EXHIBIT 10.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR (B) AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
THIS NOTE IS REGISTERED WITH THE AGENT PURSUANT TO SECTION 11.4(B) OF THE
PURCHASE AGREEMENT (AS DEFINED BELOW). TRANSFER OF ALL OR ANY PORTION OF THIS
NOTE IS PERMITTED SUBJECT TO THE PROVISIONS SET FORTH IN SUCH SECTION 11.4(B)
WHICH REQUIRE, AMONG OTHER THINGS, THAT NO TRANSFER IS EFFECTIVE UNTIL THE
TRANSFEREE IS REFLECTED AS SUCH ON THE REGISTRY MAINTAINED WITH THE AGENT
PURSUANT TO SUCH SECTION 11.4(B).
SECURED TERM NOTE
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FOR VALUE RECEIVED, RETAIL PRO, INC., a Delaware corporation
(f/k/a Island Pacific, Inc.) (the "COMPANY") hereby promises to pay to Valens
Offshore SPV II, Corp. c/o Laurus Master Fund, Ltd. (the "HOLDER") or its
registered assigns or successors in interest, the sum of TWO MILLION FIVE
HUNDRED THOUSAND dollars ($2,500,000), together with any accrued and unpaid
interest hereon, on February 29, 2009 (the "MATURITY DATE") if not sooner
indefeasibly paid in full.
Capitalized terms used herein without definition shall have
the meanings ascribed to such terms in that certain Securities Purchase
Agreement dated as of the date hereof (as amended, restated, modified and/or
supplemented from time to time, the "PURCHASE AGREEMENT") among the Company, the
Holder, each other Purchaser and LV Administrative Services, Inc., as
administrative and collateral agent for the Purchasers (the "AGENT" together
with the Purchasers, collectively, the "CREDITOR PARTIES").
The following terms shall apply to this Secured Term Note
(this "NOTE"):
ARTICLE I
CONTRACT RATE AND AMORTIZATION
1.1 CONTRACT RATE. Subject to Sections 2.2 and 3.9, interest
payable on the outstanding principal amount of this Note (the "PRINCIPAL
AMOUNT") shall accrue at a rate per annum equal to the "prime rate" published in
The Wall Street Journal from time to time (the "PRIME RATE"), plus two percent
(2.0%) (the "CONTRACT RATE"). The Contract Rate shall be increased or decreased
as the case may be for each increase or decrease in the Prime Rate in an amount
equal to such increase or decrease in the Prime Rate; each change to be
effective as of the day of the change in the Prime Rate. The Contract Rate shall
not at any time be less than nine and one half percent (9.50%). Interest shall
be (i) calculated on the basis of a 360 day year, and (ii) payable monthly, in
arrears, ("Monthly Amount") commencing on March 1, 2008, on the first business
day of each consecutive calendar month thereafter through and including the
Maturity Date, and on the Maturity Date, whether by acceleration or otherwise.
1.2 CONTRACT RATE PAYMENTS. The Contract Rate shall be
calculated on the last business day of each calendar month hereafter (other than
for increases or decreases in the Prime Rate which shall be calculated and
become effective in accordance with the terms of Section 1.1) until the Maturity
Date and shall be subject to adjustment as set forth herein.
1.3 PRINCIPAL PAYMENTS. Any outstanding Principal Amount
together with any accrued and unpaid interest and any and all other unpaid
amounts which are then owing by the Company to the Holder under this Note, the
Purchase Agreement and/or any other Related Agreement shall be due and payable
on the Maturity Date.
1.4 OPTIONAL REDEMPTION. The Company may prepay this Note at
any time, in whole or in part, without penalty or premium. If within six (6)
months of the date of issue of this Note, the Company prepays in full the
Principal Amount outstanding at such time together with accrued but unpaid
interest thereon and any and all other sums due, accrued or payable to the
Holder arising under this Note, the Purchase Agreement or any other Related
Agreement (collectively, the "REDEMPTION AMOUNT"), upon receipt in full of the
Redemption Amount in good funds, the Holder will rebate to Company fifty percent
(50%) of any fees it received from the Company on the date of issue of this
Note. The Company shall deliver to the Holder a written notice of redemption
(the "NOTICE OF REDEMPTION") specifying the date for such Optional Redemption
(the "REDEMPTION PAYMENT DATE"), which date shall be ten (10) business days
after the date of the Notice of Redemption (the "REDEMPTION PERIOD"). On the
Redemption Payment Date, the Redemption Amount must be paid in good funds to the
Holder. In the event the Company fails to pay the Redemption Amount on the
Redemption Payment Date as set forth herein, then such Redemption Notice will be
null and void. If any Notes issued pursuant to the Purchase Agreement, in
addition to this Note, are outstanding (collectively, the "OUTSTANDING NOTES")
and the Company pursuant to this Section 1.4 elects to make an Optional
Redemption, then the Company shall take the same action with respect to all
Outstanding Notes and make such payments to all holders of Outstanding Notes on
a pro rata basis based upon the Redemption Amount of each Outstanding Note.
1.5 MANDATORY PREPAYMENT. Reference is hereby made to that
certain Vendor Loan Agreement dated as of December 21, 2007 by and among the
Company, 3Q Holdings Limited ("3Q"), Island Pacific (UK) Limited and Applied
Retail Solutions, Inc. (the "3Q Loan Agreement") which, among other things, sets
for the certain agreements relating to the finance by the Company of $3,000,000
of the purchase price for assets of the Company acquired by 3Q, Island Pacific
(UK) Limited and Applied Retail Solutions, Inc. (collectively, the "Acquisition
Borrowers") pursuant to and Asset Purchase Agreement dated October 31, 2007 by
and among the parties thereto. Simultaneously upon receipt by the Company of
payment of any amounts due to Company under the 3Q Loan Agreement (each a "3Q
Loan Payment"), the Company shall prepay this Note plus any accrued and unpaid
interest, penalties and/or fees without penalty of any kind by the corresponding
amount of each such 3Q Loan Payment.
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ARTICLE II
EVENTS OF DEFAULT
2.1 EVENTS OF DEFAULT. The occurrence of any of the following
events set forth in this Section 2.1 shall constitute an event of default
("EVENT OF DEFAULT") hereunder:
(a) FAILURE TO PAY. The Company fails to pay when due
any installment of principal, interest or other fees hereon in accordance
herewith, or the Company fails to pay any of the other Obligations (under and as
defined in the Master Security Agreement) when due, and, in any such case, such
failure shall continue for a period of three (3) days following the date upon
which any such payment was due;
(b) BREACH OF COVENANT. The Company or any of its
Subsidiaries breaches any covenant or any other term or condition of this Note
in any material respect and such breach, if subject to cure, continues for a
period of fifteen (15) days after the occurrence thereof; provided however, that
if by the nature of the breach it cannot be cured within fifteen (15) days and
in the commercially reasonable opinion of the Holder reasonable curative action
has been commenced with such fifteen (15) days, upon written notice to and
consent of Holder, the Company will have a commercially reasonable amount of
time to cure such breach before it shall be deemed an Event of Default.
(c) BREACH OF REPRESENTATIONS AND WARRANTIES. Any
representation, warranty or statement made or furnished by the Company or any of
its Subsidiaries in this Note, the Purchase Agreement or any other Related
Agreement shall at any time be false or misleading in any material respect on
the date as of which made or deemed made if such representation or warranty
expressly states that it is made as of a specific date.
(d) DEFAULT UNDER OTHER AGREEMENTS. The occurrence of
any default (or similar term) in the observance or performance of any other
agreement or condition relating to any indebtedness or contingent obligation of
the Company or any of its Subsidiaries (including, without limitation, the
Subordinated Debt (as defined below)) beyond the period of grace (if any), the
effect of which default is to cause, or permit the holder or holders of such
indebtedness or beneficiary or beneficiaries of such contingent obligation to
cause, such indebtedness to become due prior to its stated maturity or such
contingent obligation to become payable;
(e) MATERIAL ADVERSE EFFECT. Any change or the
occurrence of any event which could reasonably be expected to have a Material
Adverse Effect;
(f) BANKRUPTCY. The Company or any of its Subsidiaries
shall (i) apply for, consent to or suffer to exist the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property, (ii) make a general assignment
for the benefit of creditors, (iii) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt
or insolvent, (v) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vi) acquiesce to, without challenge within
ten (10) days of the filing thereof, or failure to have dismissed, within thirty
(30) days, any petition filed against it in any involuntary case under such
bankruptcy laws, or (vii) take any action for the purpose of effecting any of
the foregoing;
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(g) JUDGMENTS. Attachments or levies in excess of
$250,000 in the aggregate are made upon the Company or any of its Subsidiary's
assets or a judgment is rendered against the Company's property involving a
liability of more than $250,000 which shall not have been vacated, discharged,
stayed or bonded within thirty (30) days from the entry thereof;
(h) INSOLVENCY. The Company or any of its Subsidiaries
shall admit in writing its inability, or be generally unable, to pay its debts
as they become due or cease operations of its present business;
(i) CHANGE OF CONTROL. A Change of Control (as defined
below) shall occur with respect to the Company, unless Holder shall have
expressly consented to such Change of Control in writing. A "Change of Control"
shall mean any event or circumstance as a result of which (i) any "Person" or
"group" (as such terms are defined in Sections 13(d) and 14(d) of the Exchange
Act, as in effect on the date hereof), other than the Holder, is or becomes the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of 35% or more on a fully diluted basis of the
then outstanding voting equity interest of the Company (other than a "Person" or
"group" that beneficially owns 35% or more of such outstanding voting equity
interests of the Company on the date hereof), (ii) the Board of Directors of the
Company shall cease to consist of a majority of the Company's board of directors
on the date hereof (or directors appointed by a majority of the board of
directors in effect immediately prior to such appointment) or (iii) the Company
or any of its Subsidiaries merges or consolidates with, or sells all or
substantially all of its assets to, any other person or entity;
(j) INDICTMENT; PROCEEDINGS. The indictment or
threatened indictment of the Company or any of its Subsidiaries or any executive
officer of the Company or any of its Subsidiaries under any criminal statute, or
commencement or threatened commencement of criminal or civil proceeding against
the Company or any of its Subsidiaries or any executive officer of the Company
or any of its Subsidiaries pursuant to which statute or proceeding penalties or
remedies sought or available include forfeiture of any of the property of the
Company or any of its Subsidiaries;
(k) THE PURCHASE AGREEMENT AND RELATED AGREEMENTS. (i)
An Event of Default shall occur under and as defined in the Purchase Agreement
or any other Related Agreement, (ii) the Company or any of its Subsidiaries
shall breach any term or provision of the Purchase Agreement or any other
Related Agreement in any material respect and such breach, if capable of cure,
continues unremedied for a period of fifteen (15) days after the occurrence
thereof (unless by the terms of any such agreement a longer period is
contemplated), (iii) the Company or any of its Subsidiaries attempts to
terminate, challenges the validity of, or its liability under, the Purchase
Agreement or any Related Agreement, (iv) any proceeding shall be brought to
challenge the validity, binding effect of the Purchase Agreement or any Related
Agreement or (v) the Purchase Agreement or any Related Agreement ceases to be a
valid, binding and enforceable obligation of the Company or any of its
Subsidiaries (to the extent such persons or entities are a party thereto);
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(l) STOP TRADE. An SEC stop trade ordershall be in
effect for five (5) consecutive days or five (5) days during a period of ten
(10) consecutive days, excluding in all cases a suspension of all trading on a
Principal Market, provided that the Company shall not have been able to cure
such trading suspension within thirty (30) days of the notice thereof or list
the Common Stock on another Principal Market within sixty (60) days of such
notice; or
INTENTIONALLY OMITTED
(m) SUBORDINATED DEBT. The Company or any of its
Subsidiaries shall take or participate in any action which would be prohibited
under the provisions of any subordination agreement governing any indebtedness
for borrowed money of the Company or any of its Subsidiaries which has been or
may be subordinated in right of payment to the obligations hereunder
("SUBORDINATED DEBT") or wrongfully makes any payment on the Subordinated Debt
to a person or entity that was not entitled to receive such payments under the
provisions of any subordination agreement governing such Subordinated Debt.
2.2 DEFAULT INTEREST. Following the occurrence and during the
continuance of an Event of Default, the Company shall pay additional interest on
the outstanding principal balance of this Note in an amount equal to one and a
half percent (1.5%) per month, and all outstanding obligations under this Note,
the Purchase Agreement and each other Related Agreement, including unpaid
interest, shall continue to accrue interest at such additional interest rate
from the date of such Event of Default until the date such Event of Default is
cured or waived.
2.3 DEFAULT PAYMENT. Following the occurrence and during the
continuance of an Event of Default, the Agent may demand repayment in full of
all obligations and liabilities owing by the Company to the Holder under this
Note, the Purchase Agreement and/or any other Related Agreement and/or may
elect, in addition to all rights and remedies of the Agent under the Purchase
Agreement and the other Related Agreements and all obligations and liabilities
of the Company under the Purchase Agreement and the other Related Agreements, to
require the Company to make a Default Payment ("DEFAULT PAYMENT"). The Default
Payment shall be one hundred twenty five percent (125%) of the outstanding
principal amount of this Note, plus accrued but unpaid interest, all other fees
then remaining unpaid, and all other amounts payable hereunder. The Default
Payment shall be due and payable immediately on the date that the Agent has
demanded payment of the Default Payment pursuant to this Section 2.3. If in
respect to any Event of Default, the Company cures the Event of Default, the
Event of Default will be deemed to no longer exist any rights or remedies of
Holder pertaining to such Event of Default will be of no further force or
effect.
ARTICLE III
MISCELLANEOUS
3.1 CUMULATIVE REMEDIES. The remedies under this Note shall be
cumulative.
3.2 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on
the part of the Holder hereof in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
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exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights
or remedies otherwise available.
3.3 NOTICES. Any notice herein required or permitted to be
given shall be given in writing in accordance with the terms of the Purchase
Agreement.
3.4 AMENDMENT PROVISION. The term "NOTE" and all references
thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or
supplemented, and any successor instrument as such successor instrument may be
amended or supplemented.
3.5 ASSIGNABILITY. This Note shall be binding upon the Company
and its successors and assigns, and shall inure to the benefit of the Holder and
its successors and assigns, and may be assigned by the Holder in accordance with
the requirements of the Purchase Agreement. The Company may not assign any of
its obligations under this Note without the prior written consent of the Holder,
any such purported assignment without such consent being null and void.
3.6 COST OF COLLECTION. In case of the occurrence of an Event
of Default under this Note, the Company shall pay the Holder the Holder's
reasonable costs of collection, including reasonable attorneys' fees.
3.7 GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL.
(a) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(b) THE COMPANY HEREBY CONSENTS AND AGREES THAT THE
STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN THE COMPANY, ON THE ONE HAND, AND THE HOLDER AND/OR ANY OTHER CREDITOR
PARTY, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR ANY OF THE OTHER RELATED
AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR ANY OF THE
RELATED AGREEMENTS; PROVIDED, THAT THE COMPANY ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY
OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS NOTE
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER AND/OR ANY OTHER CREDITOR
PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO COLLECT THE OBLIGATIONS (AS DEFINED IN THE MASTER SECURITY AGREEMENT), TO
REALIZE ON THE COLLATERAL (AS DEFINED IN THE MASTER SECURITY AGREEMENT) OR ANY
OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF THE HOLDER AND/OR ANY OTHER CREDITOR PARTY. THE COMPANY
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EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE 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 THE COMPANY AT THE ADDRESS SET FORTH IN THE
PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF THE COMPANY'S ACTUAL RECEIPT THEREOF OR THREE (3) BUSINESS DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
(c) THE COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY
A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST
COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, THE
COMPANY HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE HOLDER AND/OR ANY OTHER CREDITOR PARTY, ON THE ONE HAND,
AND THE COMPANY, ON THE OTHER HAND, ARISING OUT OF, CONNECTED WITH, RELATED OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS
NOTE, ANY OTHER RELATED AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
3.8 SEVERABILITY. In the event that any provision of this Note
is invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision of this
Note.
3.9 MAXIMUM PAYMENTS. Nothing contained herein shall be deemed
to establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the rate of
interest required to be paid or other charges hereunder exceed the maximum rate
permitted by such law, any payments in excess of such maximum rate shall be
credited against amounts owed by the Company to the Holder and thus refunded to
the Company.
3.10 SECURITY INTEREST. The Agent, for the ratable benefit of
the Creditor Parties, has been granted a security interest in certain assets of
the Company as more fully described in the Master Security Agreement and the
other Related Agreements.
3.11 CONSTRUCTION; COUNTERPARTS. Each party acknowledges that
its legal counsel participated in the preparation of this Note and, therefore,
stipulates that the rule of construction that ambiguities are to be resolved
against the drafting party shall not be applied in the interpretation of this
Note to favor any party against the other. This Note may be executed by the
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parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
instrument. Any signature delivered by a party by facsimile or electronic
transmission shall be deemed to be an original signature hereto.
3.12 REGISTERED OBLIGATION. This Note shall be registered (and
such registration shall thereafter be maintained) as set forth in Section
11.4(b) of the Purchase Agreement. Notwithstanding any document, instrument or
agreement relating to this Note to the contrary, transfer of this Note (or the
right to any payments of principal or stated interest thereunder) may only be
effected by (i) surrender of this Note and either the reissuance by the Company
of this Note to the new holder or the issuance by the Company of a new
instrument to the new holder or (ii) registration of such holder as an assignee
in accordance with Section 11.4(b) of the Purchase Agreement.
[Balance of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Secured Term
Note to be signed in its name effective as of this 29th day of February, 2008.
RETAIL PRO, INC.
By:
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Name:
Title:
WITNESS:
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