Exhibit 10.1
------------
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as
of November 1, 2004 (the "First 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, a New York banking corporation ("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, as
administrative agent (the "Administrative Agent") for the Lenders, and
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 (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; and
WHEREAS, the Borrowers and the Lenders desire 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 First 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 Clause "(n)" of the definition of Eligible Inventory set
forth in Section 1.1 is hereby amended in its entirety to read as follows:
"(n) it is classified as "bakery outlet," "dry products," "Xxx. Xxxxxxxx'x" or
"crouton" inventory."
2.2 Clause "(d)" of the definition of Inventory Reserves set
forth in Section 1.1 is hereby amended in its entirety to read as follows:
"(d) a reserve for amounts owing to landlords or warehousemen for Inventory
stored at leased facilities or public warehouses which are not the subject of
an access agreement acceptable to the Administrative Agent, in the amount of
(i) to the extent the Borrowers are able to determine the average rental
expense for any such facility, the Rent Reserve, plus (ii) in all other
events, the Inventory Value of the Inventory stored at such other leased
facilities or public warehouses; or".
2.3 Section 2.23 is hereby amended by adding after the text
"pursuant to Section 364(d)(1) of the Bankruptcy Code", the following: "and
other than as expressly set forth in the Final Order".
2.4 Clause (vii) of Section 6.3 of the Credit Agreement is
hereby amended in its entirety to read as follows: "(vii) obligations allowed
under Section 6.15 of this Agreement."
2.5 Section 6.15 of the Credit Agreement is hereby amended
in its entirety to read as follows:
SECTION 6.15 Derivative Agreements. Other than
exchange-traded futures and option contracts designed to
hedge against fluctuations in prices for wheat, corn, oil,
fuel and other commodities used in the Borrowers' business,
in each case entered into in the ordinary course of the
Borrowers' business, consistent with past practices and not
for speculative purposes, and for which aggregate
expenditures (including, but not limited to, expenditures
for brokerage commissions, exchange or clearing fees, open
trade equity, futures margins and options premiums) by the
Borrowers during any fiscal year shall not exceed
$10,000,000, each of the Borrowers will not (and will not
apply to the Bankruptcy Court for authority to), enter into
any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these
transactions.
2.6 Exhibits C-1 and C-2 attached to the Credit Agreement
are hereby replaced by Exhibits C-1 and C-2 attached to this First Amendment.
2.7 The Schedules to the Credit Agreement are hereby amended
by adding Schedules 1.1, 3.6, 3.12, 6.9, 6.10 and 6.13 attached hereto.
Section 3. Termination of Interim Period. Each of the
Borrowers, the Lenders and the Administrative Agent hereby acknowledge and
agree that the Interim Period terminated on October 22, 2004.
Section 4. Effectiveness. The effectiveness of this First
Amendment is conditioned upon the Administrative Agent's receipt of executed
counterparts of this First Amendment which, when taken together, bear the
signatures of the Borrowers and each Lender (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). The "Effective Date"
shall mean the first Business Day on which the foregoing condition is fully
satisfied.
Section 5. Representations and Warranties. Each Borrower
represents and warrants to the Lenders that:
5.1 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
5.2 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 First Amendment.
Section 6. Choice of Law. THIS FIRST 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 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 First 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 First 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 First Amendment.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to be duly executed as of the day and the year first written.
BORROWERS:
INTERSTATE BAKERIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
ARMOUR AND MAIN REDEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
XXXXX'X INN QUALITY BAKED GOODS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
IBC SALES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
IBC SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
IBC TRUCKING, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
INTERSTATE BRANDS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
NEW ENGLAND BAKERY DISTRIBUTORS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
LENDERS:
JPMORGAN CHASE BANK,
Individually and as Administrative Agent
and Collateral Agent
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
