ex10-1.htm


    
      Exhibit
        10.1

       

      THIRD
        AMENDMENT
        TO

      AMENDED
        AND RESTATED
        REVOLVING CREDIT AGREEMENT

      


      


      This
        THIRD AMENDMENT TO AMENDED AND
        RESTATED REVOLVING CREDIT AGREEMENT, dated as of December 19, 2007 (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 (“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 and by the Second Amendment to Amended and Restated
        Revolving Credit Agreement dated as of November 29, 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 Third 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
        definition of “Maturity Date” in Section 1.1 of the
        Credit Agreement is hereby amended by deleting the date “February 9, 2008” and
        substituting therefor the date “June 2, 2008.”

       

      2.2           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,
        and (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, or in each case such other forms as otherwise agreed
        by
        the Administrative Agent and the Borrowers.

      


      2.3           The
        definition of “Real Property Component” set forth 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 the lesser of (i) $80,000,000 (as adjusted from time to time
        pursuant to Section
        5.8) or (ii) 40% of the Borrowing Base inclusive of the Real Property
        Component but excluding the Plan Reserve.

      


      2.4           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; provided that if the
        amount
        of Capital Expenditures that are made during any such fiscal quarter is less
        than the amount thereof that is permitted to be made during such fiscal quarter,
        the unused portion thereof may be carried forward to and made during the
        subsequent fiscal quarters:

      
        	
                 

                 

                Fiscal
                  Quarter
                  Ending

                 

              	
                Maximum
                  Capital

                Expenditures

                (millions)

                 

              
	
                August
                  26, 2006

              	
                $16.00

              
	
                November
                  18, 2006

              	
                $15.50

              
	
                March
                  10, 2007

              	
                $11.50

              
	
                June
                  2, 2007

              	
                $  8.50

              
	
                August
                  25, 2007

              	
                $13.50

              
	
                November
                  17, 2007

              	
                $16.00

              
	
                March
                  8, 2008

              	
                $20.00

              
	
                May
                  31, 2008

              	
                $16.50

              


      

      


      


      2.5           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 December 16, 2006, the Borrowers will not permit
        cumulative Consolidated EBITDA for the period commencing on June 4, 2006
        (being
        the first day of the 2007 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:

      
        	
                 

                Fiscal
                  Period
                  Ending

                 

              	
                Cumulative
                  Consolidated EBITDA

                (millions)

                 

              
	
                December
                  16, 2006

              	
                6.5

              
	
                January
                  13, 2007

              	
                -7.0

              
	
                February
                  10, 2007

              	
                -10.0

              
	
                March
                  10, 2007

              	
                -14.0

              
	
                April
                  7, 2007

              	
                -12.0

              
	
                May
                  5, 2007

              	
                -7.0

              
	
                June
                  2, 2007

              	
                1.5

              
	
                June
                  30, 2007

              	
                13.5

              
	
                July
                  28, 2007

              	
                18.0

              
	
                August
                  25, 2007

              	
                29.0

              
	
                September
                  22, 2007

              	
                37.5

              
	
                October
                  20, 2007

              	
                43.0

              
	
                November
                  17, 2007

              	
                45.0

              
	
                December
                  15, 2007

              	
                43.0

              
	
                January
                  12, 2008

              	
                34.0

              
	
                February
                  9, 2008

              	
                38.0

              
	
                March
                  8, 2008

              	
                45.0

              
	
                April
                  5, 2008

              	
                50.0

              
	
                May
                  3, 2008

              	
                50.0

              
	
                May
                  31, 2008

              	
                50.0

              


      

      


      2.6           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
        fiscal period beginning December 17, 2006 and ending May 31, 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.

      


      2.7           The
        form of the Third Amendment Order attached hereto as Exhibit A is hereby
        inserted as Exhibit A-3 of the Credit Agreement.

       

      Section
        3.             Effectiveness.  The
        amendments contemplated by this Third 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:

       

      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 Third
        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 Third Amendment, certified as of the date of this Third 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 December 29, 2007, the Administrative
        Agent and the Lenders shall have received a certified copy of the amendment
        order (the “Third
        Amendment
        Order”) in substantially the form of Exhibit
        A 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
        Third
        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 Third 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 Third 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 Third Amendment then
        each of
        the Borrowers and Super-majority Lenders by its execution of this Third
        Amendment shall be deemed to have consented to the actions contemplated by
        Section 9.10(b) of the Credit Agreement.

       

      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
        B.

       

      3.5           Payment
        of Fees and
        Expenses.  The Borrowers shall have paid to the Administrative
        Agent (a) an amendment fee for the respective accounts of the Lenders voting
        in
        favor of this Third Amendment in the amount of 25 basis points of such Lenders’
Commitments and (b) the then unpaid balance of all accrued and unpaid Fees
        due
        under and pursuant to: (i) the fee letter dated as of November 15, 2007 among
        the Borrowers, JPMCB and J.P. Morgan Securities, Inc. and (ii) the Loan
        Documents.

       

      3.6           Closing
        Documents.  The Administrative Agent shall have received all
        documents required by this Third 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
        Third Amendment.

       

      Section
        5.             Choice
        of
        Law.
THIS
        THIRD 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 Third 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;
        Electronic
        Signatures.  This
        Third 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 Third
        Amendment.

       

      


      


      [REMAINDER
        OF THIS PAGE INTENTIONALLY LEFT BLANK]

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
        WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
        duly
        executed as of the day and the year first written.

      


      
        	 	
                BORROWERS:

              
	 	 	 
	 	
                INTERSTATE
                  BAKERIES
                  CORPORATION

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J.
                Randall Vance
	 	
                Name:

              	J.
                Randall
                Vance
	 	
                Title:

              	Senior
                Vice President, Chief Financial Officer and Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                ARMOUR
                  AND MAIN REDEVELOPMENT
                  CORPORATION

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J.
                Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                BAKER’S
                  INN QUALITY BAKED
                  GOODS, LLC

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                IBC
                  SALES
                  CORPORATION

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Senior
                Vice President, Chief Financial Officer and
                Treasurer
	 	 	 
	 	 	 
	 	 	 


      

      


       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
 

      
        	 	
                IBC
                  SERVICES,
                  LLC

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                IBC
                  TRUCKING,
                  LLC

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                INTERSTATE
                  BRANDS
                  CORPORATION

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Senior
                Vice President, Chief Financial Officer and
                Treasurer
	 	 	 
	 	 	 
	 	 	 
	 	
                NEW
                  ENGLAND BAKERY
                  DISTRIBUTORS, L.L.C.

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                J. Randall Vance
	 	
                Name:

              	 J.
                Randall Vance
	 	
                Title:

              	Treasurer
	 	 	 
	 	 	 
	 	 	 


      

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


      
        	 	
                LENDERS:

              
	 	 	 
	 	
                JPMORGAN
                  CHASE BANK,
                  N.A.

                Individually
                  and as Administrative Agent and Collateral Agent

              
	 	 	 
	 	 	 
	 	
                By:

              	/s/
                Susan E. Atkins
	 	
                Name:

              	Susan
                Atkins
	 	
                Title:

              	Managing
                Director
	 	 	 
	 	 	 


      

      
        
          	 	 	 
	 	
                  HIGHLAND
                    FLOATING RATE
                    ADVANTAGE FUND

                
	 	 	 
	 	 	 
	 	
                  By:

                	/s/
                  M. Jason Blackburn
	 	
                  Name:

                	M.
                  Jason Blackburn
	 	
                  Title:

                	Treasurer
	 	 	 
	 	 	 


        

        
          
            	 	 	 
	 	
                    HIGHLAND
                      FLOATING RATE LIMITED
                      LIABILITY COMPANY

                  
	 	 	 
	 	 	 
	 	
                    By:

                  	/s/
                    M. Jason Blackburn
	 	
                    Name:

                  	M.
                    Jason Blackburn
	 	
                    Title:

                  	Treasurer
	 	 	 
	 	 	 


          

          
            
              	 	 	 


            

            
              	 	
                      
                        GENERAL
                          ELECTRIC CAPITAL
                          CORPORATION

                      

                    
	 	 	 
	 	 	 
	 	
                      By:

                    	/s/
                      Robert M. Reeg
	 	
                      Name:

                    	Robert
                      M. Reeg
	 	
                      Title:

                    	Duly
                      Authorized Signatory
	 	 	 
	 	 	 
	 	 	 


            

            
              
                	 	
                        
                          THE
                            FOOTHILL GROUP,
                            INC.

                        

                      
	 	 	 
	 	 	 
	 	
                        By:

                      	/s/
                        Dennis R. Ascher
	 	
                        Name:

                      	Dennis
                        R. Ascher
	 	
                        Title:

                      	Senior
                        Vice President
	 	 	 
	 	 	 
	 	 	 


              

              
                
                  	 	
                          
                            DK
                              ACQUISITION PARTNERS,
                              L.P.

                          

                        
	 	 	 
	 	 	 
	 	
                          By:

                        	/s/
                          Anthony Yoseloff
	 	
                          Name:

                        	Anthony
                          Yoseloff
	 	
                          Title:

                        	General
                          Partner
	 	 	 
	 	 	 
	 	 	 


                

                
                  
                    	 	
                            
                              NATIONWIDE
                                LIFE INSURANCE
                                COMPANY

                            

                          
	 	 	 
	 	 	 
	 	
                            By:

                          	/s/
                            Joseph P. Young
	 	
                            Name:

                          	Joseph
                            P. Young
	 	
                            Title:

                          	Authorized
                            Signatory
	 	 	 
	 	 	 
	 	 	 


                  

                  
                    
                      	 	
                              
                                BLACKPORT
                                  CAPITAL FUND
                                  LTD.

                              

                            
	 	 	 
	 	 	 
	 	
                              By:

                            	/s/
                              [illegible]
	 	
                              Name:

                            	[illegible]
	 	
                              Title:

                            	[illegible]
	 	 	 
	 	 	 
	 	 	 


                    

                    
                      
                        	 	
                                
                                  PROSPECT
                                    HARBOR CREDIT
                                    PARTNERS, LP

                                

                              
	 	 	 
	 	 	 
	 	
                                By:

                              	/s/
                                Alan K. Halfenger
	 	
                                Name:

                              	Alan
                                K. Halfenger
	 	
                                Title:

                              	Chief
                                Compliance Officer
	 	 	Assistant
                                Secretary
	 	 	 
	 	 	 


                      

                      
                         

                        
                          	 	
                                  
                                    SANKATY
                                      HIGH YIELD PARTNERS II,
                                      L.P.

                                  

                                
	 	 	 
	 	 	 
	 	
                                  By:

                                	/s/
                                  Alan K. Halfenger
	 	
                                  Name:

                                	Alan
                                  K. Halfenger
	 	
                                  Title:

                                	Chief
                                  Compliance Officer
	 	 	Assistant
                                  Secretary
	 	 	 


                        

                        
                          


                          
                            	 	
                                    
                                      SPCP
                                        GROUP,
                                        L.L.C.

                                    

                                  
	 	 	 
	 	 	 
	 	
                                    By:

                                  	/s/
                                    Michael A. Gatto
	 	
                                    Name:

                                  	Michael
                                    A. Gatto
	 	
                                    Title:

                                  	Authorized
                                    Signatory