CONSENT AND WAIVER UNDER
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NOTE AND WARRANT PURCHASE AGREEMENT
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CONSENT AND WAIVER, dated as of October 14, 1999 (this "Consent"), to the Note
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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 Purchase
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Agreement");
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WHEREAS, the Company and Siena Capital Partners, L.P., a California limited
partnership ("Siena"), have agreed to consummate a transaction (the
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"Transaction") whereby (x) Siena will make a loan (the "Subordinated Loan") to
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the Company of up to $275,000 which will be evidenced by an Increasing Rate
Secured Promissory Note, dated the date hereof, issued by the Company to Siena
(together with any Increasing Rate Secured Promissory Notes issued in payment of
interest in kind, the "Subordinated Notes"), pursuant to the terms of the
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Securities Purchase Agreement, dated the date hereof, between the Company and
Siena and attached hereto as Annex I (the "Securities Purchase Agreement"), (y)
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the Parent will issue warrants (the "Siena Warrants") to purchase shares of the
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Parent's Common Stock pursuant to the Securities Purchase Agreement and the
Warrant Agreement, dated the date hereof, between the Parent and Siena (the
"Warrant Agreement") and (z) Newriders will guarantee payment and performance of
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the Subordinated Notes pursuant to the Pledge and Guarantee Agreement, dated the
date hereof, between Newriders and Siena (the "Subordinated Guarantee"); and
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WHEREAS, the Purchaser has agreed to consent to the consummation of the
Transaction and to certain related actions, in each case 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 have
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the meanings ascribed to them in the Note Purchase Agreement.
2. Consent and Waiver.
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(a) Consent. (1) Notwithstanding the provisions of Sections 10.1
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(Indebtedness), 10.2 (Liens), 10.7 (Restricted Payments and Restricted
Investments), 10.8 (Issuance of Capital Stock), 10.9 (Transactions with
Affiliates), and 10.13 (Limitation on Dividend Restrictions Affecting
Subsidiaries) of the Note Purchase Agreement, the Purchaser consents to the
Parent and the Company consummating the Transaction, provided that:
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(i) 100% of the proceeds of the Subordinated Loan are concurrently
distributed by the Company as an intercompany loan to the Parent for its
operating expenses and that such intercompany loan is evidenced by a
subordinated demand note (the "Intercompany Note"), in form and substance
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(including the terms of the subordination provisions) satisfactory to the
Purchaser, which note shall be pledged and delivered to the Purchaser
pursuant to the Security Agreement as additional collateral for the
Obligations;
(ii) the principal amount of the Intercompany Note shall reduce, on a
dollar for dollar basis, (x) the $5,000,000 basket for retained Net Cash
Proceeds and the $2,000,000 basket for operating costs, in each case as set
forth in Section 3.1(d) of the Note Purchase Agreement and (y) the
Permitted Subordinated Indebtedness Amount;
(iii) no payments shall be made, and no other action shall be taken, in
contravention of the Intercreditor and Subordination Agreement (as defined
below); and
(iv) failure to comply with clause (iii) of this proviso shall
constitute an immediate Event of Default under the Note Purchase Agreement.
(2) So long as no Default or Event of Default has occurred and is
continuing and to the extent permitted by the Intercreditor and Subordination
Agreement referred to in Section 5(e), the Purchaser hereby further consents
to the prepayment of the Subordinated Loan, together with accrued interest
thereon, in whole but not in part with the proceeds of Common Stock issued by
the Parent meeting the requirements of Section 10.8 of the Note Purchase
Agreement; provided that for purposes of Section 3.1(d) of the Note Purchase
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Agreement, the proceeds of such Common Stock shall not be required to be
applied to repay Term Loans to the extent of the principal amount of the
Subordinated Loan (plus any accrued interest) outstanding at the time of such
refinancing. Any prepayment of the Subordinated Loan in accordance with this
paragraph shall not constitute a
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Restricted Payment under paragraph (d) of the definition of "Restricted
Payment" in the Note Purchase Agreement.
(b) Waiver. The Purchaser hereby waives the requirement, as provided in the
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second sentence of Section 3.1(d) of the Note Purchase Agreement, that the
proceeds of the Subordinated Loan be applied to repay Term Notes.
3. Acknowledgment of Anti-Dilution Adjustments. The Credit Parties hereby
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acknowledge that (x) the consummation of the Transaction, the issuance of the
Siena Warrants, and the increases in the "Exercise Quantity" under and as
defined therein shall result in certain adjustments from time to time thereafter
with respect to the Warrants (under and as defined in the Note Purchase
Agreement) pursuant to Section 4 thereof, and (y) promptly after each such
adjustment (including, without limitation, the adjustment resulting from the
vesting, if any, on April 14,2000 of the Siena Warrants issued on the Consent
Effective Date), the Parent shall cause its Chief Financial Officer to prepare
and deliver an officer's certificate describing each such adjustment pursuant
to, and as more fully described in, Section 5 of the Warrants.
4. Representations and Warranties. To induce the Purchaser to enter into
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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 Consent
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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 binding
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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. No Default or Event of Default has occurred and is
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continuing after giving effect to the waivers set forth in Section 2(b) hereof.
(e) Representations and Warranties True. The representations and warranties
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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 this 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.
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5. Effectiveness. This Consent shall become effective as of October 14,
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1999 (the "Consent Effective Date") only upon satisfaction in full in the
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judgment of the Purchaser of each of the following conditions on or prior to
October 14, 1999:
(a) Consent. The Purchaser shall have received four (4) original copies of
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this Consent duly executed and delivered by the Parent and the Company.
(b) Representations and Warranties True. The representations and warranties
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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 taken or
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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 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 have
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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) Intercompany Note: Transaction Documents: Subordination Agreement.
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The Purchaser shall have received from the Company (i) the Intercompany Note
accompanied by a note power satisfactory to the Purchaser and duly executed by
the Company in blank, (ii) true and correct copies of the Securities Purchase
Agreement and each of the documents and instruments executed in connection
therewith (including, without limitation, the Subordinated Notes, the Siena
Warrant, the Warrant Agreement and the Subordinated Guarantee), and (iii) a duly
executed and delivered Intercreditor and Subordination Agreement, in the form of
Annex II hereto, with respect to the Subordinated Notes (the "Intercreditor and
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Subordination Agreement").
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6. No Other Amendments/Waivers. Except as expressly modified in Section 2
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hereof; the Note Purchase Agreement shall be 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(b) hereof, this Consent shall not be deemed 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. 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.
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8. 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: Secretary
NOMURA HOLDING AMERICA INC.
By: /s/ John Toffolon
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Name: John Toffolon
Title: Chief Financial Officer
Each of the undersigned hereby acknowledges
and consents to the consents and waivers to
the Note Purchase Agreement effected 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
Annex I
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Securities Purchase Agreement
Annex II
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Intercreditor and Subordination Agreement
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:
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NOMURA HOLDING AMERICA INC.
By: /s/ John Toffolon
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Name: John Toffolon
Title: Chief Financial Officer
Subordinated Noteholder:
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SIENA CAPITAL PARTNERS, L.P.,
a California limited partnership
By: Charleville Capital, L.P.,
a California limited partnership,
its general partner
By: Anals Advisers, Inc.
a California corporation,
its general partner
By: /s/ Chris Shepard
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Name: Chris Shepard
Title: VP-Secretary
Notice Information:
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150 South Rodeo Drive, Suite 100
Beverly Hills, California 90212
Attention: Christopher P. Shepard
Telephone: (310) 246-3700
Telecopier: (310) 246-3672