EXECUTION COPY
SIXTH AMENDMENT AND WAIVER TO
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REVOLVING CREDIT AGREEMENT
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This SIXTH AMENDMENT AND WAIVER TO REVOLVING CREDIT AGREEMENT dated as
of March 29, 2006 (the "Sixth 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 (formerly known as
JPMorgan Chase Bank) ("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 (formerly known as
JPMorgan Chase Bank), as administrative agent (the "Administrative Agent") for
the Lenders, and JPMORGAN CHASE BANK, N.A., a national banking association
(formerly known as JPMorgan Chase Bank), as collateral agent (the "Collateral
Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders, the Administrative Agent and the
Collateral Agent are parties to that certain Revolving Credit Agreement dated as
of September 23, 2004, as amended by that certain First Amendment to Revolving
Credit Agreement dated as of November 1, 2004, by that certain Second Amendment
to Revolving Credit Agreement dated as of January 20, 2005, by that certain
Third Amendment and Waiver to Revolving Credit Agreement dated as of May 26,
2005 (the "Third Amendment"), by that certain Fourth Amendment and Waiver to
Revolving Credit Agreement dated as of November 30, 2005 (the "Fourth
Amendment") and by that certain Fifth Amendment to Revolving Credit Agreement
dated as of December 27, 2005, 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 (as so amended, the
"Credit Agreement"); and
WHEREAS, the Borrowers have requested that the Lenders waive compliance
with certain of the provisions of the Credit Agreement and amend and supplement
the Credit Agreement to reflect certain modifications to the Credit Agreement;
WHEREAS, the Required Lenders have agreed to waive compliance with
certain of the provisions of the Credit Agreement and 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 Sixth Amendment are used as defined in the Credit Agreement.
Section 2. Amendments to Credit Agreement. Subject to the conditions
set forth in Section 4 hereof, the Credit Agreement is hereby amended as
follows:
2.1 The definition of "Budget" is hereby amended by deleting the text
"Section 5.1(f)" and substituting therefor "Section 5.1(g)".
2.2 Section 2.3(b) of the Credit Agreement is hereby amended by adding
a new sentence at the end thereof which shall read as follows:
Notwithstanding the limitations set forth in the preceding sentence and
subject to the conditions set forth in Section 2.3(a), the Borrowers
may request that a Fronting Bank issue or extend the expiration date of
a Letter of Credit to a date not more than three hundred sixty-five
(365) days after the Maturity Date, provided that concurrent with the
issuance of such Letter of Credit or extension thereof (or within two
(2) Business Days of the Borrowers having received notice from the
Fronting Bank of the automatic extension of the expiration date of a
previously issued Letter of Credit to a date not more than three
hundred sixty-five (365) days after the Maturity Date), the Borrowers
shall deposit cash in the Letter of Credit Account in an amount which,
without regard to any amounts then held in the Letter of Credit
Account, is equal to the greater of (i) an amount, as determined by the
Fronting Bank and the Administrative Agent, equal to the face amount of
the subject Letter of Credit plus the sum of all projected contractual
obligations to the Administrative Agent, the Fronting Bank and the
Lenders of the Borrowers thereunder through the expiration date of such
Letter of Credit, and (ii) one hundred five percent (105%) of the then
undrawn stated amount of such Letter of Credit plus all amounts
theretofore disbursed under such Letter of Credit and not then
reimbursed as collateral security for the Borrowers' reimbursement
obligations in connection therewith, such cash to be promptly remitted
to the Borrowers upon the expiration, cancellation or other termination
or satisfaction of such reimbursement obligations.
2.3 The Credit Agreement is hereby further amended to: (i) extend the
date for delivery of the audited annual financial statements for the fiscal
years ending May 28, 2005 and June 3, 2006 under Section 5.1(a) of the
Credit Agreement and the related opinion of accountants and Financial
Officer certificate under Sections 5.1(a) and (c) of the Credit Agreement
until the date such audited financial statements are available; (ii) extend
the date for delivery of copies of the Parent Borrower's Form 10-Qs for the
first, second and third quarters of fiscal year 2006 until the date such
Form 10-Qs are available; and (iii) extend the date for delivery of the
update of the Budget under Section 5.1(i) of the Credit Agreement after the
end of the third quarter of fiscal year 2006, which would otherwise be due
on April 18, 2006, to June 30, 2006. Such update of the Budget shall include
income statements, balance sheets and cash flow statements detailing, on a
monthly and quarterly basis, the Borrowers' anticipated cash receipts and
disbursements for the fiscal year ending on June 2, 2007 and on a quarterly
basis for the subsequent fiscal year, and setting forth the anticipated uses
of bank financing during such periods, all in form and substance
satisfactory to the Administrative Agent and Xxxxxxxx Xxxxxx & Company, or
such other financial advisor as may be acceptable to the Administrative
Agent.
Section 3. Waivers Under the Credit Agreement. Subject to the
conditions set forth in Section 4 hereof, the Lenders hereby agree as follows:
3.1 In addition to the waivers provided by Lenders in Section 3.2 of
the Third Amendment and in Section 3.1 of the Fourth Amendment, the Lenders
hereby waive any default arising out of the Borrowers' bring down or
restatement of the representations and warranties in Section 3 of the Credit
Agreement pursuant to Section 4.2 of the Credit Agreement after the date
hereof to the extent but solely to the extent, that such default pertains to
the Parent Borrower's failure to timely file its Form 10-K for the fiscal
year ending June 3, 2006 with the United States Securities and Exchange
Commission (the "SEC").
3.2 The Lenders hereby (i) acknowledge that the consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of Interstate Bakeries Corporation for any fiscal period ending on or
prior to the Maturity Date (collectively, the "Financial Statements") and
the related Financial Officer's Certificates (the "Certificates"), will
state that the Financial Statements, in addition to such qualifications as
may otherwise be permitted by the Credit Agreement, are qualified by and
subject to (x) certain adjustments related to pension and other previously
disclosed events and circumstances that will be quantified (1) by the
finalization of the audit of the fiscal year ended May 29, 2004 ("FY 2004")
and contained in the Form 10-K for FY 2004 that will be delivered to the SEC
when available and (2) in the results for each intervening fiscal quarterly
or annual period ending on or prior to the Maturity Date and contained in
the respective Form 10-K or 10-Q, as the case may be, for such fiscal period
and that will be delivered to the SEC when available, (y) the omission of
certain earnings per share information and the required footnotes to the
financial statements, and (z) the omission of certain expense allocations
typically reflected in Borrowers' financial statements; (ii) to the extent
necessary to accommodate the qualifications in (i) above, waive the
requirement of Section 5.1(b) of the Credit Agreement that the Certificates
and the accompanying Financial Statements with respect to any such quarterly
period only be qualified by and subject to normal year-end audit
adjustments, and (iii) consent to the inclusion in the related Certificates
of the additional qualifications set forth in (i) above.
3.3 The foregoing waivers are effective only in the specific instances
referenced herein. The Borrowers hereby acknowledge their obligations under
Sections 5.1(a) and 5.1(b) of the Agreement and acknowledge that the
foregoing waivers shall not in any way waive compliance with the provisions
of Sections 5.1(a) or 5.1(b) of the Agreement in any other respect.
Section 4. Effectiveness. The effectiveness of this Sixth Amendment is
conditioned upon: (i) the Administrative Agent's receipt of executed
counterparts of this Sixth 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 (A) an amendment fee to the Administrative Agent for the respective
accounts of the Lenders voting in favor of this Sixth Amendment in the amount of
five (5) basis points of such Lenders' Commitments, and (B) any unpaid balance
of the fees and expenses due and payable by the Borrowers pursuant to the Loan
Documents. The amendments and waivers contemplated by this Sixth Amendment shall
be effective on the first Business Day on which the foregoing conditions are
fully satisfied.
Section 5. Representations and Warranties. Each Borrower represents and
warrants to the Lenders that:
5.1 After giving effect to the amendments and waivers 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
5.2 After giving effect to the amendments and waivers 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 Sixth Amendment.
Section 6. Choice of Law. THIS SIXTH 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 7. 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 Sixth 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 8. Counterparts; Electronic Signatures. This Sixth 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 9. 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 Sixth Amendment.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be
duly executed as of the day and the year first written.
BORROWERS:
INTERSTATE BAKERIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
ARMOUR AND MAIN REDEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
XXXXX'X INN QUALITY BAKED GOODS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
IBC SALES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
IBC SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
IBC TRUCKING, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
INTERSTATE BRANDS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
NEW ENGLAND BAKERY DISTRIBUTORS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: EVP & CFO
LENDERS:
JPMORGAN CHASE BANK, N.A.
Individually and as Administrative Agent
and Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxx X'Xxxx
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Name: Xxxx X'Xxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Authorized Signatory
THE FOOTHILL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX, X.X., successor by merger to
Xxxxxx Trust and Savings Bank
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
ING PRIME RATE TRUST
By: ING Investment Management Co.
as its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investment Management Co.
As its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By: ING Investments, LLC
As its Investment Manager
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
P B CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: AVP
COOPERATIVE CENTRALE RAIFFEISEN
BOERENLEEN BANK B.A., "RABOBANK
INTERNATIONAL," New York Branch
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Director
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Director