Exhibit 10.1
THIRD AMENDMENT AND WAIVER TO
REVOLVING CREDIT AGREEMENT
This THIRD AMENDMENT AND WAIVER TO REVOLVING CREDIT AGREEMENT
dated
as of May 26, 2005 (the "Third 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 and as amended by
that certain First Amendment to
Revolving Credit Agreement dated as of
November 1, 2004 and by that certain
Second Amendment to Revolving Credit
Agreement dated as of January 20, 2005
(as so 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; 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; and
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 Third 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 The definition of the term "Consolidated EBITDA" is
hereby amended in its entirety to read as follows:
"Consolidated EBITDA" shall mean, for any period, all as
determined in accordance with GAAP and subject to such
modifications as may be satisfactory to the Administrative
Agent, the consolidated net income (or net loss) of the
Borrowers for such period, plus (a) the sum of (i)
depreciation expense, (ii) amortization expense, (iii) other
non-cash charges, (iv) net total Federal, state and local
income tax expense, (v) gross interest expense for such
period less gross interest income for such period, (vi)
extraordinary losses, (vii) any restructuring charge, and
(viii) "Chapter 11 expenses" (or "administrative costs
reflecting Chapter 11 expenses", inclusive of professional
fees) as shown on the Borrowers' consolidated statement of
income for such period, less (b) extraordinary gains.
2.2 Section 2.3(a) of the Credit Agreement is hereby amended
by replacing "$75,000,000" in clause (i) thereof with
"$125,000,000."
2.3 Section 2.13(b) of the Credit Agreement is hereby
amended by deleting the second sentence thereof and
substituting
therefor the following new sentence:
The Commitments shall be reduced on a pro rata basis by an
amount equal to the sum of (i) the Net Proceeds of the
subject Asset Sale required to be applied to repay the then
outstanding Loans pursuant to preceding sentence, plus (ii)
the Net Proceeds of the subject Asset Sale retained by the
Borrowers pursuant to the last clause of the preceding
sentence.
2.4 Section 6.4 of the Credit Agreement is hereby amended in
its entirety to read as follows:
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 periods of the Borrowers set
forth below, in an aggregate amount in excess of the amount
specified opposite such fiscal periods; provided that if the
amount of Capital Expenditures that are made during any such
fiscal period is less than the amount thereof that is
permitted to be made during such fiscal period, the unused
portion thereof may be carried forward to and made during
the subsequent fiscal periods:
Maximum Capital
Fiscal Period
Expenditures
-------------
------------
(millions)
May 29, 2005 - August 20, 2005
$20.0
August 21, 2005 - November 12, 2005
21.5
November 13, 2005 - March 4, 2006
19.0
March 5, 2006 - June 3, 2006
10.0
June 4, 2006 - August 26, 2006
14.0
August 27, 2006 - October 21, 2006
9.0
2.5 Section 6.5 of the Credit Agreement is hereby amended in
its entirety to read as follows:
As of the end of each fiscal period of the Borrowers,
commencing with the fiscal period beginning May 29, 2005,
the Borrowers will not permit cumulative Consolidated EBITDA
for each fiscal period beginning May 29, 2005 and 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
Cumulative Consolidated
Ending
EBITDA
------
------
(millions)
June 25, 2005
$ 3.5
July 23,
2005
4.0
August 20, 2005
8.0
September 17, 2005
12.5
October 15, 2005
18.0
November 12, 2005
21.0
December 10, 2005
25.0
January 7, 2006
23.5
February 4, 2006
31.5
March 4, 2006
42.5
April 1, 2006
48.5
April 29, 2006
58.5
June 3, 2006
74.0
July 1, 2006
83.0
July 29, 2006
88.5
August 26, 2006
99.5
September 23, 2006
111.5
2.6 Section 6 of the Credit Agreement is hereby amended by
inserting a new Section 6.17 as follows:
SECTION 6.17 Cash Restructuring Charges. (a) 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, permit cash
restructuring charges (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,
and as so calculated, "Cash Restructuring Charges") for each
fiscal period beginning May 29, 2005 and ending in each case
on the last day of the fiscal period listed below to be
incurred in an amount in excess of the respective amounts
specified opposite such fiscal period; provided that if the
amount of Cash Restructuring Charges that are incurred
during any such fiscal period is less than the amount
thereof that is permitted to be incurred during such fiscal
period, the unused portion thereof may be carried forward to
and incurred during the subsequent fiscal periods:
Fiscal Period
Maximum Cash
Ending
Restructuring Charges
------
---------------------
(millions)
November 12, 2005
$44.0
June 3, 2006
21.0
October 21, 2006
7.7
(b) The amount of Cash Restructuring Charges
accrued since the Filing Date but unpaid as of May 28, 2005
shall not exceed $21,000,000.
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 The Lenders hereby waive the Events of Default arising
under Section 7.1(m) of the Credit Agreement to the extent but
solely
to the extent that such Events of Default are a result of the
Borrowers having made up to $1,170,000 in Pre-Petition Payments on
or
prior to the date hereof to General Electric Capital Business
Asset
Funding Corporation on account of the pre-petition Indebtedness
of
the Borrowers under that certain: (i) Master Lease Purchase
Agreement
by and between G
