EXHIBIT 10.66
INTERCREDITOR
AND SUBORDINATION AGREEMENT
INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of October 14, 1999,
among SIENA CAPITAL PARTNERS, L.P., a California limited partnership (together
with any other holder of the Subordinated Obligations from time to time,
collectively, the "Subordinated Noteholder"), NOMURA HOLDING AMERICA INC.
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(together with its successors and assigns, the "Senior Creditor"), PAISANO
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PUBLICATIONS, INC., a California corporation (the "Borrower"), and EASYRIDERS,
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INC., a Delaware corporation ("Parent").
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W I T N E S S E T H
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WHEREAS, the Borrower and the Subordinated Noteholder have agreed to
consummate a transaction whereby the Subordinated Noteholder will make a loan to
the Borrower of up to $275,000 which will be evidenced by the Subordinated Notes
(such terms and all other capitalized terms used herein without definition have
the meanings provided in Section 2 hereof) and Newriders will guarantee payment
and performance thereof pursuant to the Subordinated Guarantee;
WHEREAS, the Borrower, the Parent and the Senior Creditor are parties to a
Senior Note Agreement pursuant to which the Senior Creditor has purchased the
Senior Notes issued by the Borrower, and the Parent has guaranteed payment and
performance of the Senior Notes pursuant to the Senior Guarantee; and
WHEREAS, it is a condition precedent to the Senior Creditor consenting to
the Borrower's issuance of the Subordinated Notes that the Borrower, Parent and
the Subordinated Noteholders shall have executed and delivered this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
Section 1. Definitions.
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1.1 Senior Note Agreement Definitions. Unless otherwise defined herein,
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terms defined in the Senior Note Agreement and used herein shall have the
meanings given to them in the Senior Note Agreement.
1.2 Defined Terms. The following terms shall have the following respective
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meanings when used in this Agreement:
"Agreement" shall mean this Intercreditor and Subordination Agreement.
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"Business Day" shall mean any day that is not a Saturday, a Sunday or a day
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on which banks are required or permitted to be closed in the State of New York.
"Credit Parties" shall mean Borrower, Parent and their respective
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Subsidiaries, and their respective successors and assigns.
"exercise of remedies" shall mean any of the following with respect to the
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Subordinated Obligations; (i) the taking of actions to collect or enforce all or
any part of the Subordinated Obligations or any claims in respect thereof
against any Credit Party or any of its property or assets (except actions for
specific performance of payments specifically permitted under Section 3.1
hereof), (ii) the application of any property or assets of any Credit Party to
the Subordinated Obligations (except payments specifically permitted under
Section 3.1 hereof) or the repossession of, foreclosure on, or the exercise of
any other remedy (judicially or nonjudicially) with respect to any Credit Party
or any of its property or assets; (iii) the taking of control or possession of,
or the exercise of any right of setoff with respect to, any property or assets
of any Credit Party or the sale or other disposition of any interest in such
property or assets; (iv) the taking of any action to interfere with any rights
in respect of such property or assets of Senior Creditor or its ability to
realize upon or otherwise deal with such property or assets; or (v) the
commencement or maintenance of any action, suit or other proceeding at law, in
equity or otherwise in furtherance of any of the foregoing or to otherwise
enforce rights against any Credit Party or any of its property or assets or to
direct the owner of such property or assets to sell or otherwise dispose of any
interest therein. To "exercise remedies" shall mean to take or institute the
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taking of any exercise of remedies.
"Insolvency Event" shall mean (A) any Credit Party commencing any case,
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proceeding or other action (1) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, conservatorship or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (2) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Credit Party making a general assignment for the benefit of its
creditors; or (B) there being commenced against any Credit Party any case,
proceeding or other action of a nature referred to in clause (A) above which (1)
results in the entry of an order for relief or any such adjudication or
appointment or (2) remains undismissed, undischarged or unbonded for a period of
30 days; or (C) there being commenced against any Credit Party any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 30 days from the entry thereof; or (D) any Credit Party taking any
corporate action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in clause (A), (B) or (C) above;
or (E) any Credit Party generally not paying, or being unable to pay, or
admitting in writing its inability to pay, its debts as they become due.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
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assignment, deposit arrangement, security interest, encumbrance, lien (statutory
or other),
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preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever.
"Payment or Distribution" shall mean any direct or indirect payment or
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distribution of assets of any kind or character, whether in cash, property or
securities, by setoff or otherwise, on or with respect to the Subordinated
Obligations, including any principal of or interest on the Subordinated
Obligations. Payment or Distribution shall not include the issuance of any
Subordinated PIK Notes.
"Person" shall mean any individual, sole proprietorship, partnership, joint
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venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether Federal,
state, county, city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
"Refinancing Senior Creditor" has the meaning specified in Section 8.13.
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"Senior Creditor" shall have the meaning provided in the first paragraph
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hereof and shall be deemed to include any Refinancing Senior Creditor or any
other Person providing replacement or refinancing indebtedness for the then
outstanding Senior Obligations.
"Senior Guarantee" shall mean the Guarantee dated as of September 23,
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1998 made by the Parent and certain Subsidiaries thereof in favor of the Senior
Creditor, as amended, modified or supplemented from time to time.
"Senior Note Agreement" shall mean the Note and Warrant Purchase Agreement
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dated as of September 23, 1998 by and among Borrower, Parent and Senior
Creditor, as amended, modified or supplemented from time to time, before or
after the date hereof including amendments, modifications, supplements and
restatements thereof giving effect to increases, renewals, extensions,
refundings, deferrals, restructurings, replacements or refinancings of, or
additions to, the arrangements provided in such agreement (whether provided by
the original Senior Creditor under such agreement, by successors or assigns or
by Refinancing Senior Creditor).
"Senior Note Documents" shall mean the collective reference to the Senior
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Note Agreement, the Senior Notes, the Senior Guarantee, the other Note Documents
and all other documents that from time to time evidence the Senior Obligations
or secure or support payment or performance thereof.
"Senior Notes" shall mean the promissory note or notes of the Borrower
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outstanding from time to time under the Senior Note Agreement evidencing the
Senior Obligations.
"Senior Obligations" shall mean the collective reference to the unpaid
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principal of and interest on the Senior Notes and all other Obligations of
Borrower or any other Credit Party to Senior Creditor (including interest
accruing at the then applicable rate provided in the Senior Note Agreement after
the maturity of the Senior Notes and interest accruing at the then applicable
rate provided in the Senior Note
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Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Credit Party,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, the Senior Note Documents or any
other document made, delivered or given in connection herewith or therewith, in
each case whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including all fees and
disbursements of counsel to Senior Creditor that are required to be paid by any
Credit Party pursuant to the terms of this Agreement or any Senior Note
Document). This term shall not include, for purposes of the definition of
Termination Date and determining whether all Senior Obligations have been paid
in full, contingent obligations for which no claim then exists but which may
arise in the future solely by virtue of the continued effectiveness after the
Termination Date of indemnities and other obligations under the Senior Note
Documents which expressly survive termination thereof.
"Subordinated Guarantee" shall mean the Pledge and Guarantee Agreement,
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dated the date hereof, between Newriders and the Subordinated Noteholder, as
amended, modified or supplemented from time to time.
"Subordinated Note Documents" shall mean the collective reference to the
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Subordinated Note Agreement, the Subordinated Notes, the Subordinated Guarantee
and any other documents or instruments, if any, that from time to time evidence
the Subordinated Obligations or secure or support payment or performance
thereof.
"Subordinated Notes" shall mean the Increasing Rate Promissory Notes dated
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the date hereof in the original aggregate principal amount of $275,000 issued by
Borrower to Subordinated Noteholder and any Subordinated PIK Notes issued from
time to time.
"Subordinated Note Agreement" shall mean the Securities Purchase Agreement
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dated as of the date hereof among Borrower and the Subordinated Noteholder.
"Subordinated Obligations" shall mean, collectively, the unpaid principal
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of and interest on the Subordinated Notes and all other obligations and
liabilities of Borrower and any other Credit Party to Subordinated Noteholder
(including interest accruing at the then applicable rate provided in the
Subordinated Notes after the maturity of the indebtedness evidenced thereby and
interest accruing at the then applicable rate provided in the Subordinated Notes
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or 1ike proceeding, relating to any Credit Party,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, the Subordinated Notes Agreement, the
Subordinated Notes, the Subordinated Guarantee or any other Subordinated Note
Document, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including
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all fees and disbursements of counsel to Subordinated Noteholder that are
required to be paid by any Credit Party pursuant to the terms of the
Subordinated Notes, this Agreement, the Subordinated Note Agreement, the
Subordinated Guarantee or any other Subordinated Loan Document).
"Subordinated PIK Notes" shall mean any increasing Rate Promissory Notes
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issued in payment of interest in kind pursuant to Section 1.3 of the
Subordinated Note Agreement.
"Termination Date" shall mean the date on which the Senior Obligations are
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paid in full and Senior Creditor has no further obligation to extend to any
financial accommodations to any Credit Party.
1.3 Miscellaneous Terms of Construction. The words "hereof, "herein" and
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"hereunder" and words of similar import when used in this Agreement shall refer
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to this Agreement, and section and paragraph references are to this Agreement
unless otherwise specified. For purposes of this Agreement, the following
additional rules of construction shall apply: (a) wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the feminine and the
neuter; (b) the term "including" shall not be limiting or exclusive, unless
specifically indicated to the contrary; (c) all references to statutes and
related regulations shall include any amendments of same and any successor
statutes and regulations; and (d) all references to any instruments or
agreements, including references to any of this Agreement, the Subordinated Note
Documents and the Senior Note Documents, shall include any and all
modifications, supplements or amendments thereto and any and all extensions or
renewals thereof, in each case, made in accordance with the terms hereof.
1.4 Payment in Full. The expressions "prior payment in full," "payment in
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full," "paid in full" and any other similar terms or phrases when used herein
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with respect to the Senior Obligations shall mean the indefeasible payment in
full, in immediately available funds, of all of the Senior Obligations and
termination or expiration of any commitments to extend any financial
accommodations to any Credit Party under the Senior Note Documents.
Section 2. Subordination.
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2.1 Subordinated Obligations Subordinated to Senior Obligations. Each of
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the Borrower and Subordinated Noteholder agrees, for itself and each future
holder of the Subordinated Obligations, that the payment of the Subordinated
Obligations are and shall be subordinate and subject, to the extent and in the
manner hereinafter set forth, to the prior payment in full of all Senior
Obligations.
2.2 Insolvency Events. Upon any payment or distribution or other transfer
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of assets of any Credit Party to creditors upon or in connection with any
Insolvency Event:
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(a) all Senior Obligations shall be paid in full before any Payment or
Distribution is made or received by Subordinated Noteholder and no part of the
Subordinated Obligations shall have any claim to the assets of any Credit Party
on a parity with or prior to the claim of the Senior Obligations; and
(b) any Payment or Distribution to which Subordinated Noteholder would be
entitled except for the provisions hereof, shall be paid or delivered by the
Credit Parties, or any receiver, trustee in bankruptcy, liquidating trustee,
disbursing agent or other Person making such Payment or Distribution, directly
to Senior Creditor to the extent necessary to pay in full all Senior
Obligations, before any Payment or Distribution shall be made to Subordinated
Noteholder.
2.3 Return of Prohibited Payments. If any Payment or Distribution shall be
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collected or received by Subordinated Noteholder, except payments permitted to
be made at the time of payment as provided in Section 3 hereof, Subordinated
Noteholder forthwith shall deliver the same to Senior Creditor, in the form
received, duly indorsed to Senior Creditor, if required, to be applied in
accordance with the Senior Note Documents to the payment or prepayment of the
Senior Obligations until the Senior Obligations are paid in full. Until so
delivered, such Payment or Distribution shall be held in trust by Subordinated
Noteholder as the property of Senior Creditor, segregated from other funds and
property held by Subordinated Noteholder.
Section 3. Limitations on Payments and Distributions on Subordinated
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Indebtedness.
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3.1 Payments; Remedies. Without the express prior written consent of Senior
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Creditor, Subordinated Noteholder will not (i) take, demand or receive from any
Credit Party, and no Credit Party will make, give or permit, any Payment or
Distribution, or (ii) exercise remedies against any Credit Party or any of their
respective assets or property; provided, however, that Credit Parties may make,
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and Subordinated Noteholder may receive, (l)(a) scheduled monthly interest
payments at a per annum rate not exceeding 13.0% when due under the Subordinated
Notes, and (b) mandatory prepayments of the Subordinated Notes from Excess Cash
Flow pursuant to the second sentence of Section l.3(e)(ii) of the Subordinated
Note Agreement, provided, that, with respect to the foregoing clauses (a) and
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(b), no Default (exclusive of a Default resulting solely from the non-compliance
with Section 9.2, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 9.11, 9.12 or 9.13 of the
Senior Note Agreement) or Event of Default shall have occurred and be continuing
or would result after giving effect to any such payment or prepayment; and (2) a
repayment, in whole but not in part, of the Subordinated Notes (together with
accrued interest thereon) with the proceeds of Common Stock issued by the Parent
meeting the requirements of Section 10.8 of the Senior Note Agreement, provided,
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that no Default or Event of Default shall have occurred and be continuing or
would result after giving effect to such repayment.
3.2 Acceleration of Senior Obligations and Subordinated Obligations.
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Notwithstanding any other provision of this Agreement, following an acceleration
of the maturity of the Senior Obligations and as long as such acceleration shall
continue unrescinded, all Senior Obligations shall first be paid in full in cash
before any Payment or Distribution is made on account of or applied on the
Subordinated Obligations. No
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acceleration (other than automatic acceleration upon the occurrence of an
Insolvency Event with respect to any Credit Party) of the maturity of the
Subordinated Notes will be effective until the Senior Obligations have been paid
in full.
3.3 Provisions of Section 2 Control. The provisions of this Section 3 shall
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not be applicable in any case in which the provisions of Section 2 hereof are
applicable.
Section 4. Subrogation. On and after the Termination Date, Subordinated
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Noteholder shall be subrogated to the rights of Senior Creditor to receive
payments or distributions of assets of the Credit Parties in respect of the
Senior Obligations until the Senior Obligations shall be paid in full. For the
purposes of such subrogation, no Payments or Distributions to Senior Creditor to
which Subordinated Noteholder would be entitled except for the provisions of
this Agreement shall be deemed, as between the Credit Parties and their
creditors other than Senior Creditor and Subordinated Noteholder, to be a
payment by the Credit Parties to or on account of the Senior Obligations, it
being understood that the provisions of this Agreement are, and are intended
solely, for the purpose of defining the relative rights of Subordinated
Noteholder, on the one hand, and Senior Creditor, on the other hand.
Section 5. Consent; Waivers; Other Matters.
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5.1 Consent to Amendments, etc. Subordinated Noteholder consents that,
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without the necessity of any reservation of rights against him, and without
notice to or further assent by Subordinated Noteholder:
(a) any demand for payment of any Senior Obligations made by Senior
Creditor may be rescinded in whole or in part by Senior Creditor, and the Senior
Obligations, or the liability of any Credit Party or any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, or any obligation or liability of any Credit Party
or any other party under the Senior Note Documents or any other agreement, may,
from time to time, in whole or in part, be increased, continued, renewed,
extended, modified, accelerated, compromised, waived, surrendered, or released
by Senior Creditor; and
(b) any Senior Note Document may be amended, modified, supplemented,
terminated or waived, in whole or in part, as Senior Creditor may deem advisable
from time to time, and any collateral security at anytime held by Senior
Creditor for the payment of any of the Senior Obligations may be sold,
exchanged, waived, surrendered or released, in each case all without notice to
or further assent by Subordinated Noteholder, which will remain bound under this
Agreement, and all without impairing, abridging, releasing or affecting the
subordination and other provisions hereof.
5.2 Reliance by Senior Creditor. Subordinated Noteholder acknowledges and
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agrees that Senior Creditor has relied upon the subordination and other
provisions hereof in connection with the Senior Note Documents and in purchasing
the Senior Notes thereunder. Subordinated Noteholder waives any and all
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notice of the creation, renewal, increase, extension or accrual of any of the
Senior Obligations and notice of or proof of reliance by Senior Creditor upon
this Agreement. The Senior Obligations, and any of them, shall be deemed
conclusively to have been created, contracted or incurred in reliance upon this
Agreement, and all dealings between the Credit Parties and Senior Creditor shall
be deemed to have been consummated in reliance upon this Agreement.
5.3 No Representation by Senior Creditor. Except as provided in Section 6.2
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hereof, Senior Creditor has not made and do not hereby or otherwise make to
Subordinated Noteholder, any representations or warranties, express, or implied,
nor does Senior Creditor assume any liability to Subordinated Noteholder with
respect to: (a) the financial or other condition of the Credit Parties or any
other obligors under any instruments of guarantee, if any, with respect to the
Senior Obligations, (b) the enforceability, validity, value or collectibility of
the Senior Obligations or the Subordinated Obligations, any collateral therefor,
or any guarantee or security which may have been granted in connection with any
of the Senior Obligations or the Subordinated Obligations or the validity,
priority or perfections of any Liens, or (c) any Credit Party's title or right
to any property or assets or to transfer any collateral or security.
5.4 No Waiver of Subordination Provisions. No right of Senior Creditor to
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enforce the subordination provisions of this Agreement shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Credit Party or by any act or failure to act by Senior Creditor, or by an
noncompliance by any Person with the terms, provisions and covenants of this
Agreement or any of the Senior Note Documents, regardless of any knowledge
thereof which Senior Creditor may have or be otherwise charged with.
5.5 Waivers. Subordinated Noteholder hereby agrees that (i) Senior Creditor
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may exercise remedies against all or part of any collateral it holds as security
for the Senior Obligations in such order as Senior Creditor, in its sole
discretion, elects and (ii) any proceeds of such collateral received by Senior
Creditor may be applied, reversed, and reapplied, in whole or in part, to any of
the Senior Obligations, as Senior Creditor, in its sole discretion, deems
appropriate. Subordinated Noteholder agrees not to assert and hereby waives, to
the fullest extent permitted by law, any right to demand, request, plead or
otherwise assert or otherwise claim the benefit of, any marshaling,
appraisement, valuation or other similar right of a creditor that may otherwise
be available under applicable law or any right to receive notice of Senior
Creditor's intended disposition of such collateral (or a portion thereat) or of
Senior Creditor's proposed retention of such collateral in satisfaction of the
Senior Obligations (or a portion thereof). Neither Senior Creditor nor any of
its directors, officers, employees or agents shall be liable for failure to
demand, collect or realize upon any of such collateral or for any delay in doing
so or shall be under any obligation to sell or otherwise dispose of any such
collateral upon the request of any Credit Party or Subordinated Noteholder or
any other Person or to take any other action whatsoever with regard to any such
collateral or any part thereof. Subordinated Noteholder hereby waives, releases
and discharges any and all rights, claims, causes of action, liabilities, claims
and demands, in law or equity, which Subordinated Noteholder has had, now has,
or may in the future have, arising out of or relating directly or indirectly to
the
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taking or not taking of any act or proceeding or not proceeding with any action
which Senior Creditor may take pursuant to the Senior Note Documents or any
other documents or in an effort to collect in respect of the Senior Obligations.
5.6 Amendments to Subordinated Note Documents. Without the prior written
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consent of Senior Creditor, no Subordinated Note Document shall be amended,
modified, waived or supplemented.
Section 6. Representations, Warranties and Covenants.
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6.1 Representations and Warranties of Subordinated Noteholder. Subordinated
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Noteholder represents and warrants to Senior Creditor that:
(a) the Subordinated Notes (1) have been issued to it for good and valuable
consideration, (2) are owned by Subordinated Noteholder free and clear of any
Liens whatsoever arising from, through or under Subordinated Noteholder, other
than the interest of Senior Creditor under this Agreement, and (3) are payable
solely and exclusively to Subordinated Noteholder and to no other Person;
(b) Subordinated Noteholder has the limited partnership power and authority
and the legal right to execute and deliver and to perform its obligations under
this Agreement and has taken all necessary limited partnership action to
authorize its execution, delivery and performance of this Agreement; and
(c) this Agreement constitutes a legal, valid and binding obligation of
Subordinated Noteholder.
6.2 Representations and Warranties of Senior Creditor. Senior Creditor
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represents and warrants to Subordinated Noteholder that:
(a) Senior Creditor has the corporate power and authority and the legal right
to execute and deliver and to perform its obligations under this Agreement and
has taken all necessary corporate action to authorize its execution, delivery
and performance of this Agreement; and
(b) this Agreement constitutes a legal, valid and binding obligation of Senior
Creditor.
6.3 Covenants of Subordinated Noteholder. Subordinated Noteholder shall not
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(and hereby releases and waives any right to), without the prior written consent
of Senior Creditor:
(a) permit to exist any Lien on any property or assets of any Credit Party to
secure or provide for payment or performance of the Subordinated Obligations; or
(b) commence or join with any creditors other than Senior Creditor in
commencing any proceeding referred to in the definition "Insolvency Event."
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Section 7. Bankruptcy Matters.
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7.1 Bankruptcy. The provisions of this Agreement shall continue in full
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force and effect notwithstanding the occurrence of any Insolvency Event.
Subordinated Noteholder agrees that Senior Creditor may consent to the use of
cash collateral or provide financing to any Credit Party on such terms and
conditions and in such amounts as Senior Creditor, in its sole discretion, may
decide and that Subordinated Noteholder shall not contest or oppose in any
manner, such cash collateral use or such financing, and further that in
connection with such cash collateral use or financing any Credit Party (or a
trustee appointed for the estate of any Credit Party) may grant to Senior
Creditor Liens upon all or any part of the assets of such Credit Party, which
Liens (i) shall secure payments of all Senior Obligations (whether such Senior
Obligations arose prior to the filing of the petition for relief or arise
thereafter); and (ii) shall be superior in priority to the Liens on the assets
of such Credit Party held by any other Person. All allocations of payments
between Senior Creditor and Subordinated Noteholder shall, subject to any court
order, continue to be made after the filing of a petition under the United
States Bankruptcy Code, as amended (the "Bankruptcy Code"), or any similar
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proceeding on the same basis that the payments were to be allocated prior to the
date of such filing. Subordinated Noteholder agrees that it will not object to
or oppose a sale or other disposition of any assets securing the Senior
Obligations (or any portion thereof) free and clear of Liens or other claims
under Section 363 of the Bankruptcy Code or any other provision of the
Bankruptcy Code if Senior Creditor has consented to such sale or disposition of
such assets. In the event that Subordinated Noteholder has or at any time
acquires any security for the Subordinated Obligations, Subordinated Noteholder
agrees not to assert any right it may have to "adequate protection" of its
interest in such security in any bankruptcy proceeding and agrees that it will
not seek to have the automatic stay lifted with respect to such security,
without the prior written consent of Senior Creditor. Subordinated Noteholder
waives any claim it may now or hereafter have arising out of Senior Creditor's
election, in any proceeding instituted under Chapter 11 of the Bankruptcy Code,
of the application of Section 1111(b)(2) of the Bankruptcy Code, and/or any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code by any Credit Party, as debtor in possession. Subordinated Noteholder (both
in its capacity as Subordinated Noteholder and in its capacity as a party which
may be obligated to the Credit Parties and their respective Affiliates with
respect to contracts which are part of the Senior Creditor's Collateral) agrees
not to initiate or prosecute or encourage any other Person to initiate or
prosecute any claim, action or other proceeding (i) challenging the
enforceability of Senior Creditor's claim or oppose any action by Senior
Creditor to enforce its rights or remedies relating to the Senior Obligations,
(ii) challenging the enforceability, validity, priority or perfected status of
any Liens on assets securing the Senior Obligations or (iii) asserting any
claims which the Credit Parties may hold with respect to Senior Creditor.
Subordinated Noteholder agrees that it will not seek participation or
participate on any creditors' committee without Senior Creditor's prior written
consent. In the event that Senior Creditor consents to such participation, at
the request of Senior Creditor, Subordinated Noteholder will resign from its
position on such committee.
7.2 Invalidated Payments. To the extent tat Senior Creditor receives
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payments on, or proceeds of collateral for, the Senior Obligations which are
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subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law, or equitable cause, then to
the extent of such payment or proceeds received, the Senior Obligations, or part
thereof, intended to be satisfied shall be revived and continue in full force
and effect as if such payments or proceeds had not been received by Senior
Creditor.
7.3 Proof of Claims. Upon the occurrence and during the continuance of any
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Insolvency Event:
(a) Subordinated Noteholder irrevocably authorizes and empowers Senior
Creditor (A) to demand, sue for, collect and receive for and on behalf of
Subordinated Noteholder every Payment or Distribution on account of the
Subordinated Obligations payable or deliverable in connection with such
Insolvency Event and give acquittance therefor, and (B) if proper proof of claim
and other pleadings and motions are not filed by Subordinated Noteholder at
least 30 days prior to the bar date for such filings, to file claims and proofs
of claim in any statutory or non-statutory proceeding against the Credit Parties
on account of the Subordinated Obligations and to vote such proofs of claim in
any such proceeding and take such other actions, in its own name as Senior
Creditor, or in the name of Subordinated Noteholder or otherwise, as Senior
Creditor may deem necessary or advisable for the enforcement of the provisions
of this Agreement; provided, however, that the foregoing authorization and
-------- -------
empowerment imposes no obligation on Senior Creditor to take any such action and
that, in voting such proofs of claim in any such proceeding, Senior Creditor may
act in a manner consistent with their own interests and shall have no duty to
take any action to optimize or maximize Subordinated Noteholder's recovery with
respect to its claim;
(b) Subordinated Noteholder shall take such action, duly and promptly, as
Senior Creditor may request from time to time (A) to demand, sue for, collect
and receive the Subordinated Obligations for the account of Senior Creditor and
(B) to file appropriate proofs of claim and other pleadings and motions in
respect of the Subordinated Obligations; and
(c) Subordinated Noteholder shall execute and deliver such powers of attorney,
assignments or proofs of claim or other instruments as Senior Creditor may
request to enable Senior Creditor to enforce any and all claims in respect of
the Subordinated Obligations and to collect and receive any and all payments and
distributions which may be payable or deliverable at any time upon or in respect
of the Subordinated Obligations.
Section 8. Miscellaneous.
-------------
8.1 Termination. This Agreement shall remain in full force and effect and
-----------
be enforceable against each party hereto according to its terms and shall
terminate upon the Termination Date. This is a continuing agreement of
subordination and Senior Creditor may continue, at any time and without notice
to Subordinated Noteholder to extend credit and other financial accommodations
and lend monies to or for the benefit of any Credit Party on the faith hereof.
Subordinated Noteholder and
11
Senior Creditor hereby waive any right they may have under applicable law to
revoke this Agreement or any of the provisions of this Agreement.
8.2 Further Assurances. Subordinated Noteholder and each Credit Party, at
------------------
its own expense and at any time from time to time, upon the written request of
Senior Creditor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as Senior Creditor
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
8.3 Provisions Define Relative Rights. This Agreement is intended solely
---------------------------------
for the purpose of defining the relative rights of Senior Creditor on the one
hand and Subordinated Noteholder on the other, and no other Person shall have
any right, benefit or other interest under this Agreement.
8.4 Legend. Subordinated Noteholder and the Credit Parties will cause the
------
Subordinated Notes to bear the following legend:
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 SAME 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.
8.5 Powers Coupled With An Interest. All powers, authorizations and agencies
-------------------------------
contained in this Agreement are coupled with an interest and are irrevocable
until termination of this Agreement.
8.6 Specific Performance. Senior Creditor is hereby authorized to demand
--------------------
specific performance of this Agreement at any time when Subordinated Noteholder
shall have failed to comply with any of the provisions of this Agreement
applicable to Subordinated Noteholder, whether or not the Credit Parties shall
have complied with any of the provisions hereof applicable to the Credit
Parties, and Subordinated Noteholder hereby irrevocably waives any defense based
on the adequacy of a remedy at law which might be asserted as a bar to such
remedy of specific performance.
8.7 Notices. Except as otherwise provided herein, whenever it is provided
-------
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desire to give or serve upon any
other party any communication with respect to this Agreement, each such notice,
demand, request,
12
consent, approval, declaration or other communication shall be in writing and
shall be given in the manner as provided for in Section 14.5 of the Senior Note
Agreement; provided that any notice to the Subordinated Noteholder shall be at
its address or transmission number for notices set forth under its signature
below.
8.8 Counterparts. This Agreement may be executed by one or more of the
------------
parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
8.9 Severability. Any provision of this Agreement which is prohibited 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 shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 Integration. This Agreement represents the agreement of Senior
-----------
Creditor and Subordinated Noteholder with respect to the subject matter hereof
and there are no promises or representations by Senior Creditor or Subordinated
Noteholder relative to the subject matter hereof not reflected herein.
8.11 Amendments in Writing; No Waiver; Cumulative Remedies.
-----------------------------------------------------
(a) None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified, except by a written instrument executed by
Senior Creditor, Subordinated Noteholder, the Borrower and the Parent; provided
that any provision of this Agreement may be waived by Senior Creditor in a
letter or agreement executed by Senior Creditor or by telex or facsimile
transmission from Senior Creditor.
(b) No failure to exercise, nor any delay in exercising, on the part of
Senior Creditor, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights or remedies
provided by law.
8.12 Section Headings. The section headings used in this Agreement are for
----------------
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
8.13 Successors and Assigns: Refinancing of Senior Obligations. This Agreement
---------------------------------------------------------
shall be binding upon Subordinated Noteholder and the Credit Parties and their
respective successors and assigns and shall inure to the benefit of Senior
Creditor and its successors and assigns. Neither Subordinated Noteholder nor
Borrower may assign its rights or delegate its obligations hereunder, except to
the extent permitted
13
with respect to the Subordinated Noteholder by the immediately succeeding
sentence of this Section 8.13. Subordinated Noteholder shall not, without the
prior written consent of Senior Creditor, sell, assign, or otherwise transfer,
in whole or in part, the Subordinated Obligations to any other Person (a
"Transferee") or create, incur or suffer to exist any Lien whatsoever upon the
----------
Subordinated Obligations in favor of any Transferee unless (1) such action is
made expressly subject to this Agreement and (2) the Transferee expressly
acknowledges to Senior Creditor, by a writing in form and substance reasonably
satisfactory to Senior Creditor, the subordination provided for herein and
agrees to be bound by all of the terms hereof. In the event that any Person
("Refinancing Senior Creditor") at any time hereafter extends credit to any
---------------------------
Credit Party and the proceeds of such extension of credit are applied to the
repayment of all of the Senior Obligations then all indebtedness and liabilities
of the Credit Parties to the Refinancing Senior Creditor and the Refinancing
Senior Creditor shall be entitled to the benefits of this Agreement to the same
extent as the Senior Obligations and Senior Creditor, and Subordinated
Noteholder and the Credit Parties shall promptly execute and deliver any
agreement which the Refinancing Senior Creditor shall reasonably request with
respect thereto confirming the terms and conditions of this Agreement in favor
of the Refinancing Senior Creditor.
8.14 Senior Obligations Unconditional. All rights and interests of Senior
--------------------------------
Creditor hereunder, and all agreements and obligations of Subordinated
Noteholder and the Credit Parties hereunder, shall be absolute and irreversible
notwithstanding (a) any lack of validity or enforceability of any Senior Note
Document; (b) any change in time, manner or place of payment of, or in any other
term of, all or any of the Senior Obligations, any increase in the amount of the
Senior Obligations, or any amendment or waiver or other modification, whether by
course of conduct or otherwise, of the terms of any Senior Note Document; (c)
any exchange, release or nonperfection of any security interest in any
collateral, or any release, amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Senior
Obligations or any guarantee thereof; or (d) any other circumstances which
otherwise might constitute a defense available to, or a discharge of, any Credit
Party in respect of the Senior Obligations, or of Subordinated Noteholder or any
Credit Party in respect of this Agreement. To the maximum extent permitted by
law, Subordinated Noteholder waives any claim it might have against Senior
Creditor with respect to, or arising out of, any action or failure to act or any
error of judgment, negligence, or mistake or oversight whatsoever on the part of
Senior Creditor or its directors, officers, employees or agents with respect to
any exercise of rights or remedies or other action or failure to act under or in
connection with the Senior Note Documents.
8.15 GOVERNING LAW: CONSENT TO JURISDICTION AND VENUE. THIS AGREEMENT AND THE
------------------------------------------------
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA. EACH OF THE PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS
14
OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO ANY
MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, PROVIDED, THAT THE PARTIES
--------
HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF NEW YORK CITY AND, PROVIDED, FURTHER, THAT NOTHING IN
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THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE SENIOR CREDITOR FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON ANY SECURITY FOR THE SENIOR OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER iN FAVOR OF SENIOR CREDITOR. EACH OF THE PARTIES HERETO EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS. EACH OF THE PARTIES HERETO HEREBY WAIVES PERSONAL
--------------------
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION
OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO IT AT THE ADDRESS SET FORTH
HEREIN, AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
8.16 MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
---------------------------
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED THERETO.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written,
Senior Creditor:
---------------
NOMURA HOLDING AMERICA INC.
By: /s/ John Toffolon
--------------------------------
Name: John Toffolon
Title: Chief Financial Officer
Subordinated Noteholder:
-----------------------
SIENA CAPITAL PARTNERS, L.P.,
a California limited partnership
By: Charleville Capital, L.P.,
a California limited partnership,
its general partner
By: Aneis Advisors, Inc.,
a California corporation,
its general partner
By: /s/ Chris Shepard
---------------------------
Name: Chris Shepard
Title: V.P.-Secretary
Notice Information:
------------------
150 South Rodeo Drive, Suite 100
Beverly Hills, California 90212
Attention: Christopher P. Shepard
Telephone: (310) 246-3700
Telecopier: (310) 246-3672
Borrower:
--------
PAISANO PUBLICATIONS, NC.
By: /s/ J. Robert Fabregas
----------------------------------
Name: J. Robert Fabregas
Title: Secretary
Parent:
------
EASYRIDERS, INC.
By: /s/ J. Robert Fabregas
----------------------------------
Name: J. Robert Fabregas
Title: Chief Financial Officer