Exhibit 10.28

	
	
325822880.1
SECURED PROMISSORY NOTE


$4,500,000




February 11, 2020 (the
 “Issuance Date”)

The undersigned, Denim.LA, Inc., a Delaware corporation (the “Company”), promises to
pay  to the  order  of Norwest  Venture  Partners  XI,  LP  and  Norwest  Venture  Partners  XII,  LP
(each  a  “Holder”  and  together  the “Holders”) in  the  respective  portions  set  out  in  Schedule  I
hereto, the principal sum of Four Million Five Hundred Thousand Dollars ($4,500,000), together
with simple interest accrued on the unpaid principal amount at the rate of twelve percent (12.0%)
per annum.  Interest shall be due and payable to the Holders ratably in cash on the Maturity Date.
Interest shall begin to accrue on the date hereof and shall continue to accrue on the outstanding
principal until the entire Balance is paid, and shall be computed based on the actual number of
days elapsed and on a year of 365 days.
This Secured Promissory Note (this “Note”) has been executed and delivered pursuant to
and in accordance with the terms and conditions of the Agreement and Plan of Merger, by and
between the Company and Denim.LA Acquisition Corp., on the one hand, and Bailey 44, LLC, a
Delaware limited liability company (“Bailey”), and the Holders, on the other hand, dated as of
February 7, 2020 (the “Merger Agreement”) and is  subject  to the terms and conditions  of the
Merger Agreement. This Note is issued to Holders as partial consideration in connection with the
Merger whereby a subsidiary of the Company will merge with and into Bailey with Bailey as the
Surviving  Company  of  the  Merger. The  principal  balance  hereunder shall  be  available  to the
Company as a source of funds to satisfy Holders’ indemnification obligations under Article VIII
of  the Merger  Agreement,  subject  to  the  limitations  and  other  provisions expressly  set  forth
therein. All payments hereunder shall be paid in lawful money of the United States of America,
shall be payable at  the  place or places  hereafter designated by the Holders and shall be made
ratably  to  the  Holders  based  on the  outstanding  principal  amount  owed  to  such  Holders
immediately prior to giving effect to such payment. Capitalized terms used but not defined in this
Note shall have the meanings ascribed to such terms in the Merger Agreement.
1. Definitions.  The following definitions shall apply for all purposes of this Note:

 “Balance” means, at the applicable time, all then outstanding principal of this Note, all
then accrued but unpaid interest and all other amounts then accrued but unpaid hereunder.
 “Business Day” means a weekday on which banks are open for general banking business
in Los Angeles, CA.
 “CIT Debt” means the Debt incurred by Bailey from time to time pursuant to that certain
Factoring Agreement, dated March 4, 2004, by and between CIT Group/Commercial Services,
Inc. and Bailey 44, LLC.
 “Debt” means for any Person (a) all indebtedness for borrowed money, (b) all obligations
represented  by  bonds,  debentures,  notes,  securities  or  other  evidences  of  indebtedness,  (c)  all
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indebtedness  representing  deferred  payment  of  the  purchase  price  of  property  or  assets,  (d)
capitalized lease obligations, (e) all indebtedness under guaranties, endorsements, assumptions or
other contingent obligations, in respect of, or to purchase or otherwise acquire, indebtedness of
others,  (f)  all  indebtedness  secured  by  a  Lien  existing  on  property  owned  by  such  Person,
whether or not the indebtedness secured thereby shall have been assumed by the owner thereof,
(g) all indebtedness of any partnership of which such Person is a general partner, except to the
extent that applicable law and the terms of such indebtedness expressly provide that such Person
is  not  liable therefor, (h) all obligations  of such Person in  respect  of letters  of credit, bankers
acceptances, surety bonds or similar instruments issued or accepted by banks or other financial
institutions  for  the  account  of  such Person,  (i)  all  indebtedness  created  or  arising  under  any
conditional  sale  or  other  title  retention  agreement  with  respect  to  property  acquired  by  such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (j) all obligations of such
Person, whether or not contingent, to purchase, redeem, retire, defease or otherwise acquire for
value  or  make  any  cash  payments  in  respect  of  Disqualified  Stock, valued  at,  in  the  case  of
redeemable  preferred  stock,  the  greater  of  the  voluntary  liquidation  preference  and  the
involuntary  liquidation  preference  of  such  Equity  Interests  plus  accrued  and  unpaid  dividends
and (k) all guarantees of the foregoing by such Person.
 “Disqualified Stock” means any Equity Interest which, by its terms (or by the terms of
any security or other Equity Interest into which it is convertible or for which it is exchangeable),
or  upon  the  happening  of  any  event  or  condition,  (a)  matures or  is  mandatorily  redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder
thereof,  in  whole  or  in  part,  on  or  prior  to  the  date  that  is  one  hundred  eighty  (180)  days
following the Maturity Date (excluding any provisions requiring redemption upon a “change of
control” or similar event; provided that such “change of control” or similar event would result in
the  prior  payment  in  full  in  cash  of  the  Obligations  (other  than  contingent  indemnification
obligations to the extent no claim giving rise thereto has been asserted), (b) is convertible into or
exchangeable for (i) indebtedness or (ii) any Equity Interest referred to in (a) above, in each case,
at any time on or prior to the date that is one hundred eighty (180) days following the Maturity
Date,  or  (c)  is  entitled  to  receive  scheduled  dividends  or  distributions  in  cash  (except  for
distributions  for  taxes  attributable  to  the  operations  of  the  business)  prior  to  the  time  that  the
Obligations (other than contingent indemnification obligations to the extent no claim giving rise
thereto has been asserted) are paid in full in cash.
 “Highest  Lawful  Rate” means  the  maximum  non-usurious  rate  of  interest,  as  in  effect
from  time  to  time,  which  may  be  charged,  contracted  for,  reserved,  received  or  collected  by
Holder in connection with this Note under applicable law.
 2. Maturity Date; Payment; Interest Limitation.
2.1 Maturity Date and Payment. The Balance shall be due and payable in full to
the Holders ratably on the earliest to occur of (i) one (1) day following the closing date of the
IPO, (ii) one (1) day following the closing date of a Denim Sale or (iii) December 31, 2020 (such
earliest date, the “Maturity Date”). This Note may be prepaid at any time, in whole or in part, at
the option of the Company, without penalty or premium.
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2.2 Mandatory  Prepayment.    If  the  Company  or  any  of  its  subsidiaries  shall
receive proceeds from any financing transaction (other than an IPO) after the Issuance Date, then
for each whole increment of $10,000,000 in gross proceeds received by the Company or any of
its subsidiaries in aggregate after the Issuance Date (on a cumulative basis), the Company shall
make a principal payment to the Holders ratably in an aggregate amount of $1,500,000.
2.3 Interest.  Notwithstanding anything herein to the contrary, if during any period
for which interest is computed hereunder, the amount of interest computed on the basis provided
for in this Note, together with all fees, charges and other payments which are treated as interest
under applicable law, as provided for herein or in any other document executed in connection
herewith, would exceed the amount of such interest computed on the basis of the Highest Lawful
Rate, then the Company shall not be obligated to pay, and Holder shall not be entitled to charge,
collect, receive, reserve or take, interest in excess of the Highest Lawful Rate, and during any
such period the interest payable hereunder shall be computed on the basis of the Highest Lawful
Rate.
    3. Right of Setoff.  The Company shall have the right to withhold and setoff against the
Balance any amount to which a Denim Indemnified Party is entitled to indemnification pursuant
to Article VIII of the Merger Agreement, subject to the limitations and other provisions set forth
therein.
4. Events of Default.
The following  events  shall be considered Events of Default (each an  “Event  of
Default”) with respect to this Note:
(a) The  Company  shall  default in  the  payment  of  any  part  of  the
principal or unpaid accrued interest on the Note or the Pledge Agreement for more than five (5)
Business  Days  after the  same shall become due  and payable, whether at maturity or at  a date
fixed for prepayment or by acceleration or otherwise;
(b) The  Company  shall  make  an  assignment  for  the  benefit  of
creditors, or shall admit in writing its inability to pay its debts as they become due, or shall file a
voluntary  petition  for  bankruptcy,  or  shall  file  any  petition  or answer  seeking  for  itself  any
reorganization, arrangement, composition, readjustment, dissolution or similar relief under any
present  or  future  statute,  law  or  regulation,  or  shall  file  any  answer  admitting  the  material
allegations  of  a  petition  filed  against  the  Company  in  any such proceeding,  or  shall  seek  or
consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Company,
or  of  all  or  any  substantial  part  of  the  properties  of  the  Company,  or  the  Company  or  its
respective directors  or  majority  stockholders  shall  take  any  action  effecting  the  dissolution  or
liquidation of the Company;
(c) Upon the commencement of any proceeding against the Company
seeking  any  bankruptcy, reorganization,  arrangement,  composition,  readjustment,  liquidation,
dissolution  or similar relief under any present  or future statute, law or regulation,  or after the
appointment  without  the  consent  or  acquiescence  of  the  Company  of  any  trustee,  receiver or
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liquidator of the Company or of all or any substantial part of the properties of the Company, and
such appointment shall not have been vacated; or
(d) The  Company  shall  fail  to  observe  or  perform in  any  material
respect  any  covenant,  obligation,  condition  or  agreement  contained in  the  Merger  Agreement,
this Note or the Pledge Agreement and (i) such failure shall continue for fifteen (15) Business
Days after notice thereof, or (ii) if such failure is not curable within such fifteen (15) Business
Day period, but is reasonably capable of cure within thirty (30) Business Days and an additional
period for cure would not be materially prejudicial or adverse to Holders, either (A) such failure
shall continue for thirty (30) Business Days or (B) the Company shall not have commenced a
cure in a manner reasonably satisfactory to Holders within the thirty (30) Business Day period.
5. Remedies.  Subject  to the provisions of the Merger Agreement, upon
the  occurrence  of  an  Event  of  Default  at  the  option  and  upon  the declaration  of  Holders (or
automatically upon the occurrence of an Event of Default described in clause (b) or (c) above),
the Balance shall, without presentment, demand, protest, or notice of any kind, all of which are
hereby expressly waived, be forthwith due and payable, and any Holder may, immediately and
without expiration of any period of grace, enforce payment of all amounts due and owing under
this Note and exercise any and all other remedies granted to it at law, in equity or otherwise,
including  the  exercise  of  rights  and  remedies  of  a  secured  creditor  under  the  UCC.   If  any
obligations or other amounts payable under this Note are not paid as and when due, Company
hereby authorizes each Holder to proceed, without prior notice, by right of set-off, banker’s lien
or  counterclaim,  against  any  moneys  or  other  assets  of  Company  to  the  full  extent  of  all
obligations owed to Holders.  Company hereby appoints each Holder and its representatives as
Company’s true and lawful attorney-in-fact with full power and authority in the place and stead
of Company and in the name of Company, for the purpose of carrying out the terms of this Note,
to  take  the  appropriate  actions  and  to  execute  and  deliver  (and  perform  under  on  Company’s
behalf)  any  agreement,  document  or instrument  that  may  be  necessary  to  accomplish  the
purposes  set  forth  in  this  Note,  in  each  case  upon  and  after  the  occurrence  and  during  the
continuance of an Event of Default.
6. General Provisions.
 6.1 Successors and Assigns.  Except as otherwise provided herein, the terms and
conditions of this Note shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties; provided, however that the Company may not assign its obligations
under this Note without the written consent of Holders of a majority-in-interest of the aggregate
principal amount of the Note then outstanding (the “Requisite Note Holders”).  Nothing in this
Note, express or implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or liabilities under or by
reason of this Note, except as expressly provided in this Note.
6.2 Governing Law.  This Note shall be governed by and construed under the laws
of the State of Delaware as applied to agreements among Delaware residents, made and to be
performed entirely within the State of Delaware.
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6.3 Notices.   Any  notice  required  or  permitted  to  be  given  hereunder  shall  be
given in accordance with Section 9.02 of the Merger Agreement.
6.4 Severability.    If  one  or  more  provisions  of  this  Note  are  held  to  be
unenforceable  under  applicable  law,  such  provision  shall  be  excluded  from  this  Note  and  the
balance  of the Note  shall  be  interpreted  as  if  such  provision  were  so  excluded  and  shall  be
enforceable in accordance with its terms.
6.5 Amendments and Waivers.  Any term of the Note may be amended and the
observance of any term may be waived (either generally or in  a particular instance and either
retroactively  or  prospectively),  with  the  written  consent  of  the  Company  and Requisite  Note
Holders.
6.6 Officers and Directors not Liable.  In no event shall any officer or director of
the Company be liable for any amounts due and payable pursuant to this Note.
6.7 Cost of  Collection.   The  Company  promises  to  pay  reasonable  and
documented attorneys’ fees and court and other costs if this Note is placed in the hands of an
attorney to collect or enforce this Note.  In addition, if action is instituted to collect this Note, the
Company  promises  to  pay  all  costs  and  expenses,  including,  without  limitation,  reasonable
attorneys’ fees and costs, incurred in connection with such action.
7. Security.  All  obligations  owing  under  this  Note  from  time  to  time,
including,  without  limitation,  principal  amounts,  interest,  premium  (if  any),  fees,  and  other
amounts, shall be secured pursuant to the terms of the Pledge Agreement, dated as of the date
hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Pledge
Agreement”),  among  the  Company,  as  pledgor,  and  the  Holders,  as  the  secured  parties.    The
parties hereto acknowledge and agree that the execution and delivery of the Pledge Agreement as
of the date hereof is a condition precedent to the delivery of this Note and intended to induce the
Holders to grant credit to the Company in connection herewith.
8. Debt  Covenant.    The  Company  will  not  permit  Bailey  or  any  of  its
subsidiaries to create, incur or permit any Debt, except (i) the CIT Debt in an aggregate amount
not to exceed $2,000,000 at any time outstanding and (ii) Debt incurred in the ordinary course of
business consistent with past practice in an aggregate amount not to exceed $25,000 in aggregate
at any time outstanding.
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DENIM.LA, INC.

By:
Name:
 Title:



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Hil Davis
CEO





	
	325822880.1
Schedule I

Holder Principal Amount
Norwest Venture Partners XI, LP $2,250,000
Norwest Venture Partners XII, LP $2,250,000
Total $4,500,000

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