FIRST AMENDMENT
Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of April 21, 2003 (this “Amendment”), to the Amended and Restated Credit Agreement, dated as of April 25, 2002 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Interstate Bakeries Corporation, a Delaware corporation (“Holdings”), Interstate Brands Corporation, a Delaware corporation (“Brands”), Interstate Brands West Corporation, a Delaware corporation (“Brands West”; each of Brands and Brands West, a “Borrower” and, together, the “Borrowers”), the several banks and other financial institutions or entities from time to time parties thereto (the “Lenders”), THE BANK OF NOVA SCOTIA, BNP PARIBAS COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. “RABOBANK INTERNATIONAL”, NEW YORK BRANCH, and SUNTRUST BANK, each as a co-documentation agent, BANK OF AMERICA, N.A., as syndication agent, and JPMORGAN CHASE BANK, (f/k/a The Chase Manhattan Bank), as administrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make, and have made, certain loans and other extensions of credit to the Borrowers;
WHEREAS, the Borrowers have requested, and, upon this Amendment becoming effective, the Lenders have agreed, that certain provisions of the Credit Agreement be amended as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement.
(a) Amendments to Section 1. Section 1.1 of the Credit Agreement is hereby amended as follows:
(i) by deleting the proviso to clause (vi) of the defined term “Consolidated EBITDA” and substituting in lieu thereof the following new proviso:
provided, that the portion of such charges for non-recurring items representing cash charges so added to Consolidated Net Income shall not exceed a cumulative amount of $20,000,000 from and after August 24, 2002
(ii) by deleting the defined term “L/C Commitment” and substituting in lieu thereof the following:
“L/C Commitment”: $175,000,000.
(iii) by deleting the table set forth in the defined term “Pricing Grid” in its entirety and substituting in lieu thereof the table set forth in Annex 1 hereto.
(b) Amendments to Section 4. (i) Section 4.1 of the Credit Agreement is hereby amended by deleting such section in its entirety and substituting in lieu thereof the following:
4.1 Financial Condition. The audited consolidated balance sheets of Holdings and its Subsidiaries as at June 1, 2002, and the related consolidated statements of income and of cash flows for the fiscal year ended on such date, reported on by and accompanied by an unqualified report from Deloitte & Touche, present fairly in all material respects the consolidated financial condition of Holdings and its consolidated Subsidiaries as at such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. The unaudited consolidated balance sheets of Holdings as at August 24, 2002, November 16, 2002 and March 8, 2003, and the related unaudited consolidated statements of income and cash flows for the three-month periods ended on such dates, present fairly in all material respects the consolidated financial condition of Holdings and its consolidated Subsidiaries as at such dates, and the consolidated results of its operations and its consolidated cash flows for the periods then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein). Such financial statements and the notes thereto disclose all material liabilities, direct or contingent, of the Group Members that are required to be so disclosed under GAAP. During the period from June 1, 2002 to and including the date hereof there has been no Disposition by any Group Member of any material part of its business or property.
(ii) Section 4.2 is amended by deleting such section in its entirety and substituting in lieu thereof the following:
4.2 No Change. There has been no material adverse change in the business, assets, operations or financial condition of Holdings and the Subsidiaries, taken as a whole, since June 1, 2002.
(c) Amendments to Section 7. (i) Section 7.1(a) of the Credit Agreement is hereby amended by deleting such section in its entirety and substituting in lieu thereof the following:
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the last day of any period of four consecutive fiscal quarters of Holdings ending with any fiscal quarter set forth below to exceed the ratio set forth below opposite such fiscal quarter:
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| Fiscal Quarter |
| Consolidated |
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| May 31, 2003 |
| 3.10 to 1.00 |
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| August 23, 2003 |
| 3.75 to 1.00 |
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| November 15, 2003 |
| 3.75 to 1.00 |
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| March 6, 2004 |
| 3.75 to 1.00 |
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| May 29, 2004 |
| 3.25 to 1.00 |
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| August 21, 2004 |
| 3.00 to 1.00 |
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| November 13, 2004 and thereafter |
| 2.75 to 1.00 |
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(ii) Section 7.1(b) of the Credit Agreement is hereby amended by deleting such subsection in its entirety and substituting in lieu thereof the following:
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as at the last day of any period of four consecutive fiscal quarters of Holdings (or, if less, the number of full fiscal quarters subsequent to the Closing Date) ending with any fiscal quarter set forth below to be less than the ratio set forth below opposite such fiscal quarter:
| Fiscal Quarter |
| Consolidated Interest |
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| May 31, 2003 |
| 4.75 to 1.00 |
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| August 23, 2003 |
| 3.75 to 1.00 |
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| November 15, 2003 |
| 3.55 to 1.00 |
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| March 6, 2004 |
| 3.55 to 1.00 |
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| May 29, 2004 |
| 4.00 to 1.00 |
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| August 21, 2004 and thereafter |
| 5.00 to 1.00 |
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SECTION 3. Conditions to Effectiveness of Amendment. This Amendment shall be effective on the date on which all of the following conditions precedent have been satisfied or waived (the “Effective Date”):
(a) The Administrative Agent (or its counsel) shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of (i) Holdings, (ii) the Borrowers and (iii) each of the Lenders constituting the Required Lenders;
(b) The Borrowers shall have paid all fees and expenses of the Administrative Agent, including the reasonable fees and expenses of counsel to the Administrative Agent;
(c) After giving effect to the Amendment, no Default or Event of Default shall have occurred and be continuing; and
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(d) The Administrative Agent shall have received an amendment fee for the account of each Lender that consents to this Amendment in an amount equal to 0.15% of each such Lender’s Commitment.
SECTION 4. Representations and Warranties. Each of the representations and warranties made by each of Holdings and the Borrowers in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the date hereof as if made as of the date hereof, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date; provided that each reference to the Credit Agreement therein shall be deemed to be a reference to the Credit Agreement after giving effect to this Amendment.
SECTION 5. Effect on the Loan Documents. (a) Except as specifically amended above, the Credit Agreement and all other Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 6. Expenses. Holdings and the Borrowers agree to pay or reimburse the Administrative Agent for all of its out-of-pocket costs and reasonable expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transaction contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent.
SECTION 7. Affirmation of Guaranty and Credit Agreement. The Guarantors hereby consent to this Amendment and hereby confirm, reaffirm and restate that their obligations under or in respect of the Credit Agreement and the documents related thereto to which they are a party are and shall remain in full force and effect after giving effect to the foregoing Amendment.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
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| INTERSTATE BAKERIES CORPORATION, as |
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| By: /s/ Paul E. Yarick |
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| Name: Paul E. Yarick |
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| Title: Senior Vice President—Finance and Treasurer |
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| INTERSTATE BRANDS CORPORATION, as a |
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| By: /s/ Paul E. Yarick |
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| Name: Paul E. Yarick |
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| Title: Senior Vice President—Finance and Treasurer |
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| INTERSTATE BRANDS WEST CORPORATION, |
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| By: /s/ Paul E. Yarick |
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| Name: Paul E. Yarick |
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| Title: Senior Vice President—Finance and Treasurer |
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| JP MORGAN CHASE BANK, as Administrative |
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| By: /s/ Martha Gurwit |
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| Name: Martha Gurwit |
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| Title: Vice President |
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| HARRIS TRUST & SAVINGS BANK, as an |
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| By: /s/ Karen L. Knudsen |
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| Name: Karen Knudsen |
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| Title: Vice President |
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| AGFIRST FARM CREDIT BANK |
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| By: /s/ Richard N. Thorpe |
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| Name: Richard N. Thorpe |
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| Title: Vice President |
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| AGSTAR FINANCIAL SERVICES, PCA |
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| By: /s/ James M. Grafing |
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| Name: James M. Grafing |
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| Title: SVP — Syndicated Finance |
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| AIG SUNAMERICA LIFE ASSURANCE CO. |
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| By: /s/ Steven S. Oh |
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| Name: Steven S. Oh |
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| Title: Authorized Agent |
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| AIMCO CDO SERIES 2000-A |
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| By: /s/ Chris Goergen |
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| Name: Chris Goergen |
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| Title: Authorized Signatory |
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| By: /s/ Jerry D. Zinkula |
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| Name: Jerry D. Zinkula |
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| Title: Authorized Signatory |
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| AIMCO CLO SERIES 2001-A |
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| By: /s/ Chris Goergen |
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| Name: Chris Goergen |
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| Title: Authorized Signatory |
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| By: /s/ Jerry D. Zinkula |
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| Name: Jerry D. Zinkula |
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| Title: Authorized Signatory |
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| ALLSTATE LIFE INSURANCE COMPANY |
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| By: /s/ Chris Goergen |
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| Name: Chris Goergen |
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| Title: Authorized Signatory |
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| By: /s/ Jerry D. Zinkula |
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| Name: Jerry D. Zinkula |
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| Title: Authorized Signatory |
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| BANCO ESPIRITO SANTO S.A., NASSAU BRANCH |
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| By: /s/ Andrew M. Orsen |
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| Name: Andrew M. Orsen |
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| Title: Vice President |
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| By: /s/ Terry R. Hull |
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| Name: Terry R. Hull |
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| Title: Senior Vice President |
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| BANK HAPOALIM B.M. |
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| By: /s/ James P. Surless |
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| Name: James P. Surless |
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| Title: Vice President |
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| By: /s/ Laura Anne Raffa |
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| Name: Laura Anne Raffa |
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| Title: Senior Vice President & Corporate Manager |
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| BANK OF AMERICA, N.A. |
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| By: /s/ William F. Sweeney |
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| Name: William F. Sweeney |
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| Title: Managing Director |
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| BNP PARIBAS |
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| By: /s/ Jo Ellen Bender |
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| Name: Jo Ellen Bender |
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| Title: Managing Director |
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| By: /s/ Peter Labrie |
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| Name: Peter Labrie |
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| Title: Central Region Manager |
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| BRYN MAWR CLO, LTD. |
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| By: /s/ Matt Stouffer |
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| Name: Matt Stouffer |
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| Title: Vice President |
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| CASTLE HILL I — INGOTS, LTD. |
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| By: Sankaty Advisors, LLC as Collateral Manager |
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| By: /s/ Diane J. Exter |
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| Name: Diane J. Exter |
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| Title: Managing Director & Portfolio Manager |
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| CASTLE HILL II — INGOTS, LTD. |
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| By: Sankaty Advisors, LLC as Collateral Manager |
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| By: /s/ Diane J. Exter |
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| Name: Diane J. Exter |
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| Title: Managing Director & Portfolio Manager |
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| CHINATRUST COMMERCIAL BANK NEW YORK BRANCH |
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| By: /s/ John Teng |
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| Name: John Teng |
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| Title: EVP & Branch Manager |
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| CoBANK, ACB |
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| By: /s/ S. Richard Dill |
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| Name: S. Richard Dill |
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| Title: Vice President |
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| COMERICA BANK |
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| By: /s/ James B. Haeffner |
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| Name: James B. Haeffner |
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| Title: First Vice President |
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| COMMERCE BANK, N.A. |
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| By: /s/ Lance Holden |
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| Name: Lance Holden |
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| Title: Vice President |
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| COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A., “RABOBANK INTERNATIONAL” NEW YORK BRANCH |
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| By: /s/ Brad Peterson |
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| Name: Brad Peterson |
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| Title: Executive Director |
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| By: /s/ Ian Reece |
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| Name: Ian Reece |
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| Title: Managing Director |
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| CREDIT LYONNAIS NEW YORK BRANCH |
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| By: /s/ Lee E. Greve |
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| Name: Lee E. Greve |
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| Title: First Vice President |
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| FARM CREDIT BANK OF WICHITA |
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| By: /s/ Patrick Zeka |
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| Name: Patrick Zeka |
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| Title: Vice President |
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| FARM CREDIT SERVICES OF AMERICA, PCA |
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| By: /s/ Bruce P. Rouse |
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| Name: Bruce P. Rouse |
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| Title: Vice President |
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| FARM CREDIT SERVICES OF MISSOURI, PCA |
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| By: /s/ Michael D. Scherer |
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| Name: Michael D. Scherer |
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| Title: Vice President, Agribusiness |
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| FRANKLIN CLO I, LIMITED |
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| By: /s/ David Ardini |
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| Name: David Ardini |
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| Title: Vice President |
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| FRANKLIN CLO III, LIMITED |
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| By: /s/ David Ardini |
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| Name: David Ardini |
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| Title: Vice President |
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| GALAXY CLO 1999-1 LTD. |
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| By: /s/ Steven S. Oh |
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| Name: Steven S. Oh |
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| Title: Authorized Agent |
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| HARBOUR TOWN FUNDING LLC |
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| By: /s/ Ann E. Morris |
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| Name: Ann E. Morris |
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| Title: Asst. Vice President |
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| IKB CAPITAL CORPORATION |
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| By: /s/ David Snyder |
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| Name: David Snyder |
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| Title: President |
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| INDOSUEZ CAPITAL FUNDING VI, LIMITED |
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| By: /s/ Andrew Brady |
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| Name: Andrew Brady |
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| Title: Vice President |
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| ING PRIME RATE TRUST |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| ING SENIOR INCOME FUND |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| LIBERTY FLOATING RATE ADVANTAGE FUND |
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| By: /s/ James R. Fellows |
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| Name: James R. Fellows |
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| Title: Sr. Vice President & Portfolio Manager |
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| LONG LANE MASTER TRUST |
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| By: Fleet National Bank as Trust Administrator |
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| By: /s/ Kevin Kearns |
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| Name: Kevin Kearns |
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| Title: Managing Director |
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| MAPLEWOOD (CAYMAN) LIMITED |
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| By: /s/ Mary Ann McCarthy |
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| Name: Mary Ann McCarthy |
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| Title: Managing Director |
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| MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY |
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| By: /s/ Mary Ann McCarthy |
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| Name: Mary Ann McCarthy |
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| Title: Managing Director |
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| MITSUBISHI TRUST AND BANKING CORPORATION |
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| By: /s/ Ryo Magome |
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| Name: Ryo Magome |
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| Title: Sr. Vice President |
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| ML CLO XII PILGRIM AMERICA (CAYMAN) LTD. |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| MONUMENT CAPITAL LTD. |
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| By: /s/ Joel Serebransky |
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| Name: Joel Serebransky |
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| Title: Senior Vice President |
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| MOUNTAIN CAPITAL CLO I, LTD. |
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| By: /s/ Chris Siddons |
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| Name: Chris Siddons |
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| Title: Director |
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| MOUNTAIN CAPITAL CLO II, LTD. |
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| By: /s/ Chris Siddons |
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| Name: Chris Siddons |
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| Title: Director |
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| MUIRFIELD TRADING LLC |
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| By: /s/ Ann E. Morris |
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| Name: Ann E. Morris |
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| Title: Asst. Vice President |
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| NATIONAL BANK OF KUWAIT, S.A.K., GRAND CAYMAN BRANCH |
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| By: /s/ Muhannad Kamal |
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| Name: Muhannad Kamal |
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| Title: General Manager |
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| By: /s/ Robert J. McNeill |
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| Name: Robert J. McNeill |
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| Title: Executive Manager |
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| NUVEEN SENIOR INCOME FUND |
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| By: /s/ L. Mason |
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| Name: L. Mason |
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| Title: Portfolio Manger |
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| OLYMPIC FUNDING TRUST, SERIES 1999-1 |
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| By: /s/ Ann E. Morris |
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| Name: Ann E. Morris |
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| Title: Authorized Agent |
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| PB CAPITAL |
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| By: /s/ Tyler J. McCarthy |
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| Name: Tyler J. McCarthy |
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| Title: Assistant Vice President |
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| By: /s/ Andrew Shipman |
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| Name: Andrew Shipman |
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| Title: Assistant Vice President |
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| PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD. |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| PILGRIM CLO 1999-1 LTD |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| PROMETHEUS INVESTMENT FUNDING NO. 1 LTD. |
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| By: /s/ Charles P. Strause |
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| Name: Charles P. Strause |
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| Title: Associate Director |
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| By: /s/ Elizabeth Tallmadge |
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| Name: Elizabeth Tallmadge |
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| Title: Managing Director & Chief Investment Officer |
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| PROMETHEUS INVESTMENT FUNDING NO. 2 LTD. |
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| By: /s/ Charles P. Strause |
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| Name: Charles P. Strause |
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| Title: Associate Director |
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| By: /s/ Elizabeth Tallmadge |
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| Name: Elizabeth Tallmadge |
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| Title: Managing Director & Chief Investment Officer |
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| RACE POINT CLO, LIMITED |
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| By: Sankaty Advisors, LLC as Collateral Manager |
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| By: /s/ Diane J. Exter |
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| Name: Diane J. Exter |
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| Title: Managing Director & Portfolio Manager |
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| RACE POINT II CLO, LIMITED |
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| By: Sankaty Advisors, LLC as Collateral Manager |
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| By: /s/ Diane J. Exter |
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| Name: Diane J. Exter |
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| Title: Managing Director & Portfolio Manager |
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| SEQUILS-CUMBERLAND I, LTD. |
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| By: /s/ Matt Stouffer |
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| Name: Matt Stouffer |
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| Title: Vice President |
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| SEQUILS — PILGRIM I, LTD |
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| By: /s/ Jeffrey A. Bakalar |
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| Name: Jeffrey A. Bakalar |
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| Title: Sr. Vice President |
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| SMOKY RIVER CDO, L.P. |
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| By: /s/ Melissa Marano |
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| Name: Melissa Marano |
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| Title: Partner |
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| SRF 2000 LLC |
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| By: /s/ Ann E. Morris |
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| Name: Ann E. Morris |
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| Title: Asst. Vice President |
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| SRF TRADING, INC. |
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| By: /s/ Ann E. Morris |
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| Name: Ann E. Morris |
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| Title: Asst. Vice President |
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| STEIN ROE & FARNHAM CLO I, LTD. |
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| By: /s/ James R. Fellows |
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| Name: James R. Fellows |
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| Title: Sr. Vice President & Portfolio Manager |
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| SUNAMERICA LIFE INSURANCE CO. |
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| By: /s/ Steven S. Oh |
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| Name: Steven S. Oh |
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| Title: Authorized Agent |
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| SUNTRUST BANK |
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| By: /s/ Michael Lapresi |
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| Name: Michael Lapresi |
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| Title: Director |
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| THE BANK OF EAST ASIA, LIMITED |
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| By: /s/ David Loh |
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| Name: David Loh |
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| Title: Vice President |
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| By: /s/ Victor Li |
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| Name: Victor Li |
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| Title: Vice President & General Manger |
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| THE BANK OF NEW YORK |
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| By: /s/ John-Paul Marotta |
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| Name: John-Paul Marotta |
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| Title: Vice President |
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|
|
|
| THE BANK OF NOVA SCOTIA |
|
|
|
|
| By: /s/ V. Gibson |
|
| Name: V. Gibson |
|
| Title: Assistant Agent |
15
|
| THE DEVELOPMENT BANK OF SINGAPORE LTD., |
|
|
|
|
| By: /s/ Chee Kien, Ong |
|
| Name: Chee Kien, Ong |
|
| Title: General Manager |
|
|
|
|
| THE SUMITOMO TRUST & BANKING CO., LTD. |
|
|
|
|
| By: /s/ Elizabeth A. Quirk |
|
| Name: Elizabeth A. Quirk |
|
| Title: Vice President |
|
|
|
|
| TORONTO DOMINION (NEW YORK), INC. |
|
|
|
|
| By: /s/ Susan K. Strong |
|
| Name: Susan K. Strong |
|
| Title: Vice President |
|
|
|
|
| UMB BANK, N.A. |
|
|
|
|
| By: /s/ Thomas S. Terry |
|
| Name: Thomas S. Terry |
|
| Title: Sr. Vice President |
|
|
|
|
| US BANK NATIONAL ASSOCIATION |
|
|
|
|
| By: /s/ David F. Higbee |
|
| Name: David F. Higbee |
|
| Title: Vice President |
|
|
|
|
| VAN KAMPEN CLO I, LIMITED |
|
|
|
|
| By: /s/ William Lenga |
|
| Name: William Lenga |
|
| Title: Vice President |
|
|
|
|
| VAN KAMPEN CLO II, LIMITED |
|
|
|
|
| By: /s/ William Lenga |
|
| Name: William Lenga |
|
| Title: Vice President |
16
|
| WACHOVIA BANK, NATIONAL ASSOCIATION |
|
|
|
|
| By: /s/ Anthony D. Braxton |
|
| Name: Anthony D. Braxton |
|
| Title: Director |
17
ANNEX I
PRICING GRID
| Level |
| Facility |
| Applicable |
| Applicable |
| Applicable |
| Applicable |
| Applicable |
| Applicable |
| Applicable |
| Applicable |
|
| Level I |
| .375 | % | 0.875 | % | 0.000 | % | 1.250 | % | 0.250 | % | 2.250 | % | 1.250 | % | 2.000 | % | 1.000 | % |
| Level II |
| .375 | % | 1.1250 | % | 0.1250 | % | 1.500 | % | 0.500 | % | 2.250 | % | 1.250 | % | 2.000 | % | 1.000 | % |
| Level III |
| .500 | % | 1.500 | % | 0.500 | % | 2.000 | % | 1.000 | % | 2.500 | % | 1.500 | % | 2.250 | % | 1.250 | % |
| Level IV |
| .500 | % | 2.000 | % | 1.000 | % | 2.500 | % | 1.500 | % | 2.750 | % | 1.750 | % | 2.500 | % | 1.500 | % |
| Level V |
| .500 | % | 2.250 | % | 1.250 | % | 2.750 | % | 1.750 | % | 3.000 | % | 2.000 | % | 2.750 | % | 1.750 | % |
5
