Exhibit 10.1
EXECUTION FORM
FOURTH AMENDMENT AND WAIVER TO
REVOLVING CREDIT AGREEMENT
This FOURTH AMENDMENT AND WAIVER TO REVOLVING CREDIT AGREEMENT dated
as of November 30, 2005 (the "Fourth 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 and by
that certain Third Amendment and Waiver to Revolving Credit Agreement dated as
of May 26, 2005 (the "Third Amendment"), 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 Fourth Amendment are used as defined in the Credit Agreement.
Section 2. Amendment to Credit Agreement. Subject to the conditions
set forth in Section 3 hereof, Section 7.1(m) of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (iv) thereof and
(ii) inserting a new clause (vi) at the end of Section 7.1(m) as follows:
"and (vi) payments in respect of certain prepetition real property tax
claims and other secured claims that are accruing collectible
postpetition interest in an aggregate amount not to exceed $12,000,000
as described in Borrowers' Motion for an Order Granting Authority to
Compromise and Pay Certain Tax and Other Claims that are Accruing
Collectible Postpetition Interest and/or Penalties, and as authorized
by the Order Granting Authority to Compromise and Pay Certain Tax and
Other Claims that are Accruing Collectible Postpetition Interest
and/or Penalties entered by the Bankruptcy Court on October 4, 2005;"
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 the Lenders in Section 3.2
of the Third 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-Q for the third quarter of fiscal year 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
prior to June 3, 2006 (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 prior to June 3, 2006 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) extend the date for delivery of the audited annual
financial statements for the fiscal year ending May 28, 2005 (and related
opinion of accountants and Financial Officer certificate) under Section
5.1(a) of the Credit Agreement until March 31, 2006; (iii) 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, (iv) consent to the inclusion in the related
Certificates of the additional qualifications set forth in (i) above and
(v) 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 to May
31, 2006.
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 Fourth Amendment
is conditioned upon: (i) the Administrative Agent's receipt of executed
counterparts of this Fourth 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 Agreement. The "Effective Date" shall mean 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 Fourth Amendment.
Section 6. Choice of Law. THIS FOURTH 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 Fourth 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. This Fourth 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.
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 Fourth Amendment.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed as of the day and the year first written.
BORROWERS:
INTERSTATE BAKERIES CORPORATION
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ARMOUR AND MAIN REDEVELOPMENT CORPORATION
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXX'X INN QUALITY BAKED GOODS, LLC
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
IBC SALES CORPORATION
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
IBC SERVICES, LLC
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
IBC TRUCKING, LLC
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
INTERSTATE BRANDS CORPORATION
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NEW ENGLAND BAKERY DISTRIBUTORS, L.L.C.
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By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
LENDERS:
JPMORGAN CHASE BANK, N.A.
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Individually and as Administrative Agent
and Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
THE FOOTHILL GROUP, INC.
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By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
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By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Managing Director
XXXXXX X.X., successor by merger to
XXXXXX TRUST & SAVINGS BANK, as an Issuing
Lender and a Lender
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By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
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By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Held
Title: Vice President
AIRLIE CBNA LOAN FUNDING LLC
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For itself or as Agent for Airlie CFPI
Loan Funding LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: As Attorney in Fact
SANKATY HIGH YIELD PARTNERS, II, L.P.
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By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Senior Vice President
ING SENIOR INCOME FUND
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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 PRIME RATE TRUST
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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
RABOBANK INTERNATIONAL, NEW YORK BRANCH
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By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Director
