rate Secured Promissory Note
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purposes hereof, "Excess Cash Flow" shall have the meaning given such term in
the Nomura Agreement.
The Company shall make each payment which it owes under this Note or the
Securities Purchase Agreement not later than 11:00 a.m., Los Angeles, California
time, on the date such payment becomes due and payable, in lawful money of the
United States of America, without set-off, deduction or counterclaim, and in
immediately available funds sent by wire transfer to Siena in care of Citibank,
NA, 450 West 33rd Street, New York, New York, No.: 82100084, For the account of
Lewco Securities, Account No.: 09253792, for the account of Siena Capital
Partners, L.P., Sub-account No.: W-7-8041738, Reference: Paisano principal and
interest (or to such other bank and accounts as Siena may from time to time
specify pursuant to written instructions received by the Company no later than
five (5) Business Days prior to such payment date). Any payment received by
Siena after such time shall be deemed to have been made on the next following
Business Day. Should any such payment become due and payable on a day other than
a Business Day, the maturity of such payment shall be the next Business Day. Any
amount received by Siena, whether as an interest payment, principal payment or
principal prepayment from or on behalf of the Company, shall be applied as
follows in descending order of priority: (i) to all costs, fees and expenses of
Siena (including reasonable attorneys' fees and the Finance Fee) incurred in
connection with this Note or in enforcing any obligations of, or in collecting
any payments from, any obligor hereunder or under the Securities; (ii) to
interest which has accrued on past due payments hereunder; (iii) to interest
that is currently due and payable on this Note; (iv) to payment of principal on
this Note currently due and payable; (v) to the payment of past due principal on
this Note; and (vi) to the prepayment of principal due under this Note.
Payments of principal, premium (if any) and interest are to be made in
lawful money of the United States of America.
The Company and all other parties whatsoever liable for payment of any
amounts due or to become due under the terms of this Note, hereby waive
presentment for payment, protest and demand, any notice of protest or demand,
and any other indulgences or forebearances of any kind whatsoever.
Subject to compliance with applicable federal and state securities laws,
the Holder may sell, assign and otherwise transfer all or portions of, and
participations in, the Holder's interest in this Note from time to time. The
Company hereby agrees to execute and deliver to the Holder such documents,
interests and agreements as Holder deems necessary or desirable to effect such
transfer. Upon surrender of this Note for registration of transfer or
assignment, duly endorsed, or accompanied by a written instrument of transfer or
assignment duly executed by the registered holder hereof or such holder's
attorney duly authorized in writing, one or more new Notes for a like principal
amount will be issued to, and, at the option of the holder, registered in the
name of, the transferee(s) or assignee(s). The Company shall treat the person
who holds this Note as the owner hereof for all purposes whatsoever.
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Increasing Rate Secured Promissory Note
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The Company may not assign its rights or obligations hereunder without the
prior written consent of Holder. Holder may assign all or any portion of this
Note without the prior consent of the Company. Holder may sell or agree to sell
to one or more other persons a participation in all or any part of any of this
Note without the prior consent of the Company. Upon surrender of this Note, the
Company shall execute and deliver one or more substitute notes in such
denominations and of a like aggregate unpaid principal amount issued to Holder
and/or to Holder's designated transferee or transferees. This Note is subject to
certain purchaser rights and rights of first refusal as set forth in the
Securities Purchase Agreement.
If an Event of Default shall occur and be continuing, the principal of this
Note may, under certain circumstances, become or be declared due and payable in
the manner and with the effect provided in the Securities Purchase Agreement.
This Note is governed by and shall be construed in accordance with the laws of
the State of California.
PAISANO PUBLICATIONS, INC.,
a California corporation
By: /s/ J. Robert Fabregas
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Name: J. Robert Fabregas
Title: Secretary
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Increasing Rate Secured Promissory Note
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