SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SECOND
AMENDMENT TO
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This
SECOND AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT, dated as of November 29, 2007 (the
“Second Amendment”), is entered into by and among
INTERSTATE BAKERIES CORPORATION, a Delaware corporation (“Parent
Borrower”), a debtor and debtor-in-possession in a case pending
under Chapter 11 of the Bankruptcy Code, each of the direct and indirect
subsidiaries of the Parent Borrower party to the Credit Agreement (as defined
below) (each individually a “Subsidiary Borrower” and
collectively the “Subsidiary Borrowers”; and together
with the Parent Borrower, the “Borrowers”), each of
which is a debtor and debtor-in-possession in a case pending under Chapter
11 of
the Bankruptcy Code, JPMORGAN CHASE BANK, N.A., a national banking association
(“JPMCB”), and each of the other commercial banks,
finance companies, insurance companies or other financial institutions or funds
from time to time party to the Credit Agreement (together with JPMCB, the
“Lenders”), JPMORGAN CHASE BANK, N.A., a national
banking association, as administrative agent (the “Administrative
Agent”) for the Lenders, and JPMORGAN CHASE BANK, N.A., a national
banking association, as collateral agent (the “Collateral
Agent”) for the Lenders.
WHEREAS,
the Borrowers, the Lenders and
the Administrative Agent are parties to that certain Amended and Restated
Revolving Credit Agreement, dated as of February 16, 2007, as amended by that
certain First Amendment to Amended and Restated Revolving Credit Agreement
dated
as of October 1, 2007 (as amended, the
“Credit Agreement”),
pursuant to which the Lenders have made available to the Borrowers a revolving
credit and letter of credit facility in an aggregate principal amount not to
exceed $200,000,000;
Section
1. Definitions.
Capitalized
terms used and not otherwise defined in this Second Amendment are used as
defined in the Credit Agreement.
Section
2. Amendments to Credit
Agreement. Subject to the conditions set forth in Section
3 hereof, Section 5.12 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section
5.12 Revised Plan. If
requested in a writing delivered by the Administrative Agent to the Borrowers
after January 29, 2008, the Borrowers
shall
deliver to the Administrative Agent and the Lenders within twenty-one days
of
receipt of such written request a revised plan which details the Borrowers’
proposed strategy for maximizing the value of their estates, including, without
limitation, through a sale of the Borrowers and/or their assets in their
entirety, or in a series of transactions, and cash flows resulting from such
transactions, which revised plan shall be in form and substance satisfactory
to
the Administrative Agent; provided, however, that the Borrowers
shall not be required to deliver such revised plan in the event that on or
before January 29, 2008, (i) the Borrowers have publicly announced an agreement
in principle with both the Bakery, Confectionery, Tobacco Workers and Grain
Millers International Union (“BCTGM”) and the International Brotherhood
of Teamsters (“IBT”), in each case regarding modifications to the
existing collective bargaining agreements with BCTGM and IBT, respectively,
which provide for union alignment to a more capable and more cost-effective
path-to-market, certain health and welfare concessions, and increased work
rule
flexibility, and (ii) Silver Point Finance, L.L.C. (or, if the Borrowers are
authorized by the Bankruptcy Court to enter into an alternative commitment
for
exit financing, then the approved provider of such alternate exit financing)
has
publicly announced its support of such agreements with BCTGM and
IBT.
Section
3. Effectiveness. The
effectiveness of this Second Amendment is conditioned upon: (i) the
Administrative Agent’s receipt of executed counterparts of this Second Amendment
which, when taken together, bear the signatures of the Borrowers and the
Required Lenders (or, in the case of any party as to which an executed
counterpart shall not have been received, the Administrative Agent shall have
received written confirmation from such party of execution of a counterpart
hereof by such party); and (ii) the Borrowers’ payment of any unpaid balance of
the fees and expenses due and payable by the Borrowers pursuant to the Loan
Documents. The amendments contemplated by this Second Amendment shall
be effective on the first Business Day on which the foregoing conditions are
fully satisfied.
Section
4. Representations and
Warranties. Each Borrower represents and warrants to the Lenders
that:
4.1 After
giving effect to the amendments contained herein and taking into account all
prior written waivers and amendments in respect of the Credit Agreement,
the representations and warranties of the Borrowers contained in
Section 3 of the Credit Agreement are true and correct in all material
respects on and as of the date hereof as if such representations and warranties
had been made on and as of the date hereof (except to the extent that any such
representations and warranties specifically relate to an earlier date);
and
4.2 After
giving effect to the amendments contained herein and taking into account all
prior written waivers and amendments in respect of the Credit Agreement, (i)
each Borrower is in compliance with all the terms and provisions set forth
in
the Credit Agreement, and (ii) no Event of Default has occurred and is
continuing or would result from the execution, delivery and performance of
this
Second Amendment.
2
Section
5. Choice of
Law.
THIS SECOND AMENDMENT SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND THE BANKRUPTCY
CODE.
Section
6. Full Force and
Effect. Except as specifically amended or waived hereby, all of
the terms and conditions of the Credit Agreement shall remain in full force
and
effect, and the same are hereby ratified and confirmed. No reference
to this Second Amendment need be made in any instrument or document at any
time
referring to the Credit Agreement, and a reference to the Credit Agreement
in
any such instrument or document shall be deemed a reference to the Credit
Agreement as amended hereby.
Section
7. Counterparts;
Electronic Signatures. This Second Amendment may be executed in
any number of counterparts, each of which shall constitute an original, but
all
of which taken together shall constitute one and the same
agreement. The Administrative Agent may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval
of
such procedures may be limited to particular notices or
communications.
Section
8. Headings. Section
headings used herein are for convenience only and are not to affect the
construction of or be taken into consideration in interpreting this Second
Amendment.
[REMAINDER
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3
BORROWERS:
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INTERSTATE
BAKERIES CORPORATION
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Senior
Vice President, Chief Financial Officer and Treasurer
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ARMOUR
AND MAIN REDEVELOPMENT CORPORATION
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Treasurer
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XXXXX’X
INN QUALITY BAKED GOODS, LLC
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Treasurer
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IBC
SALES CORPORATION
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
|
J.
Xxxxxxx Xxxxx
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Title:
|
Senior
Vice President, Chief Financial
Officer and Treasurer
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IBC
SERVICES, LLC
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Treasurer
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IBC
TRUCKING, LLC
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
|
J.
Xxxxxxx Xxxxx
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Title:
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Treasurer
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INTERSTATE
BRANDS CORPORATION
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Senior
Vice President, Chief Financial
Officer and Treasurer
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NEW
ENGLAND BAKERY DISTRIBUTORS, LLC.
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By:
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/s/
J. Xxxxxxx Xxxxx
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Name:
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J.
Xxxxxxx Xxxxx
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Title:
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Treasurer
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LENDERS:
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JPMORGAN
CHASE BANK, N.A.
Individually
and as Administrative
Agent
and Collateral Agent
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By:
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/s/
Xxxxx X. Xxxxxx
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Name:
|
Xxxxx
Xxxxxx
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Title:
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Managing
Director
|
HIGHLAND
FLOATING RATE LIMITED LIABILITY COMPANY
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By:
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/s/
M. Xxxxx Xxxxxxxxx
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Name:
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M.
Xxxxx Xxxxxxxxx
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Title:
|
Treasurer
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HIGHLAND
FLOATING RATE ADVANTAGE FUND
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By:
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/s/
M. Xxxxx Xxxxxxxxx
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Name:
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M.
Xxxxx Xxxxxxxxx
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Title:
|
Treasurer
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PROSPECT
HARBOR CREDIT PARTNERS, LP
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Name:
|
Xxxx
X. Xxxxxxxxx
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Title:
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Chief
Compliance Officer
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Assistant
Secretary
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SANKATY
HIGH YIELD PARTNERS II, L.P.
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By:
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/s/
Xxxx X. Xxxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxx
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Title:
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Chief
Compliance Officer
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Assistant
Secretary
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THE
FOOTHILL GROUP, INC.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Senior
Vice President
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GENERAL
ELECTRIC CAPITAL CORPORATION
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Duly
Authorized Signator
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SPCP
GROUP, L.L.C.
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name:
|
Xxxxxxx
Xxxxxxxx
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Title:
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Authorized
Signatory
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CAPITAL
SOURCE FINANCE LLC
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By:
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/s/
Xxxxxx Xxxxx
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Name:
|
Xxxxxx
Xxxxx
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Title:
|
Senior
Counsel
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