[CONFORMED AS EXECUTED]
EXHIBIT 10.11
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of May 10, 2001, among
FLOWERS FOODS, INC., a Georgia corporation (the "Borrower"), the Lenders party
to the Credit Agreement referred to below (the "Lenders"), SUNTRUST BANK, as
syndication agent (the "Syndication Agent"), and BANKERS TRUST COMPANY, as
administrative agent (the "Administrative Agent" and, together with the
Syndication Agent, the "Agents" and each, an "Agent"). All capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Agents are parties to the
Credit Agreement, dated as of March 26, 2001 (as amended, modified, restated
and/or supplemented through, but not including, the date hereof, the "Credit
Agreement");
WHEREAS, the Borrower has requested, and the Agents and the Lenders
have agreed to, the amendments and waivers provided herein on the terms and
conditions set forth herein;
NOW, THEREFORE, it is agreed:
I. Amendments to the Credit Agreement
1. Section 11 of the Credit Agreement is hereby amended by inserting
in the definition of "Consolidated EBITDA" appearing therein the following new
clause (w) immediately preceding clause (x) thereto:
"(w) change of control and severance payments made in cash on the
Initial Borrowing Date by the Borrower and its Subsidiaries in connection with
the Transaction, solely to the extent such payments are deducted in the
calculation of Consolidated Net Income for such period,".
2. Section 11 of the Credit Agreement is hereby further amended by
amending the definition of "Applicable Margin" appearing therein by (x) deleting
(i) the reference to "2.00%" appearing in clause (ii)(x) thereof and inserting a
reference to "1.75%" in lieu thereof and (ii) the reference to "3.00%" appearing
in clause (ii)(y) thereof and inserting a reference to "2.75%" in lieu thereof
and (y) deleting (i) each reference to "3.00%" appearing in the column entitled
"B Term Loans maintained as Eurodollar Loans" appearing in the table set forth
therein and inserting references to "2.75%" in lieu thereof and (ii) each
reference to
"2.00%" appearing in the column entitled "B Term Loans maintained as Base Rate
Loans" appearing in the table set forth therein and inserting references to
"1.75%" in lieu thereof.
It is understood and agreed that the amendments contained in this
Section 2 shall be effective as of the First Amendment Effective Date and that
interest accruing in respect of B Term Loans prior to the First Amendment
Effective Date shall accrue in accordance with the terms of the Credit Agreement
prior to giving effect to this Amendment.
3. Section 9.07(a) of the Credit Agreement is hereby amended by
inserting the text ", but, in any event, shall not include Capital Expenditures
relating to the purchase of equipment under operating leases made on the Initial
Borrowing Date and constituting part of the Transaction" immediately preceding
the period at the end thereof.
4. Section 13.12(a) of the Credit Agreement is hereby amended by
deleting the reference to "Section 13.19(b)" appearing in clause (x) thereof and
inserting a reference to "Section 13.19(c)" in lieu thereof.
II. Waivers to the Credit Agreement
1. The Lenders hereby (i) agree to extend the time for completion of
the post-closing items specified on Schedule IX to the Credit Agreement to June
4, 2001 and (ii) waive any Default or Event of Default that has arisen pursuant
to Section 13.18 of the Credit Agreement solely as a result of the
non-completion of the actions described on Schedule IX to the Credit Agreement
prior to the date of this Amendment, it being understood that such waiver shall
be in effect only until June 4, 2001, at which time any failure to comply with
the requirements of said Section 13.18 shall become an immediate Event of
Default.
III. Miscellaneous
1. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
2. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
3. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
4. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when the Borrower and the Required Lenders shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered
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(including by way of facsimile transmission) the same to the Administrative
Agent at the Notice Office.
5. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) no Default or Event of Default
exists as of the First Amendment Effective Date, after giving effect to this
Amendment, and (ii) on the First Amendment Effective Date, after giving effect
to this Amendment, all representations and warranties contained in the Credit
Agreement and in the other Credit Documents are true and correct in all material
respects (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be true and correct in
all material respects only as of such specified date).
6. From and after the First Amendment Effective Date, all references
in the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
This Amendment shall constitute a Credit Document for all purposes under the
Credit Agreement and the other Credit Documents.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
FLOWERS FOODS, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Title: Treasurer
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
SUNTRUST BANK, Individually and as
Syndication Agent
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
