EXHIBIT 10.49
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[LOGO OF BANK OF AMERICA] AMENDMENT TO DOCUMENTS
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AMENDMENT NO. 4 TO BUSINESS LOAN AGREEMENT
This Amendment No. 4 (the "Amendment") dated as of January 21, 1998 is
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between BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the "Bank") and
ST. JOHN KNITS, INC. (the "Borrower").
RECITALS
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A. The Bank and the Borrower entered into a certain Business Loan
Agreement dated as of December 15, 1995, as previously amended (the
"Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
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1. DEFINITIONS. Capitalized terms used but not defined in this Amendment
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shall have the meaning given to them in the Agreement.
2. AMENDMENTS. The Agreement is hereby amended as follows:
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2.1 In Paragraph 1.2 of the Agreement, the date "MARCH 1, 2000" is
substituted for the date "MARCH 1, 1999."
2.2 Subparagraph 6.6(a) of the Agreement is amended to read in its
entirety as follows:
"(a) sufficiently complete to give the Bank accurate knowledge of
the Borrower's (and any guarantor's) financial condition,
including all material contingent liabilities."
2.3 A new Paragraph 6.14 is added to the Agreement, which reads in
its entirety as follows:
"6.14 YEAR 2000 COMPLIANCE. The Borrower has conducted a
comprehensive review and assessment of the Borrower's computer
applications and made inquiry of the Borrower's key suppliers,
vendors and customers with respect to the "year 2000 problem"
(that is, the risk that computer applications may not be able to
properly perform date-sensitive functions after December 31, 1999)
and, based on that review and inquiry, the Borrower does not
believe the year 2000 problem will result in a material adverse
change in the Borrower's business condition (financial or
otherwise), operations, properties or prospects, or ability to
repay credit."
2.4 Subparagraph 7.2(a) of the Agreement is amended to read in its
entirety as follows:
"(a) Within 120 days of the Borrower's fiscal year end, the
Borrower's annual financial statements. These financial
statements must be audited (with an opinion not qualified
due to possible failure to take all appropriate steps to
successfully address year 2000 system issues) by a Certified
Public Accountant ("CPA") acceptable to the Bank. The
statements shall be prepared on a consolidated basis."
2.5 Subparagraph 7.19(c) of the Agreement is amended to read in its
entirety as follows:
"(c) enter into any consolidation, merger, or other combination,
or become a partner in a partnership, a member of a joint
venture, or a member of a limited liability company."
2.6 Article 8 of the Agreement is amended to read in its entirety as
follows:
"8. HAZARDOUS WASTE INDEMNIFICATION. The Borrower will indemnify
and hold harmless the Bank from any loss or liability directly or
indirectly arising out of the use, generation, manufacture,
production, storage, release, threatened release, discharge,
disposal or presence of a hazardous substance. This indemnity will
apply whether the hazardous substance is on, under or about the
Borrower's property or
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operations or property leased to the Borrower. The indemnity
includes but is not limited to attorneys' fees (including the
reasonable estimate of the allocated cost of in-house counsel and
staff). The indemnity extends to the Bank, its parent,
subsidiaries and all of their directors, officers, employees,
agents, successors, attorneys and assigns. `Hazardous substances'
means any substance, material or waste that is or becomes
designated or regulated as `toxic,' `hazardous,' `pollutant,' or
`contaminant' or a similar designation or regulation under any
federal, state or local law (whether under common law, statute,
regulation or otherwise) or judicial or administrative
interpretation of such, including without limitation petroleum or
natural gas. This indemnity will survive repayment of the
Borrower's obligations to the Bank."
2.7 Paragraph 9.8 of the Agreement is amended to read in its entirety
as follows:
"9.8 MATERIAL ADVERSE CHANGE. A material adverse change occurs,
or is reasonably likely to occur, in the Borrower's (or any
guarantor's) business condition (financial or otherwise),
operations, properties or prospects, or ability to repay the
credit."
2.8 Paragraph 10.7 of the Agreement is amended to read in its entirety
as follows:
"10.7 ATTORNEYS' FEES. The Borrower shall reimburse the Bank for
any reasonable costs and attorneys' fees incurred by the Bank in
connection with the enforcement or preservation of any rights or
remedies under this Agreement and any other documents executed in
connection with this Agreement, and in connection with any
amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding,
the prevailing party is entitled to recover costs and reasonable
attorneys' fees incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator.
In the event that any case is commenced by or against the Borrower
under the Bankruptcy Code (Title 11, United States Code) or any
similar or successor statute, the Bank is entitled to recover
costs and reasonable attorneys' fees incurred by the Bank related
to the preservation, protection, or enforcement of any rights of
the Bank in such a case. As used in this paragraph, "attorneys'
fees" includes the allocated costs of the Bank's in-house
counsel."
3. CONDITIONS. This Amendment will be effective when the Bank receives
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the following items, in form and content acceptable to the Bank:
3.1 A Corporate Resolution to Obtain Credit executed by the Borrower
in the amount of Twenty Five Million Dollars ($25,000,000).
3.2 Evidence that the execution, delivery and performance by the
Borrower (and any guarantor) of this Agreement and any instrument
or agreement required under this Agreement have been duly
authorized.
4. EFFECT OF AMENDMENT. Except as provided in this Amendment, all of the
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terms and conditions of the Agreement shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of
this Amendment.
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ST. JOHN KNITS, INC.
/s/ ARTHUR P. CARTER /s/ ROGER G. RUPPERT
X_________________________________ X___________________________________
BY: ARTHUR P. CARTER BY: ROGER G. RUPPERT
TITLE: VICE PRESIDENT TITLE: SENIOR VICE PRESIDENT-FINANCE
AND CHIEF FINANCIAL OFFICER
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