FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit
99.1
FIFTH AMENDMENT
TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This FIFTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT, dated as of April __, 2008 (the “Fifth
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, by the Second Amendment to Amended and Restated Revolving
Credit Agreement dated as of November 29, 2007, by the Third Amendment to
Amended and Restated Revolving Credit Agreement dated as of December 19, 2007
and by the Fourth Amendment to Amended and Restated Revolving Credit Agreement
dated as of December 19, 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 Fifth 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
second clause of the introductory statement of the Credit Agreement is hereby
amended by deleting the amount “$200,000,000” and substituting therefor the
amount “$250,000,000.”
2.2 Section 1.1 of the
Credit Agreement is hereby amended by adding the following defined term in
proper alphabetical order:
“Disclosed
Matters” shall
mean the existence or occurrence of any matter which has been disclosed by any
of the Borrowers in any filing on Form 10-K, 10-Q or 8-K made with the
Securities and Exchange Commission prior to April 2, 2008; provided, that no
matter shall constitute a “Disclosed Matter” to the extent it shall prove to be,
or shall become, materially more adverse to the Borrowers taken as a whole or to
the Lenders than it would have reasonably appeared to be on the basis of the
disclosure contained in any of the documents referred to above in this
definition.
2.3 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,
(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, and (iv) an order of the Bankruptcy Court in substantially
the form of Exhibit
A-4 approving the Fifth Amendment to Amended and Restated Revolving
Credit Agreement dated as of April __, 2008, or in each case such other forms as
otherwise agreed by the Administrative Agent and the Borrowers.
2.4 The
definition of “Maturity Date” in Section 1.1 of the
Credit Agreement is hereby amended by deleting the date “June 2, 2008” and
substituting therefor the date “September 30, 2008.”
2.5 The
definition of “Plan Reserve” in Section 1.1 of the
Credit Agreement is hereby amended by deleting the amount “$10,000,000” and
substituting therefor the amount “$0”.
2.6 The
definition of “Real Property Component” 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 $150,000,000 (as adjusted from time to time pursuant to Section
5.8).
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2.7 Section 2.3(a) of the
Credit Agreement is hereby amended by deleting the amount “$150,000,000” and
substituting therefor the amount “$180,000,000”.
2.8 Section 2.8(a) of the
Credit Agreement is hereby amended by deleting the percentage “1.75%” and
substituting therefor the percentage “3.25%”.
2.9 Section 2.8(b) of the
Credit Agreement is hereby amended by deleting the percentage “2.75%” and
substituting therefor the percentage “4.25%”.
2.10 Section 3.4 of the
Credit Agreement is hereby amended as follows:
2.10.1 By
deleting the date “June 3, 2006” and substituting therefor the date “June 2,
2007” in the last sentence thereof; and
2.10.2 By
inserting the text “and other than the Disclosed Matters” at the end of the last
sentence thereof.
2.11 Section 3.11 of the
Credit Agreement is hereby amended by inserting the text “Except as set forth on
Schedule 3.11
hereto,” at the beginning thereof.
2.12 Section
5.1(h) of the Credit Agreement is hereby amended by deleting the text “Budget”
and substituting therefor the text “projections provided to the Lenders on April
2, 2008”.
2.13 Section 5.12 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Section 5.12 Revised
Plan. By no later than April 21, 2008, the Borrowers shall
have requested proposals for the sale of the Borrowers and their assets in their
entirety, or in a series of transactions, and, by no later than June 30, 2008,
the Borrowers shall have delivered to the Administrative Agent a schedule (in
form and substance satisfactory to the Administrative Agent) of asset sales
(including estimated sales dates and estimated proceeds) which the Borrowers
reasonably expect will generate sales proceeds sufficient in the aggregate to
reduce Total Usage (minus any cash then held in the Letter of Credit Account) to
zero prior to the Maturity Date; provided, however, that the
Borrowers shall not be required to (x) request such proposals in the event that
on or before April 21, 2008, the Borrowers have (1) filed a Reorganization Plan
that provides for the refinancing of the Credit Agreement in full and has the
publicly announced support of the Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union and the International Brotherhood of
Teamsters, and is otherwise in form and substance satisfactory to the
Administrative Agent and (2) obtained firm commitments for funding of all exit
financing necessary for confirmation and consummation of the Reorganization Plan
or (y) deliver such schedule in the event that on or before June 30, 2008, the
Reorganization Plan shall have become effective and be consummated, and the
Obligations under the Credit Agreement shall have been indefeasibly paid in
full.
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2.14 Clause
(vi) of Section
6.3 of the Credit Agreement is hereby amended by deleting the amount
“$1,000,000” and substituting therefor the amount “$500,000”.
2.15 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:
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Fiscal
Quarter Ending
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Maximum
Capital Expenditures (millions)
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May
31, 2008
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$10
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August
23, 2008
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$10
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2.16 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 April 5, 2008, the Borrowers will not permit Consolidated
EBITDA for the preceding thirteen consecutive fiscal periods 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
|
Consolidated
EBITDA (millions)
|
|
April
5, 2008
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$37
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May
3, 2008
|
$28
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May
31, 2008
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$16
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June
28, 2008
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$0
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July
26, 2008
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-$6
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August
23, 2008
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-$13
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2.17 Section 6.11 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Section
6.11 Disposition of
Assets. Except as may be authorized by orders of the
Bankruptcy Court and on terms and conditions acceptable to the Administrative
Agent, each of the Borrowers will not sell or otherwise dispose of any assets
(including, without limitation, the capital stock of any Subsidiary of the
Borrowers) except for (i) sales of Inventory, fixtures and equipment in the
ordinary course of business, and (ii) sales of surplus assets of the Borrowers
no longer used in the Borrowers’ business operations.
2.18 [Section 6.12 of the
Credit Agreement is hereby amended by:]
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2.19 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
period beginning December 17, 2006 and ending September 30, 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.
2.20 Section 7.1(f) of the
Credit Agreement is hereby amended by deleting the amount “$1,000,000” and
substituting therefor the amount “$250,000”.
2.21 Section 7.1(k) of the
Credit Agreement is hereby amended by deleting the amount “$1,000,000” and
substituting therefor the amount “$250,000”.
2.22 Section 7.1(n) of the
Credit Agreement is hereby amended (a) by deleting the amount “$70,000,000” and
substituting therefor the amount “$80,000,000” and (b) by deleting the amount
“$1,000,000” and substituting therefor the amount “$500,000”.
2.23 Section 7.1(o) of the
Credit Agreement is hereby amended by deleting the amount “$5,000,000” and
substituting therefor the amount “$4,000,000”.
2.24 Section 7.1(q) of the
Credit Agreement is hereby amended by deleting the amount “$1,000,000” and
substituting therefor the amount “$500,000”.
2.25 Annex
A to the Credit Agreement is hereby replaced in its entirety by a new Annex A in
the form attached hereto as Exhibit
A.
2.26 The
form of the Fifth Amendment Order (as defined below) attached hereto as Exhibit B is hereby
inserted as Exhibit A-4 of the Credit Agreement.
2.27 Schedule
3.11 attached hereto as Exhibit C is hereby
inserted as Schedule 3.11 of the Credit Agreement.
Section
3. Effectiveness. The
amendments contemplated by this Fifth 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:
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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 Fifth
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 Fifth Amendment, certified as of the date of this Fifth 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 April [__], 2008, the
Administrative Agent and the Lenders shall have received a certified copy of the
amendment order (the “Fifth
Amendment Order”) in substantially the form of Exhibit B 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 Fifth 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 Fifth 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 Fifth 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 Fifth Amendment then each of
the Borrowers and Super-majority Lenders by its execution of this Fifth
Amendment shall be deemed to have consented to the actions contemplated by
Section 9.10(b) of the Credit Agreement.
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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
D.
3.5 Payment of Fees and
Expenses. The Borrowers shall have paid to the Administrative
Agent (a) an amendment fee for the respective account of each Lender voting in
favor of this Fifth Amendment in the amount of 100 basis points of such Lender’s
Commitment to the extent existing immediately after the effectiveness of this
Fifth Amendment, (b) an additional amendment fee for the respective account of
each Lender voting in favor of this Fifth Amendment in the amount of 100 basis
points of such Lender’s Commitment to the extent that such Lender’s Commitment
immediately after the effectiveness of this Fifth Amendment is greater than such
Lender’s Commitment immediately before the effectiveness of this Fifth
Amendment, and (c) the then unpaid balance of all accrued and unpaid Fees due
under and pursuant to: (i) the fee letter dated as of April 1, 2008 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 Fifth 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
Fifth Amendment.
Section
5. Choice of Law. THIS
FIFTH 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 Fifth Amendment need be made in any instrument or document at
any time referring to the Credit Agreement, and a reference to the
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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 Fifth 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 Fifth
Amendment.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly
executed as of the day and the year first written.
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BORROWERS:
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INTERSTATE
BAKERIES CORPORATION
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By:
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Name:
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Title:
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ARMOUR
AND MAIN REDEVELOPMENT
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CORPORATION
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By:
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Name:
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Title:
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XXXXX’X
INN QUALITY BAKED GOODS,
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LLC
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By:
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Name:
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Title:
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IBC
SALES CORPORATION
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By:
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Name:
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Title:
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IBC
SERVICES, LLC
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By:
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Name:
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Title:
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IBC
TRUCKING, LLC
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By:
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Name:
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Title:
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INTERSTATE
BRANDS CORPORATION
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By:
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Name:
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Title:
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NEW
ENGLAND BAKERY DISTRIBUTORS,
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L.L.C.
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By:
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Name:
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Title:
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LENDERS:
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JPMORGAN
CHASE BANK, N.A.
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Individually
and as Administrative Agent and
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Collateral
Agent
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By:
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Name:
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Title:
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Lender
Name
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By:
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Name: | |
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Title: | |
