FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT
This
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT, dated as of September 12, 2008 (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,
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.
WHEREAS,
the Borrowers, the Lenders and the Administrative Agent are parties
to that certain Second Amended and Restated Revolving Credit
Agreement, dated as of May 9, 2008 (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
$249,726,753.69;
WHEREAS,
the Borrowers have requested that the Lenders amend and supplement
the Credit Agreement to reflect certain modifications to the Credit
Agreement including an increase in the amount of the Total Tranche
B Commitment and an extension of the Maturity Date of the Credit
Agreement to February 9, 2009; 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 First 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 third
clause of the introductory statement of the Credit Agreement is
hereby amended by deleting the amount “$249,726,753.69”
and substituting therefor the
phrase
“$312,955,998.02, subject to a $16,000,000 increase in the
then current Total Commitment pursuant to Section 2.2
of this Agreement.”
2.2 The first
sentence of the definition of “Adjusted LIBOR Rate” set
forth in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“
Adjusted LIBOR Rate ” shall mean, with respect
to any Eurodollar Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to the greater of (a) 3.25% and (b) the quotient of
(i) the LIBOR Rate in effect for such Interest Period divided
by (ii) a percentage (expressed as a decimal) equal to 100%
minus Statutory Reserves.
2.3 The first
sentence of the definition of “Alternate Base Rate” set
forth in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“
Alternate Base Rate ” shall mean, for any day,
a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) 4.25%, (b) the Prime
Rate in effect on such day, (c) the Base CD Rate in effect on
such day plus 1% and (d) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%.
2.4
Section 1.1 of the Credit Agreement is hereby amended
by adding the following defined terms in proper alphabetical
order:
“
First Amendment ” shall mean that certain First Amendment to
Second Amended and Restated Revolving Credit Agreement dated as of
September 12, 2008 by and among the Borrowers, the Lenders,
the Administrative Agent and the Collateral Agent.
“
Funding Percentage ” shall mean, (a) with respect to each
Tranche A Lender, the percentage obtained by dividing its
Commitment as of September 12, 2008 by the Total Commitment as of
September 12, 2008, provided that at any time when the Tranche
A Usage equals the Total Tranche A Commitment, the percentage shall
be zero, and (b) with respect to each Tranche B Lender, the
percentage obtained by subtracting the aggregate of all of the
Tranche A Lenders’ Funding Percentages from 100 percent,
allocated pro rata among the Tranche B Lenders.
A
Lender’s Funding Percentage with respect to each Letter of
Credit shall be determined as of or based upon such Lender’s
Funding Percentage on the date of issuance of such Letter of
Credit.
2.5 The definition
of “Maturity Date” in Section 1.1 of the
Credit Agreement is hereby amended by deleting the date
“September 30, 2008” and substituting therefor the
date “February 9, 2009.”
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2.6 The definition
of “Orders” set forth in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“
Orders ” shall mean, collectively, (i) the
Interim Order, (ii) the Amendment Order, (iii) the Final
Order, (iv) the Final Order Authorizing Debtors to Enter
into the Eighth Amendment to Revolving Credit Agreement entered
by the Bankruptcy Court on August 23, 2006, (v) the
Final Order Authorizing Debtors to Enter into Amended and
Restated Revolving Credit Agreement entered by the Bankruptcy
Court on February 16, 2007, (vi) the Order Authorizing
Debtors to Enter into Third Amendment to Amended and Restated
Revolving Credit Agreement entered by the Bankruptcy Court on
December 19, 2007, and (vii) the Order Authorizing
Debtors to Enter into First Amendment to Second Amended and
Restated Revolving Credit Agreement entered by the Bankruptcy
Court on September 12, 2008.
2.7 The definition
of “Real Property Component” in Section 1.1
of the Credit Agreement is hereby amended by (a) deleting the
amount “$150,000,000” and substituting therefor the
amount “$225,000,000” and (b) adding a new
sentence at the end thereof which shall read as follows: “The
then current Real Property Component shall be increased by
$16,000,000 upon satisfaction of the conditions to the increase in
the Total Commitment set forth in Section 2.2(a)
.”
2.8
Section 2.1(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Each
Lender severally and not jointly with the other Lenders agrees,
upon the terms and subject to the conditions herein set forth, to
make revolving credit loans (each a “ Loan
” and collectively, the “ Loans ”)
to the Borrowers at any time and from time to time during the
period commencing on the date hereof and ending on the Termination
Date (or the earlier date of termination of the Total Commitment)
in an aggregate principal amount not to exceed, when added to such
Lender’s Funding Percentage of the then aggregate Letter of
Credit Outstandings, the Commitment of such Lender, which Loans may
be repaid and reborrowed in accordance with the provisions of this
Agreement.
2.9
Section 2.1(b) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(b) Each
Borrowing shall be made as follows: (i) an amount equal to the
Funding Percentage of such Borrowing shall be made by the Tranche A
Lenders pro rata in accordance with their respective Tranche A
Commitments and shall at all times be deemed to be Tranche A Usage
and (ii) an amount equal to the Funding Percentage of such
Borrowing shall be made by the Tranche B Lenders pro rata in
accordance with their respective Tranche B Commitments and shall at
all times be deemed to be Tranche B Usage; provided ,
however , that the failure of any Lender to make any Loan
shall not in itself relieve the other Lenders of their obligations
to lend. The
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immediately
preceding sentence is subject in all respects to the limit on each
Lender’s obligation to make Loans under
Section 2.1(a) .
2.10
Section 2.2(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(a) Subject to the terms, conditions and
covenants hereof, the Total Commitment in the amount of
$312,995,998.02 (as of the date of the First Amendment and subject
to reduction pursuant to the terms of this Agreement) shall be
available to the Borrowers (subject to compliance with the
Borrowing Base and the terms, conditions and covenants in this
Agreement). On January 10, 2009, the Total Commitment shall be
increased by $16,000,000 upon satisfaction of each of the following
conditions: (x) the Borrowers shall have delivered on such
date a statement certified by a Financial Officer of each of the
Borrowers certifying that as of January 10, 2009 the
conditions set forth in Section 4.2(b) through
(f) are satisfied, (y) the Borrowers shall be
diligently pursuing confirmation of a Reorganization Plan (as
reasonably determined by the Administrative Agent in consultation
with the Lenders) and (z) the Borrowers shall have paid to the
Administrative Agent, for the ratable benefit of the Tranche B
Lenders, a fee in the amount of $800,000.
2.11
Section 2.3(e) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(e) Immediately upon the issuance of any
Letter of Credit by any Fronting Bank, such Fronting Bank shall be
deemed to have sold to each Lender other than such Fronting Bank
and each such other Lender shall be deemed unconditionally and
irrevocably to have purchased from such Fronting Bank, without
recourse or warranty, an undivided interest and participation, to
the extent of such Lender’s Funding Percentage, in such
Letter of Credit, each drawing thereunder and the obligations of
the Borrowers under this Agreement with respect thereto. Upon any
change in the Commitments pursuant to Sections 2.10 or
9.3 , it is hereby agreed that with respect to all Letter of
Credit Outstandings, there shall be an automatic adjustment to the
participations hereby created to reflect the new Funding
Percentages of the assigning and assignee Lenders. Any action taken
or omitted by a Fronting Bank under or in connection with a Letter
of Credit, if taken or omitted in the absence of gross negligence
or willful misconduct, shall not create for such Fronting Bank any
resulting liability to any other Lender.
2.12
Section 2.3(f) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(f) In the
event that a Fronting Bank makes any payment under any Letter of
Credit and the Borrowers shall not have reimbursed such amount in
full to such Fronting Bank pursuant to this Section, the Fronting
Bank shall
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promptly notify
the Administrative Agent, which shall promptly notify each Lender
of such failure, and each Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of the Fronting
Bank the amount of such Lender’s Funding Percentage of such
unreimbursed payment in Dollars and in same day funds. If the
Fronting Bank so notifies the Administrative Agent, and the
Administrative Agent so notifies the Lenders prior to
11:00 a.m. (New York City time) on any Business Day, such
Lenders shall make available to the Fronting Bank such
Lender’s Funding Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such
Lender shall not have so made its Funding Percentage of the amount
of such payment available to the Fronting Bank, such Lender agrees
to pay to such Fronting Bank, forthwith on demand such amount,
together with interest thereon, for each day from such date until
the date such amount is paid to the Administrative Agent for the
account of such Fronting Bank at the Federal Funds Effective Rate.
The failure of any Lender to make available to the Fronting Bank
its Funding Percentage of any payment under any Letter of Credit
shall not relieve any other Lender of its obligation hereunder to
make available to the Fronting Bank its Funding Percentage of any
payment under any Letter of Credit on the date required, as
specified above, but no Lender shall be responsible for the failure
of any other Lender to make available to such Fronting Bank such
other Lender’s Funding Percentage of any such payment.
Whenever a Fronting Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the
Lenders pursuant to this paragraph, such Fronting Bank shall pay to
each Lender which has paid its Funding Percentage thereof, in
Dollars and in same day funds, an amount equal to such
Lender’s Funding Percentage thereof.
2.13
Section 2.6(b) of the Credit Agreement is hereby
amended by deleting the first reference to
“12:00 p.m.” and substituting therefor
“11:00 a.m.”
2.14
Section 2.13(b) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(b) Upon
the receipt of the Net Proceeds by any of the Borrowers or their
Subsidiaries from any Asset Sales, the Borrowers shall, jointly and
severally, apply such Net Proceeds as follows: first , to
repay the then outstanding Loans that constitute Tranche A Usage;
second , to deposit an amount in the Letter of Credit
Account up to 105% of the then Letter of Credit Outstandings that
constitute Tranche A Usage; third to repay the then
outstanding Loans that constitute Tranche B Usage; fourth to
deposit an amount in the Letter of Credit Account up to 105% of the
then Letter of Credit Outstandings that constitute Tranche B Usage;
and thereafter , such Net Proceeds may be (I) deposited
in the Letter of Credit Account or (II) retained by the
Borrowers and invested in Permitted Investments or used for
expenditures in the ordinary course of business (subject to
compliance with the terms and conditions of this Agreement). The
Total Tranche A Commitment shall be reduced on a pro rata basis by
an amount equal to the
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sum of
(i) the Net Proceeds of the subject Asset Sale required to be
applied to repay the then outstanding Tranche A Loans and Tranche B
Loans pursuant to the preceding sentence, minus
(ii) the amount of Tranche A Usage that is cash collateralized
by deposits in the Letter of Credit Account immediately prior to
the application of such Net Proceeds, plus (iii) the
Net Proceeds of the subject Asset Sale retained by the Borrowers
pursuant to part (II) of the last clause of the preceding
sentence. Once the Total Tranche A Commitment minus 105% of
the then Letter of Credit Outstandings that constitute Tranche A
Usage is equal to zero, the Total Tranche B Commitment shall be
reduced on a pro rata basis by an amount equal to the sum of
(i) the remaining Net Proceeds of the subject Asset Sale
required to be applied to repay the then outstanding Loans,
plus (ii) any remaining Net Proceeds of the subject
Asset Sale retained by the Borrowers. Amounts on deposit in the
Le
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