THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT
TO
AMENDED
AND RESTATED
REVOLVING CREDIT AGREEMENT
This
THIRD AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT, dated as of December 19, 2007 (the “Third
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.
WITNESSETH:
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 and by the Second Amendment to Amended and Restated
Revolving Credit Agreement dated as of November 29, 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;
WHEREAS,
the Borrowers have requested
that the Lenders amend and supplement the Credit Agreement to reflect certain
modifications to the Credit Agreement; and
WHEREAS,
the Lenders have agreed to
amend and supplement the Credit Agreement to reflect certain modifications
to
the Credit Agreement;
NOW,
THEREFORE, in consideration of the
premises and the mutual agreements herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Section
1. Definitions. Capitalized
terms used and not otherwise defined in this Third 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, the
Credit Agreement is hereby amended as follows:
2.1 The
definition of “Maturity Date” in Section 1.1 of the
Credit Agreement is hereby amended by deleting the date “February 9, 2008” and
substituting therefor the date “June 2, 2008.”
2.2 The
definition of “Amendment Order” set forth in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“Amendment
Order”
shall
mean, collectively, (i) an order of the Bankruptcy Court in
substantially the form of Exhibit A-1 approving
the Eighth Amendment to Revolving Credit Agreement, (ii) an order of the
Bankruptcy Court in substantially the form of Exhibit A-2 approving
the Ninth Amendment to Revolving Credit Agreement dated as of February 16,
2007,
and (iii) an order of the Bankruptcy Court in substantially the form of Exhibit A-3 approving
the Third Amendment to Amended and Restated Revolving Credit Agreement dated
as
of December 19, 2007, or in each case such other forms as otherwise agreed
by
the Administrative Agent and the Borrowers.
2.3 The
definition of “Real Property Component” set forth in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“Real
Property
Component”
shall
mean a component of the Borrowing Base determined with reference to
the Eligible Real Property and shall mean, at the time of any determination,
an
amount equal to the lesser of (i) $80,000,000 (as adjusted from time to time
pursuant to Section
5.8) or (ii) 40% of the Borrowing Base inclusive of the Real Property
Component but excluding the Plan Reserve.
2.4 Section
6.4 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Section
6.4 Capital
Expenditures. Each of the Borrowers will not (and will not
apply to the Bankruptcy Court for authority to), and will cause each of their
respective Subsidiaries not to, make Capital Expenditures during the fiscal
quarters of the Borrowers set forth below, in an aggregate amount in excess
of
the amount specified opposite such fiscal quarters; provided that if the
amount
of Capital Expenditures that are made during any such fiscal quarter is less
than the amount thereof that is permitted to be made during such fiscal quarter,
the unused portion thereof may be carried forward to and made during the
subsequent fiscal quarters:
|
Fiscal
Quarter
Ending
|
Maximum
Capital
Expenditures
(millions)
|
|
August
26, 2006
|
$16.00
|
|
November
18, 2006
|
$15.50
|
|
March
10, 2007
|
$11.50
|
|
June
2, 2007
|
$ 8.50
|
|
August
25, 2007
|
$13.50
|
|
November
17, 2007
|
$16.00
|
|
March
8, 2008
|
$20.00
|
|
May
31, 2008
|
$16.50
|
2.5 Section
6.5 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Section
6.5 EBITDA. As
of the end of each fiscal period of the Borrowers, commencing with the fiscal
monthly period ending December 16, 2006, the Borrowers will not permit
cumulative Consolidated EBITDA for the period commencing on June 4, 2006
(being
the first day of the 2007 fiscal year of the Borrowers) and ending in each
case
on the last day of the fiscal period listed below to be less than the respective
amounts specified opposite such fiscal period:
|
Fiscal
Period
Ending
|
Cumulative
Consolidated EBITDA
(millions)
|
|
December
16, 2006
|
6.5
|
|
January
13, 2007
|
-7.0
|
|
February
10, 2007
|
-10.0
|
|
March
10, 2007
|
-14.0
|
|
April
7, 2007
|
-12.0
|
|
May
5, 2007
|
-7.0
|
|
June
2, 2007
|
1.5
|
|
June
30, 2007
|
13.5
|
|
July
28, 2007
|
18.0
|
|
August
25, 2007
|
29.0
|
|
September
22, 2007
|
37.5
|
|
October
20, 2007
|
43.0
|
|
November
17, 2007
|
45.0
|
|
December
15, 2007
|
43.0
|
|
January
12, 2008
|
34.0
|
|
February
9, 2008
|
38.0
|
|
March
8, 2008
|
45.0
|
|
April
5, 2008
|
50.0
|
|
May
3, 2008
|
50.0
|
|
May
31, 2008
|
50.0
|
2.6 Section
6.17 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Section
6.17 Cash
Restructuring Charges. Each of the Borrowers will not (and
will not apply to the Bankruptcy Court for authority to), and will cause
each of
their respective Subsidiaries not to, incur cash restructuring charges for
the
fiscal period beginning December 17, 2006 and ending May 31, 2008 in an amount
in excess of $23,000,000 (calculated as the amount expensed or accrued by
the
Borrowers or any of their Subsidiaries during such period on account of
restructuring charges that will ultimately be settled via payment in cash
or
cash equivalents by the Borrowers or any of their
Subsidiaries). Borrowers shall provide documentation supporting such
cash restructuring charges in form and substance reasonably satisfactory
to the
Administrative Agent concurrent with delivery of financial statements evidencing
the incurrence thereof.
2.7 The
form of the Third Amendment Order attached hereto as Exhibit A is hereby
inserted as Exhibit A-3 of the Credit Agreement.
Section
3. Effectiveness. The
amendments contemplated by this Third Amendment shall be effective on the
first
Business Day on which the following conditions precedent are fully
satisfied:
3.1 Supporting
Documents. The Administrative Agent shall have received for
each of the Borrowers:
3.1.1 bring-down
certificates delivered by each Borrower (A) certifying that there were no
changes, or providing the text of changes, to the Organizational Documents
of
such Borrower as delivered pursuant to Section 4.1(a) of the
Credit Agreement and (B) to the effect that each Borrower is in good standing
in
its jurisdiction of incorporation, organization or formation and in each
jurisdiction in which it is qualified as a foreign corporation or other entity
to do business;
3.1.2 signature
and incumbency certificates of the officers of such Borrower executing the
Loan
Documents to which it is a party, dated as of the date of this Third
Amendment;
3.1.3 duly
adopted resolutions of the board of directors or similar governing body of
each
Borrower approving and authorizing the execution, delivery and performance
of
this Third Amendment, certified as of the date of this Third Amendment by
its
secretary or assistant secretary as being in full force and effect without
modification or amendment; and
3.1.4 such
other documents as the Administrative Agent may reasonably request.
3.2 Amendment
Order. Not later than December 29, 2007, the Administrative
Agent and the Lenders shall have received a certified copy of the amendment
order (the “Third
Amendment
Order”) in substantially the form of Exhibit
A attached
hereto or such other form as otherwise agreed by the Administrative Agent
and
the Debtors and which Amendment Order (i) shall be in full force and effect,
(ii) shall not have been stayed, reversed, modified or amended in any respect,
except as approved by the Administrative Agent in its sole discretion, (iii)
shall approve or otherwise reaffirm the payment by the Borrowers of all of
the
Fees set forth in Sections 2.19, 2.20
and 2.21 of the
Credit
Agreement and in Section 3.5 hereof, (iv) shall be
entered with the consent or non-objection of a preponderance (as determined
by
the Administrative Agent in its sole discretion) of the secured creditors
of any
of the Borrowers under the Pre-Petition Credit Agreement, and (v) if the
Third
Amendment Order is the subject of a pending appeal in any respect, neither
the
making of such Loan nor the issuance of such Letter of Credit nor the
performance by any of the Borrowers of any of their obligations under the
Credit
Agreement as amended by this Third Amendment or under the Loan Documents
or
under any other instrument or agreement referred to therein shall be the
subject
of a presently effective stay pending appeal.
3.3 Loan
Documents. Each Borrower, the Administrative Agent and (a)
each Lender or (b) the Super-majority Lenders shall have signed a counterpart
of
this Third Amendment (whether the same or different counterparts) and shall
have
delivered the same to the Administrative Agent, provided that if
all
of the Lenders have not signed a counterpart of the Third Amendment then
each of
the Borrowers and Super-majority Lenders by its execution of this Third
Amendment shall be deemed to have consented to the actions contemplated by
Section 9.10(b) of the Credit Agreement.
3.4 Opinion
of
Counsel. The Administrative Agent and the Lenders shall have
received the favorable written opinion of counsel to the Borrowers, acceptable
to the Administrative Agent, substantially in the form of Exhibit
B.
3.5 Payment
of Fees and
Expenses. The Borrowers shall have paid to the Administrative
Agent (a) an amendment fee for the respective accounts of the Lenders voting
in
favor of this Third Amendment in the amount of 25 basis points of such Lenders’
Commitments and (b) the then unpaid balance of all accrued and unpaid Fees
due
under and pursuant to: (i) the fee letter dated as of November 15, 2007 among
the Borrowers, JPMCB and X.X. Xxxxxx Securities, Inc. and (ii) the Loan
Documents.
3.6 Closing
Documents. The Administrative Agent shall have received all
documents required by this Third Amendment satisfactory in form and substance
to
the Administrative Agent in its exclusive discretion.
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
Third Amendment.
Section
5. Choice
of
Law.
THIS
THIRD 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 Third 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
Third 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 Third
Amendment.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
duly
executed as of the day and the year first written.
|
BORROWERS:
|
||
|
INTERSTATE
BAKERIES
CORPORATION
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Senior Vice President, Chief Financial Officer and Treasurer | |
|
ARMOUR
AND MAIN REDEVELOPMENT
CORPORATION
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Treasurer | |
|
XXXXX’X
INN QUALITY BAKED
GOODS, LLC
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Treasurer | |
|
IBC
SALES
CORPORATION
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Senior Vice President, Chief Financial Officer and Treasurer | |
|
IBC
SERVICES,
LLC
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Treasurer | |
|
IBC
TRUCKING,
LLC
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Treasurer | |
|
INTERSTATE
BRANDS
CORPORATION
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Senior Vice President, Chief Financial Officer and Treasurer | |
|
NEW
ENGLAND BAKERY
DISTRIBUTORS, L.L.C.
|
||
|
By:
|
/s/ J. Xxxxxxx Xxxxx | |
|
Name:
|
J. Xxxxxxx Xxxxx | |
|
Title:
|
Treasurer | |
|
LENDERS:
|
||
|
JPMORGAN
CHASE BANK,
N.A.
Individually
and as Administrative Agent and Collateral Agent
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Name:
|
Xxxxx Xxxxxx | |
|
Title:
|
Managing Director | |
|
HIGHLAND
FLOATING RATE
ADVANTAGE FUND
|
||
|
By:
|
/s/ M. Xxxxx Xxxxxxxxx | |
|
Name:
|
M. Xxxxx Xxxxxxxxx | |
|
Title:
|
Treasurer | |
|
HIGHLAND
FLOATING RATE LIMITED
LIABILITY COMPANY
|
||
|
By:
|
/s/ M. Xxxxx Xxxxxxxxx | |
|
Name:
|
M. Xxxxx Xxxxxxxxx | |
|
Title:
|
Treasurer | |
|
GENERAL
ELECTRIC CAPITAL
CORPORATION
|
||
|
By:
|
/s/ Xxxxxx X. Xxxx | |
|
Name:
|
Xxxxxx X. Xxxx | |
|
Title:
|
Duly Authorized Signatory | |
|
THE
FOOTHILL GROUP,
INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
|
Name:
|
Xxxxxx X. Xxxxxx | |
|
Title:
|
Senior Vice President | |
|
DK
ACQUISITION PARTNERS,
L.P.
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
|
Name:
|
Xxxxxxx Xxxxxxxx | |
|
Title:
|
General Partner | |
|
NATIONWIDE
LIFE INSURANCE
COMPANY
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxx X. Xxxxx | |
|
Title:
|
Authorized Signatory | |
|
BLACKPORT
CAPITAL FUND
LTD.
|
||
|
By:
|
/s/ [illegible] | |
|
Name:
|
[illegible] | |
|
Title:
|
[illegible] | |
|
PROSPECT
HARBOR CREDIT
PARTNERS, LP
|
||
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxx X. Xxxxxxxxx | |
|
Title:
|
Chief Compliance Officer | |
| Assistant Secretary | ||
|
SANKATY
HIGH YIELD PARTNERS II,
L.P.
|
||
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
|
Name:
|
Xxxx X. Xxxxxxxxx | |
|
Title:
|
Chief Compliance Officer | |
| Assistant Secretary | ||
|
SPCP
GROUP,
L.L.C.
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxxx X. Xxxxx | |
|
Title:
|
Authorized Signatory | |
