EX-10 2 ex10-1.txt EXHIBIT 10.1 EXHIBIT 10.1 FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT This FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of December 27, 2005 (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 (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, by that certain Third Amendment and Waiver to Revolving Credit Agreement dated as of May 26, 2005 and by that certain Fourth Amendment and Waiver to Revolving Credit Agreement dated as of November 30, 2005, 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 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 Fifth 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, the Credit Agreement is hereby amended as follows: 2.1 Section 1.1 of the Agreement is hereby amended by adding the following defined terms in proper alphabetical order: "ABA Pension Plan" shall mean the American Bakers Association Retirement Plan, a defined benefit pension plan established in 1961 to provide pension benefits to certain employees of several unrelated companies in the baking industry, including, without limitation, the Borrowers. "Net Total Usage" shall have the meaning set forth in Section 6.5. "Suspension Period" shall have the meaning set forth in Section 6.5. 2.2 Section 3.7(b) of the Agreement is hereby amended (A) by inserting "(i)" immediately after the word "than" and (B) by inserting the phrase, "and (ii) solely with respect to the ABA Pension Plan" immediately after the word "Commission", which immediately precedes the period. 2.3 Section 3.15 of the Agreement is hereby amended as follows: (a) subsection 3.15(a) is hereby amended by inserting the phrase, "(other than, in each case, solely with respect to the ABA Pension Plan)" immediately after the word "perform"; and (b) subsection 3.15(b) is hereby amended in its entirety to read as follows: "(b) No Termination Event (excluding any such event attributable solely with respect to the ABA Pension Plan) has occurred which has resulted, or is reasonably likely to result, in any material liability to the PBGC or to any other Person." 2.4 Section 5.9 of the Agreement is hereby amended inserting the phrase, "(other than any non-compliance solely with respect to the ABA Pension Plan)" immediately after the word "Effect". 2.5 Section 6.5 of the Credit Agreement is hereby amended 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 November 12, 2005, the Borrowers will not permit cumulative Consolidated EBITDA for the period commencing on May 29, 2005 (being the first day of the 2006 fiscal year of the Borrowers) 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: Cumulative Consolidated EBITDA Fiscal Period Ending (millions) -------------------- ---------- November 12, 2005 $15.5 December 10, 2005 2.5 January 7, 2006 (12.5) February 4, 2006 (22.5) March 4, 2006 (28.5) April 1, 2006 (26.5) April 29, 2006 (17.5) June 3, 2006 2.5 July 1, 2006 12.5 July 29, 2006 23.5 August 26, 2006 35.5 September 23, 2006 46.5 Commencing with the fiscal period ending December 10, 2005 and ending with the fiscal period ending June 3, 2006 (subject to early termination as set forth below, the "Suspension Period"), the Borrowers shall not be required to comply with the foregoing covenant regarding cumulative Consolidated EBITDA, as calculated as of the end of each such fiscal period, until such time as the difference between the (i) then Total Usage, and (ii) the aggregate amount of cash then on deposit in the Letter of Credit Account ("Net Total Usage"), exceeds $50,000,000. Notwithstanding the foregoing, however, and further to the limitations on availability set forth in Section 2.2, Net Total Usage may not exceed $50,000,000 unless the Borrowers' cumulative Consolidated EBITDA as of the end of the most recently ended fiscal period for which the Borrowers were required to have delivered monthly financial statements to the Administrative Agent pursuant to Section 5.1(d) equals or exceeds the amount set forth above opposite such fiscal period. From and after such date as Net Total Usage exceeds $50,000,000, the Suspension Period shall terminate and the Borrowers shall be obligated to comply with the foregoing covenant, both for the then current fiscal period and for all fiscal periods with respect to which monthly financial statements are delivered to the Administrative Agent on or after such date pursuant to Section 5.1(d). In the event Net Total Usage does not exceed $50,000,000 at any time during the Suspension Period, the Suspension Period shall terminate as of the first day of the fiscal period ending July 1, 2006 such that the Borrowers shall be required to comply with the foregoing covenant with respect to the calculation of cumulative Consolidated EBITDA as of the end of the fiscal periods ending July 1, 2006, July 29, 2006, August 26, 2006 and September 23, 2006. All compliance certificates delivered by the Borrowers pursuant to Section 5.1(c) shall reflect the calculation of cumulative Consolidated EBITDA and shall also reflect the calculation of Net Total Usage, but need not demonstrate compliance with the cumulative Consolidated EBITDA amounts set forth above during the Suspension Period. 2.6 Section 7.1(n) of the Agreement is hereby amended inserting the phrase, "(other than as a result of or solely with respect to the ABA Pension Plan, to the extent the Insufficiency of the ABA Pension Plan does not exceed $63,000,000)" immediately after the initial usage of the word "Event", which immediately precedes the word "described". 2.7 Section 7.1(q) of the Agreement is hereby amended (A) by inserting "(i)" immediately after the word "than" and (B) by inserting the phrase, "and (ii) solely as a result of or with respect to the ABA Pension Plan to the extent that any special assessments for such accrued and unpaid contributions do not exceed $32,000,000" immediately after the word "Date", which immediately precedes the close parenthetical. Section 3. Effectiveness. The effectiveness of this Fifth Amendment is conditioned upon: (i) the Administrative Agent's receipt of executed counterparts of this Fifth 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 (A) an amendment fee to the Administrative Agent for the respective accounts of the Lenders voting in favor of this Fifth Amendment in the amount of twenty-five (25) basis points of such Lenders' Commitments, and (B) any unpaid balance of the fees and expenses due and payable by the Borrowers pursuant to the Credit Agreement. The amendments contemplated by this Fifth Amendment shall be effective (x) solely with respect to the amendments related to Section 6.5, as of November 12, 2005 upon the satisfaction of the foregoing conditions, and (y) with respect to all other amendments set forth above, on the first Business Day on which the foregoing conditions are fully satisfied. Section 4. Representations and Warranties. Each Borrower represents and warrants to the Lenders that: 4.1 After giving effect to the amendment 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 amendment 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 Credit Agreement in any such instrument or document shall be deemed a reference to the Credit Agreement as amended hereby. Section 7. Counterparts. 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. 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] WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed as of the day and the year first written. BORROWERS: INTERSTATE BAKERIES CORPORATION By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Executive Vice President and Chief Financial Officer ARMOUR AND MAIN REDEVELOPMENT CORPORATION By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Director BAKER'S INN QUALITY BAKED GOODS, LLC By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Director IBC SALES CORPORATION By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Executive Vice President and Chief Financial Officer IBC SERVICES, LLC By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: President IBC TRUCKING, LLC By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: President INTERSTATE BRANDS CORPORATION By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Executive Vice President and Chief Financial Officer NEW ENGLAND BAKERY DISTRIBUTORS, L.L.C. By: /s/ Ronald B. Hutchison ------------------------------------------ Name: Ronald B. Hutchison Title: Director LENDERS: JPMORGAN CHASE BANK, N.A. Individually and as Administrative Agent and Collateral Agent By: /s/ Susan E. Atkins ------------------------------------------ Name: Susan E. Atkins Title: Managing Director SANKATY CREDIT OPPORTUNITIES, II, L.P. By: /s/ Diane J. Exter ------------------------------------------ Name: Diane J. Exter Title: Managing Director PROSPECT HARBOR CREDIT PARTNERS, LP By: /s/ Diane J. Exter ------------------------------------------ Name: Diane J. Exter Title: Managing Director PB CAPITAL CORPORATION By: /s/ Ronni J. Leopold ------------------------------------------ Name: Ronni J. Leopold Title: Vice President By: /s/ Kevin Higgins ------------------------------------------ Name: Kevin Higgins Title: AVP NATEXIS BANQUE POPULAIRES By: /s/ Harold Birk --------------------------- Name: Harold Birk Title: Vice President By: /s/ Kelvin Cheng ------------------------------------------ Name: Kelvin Cheng Title: Vice President ING SENIOR INCOME FUND By: ING Investment Management Co. as its Investment manager By: /s/ Ralph E. Bucher ------------------------------------------ Name: Ralph E. Bucher Title: Vice President ING PRIME RATE TRUST By: ING Investment Management Co. as its Investment manager By: /s/ Ralph E. Bucher ------------------------------------------ Name: Ralph E. Bucher Title: Vice President HIGHLAND FLOATING RATE ADVANTAGE FUND By: /s/ Joe Dougherty ------------------------------------------ Name: Joe Dougherty Title: Senior Vice President HIGHLAND FLOATING RATE LLC By: /s/ Joe Dougherty ------------------------------------------ Name: Joe Dougherty Title: Senior Vice President SENIOR DEBT PORTFOLIO By: Boston Management and Research as Investment Advisor By: /s/ Michael B. Botthof ------------------------------------------ Name: Michael B. Botthof Title: Vice President EATON VANCE INSTITUTIONAL SENIOR LOAN FUND By: Eaton Vance Management as Investment Advisor By: /s/ Michael B. Botthof ------------------------------------------ Name: Michael B. Botthof Title: Vice President GRAYSON & CO By: Boston Management and Research as Investment Advisor By: /s/ Michael B. Botthof ------------------------------------------ Name: Michael B. Botthof Title: Vice President THE BANK OF NEW YORK By: /s/ Peter W. Helt ------------------------------------------ Name: Peter W. Helt Title: Vice President BILL & MELINDA GATES FOUNDATION By: Babson Capital Management LLC as Investment Advisor By: /s/ Mary Ann Spencer ------------------------------------------ Name: Mary Ann Spencer MASSACHUSETTS MUTUTAL LIFE INSURANCE COMPANY By: Babson Capital Management LLC as Investment Advisor By: /s/ Mary Ann Spencer ------------------------------------------ Name: Mary Ann Spencer NATIONWIDE LIFE INSURANCE COMPANY By: /s/ Wayne T. Frisbee ------------------------------------------ Name: Wayne T. Frisbee Title: Vice President NATIONWIDE LIFE INSURANCE COMPANY By: /s/ Wayne T. Frisbee ------------------------------------------ Name: Wayne T. Frisbee Title: Vice President BANK OF AMERICA, N.A. By: /s/ Jay T. Wampler ------------------------------------------ Name: Jay T. Wampler Title: Managing Director