Exhibit 10.1


 


FOURTH AMENDMENT TO BUSINESS
LOAN AGREEMENT


 


This Fourth Amendment to Business
Loan Agreement (the “Amendment”) is made as of March 31, 2009, by and
between Bank of America, N.A. (“Bank”) on the one hand, and bebe stores, inc. (“Borrower
1”), bebe management, inc. (“Borrower 2”), and bebe studio, inc. (“Borrower 3”)
(Borrower 1, Borrower 2, and Borrower 3 are sometimes referred to collectively
as the “Borrowers” and individually as the “Borrower”) on the other hand.


 


RECITALS


 


A. 
The Borrowers and the Bank entered into that certain Business Loan
Agreement dated as of March 28, 2003, as amended by that certain First
Amendment to Business Loan Agreement dated as of November 24, 2003, by
that certain Second Amendment to Business Loan Agreement dated as of September 15,
2004, and by that certain Third Amendment to Business Loan Agreement dated as
of November 1, 2005 (the “Agreement”).


 


B. 
The Bank and the Borrowers desire to further amend the Agreement as
herein provided.


 


AGREEMENT


 


1. 
Definitions.  Capitalized
terms used but not defined in this Amendment shall have the meaning given to
them in the Agreement.


 


2. 
Amendments.


 


a.                                       Section 1.2 of the Agreement is amended in its
entirety to read as follows:


 


“1.2  Availability Period.  The line of credit is available between March 31,
2009, and March 30, 2010, or such earlier date as the availability may
terminate as provided in this Agreement (the “Expiration Date”).”


 


b.                                      Section 9.4 of the Agreement is amended in its
entirety to read as follows:


 


“9.4                           Dispute Resolution Provision.


 


This paragraph, including the
subparagraphs below, is referred to as the “Dispute Resolution Provision.”  This Dispute Resolution Provision is a
material inducement for the parties entering into this Agreement.


 


(a)                                This Dispute Resolution Provision concerns the
resolution of any controversies or claims between the parties, whether arising
in contract, tort or by statute, including but not limited to controversies or
claims that arise out of or relate to: (i) this agreement (including any
renewals, extensions or modifications); or (ii) any document related to
this agreement (collectively a “Claim”). 
For the purposes of this Dispute Resolution Provision only, the term “parties”
shall include any parent corporation, subsidiary or affiliate of the Bank
involved in the servicing, management or administration of any obligation
described or evidenced by this agreement.


 


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(b)                               At the request of any party to this agreement, any
Claim shall be resolved by binding arbitration in accordance with the Federal
Arbitration Act (Title 9, U.S. Code) (the “Act”).  The Act will apply even though this agreement
provides that it is governed by the law of a specified state.


 


(c)                                Arbitration proceedings will be determined in
accordance with the Act, the then-current rules and procedures for the
arbitration of financial services disputes of the American Arbitration
Association or any successor thereof (“AAA”), and the terms of this Dispute
Resolution Provision.  In the event of
any inconsistency, the terms of this Dispute Resolution Provision shall
control.  If AAA is unwilling or unable
to (i) serve as the provider of arbitration or (ii) enforce any
provision of this arbitration clause, the Bank may designate another
arbitration organization with similar procedures to serve as the provider of
arbitration.


 


(d)                               The arbitration shall be administered by AAA and
conducted, unless otherwise required by law, in any U.S. state where real or
tangible personal property collateral for this credit is located or if there is
no such collateral, in the state specified in the governing law section of this
agreement.  All Claims shall be
determined by one arbitrator; however, if Claims exceed Five Million Dollars
($5,000,000), upon the request of any party, the Claims shall be decided by
three arbitrators.  All arbitration
hearings shall commence within ninety (90) days of the demand for arbitration
and close within ninety (90) days of commencement and the award of the arbitrator(s) shall
be issued within thirty (30) days of the close of the hearing.  However, the arbitrator(s), upon a showing of
good cause, may extend the commencement of the hearing for up to an additional
sixty (60) days.  The arbitrator(s) shall
provide a concise written statement of reasons for the award.  The arbitration award may be submitted to any
court having jurisdiction to be confirmed and have judgment entered and
enforced.


 


(e)                                The arbitrator(s) will give effect to statutes
of limitation in determining any Claim and may dismiss the arbitration on the
basis that the Claim is barred. For purposes of the application of any statutes
of limitation, the service on AAA under applicable AAA rules of a notice
of Claim is the equivalent of the filing of a lawsuit.  Any dispute concerning this arbitration
provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s), except as set forth at subparagraph (j) of this Dispute
Resolution Provision.  The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of this agreement.


 


(f)                                  The procedure described above will not apply if the
Claim, at the time of the proposed submission to arbitration, arises from or
relates to an obligation to the Bank secured by real property.  In this case, all of the parties to this
agreement must consent to submission of the Claim to arbitration.


 


(g)                               To the extent any Claims are not arbitrated, to the
extent permitted by law the Claims shall be resolved in court by a judge
without a jury, except any Claims which are brought in California state court
shall be determined by judicial reference as described below.


 


(h)                               Any Claim which is not arbitrated and which is
brought in California state


 


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court will be resolved by a general
reference to a referee (or a panel of referees) as provided in California Code
of Civil Procedure Section 638.  The
referee (or presiding referee of the panel) shall be a retired Judge or
Justice.  The referee (or panel of
referees) shall be selected by mutual written agreement of the parties.  If the parties do not agree, the referee
shall be selected by the Presiding Judge of the Court (or his or her
representative) as provided in California Code of Civil Procedure Section 638
and the following related sections.  The
referee shall determine all issues in accordance with existing California law
and the California rules of evidence and civil procedure. The referee
shall be empowered to enter equitable as well as legal relief, provide all
temporary or provisional remedies, enter equitable orders that will be binding
on the parties and rule on any motion which would be authorized in a
trial, including without limitation motions for summary judgment or summary
adjudication . The award that results from the decision of the referee(s) will
be entered as a judgment in the court that appointed the referee, in accordance
with the provisions of California Code of Civil Procedure Sections 644(a) and
645.  The parties reserve the right to
seek appellate review of any judgment or order, including but not limited to,
orders pertaining to class certification, to the same extent permitted in a
court of law.


 


(i)                                   This Dispute Resolution Provision does not limit the
right of any party to: (i) exercise self-help remedies, such as but not
limited to, setoff; (ii) initiate judicial or non-judicial foreclosure
against any real or personal property collateral; (iii) exercise any
judicial or power of sale rights, or (iv) act in a court of law to obtain
an interim remedy, such as but not limited to, injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary
remedies.  The filing of a court action
is not intended to constitute a waiver of the right of any party, including the
suing party, thereafter to require submittal of the Claim to arbitration or
judicial reference.


 


(j)                                   Any arbitration, judicial reference or trial by a
judge of any Claim will take place on an individual basis without resort to any
form of class or representative action (the “Class Action Waiver”).  Regardless of anything else in this Dispute
Resolution Provision, the validity and effect of the Class Action Waiver
may be determined only by a court or referee and not by an arbitrator.  The parties to this Agreement acknowledge
that the Class Action Waiver is material and essential to the arbitration
of any disputes between the parties and is nonseverable from the agreement to
arbitrate Claims. If the Class Action Waiver is limited, voided or found
unenforceable, then the parties’ agreement to arbitrate shall be null and void
with respect to such proceeding, subject to the right to appeal the limitation
or invalidation of the Class Action Waiver.  The Parties
acknowledge and agree that under no circumstances will a class action be
arbitrated.


 


(k)                                By agreeing to binding arbitration or judicial
reference, the parties irrevocably and voluntarily waive any right they may
have to a trial by jury as permitted by law in respect of any Claim.  Furthermore, without intending in any way to
limit this Dispute Resolution Provision, to the extent any Claim is not
arbitrated or submitted to judicial reference, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury to the extent permitted
by law in respect of such Claim.  This
waiver of jury trial shall


 


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remain in effect even if the Class Action
Waiver is limited, voided or found unenforceable.  WHETHER THE CLAIM IS DECIDED BY ARBITRATION, BY JUDICIAL REFERENCE, OR
BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS
AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT
PERMITTED BY LAW.”


 


3. 
Representations and Warranties. 
Each Borrower hereby represents and warrants to the Bank that:  (i) no default specified in the
Agreement and no event which with notice or lapse of time or both would become
such a default has occurred and is continuing and has not been previously
waived, (ii) the representations and warranties of each Borrower pursuant
to the Agreement are true on and as of the date hereof as if made on and as of
said date, (iii) the making and performance by each Borrower of this
Amendment have been duly authorized by all necessary action, and (iv) no
consent, approval, authorization, permit or license is required in connection
with the making or performance of the Agreement as amended hereby.


 


4.                                       Conditions.  This Amendment will be effective when the
Bank receives the following items, in form and content acceptable to the Bank:


 


a.                                     This
Amendment duly executed by all parties hereto.


 


b.                                    Payment
of all out-of-pocket expenses, including attorneys’ fees, incurred by the Bank
in connection with the preparation of this Amendment not to exceed
$1,000.00.  The Bank has elected not to
charge the Borrowers an amendment fee for this Amendment.


 


5.                                       Effect
of Amendment.  Except as provided in this Amendment, the
Agreement shall remain in full force and effect and shall be performed by the
parties hereto according to its terms and provisions.


 


IN WITNESS WHEREOF, this Amendment has been
executed by the parties hereto as of the date first above written.


 


	
  Bank
  of America N.A.

  	
   

  	
  bebe
  stores, inc.

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
  /s/
  Kenneth Jones

  	
   

  	
  By

  	
   

  	
  /s/
  Walter Parks

  
	
  Name

  	
  Kenneth
  Jones

  	
   

  	
  Name

  	
  Walter
  Parks

  
	
  Title

  	
   

  	
  Senior
  Vice President

  	
   

  	
  Title

  	
   

  	
  Chief
  Operating Officer and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  bebe
  management, inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
  /s/
  Walter Parks

  
	
   

  	
   

  	
  Name

  	
  Walter
  Parks

  
	
   

  	
   

  	
  Title

  	
   

  	
  Chief
  Operating Officer and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  bebe
  studio, inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  	
  /s/
  Walter Parks

  
	
   

  	
   

  	
  Name

  	
  Walter
  Parks

  
	
   

  	
   

  	
  Title

  	
   

  	
  Chief
  Operating Officer and Chief Financial Officer

  
											



 


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