EXHIBIT 10.3
EXECUTION COPY
FOURTH AMENDMENT AND WAIVER
FOURTH AMENDMENT AND WAIVER, dated as of June 17, 2004 (this
"Amendment"), to the Amended and Restated Credit Agreement, dated as of April
25, 2002 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among INTERSTATE BAKERIES CORPORATION, a Delaware
corporation ("Holdings"), INTERSTATE BRANDS CORPORATION, a Delaware corporation
("Brands" or the "Borrower"), the several banks and other financial institutions
or entities from time to time parties thereto (the "Lenders"), THE BANK OF NOVA
SCOTIA, BNP PARIBAS, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK INTERNATIONAL", NEW YORK BRANCH, and SUNTRUST BANK, each as a
co-documentation agent, BANK OF AMERICA, N.A., as syndication agent, and
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make, and have made, certain loans and other extensions of credit to the
Borrower;
WHEREAS, the Borrower has requested, and, upon this Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended and/or waived as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendment to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by deleting clause (a)(iv) of the
definition of "Consolidated EBITDA" in its entirety and substituting in lieu
thereof the following:
(iv) other non-cash charges (excluding any non-cash charges
representing an accrual of or reserve for cash charges to be paid in the
future, but including (solely for the purpose of calculating Consolidated
EBITDA for any four fiscal quarter period ended on or before May 29, 2004)
charges incurred or deemed incurred during any fiscal quarter ended on or
before May 29, 2004, representing a reserve for future workers'
compensation claims in an aggregate amount not to exceed $40,000,000
(collectively, the "Workers' Compensation Charges")),
SECTION 3. Waiver. The Administrative Agent and the Required Lenders
hereby waive any Default or Event of Default that may have occurred as a result
of any restatement of financial statements of Holdings necessary to reflect the
appropriate timing of the Workers' Compensation Charges (any such restatement, a
"Workers' Compensation Charges Restatement"), including any Default or Event of
Default arising from (i) the failure of any financial statements delivered
pursuant to Section 6.1 for any fiscal period affected by the Workers'
Compensation Charges Restatement to satisfy the requirements of said Section,
(ii) any non-compliance with Section 7.1(a) or (b) for any fiscal quarter
affected by the Workers' Compensation Charges Restatement to the extent
resulting from the Workers' Compensation Charges or (iii) any representation or
warranty pursuant to Section 5.2 or otherwise not being true and correct as a
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result of such non-compliance with Section 7.1(a) or (b) or any such failure
with respect to such financial statements.
SECTION 4. Conditions to Effectiveness of Amendment. This Amendment
shall be effective on the date on which all of the following conditions
precedent have been satisfied or waived (the "Effective Date"):
(a) The Administrative Agent (or its counsel) shall have received a
counterpart of this Amendment, executed and delivered by a duly authorized
officer of each of (i) Holdings, (ii) the Borrower and (iii) each of the
Lenders constituting the Required Lenders;
(b) The Borrower shall have paid the reasonable fees and expenses of
counsel to the Administrative Agent for which invoices have been timely
presented prior to the Effective Date; and
(c) After giving effect to the Amendment, no Default or Event of
Default shall have occurred and be continuing.
SECTION 5. Representations and Warranties. Each of the
representations and warranties made by each of Holdings and the Borrower in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of the date hereof as if made as of the date hereof, except
for representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date; provided that each
reference to the Credit Agreement therein shall be deemed to be a reference to
the Credit Agreement after giving effect to this Amendment and the amendments
and waivers provided for herein.
SECTION 6. Effect on the Loan Documents. (a) Except as specifically
amended above, the Credit Agreement and all other Loan Documents shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents.
SECTION 7. Expenses. Holdings and the Borrower agree to pay or
reimburse the Administrative Agent for all of its out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transaction contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent.
SECTION 8. Affirmation of Guaranty and Credit Agreement. The
Guarantors hereby consent to this Amendment and hereby confirm, reaffirm and
restate that their obligations under or in respect of the Credit Agreement and
the documents related thereto to which they are a party are and shall remain in
full force and effect after giving effect to the foregoing Amendment.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 10. Execution in Counterparts. This Amendment may be
executed by one or more of the parties to this Amendment on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
INTERSTATE BAKERIES CORPORATION, as Guarantor
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Sr. Vice President and Treasurer
INTERSTATE BRANDS CORPORATION, as Borrower
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Sr. Vice President and Treasurer
XX XXXXXX XXXXX BANK, as Administrative Agent,
an Issuing Lender and a Lender
By: /s/ XX Xxxxxxxx
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Name: XX Xxxxxxxx
Title: Vice President
XXXXXX TRUST & SAVINGS BANK, as an Issuing Lender
and a Lender
By:
---------------------------------------
Name:
Title:
AGFIRST, FCB
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(Name of Lender)
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
AURUM CLO 2002-1 LTD.
By: Columbia Management Advisors, Inc.,
As Investment Manager
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(Name of Lender)
By: /s/ Xxxxxx X. [illegible]
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Name: Xxxxxx X. [illegible]
Title: Vice President
BANCO ESPIRITO SANTO, S.A.
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(Name of Lender)
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BNP PARIBAS
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(Name of Lender)
By: /s/ Jo Xxxxx Xxxxxx
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Name: Jo Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Director
CALYON, AS SUCCESSOR TO
CREDIT LYONNAIS
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(Name of Lender)
By: /s/ Guido Van Hauwermeiren
--------------------------------------------
Name: Guido Van Hauwermeiren
Title: Managing Director
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Managing Director
Cobank, ACB
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(Name of Lender)
By: /s/ S. Xxxxxxx Xxxx
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Name: S. Xxxxxxx Xxxx
Title: Vice President
COMERICA BANK
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(Name of Lender)
By: /s/ [Name illegible]
--------------------------------------------
Name: [Name illegible]
Title: CBO
COOPERATIEVE CENTRALLE
RAIFFEISEN-BOERENLEENBANK, B.A.,
"RABOBANK INTERNATIONAL" NEW YORK BRANCH
--------------------------------------------
(Name of Lender)
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Director
FARM CREDIT SERVICES OF AMERICA, PCA
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President Credit
HARBOUR TOWN FUNDING LLC
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
NATIONAL BANK OF KUWAIT, S.A.K.
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxx X. Xxxxx t
Title: General Manager
By: /s/ Xxxxxx XxXxxxx
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Name: Xxxxxx XxXxxxx
Title: Assistant General Manager
XXXXX XXX & FAR XXXX CLO I LTD
By: Columbia Management Advisors, Inc.,
As Portfolio Manager
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(Name of Lender)
By: /s/ [Name Illegible]
--------------------------------------------
Name: [Name Illegible]
Title: VA
THE BANK OF NOVA SCOTIA
--------------------------------------------
(Name of Lender)
By: /s/ X. Xxxxxx
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Name: X. Xxxxxx
Title:
PB CAPITAL
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(Name of Lender)
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Assistant President
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR XXXXX POINT CLO, LTD., AS
TERM LENDER
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATAY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL I - INGOTS, LTD.,
AS TERM LENDER
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL II - INGOTS,
LTD.,AS TERM LENDER
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL III CLO,
LIMITED, AS TERM LENDER
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR PROPECT FUNDING I, LLC AS
TERM LENDER
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR PROPECT FUNDING II, LLC AS
TERM LENDER
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR RACE POINT CLO, LIMITED as
term lender
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR RACE POINT II CLO, LIMITED,
as term lender
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
SMOKY RIVER DCO, L.P.,
By: RBC Leveraged Capital as Portfolio
Advisor
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
SRF 2000, INC.
--------------------------------------------
(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SRF TRADING, INC.
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(Name of Lender)
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
TORONTO DOMINION (NEW YORK), INC.
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(Name of Lender)
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
UMB BANK, N.A.
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(Name of Lender)
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
