1
EXHIBIT 10.2
January __, 1998
The Sirena Apparel Group, Inc.
00000 Xxxxx Xxxxxx
Xxxxx Xx Xxxxx, XX 00000
RE: Term Loan Agreement
Gentlemen:
We refer to that certain Factoring, Credit and Security Agreement dated August
19, 1994 between The Sirena Apparel Group, Inc. ("Client") and Xxxxxx Financial,
Inc. ("Xxxxxx"), as amended from time to time (the "Credit Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Credit Agreement.
Client desires that Xxxxxx make a term loan to Client in the amount of $500,000.
This letter shall confirm the agreement between Xxxxxx and Client that, in
addition to loans and advances made by Xxxxxx to Client pursuant to the Credit
Agreement, Xxxxxx shall make a term loan to Client in the amount of $500,000
(the "Term Loan"). The proceeds of the Term Loan shall be applied in payment of
$500,000 of outstanding Special Advances under the Credit Agreement.
Client shall repay the Term Loan in thirty (30) successive monthly installments
of principal (each such installment shall be a "Scheduled Installment") due on
the last day of February, 1998 and on the last day of each month thereafter
until paid, the first twenty-nine Scheduled Installments in the amount of
$16,666 each and the final Scheduled Installment in the amount necessary to pay
the remaining balance of the Term Loan in full.
Client shall execute and deliver to Xxxxxx a Term Note in the principal amount
of $500,000 to evidence the Term Loan under this Agreement.
In order to induce Xxxxxx to make the Term Loan, Client represents and warrants
to Xxxxxx that the following statements are and will be true, correct, and
complete:
(a) There are no judgments outstanding or affecting any of Client's
property nor is there any action, charge, claim, demand, suit,
proceeding, petition, governmental investigation or arbitration now
pending or, to the best of Client's knowledge after due inquiry,
threatened against or affecting Client or any of its property which
could reasonably be expected to result in any material adverse effect.
Client has not received any opinion or memorandum or legal advice from
legal counsel to the effect that it is exposed to any liability or
disadvantage which could reasonably be expected to result in any
material adverse effect.
(b) All of Client's material tax returns and reports required to be
filed have been timely filed, and all taxes, assessments, fees and other
governmental charges upon Client and upon its properties, assets, income
and franchises which are shown on such returns as due and payable have
been paid when due and payable. None of Client's United States income
tax returns are under audit and no tax liens have been filed and no
claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on Client's books in respect of any taxes or other
governmental charges are in accordance with GAAP.
(c) Client is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained
in any contractual obligation between Client and any person or entity,
and no condition exists that, with the giving of notice or the lapse of
time or both, would constitute such a default.
(d) Client has been and is currently in compliance with all applicable
environmental laws, including obtaining and maintaining in effect all
permits, licenses or other authorizations required by applicable
environmental laws. There are no claims,
2
liabilities, investigations, litigation, administrative proceedings,
whether pending or threatened, or judgments or orders relating to any
hazardous materials asserted or threatened against Client or relating to
any real property currently or formerly owned, leased or operated by
Client.
This Term Loan Agreement (this "Agreement") will remain in force and effect
until the earlier of (a) June 30, 2000 or (b) termination of the Credit
Agreement (the date which is the earlier to occur of (a) and (b) shall
hereinafter be referred to as the "Termination Date"). On the Termination Date,
all amounts outstanding under this Agreement shall be due and payable in full.
The Term Loan shall be secured by a lien on all collateral security now or
hereafter granted by Client to Xxxxxx under the Credit Agreement, that certain
Equipment Security Agreement of even date herewith (the "Equipment Agreement ")
or any other agreement between Client and Xxxxxx ( the " Collateral ").
Client agrees to pay interest on the Term Loan calculated daily at a rate per
annum equal to one and one half percent (1.5%) plus the prime or base rate of
interest publicly announced from time to time by Bank of America National Trust
and Savings Association (the "Base Rate"). Interest will be payable by Client to
Xxxxxx or charged by Xxxxxx to Client's account at the end of each month. Any
publicly announced decrease or increase in the Base Rate will result in an
adjustment to the interest rate on the next business day.
Failure to repay the Term Loan pursuant to the terms of this Agreement shall
constitute an event of default under the Credit Agreement and the Equipment
Agreement. An event of default under the Credit Agreement or the Credit
Agreement shall constitute a default under this Agreement. Upon the occurrence
of a default or an event of default, Xxxxxx shall have all the rights ascribed
to it under this Agreement, the Equipment Agreement and the Credit Agreement,
including, but not limited to, the right to terminate this Agreement, the Credit
Agreement and any other agreements between Client and Xxxxxx and to demand
payment in full of all of Client's liabilities, indebtedness and obligations
owing to Xxxxxx.
If at any time or times on or after a default hereunder Xxxxxx employs counsel
(a) to advise or represent Xxxxxx with respect to any of the Collateral, this
Agreement, or any other agreement between Xxxxxx and Client, (b) to represent
Xxxxxx in any litigation, contest, dispute, suit or proceeding, including any
proceeding under federal bankruptcy laws or any other insolvency or receivership
laws, or to commence, defend or intervene or to take any other action in or with
respect to any litigation, contest, dispute, suit or proceeding (whether
instituted by Xxxxxx, Client or any other person) in any way or respect relating
to the Collateral, this Agreement, or any other agreement between Xxxxxx and
Client, (c) to enforce any rights of Xxxxxx against Client or any other person
which may be obligated to Xxxxxx by virtue of this Agreement or any other
agreement between Xxxxxx and Client, (d) to protect, collect, sell, liquidate or
otherwise dispose of the Collateral and/or (e) to attempt to or to enforce
Xxxxxx'x security interest in the Collateral, then Client shall pay to Xxxxxx on
demand the reasonable attorneys' fees and other professional fees arising from
such services and all expenses, costs, charges and other fees of such counsel or
of Xxxxxx in any way or respect arising in connection with or relating to any of
the events described in this paragraph.
APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
CONSENT TO JURISDICTION. CLIENT HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF LOS ANGELES STATE OF CALIFORNIA
AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN
SUCH COURTS. CLIENT EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. CLIENT HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE
OF PROCESS MAY BE MADE UPON CLIENT BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO CLIENT, AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS
BEEN POSTED.
3
WAIVER OF JURY TRIAL. CLIENT AND XXXXXX HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. CLIENT AND XXXXXX ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. CLIENT AND XXXXXX WARRANT AND
REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS.
Sincerely, Accepted and Agreed:
XXXXXX FINANCIAL, INC. THE SIRENA APPAREL GROUP, INC.
By: _________________________ By: __________________________
Title: _______________________ Title: _______________________
4
TERM NOTE
$500,000 January _____, 1998
FOR VALUE RECEIVED, the undersigned, THE SIRENA APPAREL GROUP, INC., a Delaware
corporation ("Company"), hereby unconditionally promises to pay to the order of
XXXXXX FINANCIAL, INC., a Delaware corporation ("Xxxxxx"), at Xxxxxx'x office
located at 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or at such
other place as the holder of this Note may from time to time designate in
writing, in lawful money of the United States of America and in immediately
available funds, the principal sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00), payable in accordance with the terms of that certain Term Loan
Agreement of even date herewith between Company and Xxxxxx (the "Term Loan
Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Term Loan Agreement.
This Note is the Term Note referred to in the Term Loan Agreement and is issued
to evidence the Term Loan made to Company under the Term Loan Agreement. This
Note is entitled to the benefits of the Term Loan Agreement to which reference
is hereby made for a more complete statement of the terms, conditions and
covenants under which this Note is made and is to be repaid, including, but not
limited to, those related to acceleration of the indebtedness represented hereby
upon the occurrence of a default or event of default or upon the termination of
the Term Loan Agreement.
Company promises to pay interest on the outstanding unpaid principal amount
hereof from the date hereof until payment in full hereof at a rate per annum
equal to the Base Rate plus one and one half percent (1.5%). Interest shall be
computed on the daily principal balance on the basis of a 360-day year for the
actual number of days elapsed in the period during which it accrues and shall be
payable by Company or charged to Company's account at the end of each month. Any
publicly announced decrease or increase in the Base Rate shall result in an
adjustment to the interest rate on the next business day.
In no event shall the total interest received by Xxxxxx on the principal amount
of Company's obligations under this Note pursuant to the terms hereof exceed the
maximum rate permitted by applicable law (the "Maximum Rate") and in the event
excess interest ("Excess Interest") is determined by a court of competent
jurisdiction to have been paid, (a) at Xxxxxx'x option, such Excess Interest
shall be applied as a credit against the outstanding principal balance of such
obligations or accrued but unpaid interest (not to exceed the maximum amount
permitted by law), refunded to Company or any combination thereof, (b) the
interest rate shall be automatically reduced to the Maximum Rate, and Company
shall not have any action against Xxxxxx for any damages arising out of the
payment or collection of Excess Interest.
Notwithstanding the foregoing, if for any period of time interest on any of
Company's obligations under this Note is calculated at the Maximum Rate rather
than the applicable rate under this Note, and thereafter such applicable rate
becomes less than the Maximum Rate, the rate of interest payable on such
obligations shall remain at the Maximum Rate until Xxxxxx shall have received
the amount of interest which Xxxxxx would have received during such period on
such obligations had the rate of interest not been limited to the Maximum Rate
during such period.
To secure the payment of the principal and interest of this Note and all
renewals and extensions of the same or any part thereof and any and all other
obligations now or hereafter owing or to become owing from Company to Xxxxxx,
howsoever created, arising, evidenced or acquired by Xxxxxx, whether direct or
contingent, Company has granted and given to Xxxxxx a general and continuing
lien and security interest in certain of Company's assets as listed and
described in the various agreements by and between Company and Xxxxxx, all as
amended from time to time, including, without limitation, that certain Loan and
Security Agreement dated June 21, 1993 (collectively called the "Agreements") to
which reference is made for a statement of the nature and extent of the security
and protection afforded, the rights of Xxxxxx and the rights and obligations of
Company, together with all other and sundry grants and pledges of security
heretofore and hereafter given (collectively called the "Collateral"), with full
power and authority to Xxxxxx to transfer, assign, pledge or replace the same in
whole or in part. In case of exchange of, or substitution for, or addition to
the Collateral, the provisions hereof shall extend to such exchanged,
substituted, or additional Collateral. Upon
5
payment of this Note, Xxxxxx may nevertheless retain the Collateral hereby
pledged to secure the payment of other obligations of Company to Xxxxxx, if any,
for which the same is pledged. Xxxxxx is expressly released from all obligation
or liability: (a) to protect, collect, demand payment of, protest or enforce the
Collateral; (b) to take any action whatsoever in regard to the Collateral or any
part thereof; or (c) for any loss of or depreciation in the value of the
Collateral.
Company hereby waives demand, presentment, protest, notice of demand, dishonor,
presentment, protest, nonpayment and all other notices in connection with this
Note. Subject to the Term Loan Agreement, Company also waives all rights to
notice and hearing of any kind upon the occurrence of a default or an event of
default prior to the exercise by Xxxxxx of its rights to repossess the
Collateral without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
If this Note is collected by or through an attorney-at-law, all costs of
collection, including reasonable attorneys' fees, shall be payable by the
undersigned.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS
OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF CALIFORNIA.
Whenever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note. Whenever in this Note reference is made to Xxxxxx or Company, such
reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Note shall be binding
upon and shall inure to the benefit of such successors and assigns. Company's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for Company.
WITNESS the signature of the undersigned, as of the date first above written.
THE SIRENA APPAREL GROUP, INC.
By: _______________________
Title: _______________________
